BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Assignment Special – investigation of scampi fishing industry – allegations of corruption – complainants’ application for production of documents and affidavits

Findings
Application Order made under s.12

Order
Order made for broadcaster to produce certain affidavits to Authority

This headnote does not form part of the decision.

INTERLOCUTORY DECISION

The Background

[1] Claims made in Parliament and by some of the participants in the scampi fishery that the Ministry of Fisheries was corrupt and condoned corruption in the scampi industry were investigated in an Assignment Special. The programme was broadcast on TV One between 8.30–10.00pm on 29 October 2002.

[2] Simunovich Fisheries Ltd and two of its directors, Peter Simunovich and Vaughan Wilkinson, participants in the scampi fishing industry, complained to Television New Zealand Ltd, the broadcaster, that the broadcast breached broadcasting standards relating to balance, accuracy and fairness. When TVNZ declined to uphold the complaints, the complainants referred their complaints to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

[3] After TVNZ had responded to the Authority about the referral, the complainants applied to the Authority to exercise its power to order production of a range of material, which they considered necessary in order to make a final submission to the Authority about their complaints.

[4] The Authority sought and obtained TVNZ’s submission on the complainants’ application. TVNZ resisted it, arguing that no justifiable reason had been advanced in its support, and characterising the application as “oppressive” and “very much in the nature of a ‘fishing’ discovery”.

Correspondence about the Application

The Complainants’ Application

[5] By way of a letter dated 14 March 2003, the complainants sought three things from the Authority:

• an order for production of a very broad range of specified material relating to the programme (for the Authority’s consideration);
• an order requiring the broadcaster to verify this material by way of affidavit (and to provide certain other information about the material by way of affidavit);
• an order allowing disclosure to the complainant of all of this material (including the affidavit).

[6] The reasons for making the application were described by the complainants as follows:

The reasons for the application are self-evident and go directly to the assessment of whether TVNZ used the material it had in accordance with standards required, and whether it investigated it in accordance with those standards.

The Broadcaster’s Response

[7] TVNZ opposed the application. In its view, there was no justifiable reason advanced for the making of the orders. In its submission:

The issue is one of relevance and whether [the information sought] is necessary for the Authority in effectively dealing with the complaint.

The broadcaster continued:

…the width of the discovery sought is contrary to the theme of the Broadcasting Act, is oppressive, and is very much in the nature of a “fishing discovery”.

The Authority’s Determination

[8] Section 12 of the Broadcasting Act 1989 allows the Authority to invoke certain provisions of the Commissions of Inquiry Act 1908, including s.4C. Section 4C(1)(b) and (c) of the Commissions of Inquiry Act provides that a Commission may:

(b) Require any person to produce for examination any papers, documents, records, or things in that person’s control, and to allow copies of or extracts from such papers, documents, or records to be made:
(c) Require any person to furnish, in a form approved by or acceptable to the Commission, any information or particulars that may be required by it, and any copies of or extracts from any such papers, documents, or records as aforesaid.

[9] Section 4C(3) of the Act states:

For the purposes of the inquiry the Commission may of its own motion, or on application, order that any information or particulars, or a copy of the whole or any part of any paper, document, or record, furnished or produced to it be supplied to any person appearing before the Commission, and in the order impose such terms and conditions as it thinks fit in respect of such supply and of the use that is to be made of the information, particulars, or copy.

[10] The Authority’s practice in regard to applications for disclosure was set out in Interlocutory Decision No: 2002-179, dated 7 November 2002. In that decision, the Authority observed that the intention of the legislation:

is to allow the Authority to obtain material only if it is necessary “to deal effectively with the subject of the inquiry”. The Authority is not inclined to exercise its powers unless a persuasive case to do so is advanced.

[11] Elaborating on that observation, the Authority makes three general comments:

• The purpose of production of material is to assist the Authority in its consideration of the complainant’s complaint.
• In the ordinary course, the complainant’s complaint is that which was made at first instance to the broadcaster. In general, the complainant should not be able to change the nature of the complaint or add further grounds to it.
• There is no general right of discovery, and even if the Authority does order production of material, it is a separate matter for consideration as to whether the Authority will disclose that information to the parties.

[12] The complainants have asked the Authority to obtain a comprehensive range of material. Twenty-nine specified items were sought, together with a detailed affidavit from the broadcaster. The basis for the application was summarised by the complainants as “self-evident” and to allow an assessment of:

whether TVNZ used the material it had in accordance with standards required, and whether it investigated in accordance with those standards.

No further elaboration of the reasons for the application was given by the complainants.

[13] The Authority has considered whether it should make the requested orders in relation to each item sought for production. Its detailed findings are set out in the Appendix.

[14] In summary, the Authority declines each of the complainants’ specific requests for production. However, for the reasons given in the Appendix, the Authority concludes that it is appropriate to require the broadcaster to produce certain affidavits not referred to in the application in order to assist it in the determination of these complaints.

[15] In making the following Order, the Authority points out that it is made without prejudice to any other Order the Authority may later make when considering these complaints.

Orders

Pursuant to s.12 of the Broadcasting Act 1989 and s.4C of the Commissions of Inquiry Act 1908, the Authority orders Television New Zealand Ltd to make available the affidavits from each of the persons listed below which were referred to in the Assignment Special broadcast on TV One between 8.30–10.00pm on 29 October 2002:

1. Peter Younger (Fisheries Officer)
2. David Patterson (Simunovich Skipper)
3. Barry Nalder (Fisheries Officer)
4. Ronald Chadwick (Fisheries Officer)
5. Neil Penwarden (Dissatisfied Scampi Fisher)
6. The unidentified person referred to in bold italics at page 7 of the Appendix to this decision.

The above materials are to be lodged with the Authority by 5.00pm on 20 January 2004. The Authority also seeks a submission by the same date as to whether the affidavits should be released to the complainants and if so, on what terms.

Signed for and on behalf of the Authority

Joanne Morris
Chair
22 December 2003