BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary [This summary does not form part of the decision.]

A special investigation on Native Affairs reported the concerns of some members of Kōhanga Reo about the governance and management of Te Kōhanga Reo National Trust. The report focused on allegations that the trust board had too much power and not enough accountability, and its alleged mismanagement of public funds. The Authority did not uphold the complaint from the trust board that the story was inaccurate, unfair and unbalanced. The story had very high public interest and was a legitimate investigation of the financial activities of the trust and its subsidiary, Te Pātaka Ōhanga. The story was largely framed as being from the perspective of the interviewees, and the trust was given a fair and reasonable opportunity to respond to the claims made.

Not Upheld: Accuracy, Controversial Issues, Fairness

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Introduction

[1]  An item on Native Affairs, entitled ‘A Question of Trust’, reported concerns about the governance and management of Te Kōhanga Reo National Trust, including concerns relating to its power structures, accountability, and expenditure of public money. The report was broadcast on 9 September 2013 on Māori TV.

[2]  The Te Kōhanga Reo National Trust Board made a formal complaint to Māori Television, alleging that the broadcast was inaccurate, unbalanced, and unfair.

[3]  The issue is whether the broadcast breached the accuracy, controversial issues, and fairness standards, as set out in the Free-to-Air Television Code of Broadcasting Practice.

[4]  The members of the Authority have viewed a recording of the broadcast complained about a number of times and have read the correspondence listed in the Appendix.

Background

[5]  The Te Kōhanga Reo National Trust is a charitable trust which was incorporated in 1984. Its objectives include promoting, supporting and encouraging the use and retention of Te Reo Māori and establishing and maintaining Te Kōhanga Reo. The trust has achieved some admirable outcomes in helping to enhance and preserve Te Reo Māori as a fundamental part of New Zealand’s identity.

[6]  The trust is governed by a board of trustees which is tasked with the role of Kaitiaki of the Te Kōhanga Reo movement. The trustees hold office for life or until they earlier elect to give up their office. The trust receives very substantial amounts of public monies which it is required to apply for its proper purposes.

[7]  The trust has established a company, Te Pātaka Ōhanga Ltd (TPO). This is a wholly owned subsidiary of the trust with its one share being owned by the trust. Its directors are appointed by the trust and most of its directors are trustees of the trust. TPO provides services to the trust and those who receive benefits from the trust.

[8]  As sometimes happens, organisations such as the trust (and TPO), which are tasked with providing funding, resources and/or support to associate members, become the subject of criticism from those members. Critics consider that they are being neglected, that things are being done wrongly and that the people in decision-making roles have too much power and receive too many benefits. These sorts of criticisms are part of the ebb and flow of democratic life and are an ever-present part of life in central and local government. They should be expected to be a part of life in and around organisations such as the trust.

[9]  Some people from Mātaatua-Tauranga Moana became disaffected with the trust. Part of this disaffection appears to have arisen because a previous CEO who was Tūhoe (part of Mātaatua) had been dismissed. There had been a hikoi in protest at the dismissal. This led to some Kōhanga whanau from Mātaatua-Tauranga Moana making enquiries about the trust and developing concerns. They looked to air these concerns and did so through a broadcast made by Māori TV. This broadcast was the special report on Native Affairs entitled ‘A Question of Trust’. This broadcast led to this complaint by the trust which has now come to us for determination.

Nature of the programme and freedom of expression

[10]  Māori TV describes Native Affairs as its ‘flagship current affairs programme’, focusing on issues of importance to all people in New Zealand and particularly Māori. It said the ‘essence’ of the story was concerns raised by members of Mātaatua-Tauranga Moana about the trust board, including its management and use of public funds. It considered that providing a platform for publicly airing those concerns was in the public interest. The item was introduced as follows:

There’s an almighty row over one institution at the heart of Te Ao Māori: the Kōhanga Reo National Trust. On one side, some of those who run Kōhanga, on the other, the trust board. Critics of the trust board say it seems to have lost sight of its core business: looking after whānau and the language nests. They say the trust, which is a charitable organisation, spends some of the money which it gets from the government more like a corporate business, and they’re angered it uses trust money to make personal loans to staff and board members. In contrast, workers at the coalface of the Kōhanga Reo movement have to scrimp and save.

[11]  The report contained interviews with spokespeople for Mātaatua-Tauranga Moana, that is, two women who worked in Kōhanga Reo and a woman who was closely involved with the movement since its inception. Native Affairs engaged a public law expert to comment on the trust’s finances and some of its activities. Native Affairs invited the trust to participate in the programme but the trust declined to do so.

