Ministry of Education and Radio New Zealand Ltd - ID2017-040 (24 July 2017)
- Peter Radich (Chair)
- Leigh Pearson
- Paula Rose
- Ministry of Education
BroadcasterRadio New Zealand Ltd
Channel/StationRadio New Zealand National
[This summary does not form part of the decision.]
In March and April 2017, RNZ ran a series of stories about an alleged lack of Ministry of Education (Ministry) funding, resources and support for Northland teachers struggling to cope with violent and disruptive children. A complaint was made to RNZ, on behalf of the Ministry, about a lack of fairness and balance in this coverage. RNZ responded and the complainant then referred the matter to the Authority on the basis that the Ministry was dissatisfied with RNZ’s response. RNZ’s position was that the Ministry’s original complaint was not a valid formal complaint, and therefore the Authority did not have jurisdiction to accept the referral. The Authority found that the complainant lodged a valid formal complaint with the broadcaster and RNZ should have responded formally to the complaint, or at least confirmed with the Ministry whether its concerns were intended to be treated formally. As RNZ did not respond formally to the Ministry’s correspondence, the Authority directed the matter back to the broadcaster to address in the first instance.
Order: Section 13(1)(c) – order directing complaint back to broadcaster to be addressed
 In March and April 2017, RNZ ran a series of stories about an alleged lack of Ministry of Education (Ministry) funding, resources and support for Northland teachers struggling to cope with violent and disruptive children.
 On 5 April 2017, the Chief Media Advisor at the Ministry wrote to RNZ to complain ‘about a lack of fairness and balance’ in this coverage, as the Ministry had not been contacted in relation to one item, and when balancing comment was requested, this was not actioned. The Ministry also complained that comment was not sought for another item, despite the Ministry contacting RNZ.
 The Chief Media Advisor sent a second complaint to RNZ on 11 April 2017, stating that the Ministry had provided written comment for another item, but this was not read out during the broadcast. Instead, listeners were directed to RNZ’s website to read the Ministry’s statement. The Ministry complained that this did not ‘meet the test of broadcasting standards of fairness and balance’.
 On 11 April 2017, the Director of Editorial Development/Deputy Head of News at RNZ responded to the Ministry’s letters. In relation to the first complaint, RNZ noted that the Ministry had been contacted for comment, but the Ministry argued it had been unable to provide comment within the required timeframe. In relation to the second complaint, RNZ noted it had sought an interview with a Ministry representative which did not occur, and it was unreasonable to expect a 500-word statement to be read during an item.
 On 12 May 2017, the Authority received a complaint referral from the Principal Advisor, Media, on behalf of the Ministry. The Ministry submitted that RNZ failed to make reasonable efforts to include comment from the Ministry on the items, which resulted in the identified broadcasts being unbalanced and unfair.
 This Authority accepted the referral based on the correspondence outlined above, and wrote to the broadcaster seeking its submissions. The broadcaster responded that the complaints made by the Ministry on 5 and 11 April 2017 were not treated as formal complaints under the broadcasting standards regime, and as such the Authority did not have jurisdiction to accept the referral.
 The issue is therefore whether the Ministry’s correspondence amounted to a valid formal complaint to RNZ, such that RNZ was obliged to provide a formal response addressing the issues raised, and therefore whether the Authority has jurisdiction to accept the referral.
 The members of the Authority have read the correspondence listed in the Appendix.
Did the Ministry lodge a valid formal complaint, such that RNZ was required to accept and address it as a formal complaint?
The parties’ submissions
 The Ministry submitted that:
- The complaints made to RNZ met the requirements of a formal complaint and were submitted within the 20-working-day timeframe. The complaints were in writing, contained dates and times of broadcast, and programme and channel information, and included reference to the broadcasting standards of fairness and balance, and details of the Ministry’s concerns.
- The reference, ‘We are looking at a BSA complaint in this instance’, indicated that the Ministry was engaged in the formal complaints process, as it would consider lodging a complaint with the Authority if it was dissatisfied with RNZ’s response.
- There was no suggestion in RNZ’s response that the complaints were treated informally.
 RNZ submitted that:
- The complaints were not formal – they formed part of a series of communications between the Ministry and RNZ, which was part of the normal interaction to be expected between RNZ and its stakeholders.
