Shirtcliffe and Radio New Zealand Ltd - 2002-040
- P Cartwright (Chair)
- B Hayward
- R Bryant
- J H McGregor
- Dr T G L Shirtcliffe
BroadcasterRadio New Zealand Ltd
Mana News – call for voters to vote for one mayoral candidate – unbalanced – encouraged discrimination against non-Maori – broadcaster upheld Principle 4 balance aspect – procedures revised to ensure longer period to vet Mana material
(1) Principle 7 – Guideline 7a – does not meet high threshold required for discrimination – no uphold - Guideline 7f – call to support candidate with understanding of Maori issues – not an advertisement for a specific candidate – no uphold
(2) Action taken – appropriate in context of breach
This headnote does not form part of the decision.
 Two interviewees in an item on Mana News encouraged Maori voters to vote for a named candidate in the Auckland mayoral election. The item was broadcast on National Radio at 5.55pm on 27 September 2001.
 Dr Shirtcliffe complained to Radio New Zealand Ltd, the broadcaster, that the item was unbalanced, encouraged discrimination, and failed to distinguish between advertising and programme material.
 In response, RNZ upheld the complaint that the item was unbalanced and said that procedures were being revised to allow it a longer period to vet Mana News material. It declined up uphold the complaint that the item encouraged or portrayed denigration.
 Dissatisfied with both the action taken on the aspect upheld and the aspects not upheld, Dr Shirtcliffe referred his complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons below, the Authority declines to uphold the complaint.
 The members of the Authority have listened to a tape of the item complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 Mana News is prepared for RNZ by Mana Maori Media Ltd. It is broadcast by RNZ on National Radio. The bulletin of Mana News broadcast at 5.55pm on 27 September 2001 included an item about the forthcoming mayoral elections in Auckland. Two people were interviewed and both expressed their support for one named candidate. Referring to the candidate’s whanaungatanga, one interviewee urged every Maori to vote for him.
 Dr Shirtcliffe complained to RNZ that the item breached Principles 4 and 7 of the Radio Code of Broadcasting Practice.
 Principle 4 requires balance and Dr Shirtcliffe argued that the item was unbalanced as only one point of view was contained in the item.
 Guideline 7a of Principle 7 requires broadcasters not to portray people in a way which encourages discrimination against a section of the community. Dr Shirtcliffe maintained that the guideline was contravened because the item suggested that the election of one named candidate would serve the interests of Maori citizens over the interests of a non-Maori.
 Dr Shirtcliffe also considered that the item breached the requirement in guideline 7f which requires that advertisements are clearly distinguished from programme material.
 RNZ assessed the complaint under the Principles nominated by Dr Shirtcliffe. They read:
In programmes and their presentation, broadcasters are required to maintain standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.
4a Broadcasters will respect the rights of individuals to express their own opinions.
4b Broadcasters may have regard, when ensuring that programmes comply with Principle 4, to the following matters:
(i) An appropriate introduction to the programme; and
(ii) Any reasonable on-air opportunity for listeners to ask questions or present rebuttal within the period of current interest. Broadcasters may have regard to the views expressed by other broadcasters or in the media which listeners could reasonably be expected to be aware of.
In programmes and their presentation, broadcasters are required to be socially responsible.
7a Broadcasters will not portray people in a manner which encourages denigration of or discrimination against any section of the community on account of gender, race, age, disability, occupational status, sexual orientation; or as the consequence of legitimate expression of religious, cultural or political beliefs. This requirement does not extend to prevent the broadcast of material which is:
i) factual; or
ii) a genuine expression of serious comment, analysis or opinion; or
iii) by way of legitimate humour or satire.
7f Advertisements and infomercials shall be clearly distinguishable from other programme material.
The Broadcaster’s Response to the Complainant
 Dealing first with guideline 7a aspect of the complaint, RNZ noted that the Broadcasting Standards Authority had interpreted "denigration" to mean "severe blackening". RNZ also noted that there must be "genuine elements" of portrayal and encouragement in order to breach the guideline. It considered that the item did not reach the threshold for portraying or encouraging denigration.
