BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
3 News – shipment of nuclear waste – MOX fuel, not plutonium – not weapons grade – not for military use – misleading to imply shipment could be diverted for terrorist use

Findings
Standard G14 – inaccurate, unfair, impartial – sources partial – implications not warranted on the facts – uphold

Order
Broadcast of statement summarising decision

This headnote does not form part of the decision.

Summary

Weapons-grade plutonium was being shipped through the Tasman Sea on its way to Japan, according to a news item on 3 News broadcast on 2 September 1999 at about 6.30pm. It was suggested that Japan could use the plutonium for military purposes, and that the shipment’s passage posed a threat to New Zealand’s national sovereignty.

Philip Ross, Chairman of the New Zealand Atomic Energy Advocacy Council, complained on its behalf to TV3 Network Services Ltd, the broadcaster, that the item published false information about the substance being carried (MOX) and created a misleading impression about the possible end use of the shipment.

In its response, TV3 conceded that it would have been more accurate to describe the shipment as "weapons-useable" than "weapons-grade" and that it was not technically correct to describe MOX as plutonium fuel. However, it stood by the statement that the fuel could be used to manufacture nuclear weaponry and that it was possible for Japan to so use it. It declined to uphold the complaint.

Dissatisfied with TV3’s response, the Council 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 upholds the complaint and orders TV3 to broadcast a statement summarising the Decision.

Decision

The members of the Authority have viewed a tape of the item complained about, and have read a transcript and the correspondence which is listed in the Appendix. On this occasion, it determines the complaint without a formal hearing.

A news item titled "The Tasman Sea as a nuclear highway" was broadcast on 3 News on 2 September 1999 at about 6.30pm. It reported that "weapons-grade plutonium is now passing through the Tasman Sea bound for Japan…" and that, according to the director of Strategic Studies at Victoria University, it could be used for military purposes. Concern was expressed that the Tasman Sea route could become "a plutonium and nuclear waste highway", which would pose a threat to New Zealand’s national sovereignty.

The Complaint

Philip Ross, on behalf of the New Zealand Atomic Energy Advocacy Council, complained to TV3 that the broadcast contained a number of inaccuracies and created a misleading impression as to the intentions of Japan, the shipping companies and other parties to the shipments.

First, the Council complained that it was not correct to state that the shipment was of weapons-grade plutonium. It explained that the shipment was a form of reactor fuel known as Mixed Oxide Fuel (MOX), not plutonium, and it was not possible to use it in any kind of nuclear weapon manufacture. It would be used only "as a substitute for standard low enriched uranium dioxide fuel" in nuclear power reactors such as those operated by Japanese electricity utilities, the Council wrote.

Next the Council complained that it was incorrect for the reporter to describe the shipment as "half a tonne of fabricated plutonium fuel". It pointed out that in MOX fuel the percentage of plutonium in fact ranged from 3 to 10 percent.

The claim that the plutonium was suitable for use in nuclear weaponry was also incorrect, the Council continued. It described the composition of military plutonium and why the MOX fuel plutonium was unsuitable for military use. Furthermore, it continued, light water reactors, such as were used in Japan, could not be run efficiently to generate military plutonium. Even if they were, the Council noted, they would have to be shut down after less than a month, and any such shutdown would result in an immediate inspection by the International Atomic Energy Agency (IAEA).

The Council also complained that a Greenpeace spokesperson’s comments were incorrect when he said that Japan could use MOX fuel to build nuclear weapons, and that the director of Strategic Studies at Victoria made false and misleading remarks when he said that the material in the shipment could be used for military purposes.

The Council rejected the report’s contention that "defence experts" believed that Japan might use the plutonium to counter threats from North Korea and that the development of any nuclear weapons would be kept top secret. It advised that the fuel was routinely being consumed by light water nuclear reactors in Japan, and noted that Japanese research was open to public scrutiny and to the mandatory inspections conducted by the IAEA.

The Council emphasised that it was incorrect for the reporter to state that the ships carrying the fuel were a threat to New Zealand’s national sovereignty. It pointed out that the ships had always remained outside New Zealand’s territorial waters and, in international law, New Zealand had no right to interfere with the safe passage of ships in international waters.

In summary, the Council repeated that it was misleading to imply, as it believed the broadcast had done, that the shipments were capable of being diverted into a clandestine nuclear weapons programme by a rogue government or terrorist organisation. It explained the complex processes which would have to be undertaken to extract the plutonium from MOX fuel and the risks of such procedures. The Council said that it was a fallacy to suggest that the Japanese were considering a nuclear response to tensions in Asia. Finally, it wrote, it was false to suggest that MOX fuel could have a military application. It explained that neither low enriched uranium nor MOX fuel could under any circumstances be configured into any kind of nuclear explosive device.

Concluding, the Council argued that the item was quite unacceptable, comprising propaganda and serious errors of fact. It requested that TV3 broadcast a retraction and correction.

