BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

An ACT Party political advertisement broadcast around 7.00pm on TV One on 18 November included a promise to voters that a vote for the party would ensure a "Fair, full and final treaty settlement".

Mr Powell complained to Television New Zealand Ltd, the broadcaster, that the advertisement, which he said was broadcast at 6.54pm made a claim which was incorrect, inaccurate, and designed to confuse the voting public deliberately. He maintained that ACT did not have the power to make any such promise as treaty issues were matters between the British monarch and what he called the Maori principal.

TVNZ advised that its response to the complaint was limited to whether or not the advertisement accurately reflected ACT’s policy. That Mr Powell and others disagreed with that policy was not, TVNZ continued, sufficient cause for a formal complaint. It concluded that as the advertisement accurately reflected ACT’s policy, there was no breach of standards.

Dissatisfied with TVNZ’s decision, Mr Powell referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons given below, the Authority declines to uphold the complaint.

Decision

The members of the Authority have read a transcript of the advertisement and have read the correspondence which is listed in the Appendix. On this occasion, the Authority determines the complaint without a formal hearing.

An ACT Party political advertisement was broadcast on TV One at about 7.00pm on 18 November 1999. It was 15 seconds in duration and consisted of a series of captions superimposed on an orange background. The on-screen graphics were accompanied by a voiceover which stated:

On November 27^th only a party vote for ACT will deliver positive change…positive change to balance the excesses of the Alliance and New Zealand First and deliver a strong centre-right government with new ideas. ACT – the party for positive change.

The captions briefly outlined ACT’s policy on certain issues, and included one caption which stated "Fair, full and final treaty settlement".

William Powell complained to TVNZ that ACT’s policy to conclude treaty settlements within a stated time frame was "incorrect, inaccurate and designed to mislead and to confuse the voting public", and was a breach of the Electoral Act 1993.

Mr Powell argued that ACT’s policy was based on the "controversial assumption" that the New Zealand Parliament had the authority to vary, alter or terminate the treaty contract. It had no such right, he continued, as the Treaty was a contract between the British monarch and the Maori principal. He argued that ACT knew of this fact, as at least one of its members was made aware of a case he had brought before the Court of Appeal challenging the authority of the "New Zealand Crown" to negotiate treaty matters.

In Mr Powell’s view, TVNZ was a party to broadcasting "politically flawed material" in the knowledge that controversy existed over the issue. He concluded that the broadcast had constituted a blatant breach of broadcasting standards.

In its response, TVNZ advised that its formal enquiry into the complaint had to be limited to whether or not the advertisement accurately reflected ACT’s policy. It argued that a complaint could only be upheld if it was untrue that it was ACT’s policy that a time limit should be set on Treaty claims.

TVNZ pointed out that that the fact that Mr Powell and probably many others disagreed with ACT’s policy was not sufficient cause for a formal complaint because the codes relating to election advertisements specifically stated that "the expression of opinion in advocacy advertising is desirable and an essential part of a democratic society". It noted that such opinions could be robust.

TVNZ advised Mr Powell that it could only proceed with a formal complaint concerning the matter if he could demonstrate how the advertisement incorrectly reflected ACT’s policy. It noted that if it accurately reflected ACT’s policy, there could be no breach of standards.

When it submitted a copy of the text of the commercial to the Authority, TVNZ advised that the advertisement had not played at the time specified by Mr Powell.

As he was dissatisfied with TVNZ’s response, Mr Powell referred the complaint to the Broadcasting Standards Authority for review. He sought the Authority’s assurance that its decision would be released within 48 hours.

In his referral, Mr Powell repeated that he had seen the advertisement at 6.54pm on 18 November. He disagreed with TVNZ’s conclusion that the complaint should be limited to whether the advertisement accurately reflected ACT’s policy. He argued that the complaint involved the purpose and the substance of the advertisement, which he contended was:

…clearly constructed as an attempt to use controversial, inaccurate and incorrect "legal premises" in order to confuse and mislead the voting public contrary to the statutes of the Electoral Act 1993.

Mr Powell emphasised that the matter was subjudice as it was before the Court of Appeal. There was, he argued, sufficient reference to constitutional law impinging on the matter to conclude the complaint was well founded and to establish that ACT was disseminating misinformation.

In its response to the Authority, TVNZ emphasised that it did not broadcast an ACT advertisement at 6.54pm on 18 November. This, it suggested, raised the possibility that Mr Powell was watching another channel and that the complaint should be directed to another broadcaster.