 Turning to Principle 4, RNZ said that the item had not met the standard required and it upheld that aspect. It observed that the item would most likely not have been broadcast had it been previewed.
 RNZ advised that it was now revising the procedures for the receipt and preview of Mana News bulletins before broadcast to increase the lead time available to vet material.
The Complainant’s Referral to the Authority
 Dr Shirtcliffe said he was pleased that the Principle 4 aspect of his complaint had been upheld. However, given what he described as the "offensiveness" of the item, he regarded the institution of editorial control as "a very weak response, designed to avoid embarrassment".
 As for as the Principle 7 aspect, he pointed out, first, that RNZ had dealt with the reference to "denigration" in guideline 7a, whereas he was concerned about "discrimination", and second, that RNZ had not responded to the guideline 7f issue.
The Broadcaster’s Response to the Authority
 Dealing first with the Guideline 7a matter, RNZ argued that the standard had not been contravened given that the news item was "fact" and "serious opinion", and thus exempt under 7a(i) and 7a(ii) from the application of the guideline.
 With regard to the action taken after upholding the Principle 4 aspect, RNZ believed that it was "commensurate with the need to ensure that such an incident does not recur".
The Complainant’s Final Comment
 In his final comment, Dr Shirtcliffe stated that, despite the "dilatory" manner in which it had dealt with the complaint, RNZ had not addressed the question of discrimination, and he maintained that the item was clearly an advertisement.
The Authority’s Determination
 The Authority deals first with the aspects of the complaint which were not upheld by the broadcaster.
 Mr Shirtcliffe argued that the item was "an unabashed advertisement" for one mayoral candidate. He also maintained that item encouraged discrimination against non-Maori because the item stated that "a Maori mayor would serve the interests of Maori citizens over the interests of non-Maori".
 Having listened to a tape of the item and read a transcript, the Authority does not agree with those interpretations. It considers that the item reviewed the position of one Maori mayoral candidate. The emphasis was upon the candidate’s experiences in treaty issues and issues affecting Maori.
 Nevertheless, the Authority accepts that, because other balancing material was not included in the broadcast, it was appropriate for the complaint to be upheld as a breach of Principle 4.
 In view of the emphasis in the broadcast, the Authority does not accept that it encouraged discrimination against non-Maori to the extent required for a breach of guideline 7a. The Authority has repeated on a number of occasions that it considers that the threshold required for a breach of this standard is high. The call for Maori to vote for a Maori does not portray people in a manner which encourages denigration or discrimination as envisaged by the guideline.
 In addition, and although it was partisan in its approach, the Authority concludes that the broadcast was not an advertisement for a specific candidate which contravened guideline 7f. It reaches this conclusion because the item was included in a news broadcast which can be clearly distinguished from paid political advertising. Accordingly, this aspect is not upheld.
 Finally, the Authority is of the view that the action taken by RNZ in upholding the complaint as a breach of Principle 4 was appropriate.
 The Authority observes that to find a breach of Principle 7 would be to interpret the Broadcasting Act 1989 in such a way as to limit the broadcaster's statutory freedom of expression in s.14 of the New Zealand Bill of Rights Act 1990 in a manner which is not demonstrably justifiable in a free and democratic society (s.5 of the Bill of Rights Act). As required by s.6 of the Bill of Rights Act, the Authority adopts an interpretation of the Principle which is consistent with the Bill of Rights.
For the above reasons, the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
4 April 2002
The following correspondence was received and considered by the Authority when it determined this complaint:
- Dr T G L Shirtcliffe’s complaint to Radio New Zealand Ltd (plus manuscript) – 15 October 2001
- RNZ’s Reply Advising that its Response has been Delayed – 15 November 2001
- Dr Shirtcliffe’s Initial Referral to the Broadcasting Standards Authority – 29 November 2001
- RNZ’s Response to the Formal Complaint – 30 November 2001
- Dr Shirtcliffe’s Response to RNZ – 5 December 2001
- Dr Shirtcliffe’s Referral of the Substantive Issues to the Authority – 5 December 2001
- RNZ’s Response to the Authority – 7 February 2002
- Dr Shirtcliffe’s Final Comment – 22 February 2002