[12]  This item carried very high public interest. We reaffirm our view that organisations such as the trust which are public organisations funded by the public, for the purpose of serving the public, have to be subject to public scrutiny. They have to be accountable and expect that at times they will be criticised robustly, in a way that subjectively may be seen to be unfair. The wider public interest requires this criticism to be taken as one of the consequences of being in public life, and in our view it was legitimate and appropriate for Māori TV to investigate and question the trust’s financial management, especially in circumstances where this involved questioning the use of public funds.

[13]  The high value of the item, the significance of the issues to the target audience, the broadcaster’s freedom of speech and that of the disaffected whānau who were interviewed, must be balanced against the potential harm likely to accrue to the complainant, and to the audience. The alleged harm was said to derive from false and misleading claims, and a lack of balance by way of the trust board’s position, therefore misinforming viewers and creating an unfairly negative impression of the trust board and the Kōhanga Reo movement.

Was the broadcast inaccurate or misleading?

[14]  The accuracy standard (Standard 5) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead. The objective of this standard is to protect audiences from receiving misinformation and thereby being misled.¹ The standard does not apply when what is being stated is opinion or commentary.

[15]  The complaint is directed at what was said by the speakers from Tūhoe and by the presenter directly and by voiceover. As noted at paragraph [11], there were three Mātaatua-Tauranga Moana representatives: Lolo Hale, Veronika Edwards and Te Waiarani Harawira. They did not hold themselves out as having any special or inside information concerning the trust. Their comments were in relation to publicly disclosed information and were mostly an expression of their views in response to that information. The views of Ms Hale and Ms Edwards were expressed in terms which showed disquiet and distress at receiving information about the position of those who were seemingly at the top of the hierarchy (trustees), compared with the situation of those at grass roots (Kōhanga whānau and staff). All of what they said was opinion or commentary. The comments of Mrs Harawira were even more generalised and were broad criticisms consisting entirely of opinion. We do not see anything that was said by Ms Hale, Ms Edwards or Mrs Harawira as being a statement of fact to which the accuracy standard applies.

[16]  The presenter was Mihingarangi Forbes. Her position is different. Most of what she said can properly be categorised as analysis. Generally her approach was to report the disquiet and to report and comment on the views expressed by others. Typically she said ‘these whanau say…’ or ‘they want to know…’ or ‘they say…’ She referred to the critics and said ‘they looked into records…’ None of the language in this category can be classed as amounting to statements of fact of the kind contemplated by the accuracy standard. Where Ms Forbes made statements of fact, these reflected what was documented in the trust board’s financial accounts and the trust deed, or what was said by the complainant in its statement to the programme.

Particulars of accuracy complaint

[17]  Against this background, we now address the specifics of the accuracy complaint. The complaint detailed five allegations of factual inaccuracy, as follows:

• comments by Ms Hale and Ms Edwards regarding the sum of $13 million;
• allegation the trust is a landlord who is failing in its duties;
• the allegation the trust board has refused to listen to Mātaatua-Tauranga and has not responded to their concerns;
• the allegation the trust has been improperly providing loans to trustees and senior managers using taxpayer money; and
• the use of footage of the hikoi .

[18]  We reiterate our views above in regards to the comments of Ms Hale and Ms Edwards, and find that their comments in relation to the $13 million were not statements of fact. They were mere comments on something about which they had superficial knowledge only. It could not reasonably have been inferred from anything said that the reference to ‘cash’ was a reference to banknotes and coins. In any event, it was inconsequential whether the funds were referred to as ‘cash’ or as ‘deposits’ and it did not necessarily reflect badly on a trust of this size and undertaking that it retained $13 million in the bank. What was said about the fund of $13 million was not objectionable in terms of the accuracy standard.

[19]  The complainant argued that it was factually inaccurate to refer to the trust as a ‘landlord’ with day-to-day responsibilities for buildings, noting that no rent was paid by Kōhanga whānau. Nothing that was said in the broadcasts about the trust being a landlord was in our view anything other than opinion or commentary or an illustration of the cause of disquiet. It was quite obvious from the context that the term ‘landlord’ was being used to mean the trust owned the buildings, and it was never stated or implied that it charged rent. There is no substance in this part of the Standard 5 complaint.

