Spencer and Television New Zealand Ltd - 2002-088
- P Cartwright (Chair)
- B Hayward
- R Bryant
- Marcel Spencer
ProgrammeLabour Party election advertisement
BroadcasterTelevision New Zealand Ltd
Election programme – Labour Party advertisement – Prime Minister seen with New Zealanders in UN Peacekeeping force in East Timor – her presence implied support for East Timor – incorrect in light of New Zealand’s historical position
Standard 5 and Guideline 5b – item focused in part on transition to independence – not inaccurate – not misleading – no uphold
This headnote does not form part of the decision.
 An election advertisement for the New Zealand Labour Party was screened on TV One at about 7.00pm on 2 July 2002. Among the visuals the Prime Minister was shown visiting the New Zealanders who were part of the UN Peacekeeping force in East Timor.
 Marcel Spencer complained to Television New Zealand Ltd, the broadcaster, that the advertisement was misleading in that it suggested New Zealand’s support for East Timor’s independence. However, he said, it failed to acknowledge New Zealand’s earlier actions when it had supported Indonesia rather than the East Timor independence movement.
 Pointing out that the advertisement focused on events which had occurred since the Labour Party became the Government in 1999, TVNZ declined to uphold the complaint.
 Dissatisfied with the TVNZ’s decision, Mr Spencer 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 viewed a video of the programme complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.
 An election advertisement for the New Zealand Labour Party was screened on TV One at about 7.00pm on 2 July 2002. Among the visuals the Prime Minister was shown visiting the New Zealanders who were part of the UN Peacekeeping force in East Timor. The Prime Minister said:
We’re not going to run because things got hot. We can take pride in being part of making it happen.
 Marcel Spencer complained to TVNZ that the Prime Minister’s statement was incorrect. He said that the leaders of the Labour Government in New Zealand between 1984-1990 refused to meet East Timorese resistance leaders, adding:
Far from helping the East Timorese, Helen Clark and most other Labour and National politicians of the past 20 years could be said to be indirectly responsible for the deaths of around 200,000 East Timorese at the hands of the Indonesian military.
 TVNZ assessed the complaint in the context of Standards E1 and E2 of the Election Programmes/Advertisements Programme Code and Standard 5, Guideline 5b, of the Free-to-Air Television Code of Broadcasting Practice. They read:
E1 An "election programme" is subject to the standards requirements 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.
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.
Standard 5 Accuracy
News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.
5b Broadcasters should refrain from broadcasting material which is misleading or unnecessarily alarms viewers.
The Broadcaster’s Response to the Complainant
 TVNZ pointed out that the entire advertisement focused on a number of events which had occurred during the present term of the Labour Government, with an emphasis on international occasions.
 In view of the advertisement’s focus, TVNZ considered that the Prime Minister’s first comment indicated that the troops would stay in East Timor despite the dangers. Her second claim, it continued, alluded to New Zealand’s contribution to peacekeeping.
 TVNZ declined to uphold the complaint, writing:
It seemed important to recognise that this was an advocacy advertisement shown in the context of a general election campaign. E2 referred to above spells out that advocacy in political advertising is a ‘desirable and essential part of a democratic society’. A note to the code amplifies this further by stating that ‘the spirit of the codes should be given more weight than literal interpretation’.
The [complaints] committee concluded that the advertisement was broadcast in accordance with the requirements of standards E1 and E2, and was not in breach of standard 5 of the Free-to-Air Television Code of Broadcasting Practice. Your complaint was not upheld.
The Referral to the Broadcasting Standards Authority
 When he referred his complaint to the Authority, Mr Spencer referred specifically to Guideline 5b and argued that TVNZ’s interpretation of the advertisement was "misleading". East Timor’s independence occurred recently, he acknowledged, but it was the result of a series of events beginning in 1974. Mr Spencer said that the Prime Minister was "happy" to take the credit for the peacekeepers during the transition to independence:
… but she refuses to acknowledge her part in a Labour government (1984-1990) that supported Indonesia during its (United Nations declared) illegal occupation of East Timor. During that time New Zealand was one of only 5 or 6 countries that voted against United Nations resolutions calling on Indonesia to get out of East Timor.
 Mr Spencer said that his complaint was "not politically motivated", but that he wanted "honest advertising".
The Authority’s Determination
 Political advertisements are defined as "election programmes" in the Broadcasting Act 1989, and the Act provides explicitly (s.79) that the requirement for balance in s.4(1)(d) of the Act does not apply to an "election programme". In view of Mr Spencer’s complaint, the Authority has assessed the item complained about under Standard 5 and Guideline 5b of the Free-To-Air Television Code as to whether it was factually accurate.
 Upon viewing the item, the Authority is of the view that it informed viewers that New Zealand troops had a peace keeping role in East Timor, and that New Zealand had been involved in events during the transition to independence. The message in the visuals was confirmed by the comments made by the Prime Minister, and viewers were also informed that New Zealand’s role in peacekeeping in East Timor would continue, at least in the near future. The Authority does not consider that the item in any way dealt with New Zealand’s historical position.
 Accordingly, the Authority concludes that the item was factually accurate. As it did not review New Zealand’s past involvement, the Authority does not consider that it was misleading in any way, and it declines to uphold the complaint.
 The Authority also observes that an "election programme" is an advocacy advertisement, and as Standard E2 of the Programme Code for Election Programmes records, the expression of opinion in advocacy advertising is a desirable and essential part of democratic society.
 Furthermore, the Authority observes that to find a breach of broadcasting standards on this occasion would be to apply the Broadcasting Act 1989 in such a way as to limit freedom of expression in a manner which is not reasonable or demonstrably justifiable in a free and democratic society (s.5 of the New Zealand Bill of Rights Act 1990). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards and applies them in a manner which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.
For the reasons above, the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
12 July 2002
The following correspondence was received and considered by the Authority when it determined this complaint:
- Marcel Spencer’s Complaint to Television New Zealand Ltd – 5 July 2002
- TVNZ’s Response to Mr Spencer – 5 July 2002
- Mr Spencer’s Referral to the Broadcasting Standards Authority – Received 11 July 2002
- The Broadcaster’s Response to the Authority – 11 July 2002