TV3’s Response

TV3 assessed the complaint under standard G14 of the Television Code of Broadcasting Practice, which reads:

G14  News must be presented accurately, objectively and impartially.

It dealt first with the complaint about the description of the plutonium as "weapons-grade", and conceded that the phrase "weapons-useable" would have been more technically accurate. Next it accepted that the term "fabricated plutonium fuel" on a scientific level should be described as MOX, but said that it understood that MOX did contain plutonium and was commonly simplified and referred to as "plutonium fuel".

TV3 said that it stood by its reporter’s statement that the plutonium in MOX was suitable for use in nuclear weaponry. It quoted what it described as its independent advisor on nuclear issues, who said that a competent chemist, with technical assistance, could extract the plutonium from the MOX fuel, and it was therefore fair to say that it was suitable for use in nuclear weapons.

As for the comments by the Greenpeace spokesperson featured in the item, TV3 maintained that his opinion that Japan could get access to weapons-useable plutonium through the MOX shipment was correct. With respect to the remarks made by the director of Strategic Studies at Victoria University, TV3 defended his contention that the shipment could be used for military purposes.

Turning to the opinion of unnamed defence experts that Japan might be using the plutonium to counter threats from North Korea, TV3 defended the reference on the basis that it was the honestly-held opinion of the consulting defence experts. Next, TV3 defended its statement that the ships were a threat to New Zealand’s national security, noting a paper written by the Secretary of Foreign Affairs and Trade in which he wrote that while the risk of an accident was low, it was not zero.

TV3 declined to uphold the complaint.

The Council’s Referral to the Authority

The essence of the complaint, the Council wrote, was:

TV3, the broadcasters of the news item which is the subject of this complaint, knowingly or recklessly, unfairly and repeatedly, disseminated factually inaccurate statements concerning recent shipments of nuclear fuel through the Tasman Sea – statements the contents of which they had previously, and repeatedly, been warned were factually inaccurate.

First, it complained about the brevity of TV3’s response, and the fact that the letter from the "soi-disant Standards Committee" was unsigned.

It then outlined the complaint in more detail. The Council complained that the item inaccurately referred to the contents of the shipments as "weapons-grade plutonium" and "fabricated plutonium", and the material as being suitable for use by terrorists wanting to "go nuclear" and in nuclear weapons. It also complained about the statement that the delivery of the material to Japan would be a way for it to get access to weapons-useable plutonium.

The Council argued that TV3 had quoted an expert’s opinion out of context when he said that "this plutonium could be used for military purposes" and inaccurately implied that Japan might use it to counter a threat from North Korea. It also objected to the statement that the shipments were a threat to New Zealand’s national sovereignty.

Each of the inaccuracies on its own was sufficient to warrant a complaint, it wrote, but it was the cumulative effect of the numerous factual inaccuracies, misleading allegations and harmful insinuations which gave it concern. It said it considered the presentation had been deliberately one-sided, sensationalist and alarmist and had thus prevented viewers from gaining a clear and accurate understanding of the issues.

The Council listed its 10 grounds of complaint:

    1.  The shipment was weapons-grade plutonium

The Council emphasised that the material being shipped to Japan was not weapons-grade plutonium, nor weapons-useable plutonium, but was Mixed Oxide (MOX) fuel. MOX fuel could not be used in a nuclear explosive, it wrote, and its only possible use was in thermal nuclear power reactors, where it could take the place of low-enriched uranium fuel. The Council then provided a detailed analysis of the properties of weapons-grade plutonium, and concluded that it was self-evident that the MOX fuel shipments could not be described as such. It noted that even if the plutonium were extracted from MOX fuel by way of a difficult and complex process, which it described, it would still not be military plutonium. The Council took issue with TV3’s suggestion that it should preferably have referred to "weapons-useable" instead of "weapons-grade" plutonium, arguing that the phrase "weapons-useable" was meaningless.

Furthermore, it continued, even if plutonium suitable for nuclear weapons could in practice be extracted from MOX fuel (which the Council did not concede), because the sole intended purpose of MOX fuel was peaceful power generation use, it was governed and supervised by the IAEA. That agency would readily identify the diversion of reactor time and of fissile materials, it noted.

As a final point, the Council noted that it had advised TV3 ("on six separate occasions") that the MOX fuel contained in the shipment was solely for peaceful civilian purposes and would not be used for making nuclear weapons. It said that TV3 was also aware of the inspection procedures laid down by the nuclear non-proliferation treaty, and the day before the broadcast it had been given a detailed fact sheet and a video news release by British Nuclear Fuels Ltd (BNFL) which the Council said it had chosen to ignore.