- The complaint’s reference to a BSA complaint indicated that the Ministry was intending to make a later formal complaint, therefore suggesting that the correspondence was not a formal complaint itself.
- The steps taken on this occasion (telephone calls and an exchange of emails) were not formal in nature and were ‘more productive than a narrow analysis of programme coverage against the formal broadcasting standards’.
 In response, the Ministry argued that the fact that ‘there were phone calls and an invitation to meet and discuss our concerns’ simply highlighted the Ministry’s desire to engage with RNZ in good faith, and not that its complaints were informal in nature.
 In its final comments, RNZ submitted that the Ministry did not make clear that its emails were formal complaints, and the Ministry should have been explicit on this point. The normal interactions between RNZ’s newsroom and stakeholders, which take place on a daily basis, could not be characterised as formal complaints.
 Part 2 of the Broadcasting Act 1989 outlines broadcasters’ obligations to receive and consider formal complaints about broadcasts. The relevant sections are set out as follows:
6 Formal complaints about programmes
(1) Subject to subsection (2) of this section, it is the duty of every broadcaster –
(a) to receive and consider formal complaints about any programme broadcast by it where the complaint constitutes, in respect of that programme, an allegation that the broadcaster has failed to comply with section 4 of the Act [which relates to broadcasting standards]…
7 Decision in respect of formal complaints
(1) If a complaint under section 6(1)(a) is found to be justified, in whole or in part, the broadcaster shall take appropriate action and shall notify the complainant in writing of the action taken.
(2) If a complaint under section 6(1)(a) is found not to be justified, in whole or in part, the broadcaster shall notify the complainant in writing of the decision.
(3) The broadcaster shall, in notifying a complainant pursuant to subsection (1) or subsection (2), give to the complainant information concerning the complainant’s right, by way of referral to the Authority under section 8, to seek an investigation and review of the broadcaster’s action or decision, as the case may be.
 In order to meet the requirements for a formal complaint, a complaint must:1
- be in writing
- specify it is a ‘formal complaint’
- be received by the broadcaster within 20 working days of the broadcast
- include the following details:
- date of the broadcast
- time of the broadcast
- title of the programme
- channel or station which broadcast the programme
- the standards that have been breached
- an explanation of why those standards have been breached.
 Having said that, the formal complaints process is intended to operate without undue formality.2 While the Ministry’s correspondence did not explicitly state that the complaint amounted to a ‘formal complaint’, we are satisfied that there was sufficient information provided in the Ministry’s emails to suggest that its concerns were intended to be treated formally. The Ministry identified specific broadcasts, raised specific broadcasting standards and clearly stated why it considered these were breached by the broadcaster, which would generally be sufficient to meet the requirements of a formal complaint from a member of the public.
 Even if the Ministry was in regular contact with the broadcaster, we consider that the content of the Ministry’s correspondence should have prompted RNZ to at least confirm whether its concerns were intended to be treated formally, if not treat the complaints formally and issue a formal written response.
 As RNZ treated the complaints as informal, it did not respond formally to the Ministry’s correspondence in relation to the relevant broadcasting standards. We consider it would therefore be appropriate for the broadcaster to have the opportunity to respond formally to the Ministry’s complaints, including an assessment of whether the identified standards were breached and whether or not the complaints are upheld. Following that the usual referral process would be available if the Ministry remains dissatisfied with RNZ’s response.
Under section 13(1)(c) of the Broadcasting Act 1989, the Authority orders that the complaint be directed back to RNZ, to be accepted and properly considered as a valid formal complaint.
The 20-working-day timeframe in which the broadcaster is required to notify the complainant of its decision on the complaint will begin the day after the broadcaster receives this decision.
Signed for and on behalf of the Authority
24 July 2017
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Ministry of Education’s original complaint – 5 April 2017
2 The Ministry’s second complaint – 11 April 2017
3 RNZ’s response to the complaints – 11 April 2017
4 The Ministry’s referral to the Authority – 12 May 2017
5 The Ministry’s further comments – 29 May 2017
6 RNZ’s further comments – 2 June 2017
7 The Ministry’s final comments – 8 June 2017
8 RNZ’s final comments – 16 June 2017
1 Broadcasting Standards in New Zealand Codebook, page 56
2 Section 5, Broadcasting Act 1989