[20]  It is said by the trust that the allegation it has refused to listen to Mātaatua-Tauranga and has not responded to their concerns was a statement of fact which was wrong and misleading. It is clear that the statements that were broadcast in this respect were statements of opinion and commentary and were not statements of fact.

[21]  The inclusion of the footage of the hikoi which took place in relation to the dismissal of a former CEO has been said to be in breach of Standard 5 when such footage was shown in the context of a broadcast directed at different concerns. We do not think that this complaint lies properly in the context of Standard 5. We think that usage of the footage was reasonable to demonstrate that there were broad concerns in Mātaatua-Tauranga about the trust, and that concerns which started with the dismissal then moved on to concerns about trust administration.

Financial impropriety

[22]  At the heart of the dissatisfaction of the trust is its concern about suggestions or implications of financial impropriety. We set out in full the details of this part of the complaint and the analysis of these details as taken from the complaint:

The allegation [is] that the trust has been improperly providing loans to trustees and senior managers, using “tax payer money”. This is factually wrong, misleading and implies that there has been financial impropriety of public funds by the trust, which is defamatory.

The trust board has not made personal loans to trustees or to senior managers. All loans are provided by TPO, which is a wholly owned subsidiary with its own board of directors and constitution, and which provides services to Kōhanga whanau and to the trust board. TPO uses a collective purchasing power of all Kōhanga Reo to negotiate cost effective pricing for Kōhanga whānau. The funds used for personal loans are funds controlled by TPO. They are not public funds. In addition, the loans and manaakitanga given to trust members is available to other members of the Kōhanga whānau. TPO regularly makes loans to Kōhanga whānau for a wide range of purposes. These facts are confirmed in the publically available audited annual accounts of the trust board, which Māori Television had access to and referred to in the segment.

[23]  One of the points made in the complaint was that it was factually inaccurate to attribute the making of loans to the trust when in fact the loans were made by TPO. Moreover, the complainant argued that it was wrong to say the loans made by TPO come from government funds. Essentially, the argument is that the trust and TPO are separate and distinct entities, the trust should not be held accountable for anything done by TPO, and that once monies have gone from the trust to TPO – even if they were public monies within the trust – they lose that character when they pass to TPO and become private monies.

[24]  We do not think that the characterisation of the funds as ‘public’ changed as the funds were passed from the trust to TPO. The trust and TPO are closely related parties. There is a distinction between a situation where one party passes money on to an unrelated private party and the situation here, where one party, the trust, is passing money to a wholly owned subsidiary, TPO, the directors of which are also trustees. The issue of the relationship between the trust and TPO was considered by the High Court in relation to matters subsequent to the broadcast. Nevertheless, the comments made by the Court are very relevant and we respectfully refer to them as follows:²

The trust is a charitable trust incorporated under the Charitable Trusts Act 1957. In addition it is in receipt of significant amounts of public expenditure. For these purposes there is no material distinction between the plaintiffs. The constitution of the second plaintiff [TPO]… indicates that it is to be used exclusively for charitable objects and has been incorporated solely to manage the economic activities of the trust. [our emphasis]

As a recipient of public funds and as a charitable trust (with the tax advantages associated with that status) there is a public interest in the proper conduct of the affairs of that entity. Its continued status as a charitable trust depends on that. As does public confidence in the trust enabling it to continue to receive public funding.

[25]  We therefore think that we need to look at the trust and TPO collectively when considering the complaint. The funds of TPO were in essence public funds and the trust is not able to isolate itself from TPO in the way that it seeks to.

Partiality

[26]  The trust board argues that the reporter took a biased approach in breach of guideline 5c, which provides that news must be impartial. It said the reporter asked leading questions and made statements of opinion, as follows: 

• ‘It must break your heart to be part of this raruraru?’
• ‘Do you think [the trust board] has too much power?’
• ‘If they [the trust board] were a good landlord they’d pay to fix it.’
• ‘Do you think it’s fair, a trustee gets a loan?’

[27]  The reporter did ask leading questions and these did detract from what was otherwise an informative report on serious questions. Leading questions carry their own adverse consequences in that they devalue the quality and power of the answers given. They can also devalue the credibility of the programme and cause journalistic impartiality to be called into question. In this case, while acknowledging the unsatisfactory nature of some of the questions, we nevertheless are satisfied that the threshold was not reached where the standard was breached.

[28]  Accordingly, we decline to uphold the Standard 5 complaint.

Was the controversial issues standard breached?