    2.  The shipment contained "half a tonne of fabricated plutonium fuel"

The Council complained that the description of the shipment as "half a tonne of fabricated plutonium fuel" was factually inaccurate and irresponsibly alarmist. It rejected TV3’s contention that MOX fuel was commonly referred to as plutonium fuel. In the nuclear industry, the Council said, it was always referred to as MOX fuel, and its plutonium content was very small.

The small amount of plutonium in MOX fuel was better described as "reprocessed" than fabricated, the Council observed. It suggested that the description of it as fabricated was intended to imply that it was dangerous and could be used for making bombs.

    3.  The shipment would be useful to terrorists

The Council objected to the suggestion that terrorists would be able to obtain nuclear weapons-grade materials, noting that no such attempt had ever succeeded. However, even if they did, it would be still very difficult to manufacture a bomb using MOX fuel, it wrote. The suggestion, it argued, was calculated to cause needless alarm by misleading viewers into thinking that the dangers represented by the shipment of nuclear fuel through the Tasman Sea were greater, both in essence and degree, than they actually were.

    4.  The plutonium is suitable for use in nuclear weaponry

The Council described this as a misleading and irresponsibly alarmist suggestion. Again it emphasised that MOX fuel was not plutonium, that it contained a small percentage of plutonium which was difficult and expensive to extract and that it was not suitable for use as weapons-grade plutonium. It was, therefore, highly unsuitable for use in nuclear weapons, it said.

The Council took issue with TV3’s description of its advisor as being an independent former weapons designer for the UK government. It noted that he had never been involved in weapons design, and that since leaving the UK Atomic Weapons Research Establishment some years before, he had actively campaigned on an anti-weapons, anti-proliferation platform.

The Council repeated that, contrary to that expert’s assertions, the manufacture of any nuclear device and the reprocessing required to extract weapons-grade plutonium were processes which took considerable time, resources, expense and a high degree of specialist skill. It concluded that the expert’s testimony could not be relied upon as being either independent or authoritative. It concluded:

The MOX fuel is not plutonium, it is not weapons-grade; the small percentage of plutonium which it contains is not "suitable for use in nuclear weapons"; and, above all, even if it were plutonium, even if it were weapons-grade, even if it were extricable, even if it were suitable for use in nuclear weapons, it was not being transported for use in weapons and the International Atomic Energy Agency with support from the United Nations ensures that it could not be so used.

    5.  The Greenpeace spokesperson’s description of the shipment as plutonium unsuitable for use in conventional nuclear reactors was incorrect and irresponsibly alarmist

The Council emphasised that the fuel was indeed used in nuclear power stations, that the process for recycling it had been in use for 40 years, and that the Japanese light-water reactors for which the shipment of MOX fuel was intended would use MOX fuel as well as low-enriched-uranium fuel. These points were matters of fact, not opinion, it emphasised. It argued that the inclusion of the Greenpeace spokesperson’s wholly inaccurate statement that the "plutonium" was unsuitable for use in conventional nuclear reactors was incorrect, and was calculated to cause alarm to viewers by implying that, as it could not be used for conventional purposes, it therefore must be intended for use in nuclear weapons.

    6.  The shipment would provide Japan with a way to get access to weapons-useable plutonium

The Council pointed out that even if all the technical arguments were set aside, this was not a way for Japan to get access to weapons-useable plutonium because all materials used in civilian, non-military programmes were closely scrutinised by internationally-appointed inspectors. It gave further reasons why this would not occur, including the fact that Japan already had the know-how and material to create nuclear weapons through enriched uranium but, as a party to the Treaty on Non Proliferation of Nuclear Weapons, was bound not to do so. In addition, it noted, if Japan wished to reverse its policy on nuclear weapons, it already had stocks of plutonium, and would not have had to go through the highly expensive process of extracting plutonium from MOX fuel.

The Council detailed the stringent security measures in place for the shipment of MOX fuels to Japan. Such was the security, it wrote, that the Council considered it unlikely that terrorists would get access to it. However, the Council added, the elaborate security measures had been trivialised by the reporter when he said:

Made in Japan and shipped to France for processing, half a tonne of fabricated plutonium fuel is on its way home via the waters of the Tasman Sea. Two British freighters, Pacific Pintail and Pacific Teal, are charged with protecting the radiotoxic cargo and to do so they’re armed with 30mm cannons to deter pirates and terrorists wanting to go nuclear. And it’s certainly worthy of such a plot. The plutonium is suitable for use in nuclear weaponry but despite this Japan is adamant it will only be used to create electricity.

    7.  This weapons-grade plutonium could be used for military purposes

The Council complained that this statement was irresponsibly alarmist, and had been taken out of context. Mr Ross of the Council reported that he had contacted BNFL after the broadcast and was advised that it had met with Dr Dickens, the Director for Strategic Studies at Victoria University, after the broadcast. At that time Dr Dickens had said that his statement that "this weapons-grade plutonium could be used for military purposes" had been in answer to a question about a hypothetical scenario which had nothing at all to do with the shipments. The Council reported that Dr Dickens had also told BNFL that he was not familiar with the ships, the material, the use of MOX fuel or the nuclear industry generally. His expertise was with defence issues, and he had explained that to TV3, the Council added.

