BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

[This summary does not form part of the decision.]

Interlocutory decision on production of full programme of Magic Mornings with John Banks (in for Peter Williams) broadcast on 26 January 2021 on Magic Talk Radio.

Order to supply broadcast material (section 12 of the Broadcasting Act 1989 and section 4C Commissions of Inquiry Act 1908)

Background

[1]  On 26 January 2021, John Banks was filling in for Peter Williams on Magic Talk Mornings. Mr Banks discussed Grainne Moss’s departure from Oranga Tamariki. A caller commented on the Māori leaders who had called for Ms Moss’s departure.

[2]  A section of the broadcast was posted to social media. John Banks apologised on 27 January 2021 and as a result of public outcry, Vodafone, and Kiwibank (amongst others) pulled advertising from Magic Talk.¹

[3]  John Banks was taken off-air by Magic Talk for the remainder of the week. MediaWorks made a statement:

We recognise comments broadcast yesterday during a call discussing the departure of Oranga Tamariki’s chief executive were hurtful, and today John Banks unreservedly apologised on air for these.

John has been filling in for Peter Williams who will be back on air next week. Leah Panapa will be on air in the morning slot on Magic Talk on Thursday and Friday.

[4]  Jamie McAulay, among others,² made a formal complaint to MediaWorks, which released a decision upholding the complaints under the discrimination and denigration and good taste and decency standards of the Radio Code on 25 February 2021. It outlined the steps taken in response. Mr McAulay referred the complaint to the Authority on the basis the action taken by MediaWorks was insufficient.⁴

[5]  In response to the Authority’s standard letter requesting a recording of the broadcast, the broadcaster provided the Authority with three clips, two from 26 January 2021 from 11.40am to approximately 12pm, and one from 27 January 2021 from 11.49-11.51am, which contained Mr Banks’ subsequent apology.

[6]  Upon reviewing the material and clips provided, the Authority requested a recording of the full one-hour broadcast from 11am-12pm on 26 January 2021. MediaWorks declined, instead providing an additional 13 minutes of the broadcast which introduced the talkback topic. MediaWorks argued it should not provide the full hour, raised concerns about the importance of following proper process and suggested the Authority would be considering material not complained about nor referenced in its initial response to the complaint. It argued it was not relevant to review the context of the broadcast when it had upheld the original complaint. It also suggested the complainant heard the material out of context on social media, not on the radio, therefore ‘any parts of the broadcast that were not complained about are not relevant’.

[7]  The BSA secretariat responded:

This isn’t a question of looking for other issues that the complainant hasn’t raised but of being in a position to assess the issues the complainant has raised in light of the context in which the relevant material appears (as required under guidelines 1a and 6d).   

You’ve signalled that that exercise isn’t relevant when MediaWorks has upheld the original complaint. However, the Authority is being asked to form a view on action taken by MediaWorks and that generally involves an assessment of the severity of the original breach/conduct (see for example HS and MEDIAWORKS RADIO LTD - 2019-112 at para 18). That takes us back to understanding any alleged breach in light of its context.

[8]  In response, the broadcaster declined to provide the full hour broadcast, stating it had provided all the relevant context for a complaint about a broadcast that was not heard by the complainant in its original context but as a ‘clipped segment that circulated on social media platforms’.

Authority’s Ruling

[9]  Section 12 of the Broadcasting Act 1989 allows the Authority to use certain provisions in the Commissions of Inquiry Act 1908. Section 4C(1)(b) of the Commissions of Inquiry Act provides that a Commission may:

Require any person to produce for examination any papers, documents, records, or things in that person's possession or under that person’s control, and to allow copies of or extracts from any such papers, documents, or records to be made.

[10]  The Authority requires a copy of the full programme Magic Mornings with John Banks (in for Peter Williams) broadcast on Magic Talk on 26 January 2021 in order to properly consider the context of the comments made and assess the appropriateness of the action taken by MediaWorks, as these are significant aspects of Mr McAulay’s complaint. The broadcaster is well aware that context is vitally important to our consideration of any programme complained about. We are within our jurisdiction and powers to consider the programme, as a whole, since the complaints process is triggered by a complaint being made about ‘a programme’ broadcast by the broadcaster.

[11]  Accordingly, pursuant to section 12 of the Broadcasting Act and s.4C(1)(b) of the Commissions of Inquiry Act, the Authority directs MediaWorks to provide it with the recording of the programme Magic Mornings with John Banks (in for Peter Williams) broadcast 26 January 2021, on Magic Talk.

Order

Pursuant to section 12 of the Broadcasting Act 1989 and section 4C of the Commissions of Inquiry Act 1908, the Authority orders MediaWorks Radio Ltd to provide it with the programme Magic Mornings with John Banks (in for Peter Williams) broadcast on 26 January 2021 on Magic Talk Radio by 5pm, 22 April 2021

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

19 April 2021    

¹ Bonnie Flaws “Vodafone, Kiwibank pull advertising from Magic Talk after racist comments endorsed by host John Banks” – Stuff, 27 January 2021
² Hayden Donnell “MediaWorks admits 'organisational failure' over racist radio broadcast” – RNZ, 26 February 2021
³ Broadcasting Act 1989, s 8(1B)