[29]  The balance standard (Standard 4) states that when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest. The standard exists to ensure that competing arguments are presented to enable a viewer to arrive at an informed and reasoned opinion.³

[30]  The trust board argued that the programme’s failure to give adequate prominence to its statement meant the broadcaster did not make reasonable efforts or give reasonable opportunities to ensure the item was balanced.

[31]  The focus of the item was the governance and management of the trust and concerns raised about its accountability to Kōhanga whānau, particularly with regard to its appropriation of public funds. In our view, an item investigating claims that a charitable trust is misspending public funds and is not adequately accountable, or fulfilling its obligations, amounted to a discussion of a controversial issue of public importance – defined as an issue which has topical currency or excites conflicting opinion,⁴ and which is of concern to the New Zealand public.⁵

[32]  However, the trust board’s concerns under this standard were that its viewpoint was not properly presented, which we consider is better addressed as a matter of fairness, not balance. In any event, we note that Māori TV made many attempts to obtain comment from the trust board and provided written questions in advance. A follow-up item was broadcast on the programme Te Kāea on 10 September, the day after the Native Affairs item, which included an interview with a trustee as a representative of the trust board. Further, the period of current interest is ongoing and the invitation to the trust board to appear on the programme remains open.

[33]  For these reasons, we decline to uphold the Standard 4 complaint.

Was the trust board treated unfairly?

[34]  The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.⁶

[35]  The trust board complained that issues which it raised under the accuracy standard were also unfair and need to be considered under the fairness standard. It asserted that Māori TV took an ‘uncritical and biased view’ of the concerns raised by Mātaatua-Tauranga Moana, and failed to put the trust board’s position to the interviewees. It was said that information which the trust gave the broadcaster in its statement of 5 September was not ‘incorporated into the segment’ and not given ‘adequate prominence’.

[36]  Māori TV said that it made numerous attempts to obtain comment from the trust board, including eight requests for an interview, and the provision of written questions in advance outlining the key issues. It contended that the trust board’s written response was adequately presented in the item, that it was common practice to paraphrase responses, and that it was not practical or possible to include the entire statement.

[37]  The fairness standard applies to individuals and organisations referred to or taking part in programmes. The trust and TPO are organisations for the purposes of this standard. The wider Kōhanga Reo movement is not.

[38]  We have already made findings in relation to the application of standard 5 and we need now to consider whether the trust board was given a fair and reasonable opportunity comment and whether its response as expressed in its 5 September statement was fairly presented. As the programme gave a platform to persons to express their negative opinions of the trust and assert their views that the trust was being mismanaged, it was all the more important that facts were correct and the trust’s statement was adequately and fairly presented.

[39]  We consider it to be clear that that the broadcaster provided the trust board fair and reasonable opportunity to comment. The trust board elected to limit its engagement with the programme to a written response.

[40]  Key parts of the trust board’s written response were sufficiently summarised and fairly presented throughout the item, as follows:

• ‘In a statement, it said it’s accountable to whānau, and board members regularly attend hui throughout the motu to answer questions and concerns.’
• ‘In its statement, the trust says it keeps the $13 million on short-term deposit so it can earn interest which can be used to benefit Kōhanga Reo.’
• ‘The trust says the loans are an expression of manaakitanga to whānau.’
• ‘The trust says its accounts are independently audited by KPMG and the report says no improper payments have been made.’
• ‘The trust board says the deed is satisfactory and serves the kaupapa of Kōhanga Reo.’
• ‘In a statement, the trust told us they would not provide information to Native Affairs about who had received loans, citing privacy issues. They say they are satisfied that the loans are appropriate use of the Trust’s resources.’

[41]  In relation to the non-cash payments issue, the reporter made the following statement by voice-over:

The financial records also show in addition to salaries the trust makes non-cash payments to trustees, directors and management… last year the total amount was $1.1million… that includes things like fuel cards, Koru Club memberships, cell phones and i-Pads.

[42]  This statement was accompanied by footage of the relevant part of the trust’s financial records referred to, including close-up footage of the sum of $1.1 million.

[43]  The issue is whether this statement by the reporter fairly reflected what the trust board said in its 5 September statement. In that statement on this issue the trust board said:

The trust did not make “non-cash” payments of $1.1 million in 2012. The figure of $1.1 million includes salaries for senior management, Trustees’ honorariums and TPO directors’ fees.

The trust makes available cell phones, i-Pads and fuel cards to trustees and senior managers at the trust to enable them to perform their respective roles.