The Council condemned what it called a "systematic misleading of the viewer and the subsequent attempt [by TV3] to justify it by the questionable manner in which they have deployed the questionable [expert]." It maintained that TV3 had quoted Dr Dickens out of context, and had portrayed him as an expert on the shipment, to reinforce the impression that weapons-grade plutonium was being shipped to Japan to be made into nuclear weapons.

    8.  It was implied that Japan intended to use the plutonium to protect itself from the threat posed by North Korea

The Council wrote:

The hatred and distrust of Japan evident in this inaccurate and xenophobic little broadcast borders on criminal racism and is unworthy of a supposedly balanced news item.

It went on to explain that Japan was firmly committed to preventing the spread of nuclear weapons and had made a public, international commitment not to manufacture or acquire nuclear weapons or explosives for any military purpose. Furthermore, it noted, Japan was subject to regulatory safeguards imposed by the IAEA for all of its peaceful nuclear activities.

It took exception to TV3’s response that it was the honestly-held opinion of consulting defence experts that Japan might be using plutonium for nuclear weapons. It asked the Authority to invite TV3 to identify those experts and to provide evidence that their views were sought before the broadcast, and that the opinions attributed to them were accurately presented.

It then provided the Authority with the text of the Non-Proliferation Treaty between Japan and the US, concluding:

Given this background to Japan’s deep suffering and concern and her long-standing commitment to non-proliferation and non-possession of nuclear weapons, the careless, shabby and frankly racialistic abuse unjustifiably and unfairly heaped upon Japan by the programme-makers, as well as the threat it poses to the harmonious relationship between our two countries, is worthy of the Broadcasting Complaints Authority’s profoundest and strongest censure.

    9.  The reference to a telegram as a "previously confidential communique" from the US Ambassador to Japan to the US Secretary of State

The Council complained first that the reference was highly misleading as the telegram had been sent six years previously by a now-retired US Ambassador to a now-retired US Secretary of State, and that the purported contents of the telegram did not reflect the current thinking of the US government. The Council noted that the details of this telegram had been lifted from a Greenpeace press release which had identified it as one of the "diplomatic documents…sent in 1993 and 1994" by the US Ambassador to the US Secretary of State. The Council complained that an impression was given that it was the current US Ambassador to Japan who had expressed concerns about Japan’s plutonium stockpile to the present US Secretary of State. The impression of recency was reinforced, it argued, by the report continuing that "these concerns" would be raised at a security summit following the APEC meeting.

In addition, the Council noted, the reporter was shown holding what purported to be the telegram. It argued that either the "telegram" was bogus, in which case he was dishonest in brandishing it, or it was genuine, in which case he was dishonest in not making it clear to the viewer that it was 5 or 6 years out of date. The Council also pointed out that the view articulated in the item was no longer the current view of the US administration.

    10.  The New Zealand government permits the ships to carry plutonium when other countries have banned them and its presence is a threat to New Zealand’s national sovereignty

The Council observed first that the New Zealand government had no power to prevent the shipment from passing through international waters, secondly that it had not entered New Zealand waters, and thirdly since it contained peaceful nuclear material, would not have been a threat to national sovereignty even if it had.

It also objected to the reporter’s reference to "defence experts" who warned that the very presence of plutonium was a threat to New Zealand’s national sovereignty. The Council repeated its suggestion that the Authority should satisfy itself on the credibility of these experts and that their views had been accurately reported.

Further, the Council continued, the risk of actual contamination of New Zealand’s land mass or its fishing waters by an accident involving MOX fuel was extremely small. A nuclear explosion involving MOX fuel was contrary to the laws of physics, and therefore impossible, it concluded. The Council then referred to the answer given by the Minister of Foreign Affairs to a Parliamentary question about whether the government had concerns over the shipment. The Minister’s response, it said, provided a sharp and dignified contrast to the "repeatedly inaccurate, repeatedly alarmist, repeatedly damaging words of the broadcast."

By way of remedy, the Council sought an order requiring TV3 to broadcast a retraction and correction. As it considered there was a significant lack of understanding among the New Zealand public on nuclear issues, it was particularly important that the record be set straight, the Council argued.

TV3’s Response to the Authority

TV3 advised that it had no further comment.

The Council’s Final Comment

The Council asked the Authority to consider carefully the obligations of balance and factual accuracy relating to news given the sensitivities of the New Zealand public towards nuclear energy issues. It submitted that there was a great deal of misinformation about the safety and technical issues relating to all facets of nuclear technology and that there was therefore an obligation on broadcasters to ensure that broadcasts were accurate and balanced.