TVNZ reported that it had broadcast two 15 second advertisements for ACT on 18 November, once during Holmes, and once later in the evening. It noted that the commercial was composed entirely of a series of graphics, and that the Authority had before it a detailed transcript.

TVNZ referred to the Election Programmes/Advertisements Programme Code, under which it assessed the complaint. The relevant standards read:

E1 An "election programme" is subject to the standards requirement of the Broadcasting Act 1989, the Codes of Broadcasting Practice for Radio and Television and the Advertising Standards Authority Codes of Advertising Practice, with the exception of the requirement for balance.

(Section 79 of the Broadcasting Act provides that the requirement on broadcasters to ensure balance, as stated in s.4(1)(d) of the Act, does not apply to an "election programme".)

E2 The expression of opinion in advocacy advertising is a desirable and essential part of a democratic society and such opinions may be robust. However, an "election programme" must not include material which denigrates a candidate or political party or party policy.

TVNZ stated that it was its understanding that it was ACT’s policy to set a deadline of 2010 for the "fair, full and final settlement of all legitimate Treaty claims between Maori and the Crown". It provided a copy of a summary of ACT’s policy which, it noted, appeared to involve amending the Treaty of Waitangi Act and eventually abolishing the Waitangi Tribunal. In TVNZ’s view, a political party was entitled to advance a policy that could be achieved by legislative amendment, provided there was majority support in Parliament.

TVNZ concluded that in the context of ACT’s 15 second commercial, the words "fair, full and final Treaty settlement" accurately reflected its policy on this issue.

It acknowledged that there was an element of shorthand in reducing the policy to a single phrase. However, it argued, there had been widespread publicity about ACT’s policy, and submitted that viewers watching the commercial were being briefly reminded of its key aspects which had been more fully outlined in other forums.

TVNZ concluded that because the advertisement accurately and fairly described the policy ACT had put forward, there could be no breach of standards and the complaint should not be upheld.

In his final comment, Mr Powell emphasised that his complaint did not relate to an historical argument, as TVNZ contended. His case in the Court of Appeal, he reported, was based on the constitutional legitimacy of the position of the New Zealand Crown, and whether it had valid authority to deal with the Treaty. He cited examples of claims which were presently before the courts. In his view, TVNZ’s response did not diminish his complaint that the advertisement disseminated "controversial and inaccurate disinformation" by TVNZ and ACT.

The Authority’s Findings

The Authority begins by noting that there is some confusion about the date and time of the broadcast of the advertisement. TVNZ has accepted the complaint on the basis that it did broadcast an ACT advertisement twice during the evening of Thursday 18 November, although not at the time alleged by Mr Powell.

The Authority has seen a copy of ACT’s policy on the Treaty, and notes that it states that ACT "proposes a law to set statutory time limits for lodging and settling Treaty claims". It then outlines the time line, and explains how it will implement its policy.

The Authority acknowledges TVNZ’s point that the advertisement accurately summarises ACT’s policy on Treaty issues. However, Mr Powell has objected to the advertisement on the grounds that ACT does not have the authority to propose any variation to the Treaty contract between the British Crown and the Maori principal. He has explained that there is presently a legal challenge before the Court of Appeal which should settle the matter for the future.

The Authority’s jurisdiction is defined in the Broadcasting Act 1989, and its task is to decide whether, by publishing its policy on the Treaty, ACT contravened any broadcasting standards. At the outset, the Authority observes that it is not its role to adjudicate on constitutional issues, as Mr Powell has invited it to do. It makes the further observation that not all election promises are necessarily capable of being implemented into law, and notes that aspects of ACT’s Treaty policy could well be matters for the courts or for a future Parliament to decide. Nevertheless, in a democracy which values the right to freedom of expression, the Authority considers that ACT is entitled to articulate its policy so long as, in doing so, it complies with broadcasting standards. As it finds no breach of any standards, the Authority declines to uphold the complaint.

The Authority records that it received additional material from Mr Powell relating to a programme broadcast by TVNZ on 13 November. As that relates to a formal complaint which is still being processed by TVNZ, and which could yet be referred to the Authority for investigation, it makes no finding on the content of that further material.

For the reasons set forth above, the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
24 November 1999

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint:

1.    William Powell’s Complaint to Television New Zealand Ltd – 19 November 1999

2.    TVNZ’s Response to the Formal Complaint – 19 November 1999

3.    Mr Powell’s Referral to the Broadcasting Standards Authority – 20 November 1999
       (received 22 November)

4.    TVNZ’s Response to the Authority – 22 November 1999

5.    Mr Powell’s Final Comment – 22 November 1999

6.    Mr Powell’s Further Submissions – 22 November 1999