[44]  In preparing for the item, the broadcaster had before it the trust’s financial statements for the 2012 year, consolidating the financial affairs of the trust and TPO. At the end of the financial statements there was a note headed Related Parties, which read:

Trustee, director and management compensation

In addition to salaries, the group provides non-cash benefits to trustees, directors and management for group business purposes. The non-cash items can include: rental premises; vehicles; fuel cards, koru club membership and communication

Trustee, director and management compensation:

      Consolidated                         Parent            

      2012               2011                2012               2011

     ($000)           ($000)              ($000)            ($000)

Short-term benefits        1,113                1,100                892                 884

[45]  In light of the information contained in the financial statements and the trust board’s response to the non-cash payment issue, the reporter sought clarification from the trust board as to the make-up of the $1.1 million. The reporter emailed the trust board:

We seek clarification on one issue.

In the Te Kōhanga Reo Trust Board Financial Report 2012, page 27, it says “In addition to salaries, the group provides non-cash benefits to trustees, directors and management for group business purposes.” This is in relation to the 1,113 million called Short Term Benefits. In your statement to us you say that the amount includes salaries, honorariums and fees. Could you please clarify how much is salaries, fees and honorariums and how much is non-cash items? 

This is essential for the accuracy of our story. Thank you we await your response.

[46]  The trust board’s secretary replied:

In response to your query… please note that the trust’s accounts show the overall cost of remuneration paid to managers, trustees and TPO directors. They do not record cash benefits (salaries and the like) and non-cash benefits (e.g. cell phones) separately. This means we cannot provide the information you have requested without substantial extra work. Nor can we disclose the amounts paid to individuals, as that would be a breach of the principles of the Privacy Act. 

[47]  To further complicate things, in response to an enquiry from this Authority, the solicitors for the trust advised the Authority by email on 24 April 2014:

Our instructions are that the total amount of remuneration recorded under [the heading Trustee, director and management compensation] for the 2012 year was $1.113 million and that this consisted entirely of management salaries and remuneration paid to trustees of the trust board and directors of [TPO]. [our emphasis]

[48]  Against all of that information, most of it before the broadcast but the last piece on 24 April 2014 well after the broadcast, the statement of the reporter (at paragraph [41] above) was an almost verbatim repetition of the statement in the accounts (see paragraph [44]).

[49]  We think that in all the circumstances, having regard to the opportunities for engagement given, the questions asked, the answers received and the material available to the broadcaster, no issue of unfairness arises out of the broadcast and accordingly the standard was not breached.

Conclusion

[50]  Investigative programmes of this kind have an important role in a democratic society. Discussion and challenge should not be stifled. Broadcasters need to act responsibly. Those who may be the subject of an investigation must accept that when they stand off and decline to engage, it is less likely that the positions they want to express will be able to be expressed in the way that they want. The programme was powerful but nevertheless we are satisfied that in an overall sense it did not breach any of the standards.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
30 May 2014

Appendix

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

1                 Te Kōhanga Reo National Trust Board’s formal complaint – 19 September 2013

2                 Māori TV’s response to the complaint – 4 October 2013

3                 The Trust Board’s referral to the Authority (including attachments) – 14 October 2013

4                 Māori TV’s response to the Authority (including attachments) – 11 November 2013

5                 The Trust Board’s final comment (including attachments) – 4 December 2013

6                 Māori TV’s final comment – 17 December 2013

7                 Further comment from the Trust Board – 21 January 2014

8                 Further comment from Māori TV – 23 January 2014

9                 Ernst & Young report provided by the Trust Board – 19 March 2014

10                Māori TV’s comments in response to the Ernst & Young report – 20 March 2014

11                 Further information from the Trust Board requested by the Authority – 24 April 2014

12                Response from Māori TV to the further information – 29 April 2014

13                Further information from Māori TV – 7 May 2014

14                Further information from Māori TV – 19 May 2014

, Decision No. 2010-036

²Te Kōhanga Reo National Trust Board and Te Pātaka Ōhanga Limited v Māori Television Service, CIV-2013-485-6215 [2013] NZHC 2490, per Kós J at paragraphs 5 and 6

³Commerce Commission and TVWorks Ltd, Decision No. 2008-014

⁴E.g. Dewe and TVWorks Ltd, Decision No. 2008-076

⁵Powell and CanWest TVWorks, Decision No. 2005-125

⁶Commerce Commission and TVWorks Ltd, Decision No. 2008-014