As a final point the Council noted that TV3 had not advanced any opposing submissions to its explanation as to why TV3’s independent experts were not credible. It presumed therefore that TV3 had accepted the submissions it had made on this point.

TV3’s Further Comment

In response to a request from the Authority to respond more fully to the Council’s submissions, TV3 provided a further response which included a statement from Dr Dickens, who was featured on the programme. He responded to the following questions which had been put by the Authority:

1.  On what basis did TV3 contend that MOX fuel was commonly referred to as plutonium fuel?

Dr Dickens said that the use of the term plutonium fuel to describe MOX was a simplification, given that it consisted of both plutonium and uranium oxides. The term was "a more apt description for MOX fuel than for just plutonium oxide. It is also more appropriate to call MOX fuel plutonium fuel than typical reactor fuel that consists solely of uranium."

He explained that there was some undesirability in describing MOX fuel as plutonium fuel, although this simplification might not necessarily be pejorative. While technical papers retained the term MOX fuel, the common simplification, he said, would be plutonium fuel. This was not to say that the simplification took place commonly, or that it was desirable, he wrote.

For a non-technical audience, plutonium is the common simplification of MOX fuel and is technically correct as MOX fuel does contain plutonium and is notably different from uranium-only fuel.

Dr Dickens concluded that the common simplification of MOX fuel was plutonium fuel but reiterated that this did not suggest that such a simplification took place on a regular basis, or that it should. The more pertinent issue, he said, was whether such a simplification was deliberately misleading, and that was a contextual question.

2.  The programme was deliberately misleading in asserting that the shipments were capable of diversion

i)   Dr Dickens responded that it was not misleading to assert that the shipments were capable of diversion to a clandestine nuclear weapons programme, because they clearly were. Such a diversion was unlikely, he acknowledged, and would be difficult, but not impossible. "Such an assertion is perhaps overly dramatic, but is factually correct," he concluded.

ii)  Dr Dickens noted that MOX fuel would not yield military grade plutonium. However, he continued, military grade plutonium was not required to make a nuclear weapon. He said that the IAEA estimated that with the necessary equipment, it would take 1-3 weeks to convert MOX fuel to "useable components". It would be exceedingly difficult but not impossible.

Dr Dickens explained that the distinction between reactor and weapons-grade plutonium referred to its composition, not its possible uses. Reactor-grade plutonium had disadvantages for use in weapons, such as being six times more radioactive, but could still be used to build a nuclear weapon.

iii) Dr Dickens maintained that a terrorist organisation could build a nuclear weapon with reactor-grade plutonium. He noted that it would require people with significant knowledge of the physics principles of nuclear weapons. He wrote:

The ability of a terrorist organisation to succeed in building at least a basic nuclear bomb would increase if they had state-level support. Still, it would be incredibly difficult, almost prohibitively difficult, but not impossible. While the hijack of the shipment seems unlikely, the security of the shipment is a legitimate concern for regional states.

In Dr Dickens’ view, civilian plutonium stockpiles were an important factor in regional security dynamics in the Asia-Pacific region.

3.  Japan may be using plutonium to counter threats from North Korea

Dr Dickens advised that there was evidence that Japanese officials took the North Korean nuclear threat seriously. In his view, it was likely that Japan would "go nuclear" if the US withdrew from the region. He said it was not known if Japan was preparing to go nuclear and whether it was stockpiling plutonium for military purposes. In his opinion, it had the capability to develop nuclear weapons at short notice if it decided to do so.

5.  Plutonium shipments a "threat to our national sovereignty"

Dr Dickens responded that the threat of leakage and contamination was small. However, he contended, the ships were a threat to New Zealand’s national sovereignty in the event of any accident involving plutonium shipments in the vicinity. He explained that one risk with the ships was that they were armed and although accidents with sophisticated weapons were rare, they did happen. They were also potential targets for takeover or attack by extremist groups. While the threat to the ships was low, the fact that each ship was equipped with cannons was evidence that the companies owning the ships took those threats seriously. Finally, he argued, a stockpile of plutonium in Japan could inhibit peaceful relationships between Japan and its neighbours and this could contribute to a deterioration in regional relationships and thus be against New Zealand’s national interests.

6.  Quotation out of context

Mr Dickens confirmed that he was speaking about "weapons grade" plutonium being able to be used for military purposes. He said he did not think he had been misquoted.

In a separate response, TV3 advised that the field tapes had been recycled almost immediately, as was its normal practice. However, it pointed out that Dr Dickens did not believe he had been quoted out of context.

TV3 also denied that the reporter had represented the contents of the telegram as either a "a recent expression of opinion by the current US Ambassador to Tokyo" or as "reflecting the current thinking of the US government". It reiterated that the reporter had referred to the telegram as a previously confidential communique in which the US Ambassador to Tokyo had revealed his concerns to the US Secretary of State. TV3 said it understood this matter had been raised at the time of APEC.

 The Council’s Response

The Council responded to Dr Dickens’ submission on behalf of TV3 under the same numbered points.

1. The Council reiterated that it was neither common nor acceptable to refer to MOX fuel as plutonium fuel.

2. (i)    The chances of diversion of MOX fuel were so remote there was no rational basis for
            believing it to be a realistic possibility.

     ii)    The Council contended that TV3’s claims concerning military and civilian plutonium
            were "plainly wrong". It explained that no weapons programme anywhere in the
            world had made use of civilian (reactor) plutonium as its feedstock.

    iii)    The difficulties facing a terrorist group wishing to build a nuclear weapon were so
            vast as to be insurmountable.

3. The Council argued that the belief that Japan may be developing nuclear weapons to counter the threat of North Korea was founded on a fallacy. The reason the shipments were taking place at all was because Japan lacked reprocessing facilities and had to send its reactor waste to Europe for reprocessing. It pointed out that if Japan did want nuclear weapons, it already possessed high enriched uranium and could manufacture uranium fission weapons.

4. This point has been dealt with.

5. The Council contended that it was clear that Dr Dickens was responding to a question about "weapons-grade" plutonium. It took issue with his suggestion that it could be inferred he was discussing "weapons-useable" plutonium. The Council repeated that the term "weapons-useable" was not one recognised or used by the nuclear industry and was useless as a descriptive term.

As a final point, the Council commented on the fact that TV3 no longer had the field tapes of the interview with Dr Dickens. It noted that the complaint had been made the day after the item was broadcast, and said it found it unbelievable that TV3 had recycled the tapes. It suggested that the tapes had been deliberately erased to frustrate the complaint.

The Authority’s Findings

The Authority has been asked to consider complex technical matters in its determination of this complaint. It does not pretend to be conversant with the intricacies of the properties and manufacture of civilian or military-grade plutonium. Nevertheless, it notes, its task is confined to a consideration of whether standard G14 of the Television Code of Broadcasting Practice has been breached. Where appropriate it has sought further information from the parties to assist it. It considers that it has before it sufficient information to make a determination under its jurisdiction.

1.  A shipment of weapons-grade plutonium

TV3, the Authority notes, conceded that the shipment was not weapons-grade, although it argued that it was weapons-useable. In the Authority’s view, there appears to be consensus among the parties that there would be serious technical difficulties in attempting to make nuclear weapons from plutonium found in MOX fuel.

The Authority concludes that in the context it was misleading to refer to the shipment as "weapons-grade plutonium" and accordingly finds this statement breached the standard.

        2.  Half a tonne of prefabricated plutonium fuel

It is acknowledged by TV3 that the shipment in fact contained MOX fuel, although it argued that it was permissible – though not necessarily desirable – to refer to MOX as plutonium. Rather confusingly TV3’s technical advisor (Dr Dickens) explained that this "common simplification" does not take place on a regular basis, and further, suggested it should not.

At the outset, the Authority observes that the issues raised by the item were controversial, and in that context it was important for the broadcaster to be accurate in the terms that it used to describe these nuclear fuels. Secondly, given the earlier inaccurate reference on the programme to this fuel as a shipment of "weapons-grade plutonium", the later reference to "prefabricated plutonium fuel" inevitably took some colour from the use of the earlier phrase. The Authority does not find Dr Dickens’ explanation convincing. Indeed it seemed almost to amount to a concession. Accordingly, it is not satisfied that the description used was an acceptable "simplification" on this occasion, as it tended to perpetuate the earlier suggestion that this was a shipment of "weapons-grade plutonium". For the reasons already expressed, this was misleading, and the Authority upholds this part of the complaint as a breach of standard G14.

        3.  The shipment would be useful to terrorists

The complainant contended it was misleading to suggest that the shipments were capable of being diverted by terrorists for clandestine nuclear weapons programmes. In particular, the Council noted that the shipment was not military plutonium but was designed for civilian use in power reactors. Further, even if a terrorist group had access to weapons-grade plutonium, it argued it would be extremely difficult for it to manufacture a bomb. It complained that the reference to terrorists was calculated to cause needless alarm.

TV3’s response from its expert (Dr Dickens) acknowledged:

It is not misleading to assert that the shipments are capable of diversion to a nuclear weapon programme, because they clearly are. Such a diversion is unlikely, would be extremely difficult to achieve clandestinely, but is not impossible. Such an assertion [by TV3’s reporter] is perhaps overly dramatic, but is factually correct.

The Authority accepts that, no matter how unlikely, it was possible for the shipment to be diverted. To that extent, the item was not inaccurate. The question is whether the broadcast was objective and impartial in terms of standard G14. On balance the Authority concludes that it was not unreasonable to highlight the fact that some risk existed, but given the potential for controversy it was important also to evaluate that risk responsibly.

In the context of the description of the shipment as "weapons-grade plutonium" and "half a tonne of prefabricated plutonium fuel", the Authority considers the very generalised comment "useful to terrorists" exaggerated its status. The item also tended to overlook what the Council claimed to be the difficult reprocessing necessary to extract weapons-grade plutonium. What appears to have been a consequent over-estimate of risk contributed to an element of partiality which, on balance, the Authority considers amounts to a breach of standard G14.

        4.  The plutonium is suitable for use in nuclear weaponry

TV3’s advisor conceded that MOX fuel would not yield military grade plutonium and it was misleading to suggest that it would. However, he maintained, military grade plutonium was not required to make a nuclear weapon, and although it would be exceedingly difficult, it was not impossible to make one from MOX fuel.

The complainant pointed out that no weapons programme in the world used civilian plutonium as its feedstock.

Again the Authority finds that although not impossible, the case had been overstated when it was reported that the plutonium in the MOX fuel shipments was suitable for use in nuclear weapons. It upholds this aspect of the complaint.

5. and 6. The Greenpeace spokesperson’s description of the shipment as plutonium and as unsuitable for use in conventional nuclear reactors was incorrect and irresponsibly alarmist

In the Authority’s view, a strong inference could be drawn from the Greenpeace statement that the material being shipped was of a higher grade than was required for civilian use and that it was therefore reasonable to assume that it was intended for military purposes.

However, it notes, this was clearly presented as the opinion of the Greenpeace spokesperson. The question for the Authority is whether those remarks should have been balanced with a response from another source.

The Authority concludes that TV3 erred in relying on the Greenpeace spokesperson as being an authoritative source, particularly as his unchallenged statement appears to have formed the basis for the item’s conclusion that the shipment could be a means for Japan to access plutonium to manufacture nuclear weapons.

7. Weapons-grade plutonium could be used for military purposes

TV3 provided an explanation from Dr Dickens, its technical expert, who said:

I was quoted in the TV3 story as saying that "this weapons-grade plutonium could be used for military purposes". By "this" I was referring to weapons-grade plutonium.

The Authority is not assisted by this explanation. However it notes that Dr Dickens went on to explain that MOX fuel could not be immediately converted into weapons-grade plutonium, although it could be converted into weapons-useable plutonium.

The Authority considers there is some merit in the complainant’s contention that Dr Dickens had been quoted out of context.

It records that it sought field tapes of the interview to assist it in reaching its decision on this point. TV3 advised that it had recycled the tapes "almost immediately" after the broadcast, as it contended was its practice. As the complaint was lodged within a day of the broadcast, the Authority finds it surprising that those tapes were not available.

The Authority refers to Eichelbaum CJ’s judgment in TV3 Network Services Ltd v Broadcasting Standards Authority 2 NZLR [1995] 720 (HC), at 733:

The jurisdiction of the Authority to deal with s.4(1)(c) complaints traces back to the reference in s.4(1) to "[standards] in … programmes and their presentation". In cases where the complaint is routed through the broadcaster, s.6 requires broadcasters to receive and consider "complaints about any programme broadcast". Having regard to these expressions it seems clear that the broadcasting of a programme is a pre-requisite to any complaint about it. But subject to this qualification I do not see why the references to "programmes" should be construed narrowly; and I would hold that where filmed or taped material has been televised, in adjudicating upon a complaint the Authority is entitled to take into account not only the broadcast material itself but also how it was obtained. To restrict complaints to the content alone would significantly limit the Authority’s jurisdiction.

In addition, the Authority refers to McKay J’s judgment in the Court of Appeal decision Comalco NZ v Broadcasting Standards Authority (1995) 9 PRNZ 153 (CA) PDF (714.73 KB), at 161:

We agree that the Authority’s jurisdiction is to deal with complaints as to what is broadcast, but it is entitled to consider any evidence that "in its opinion may assist it to deal effectively with the subject of the inquiry": Commissions of Inquiry Act 1908 section 4C. To determine whether broadcast material is balanced and objective may well call for consideration of the way in which it was selected and in which other material was excluded. The Authority is not thereby extending its jurisdiction by making a decision on the material not in the actual broadcast. It is using that material in order to decide whether the complaint is justified, and whether the broadcast failed to comply with the standards required by the Act.

These decisions make it clear that preparatory materials, including field tapes, may be relevant in considering a complaint. The Authority expresses concern, given the controversial nature of the programme, that the material was not retained on this occasion.

The Authority concludes that the average viewer would have understood from what was said on the programme that this was a shipment of weapons-grade plutonium which could be used for military purposes. That understanding was attributable substantially to the quoted remarks of Dr Dickens. But it now appears from the material which Dr Dickens has himself made available that his remarks were premised on a hypothetical scenario in which Japan had decided to "go nuclear" and to use reactor-grade plutonium to make weapons, In that context, he said, it was accurate to call the shipment "weapons-grade". The context of Dr Dickens’ remark was not reported on the programme. Instead, he was reported without the qualifying material and immediately following the Greenpeace spokesperson’s claim that that the shipment was a way of getting access to "weapons-useable" plutonium. The Authority concludes for these reasons that this part of the programme was also inaccurate and in breach of standard G14.

        8.  "Defence experts" believe Japan may be using plutonium to counter threats from North Korea

The Authority is satisfied there was material from which this could be reported as being the view of the defence experts consulted by TV3. For that reason, it finds no breach of the accuracy requirement of standard G14 here. Although the individuals were not named, the view was correctly ascribed to them. Nevertheless this raises the question of whether that opinion should have been balanced by drawing attention to Japan’s commitment to non-proliferation of nuclear weapons. In the circumstances, however, the Authority finds no breach.

        9.  The reference to the telegram

When asked to clarify this point, TV3 asserted that the reporter did not represent the telegram as being either "a recent expression of opinion by the current US Ambassador to Tokyo" or as "reflecting the current thinking of the US Government". The telegram was, TV3 reiterated, referred to as a "previously confidential communique".

In the Authority’s view, the clear inference to be taken from the reference to a telegram was that it was current. Although telegrams are now obsolete, the reference to a telegram in itself conveyed the impression that the issue was topical and current. The Authority concludes that although the document was accurately described as a telegram, in presenting a piece of paper which appeared to be the relevant document and by omitting to state that it was 6 years old, its status was misrepresented. It upholds this aspect as a breach of standard G14.

        10. The very presence of plutonium is a threat to New Zealand’s national sovereignty

TV3 relied on Dr Dickens, who explained in subsequent correspondence why he believed the shipments were a threat to New Zealand’s national sovereignty.

In the Authority’s view, although the remark was not directly attributed to Dr Dickens in the item and it was not explained there why he had reached this conclusion, he was entitled to hold this opinion. Despite its being somewhat enigmatic and without context, in the circumstances the Authority finds no breach in relation to this comment.

Conclusion

It is axiomatic that news reports should be accurate, objective and impartial. That requirement is not only an expectation of viewers, but is enshrined in the Television Code of Broadcasting Practice.

Here, the item concerned the shipment of reprocessed nuclear waste material back to Japan after it had been processed into MOX fuel in Europe. The shipments passed through the Tasman Sea – in international waters – bound for Japan, where the material was to be used in its nuclear power stations. Greenpeace expressed its concerns about the shipments passing so close to New Zealand while the Japanese Embassy reiterated that the material would not be used for making nuclear weapons. Concern was also expressed about the possible implications for the region if Japan were to convert the material for use in a nuclear weapons programme.

The Authority accepts that the report dealt with a controversial issue and one which many New Zealanders have strong views about. Nevertheless, it concludes that the report of the ship’s passage was not delivered in an impartial and objective manner. In part it considers that this resulted from the broadcaster’s reliance on partial sources who represented only one side of the debate, and in part on the scientific complexity of the matters traversed, which it appears were misrepresented in the report. As a result, in the Authority’s view, the item contained implications about the safety of the shipment and its possible end use which were not warranted on the facts. It accepts that the transportation of nuclear fuels is not without risk and not without its detractors. Nevertheless, it considers a news report is bound to give an objective account of the proceedings. While the Greepeace position had validity, the Authority considers it should have been balanced with an opposing perspective so that viewers could assess for themselves the extent of the risk and its implications.

For the reasons set forth above, the Authority upholds the complaint that the item broadcast by TV3 Network Services Ltd on 3 News on 2 September 1999 between 6.00–7.00pm breached standard G14 of the Television Code of Broadcasting Practice.

Having upheld a complaint, the Authority may make orders under s.13 and s.16 of the Broadcasting Act 1989. It sought submissions from the parties as to penalty. Having considered those submissions, the Authority makes the following order:

Order

Pursuant to s.13(1)(a) the Authority orders TV3 Network Services Ltd to broadcast a statement within one month of the date of this Decision. That statement shall be broadcast between 6.00–7.00pm on a weekday on a day approved by the Authority and shall contain a summary of this Decision.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
17 May 2000

Appendix

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

1.    The New Zealand Atomic Energy Advocacy Council’s Complaint to TV3 Network
       Services Ltd – 3 September 1999

2.    TV3’s Response to the Formal Complaint – 6 October 1999

3.    The Council’s Referral to the Broadcasting Standards Authority – 3 November 1999

4.    The Council’s Further Comment – 17 November 1999

5.    TV3’s Response to the Authority – 6 January 2000

6.    The Council’s Final Comment – 17 January 2000

7.    TV3’s Further Comment – 22 February 2000

8.    The Council’s Further Comment – 25 February 2000

9.    The Council’s Submission on Penalty – 2 May 2000

10.    TV3’s Submission on Penalty – 10 May 2000