BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Holmes Leaders’ Debate – Christian Heritage Party not invited – unbalanced – partial – unfair

Findings
Standards 4 and 6 – editorial discretion exercised in balanced and fair way – no uphold

This headnote does not form part of the decision.

Summary

[1] The leaders of eight political parties participated in the Holmes Leaders’ Debate broadcast on TV One at 7.00pm on 15 July 2002. The participants were chosen on the basis that the parties were represented in the outgoing Parliament. The leaders were questioned about aspects of their party’s policies.

[2] The Christian Heritage Party (CHP) complained to Television New Zealand Ltd, the broadcaster, about its exclusion from the Leaders’ Debate and the following Minor Leaders’ Debate. It said that the broadcaster had acted unfairly in not treating all political parties in the same way.

[3] Explaining that the programmes were categorised as news and current affairs, rather than "Election Programmes" as defined in the Broadcasting Act, TVNZ said that, as a matter of editorial discretion, the participants had been confined to parties with seats in the outgoing Parliament. TVNZ declined to uphold the complaint.

[4] Dissatisfied with TVNZ’s decision, the CHP referred its 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.

Decision

[5] The members of the Authority have verified that the leader of the Christian Heritage Party (CHP) did not participate in the Leaders’ Debate, and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.

The Programme

[6] Preceding the general election on 27 July 2002, TVNZ screened a Leaders’ Debate on Monday 15 July at 7.00pm on Holmes.

The Complaint

[7] The CHP through its solicitors complained to TVNZ that its leader had not been invited to participate in the Leaders’ Debate, or the forthcoming Minor Leaders’ Debate. It contended that TVNZ had acted unfairly in not treating all political parties in the same way. It pointed out that its level of support was similar to some other parties which had participated in the Leaders’ Debate, or were scheduled to appear in the Minor Leaders’ Debate.

The Broadcaster’s Response to the Complainant

[8] Explaining that the formal complaints process applied only to programmes which had been broadcast, TVNZ confined its response to the Leaders’ Debate broadcast on Holmes on 15 July. It noted, though, that its response was also applicable to the debate scheduled for 19 July.

[9] TVNZ advised that the complaint had been assessed under Standard 4 of the Free-to-Air Television Code of Broadcasting Practice which reads:

Standard 4 Balance

In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining 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.

[10] TVNZ noted that the complaint had referred to a provision in the Broadcasting Act (s.79B) which requires broadcasters to offer free time equally to each political party. It commented that as the Leaders’ Debate on Holmes did not constitute free time, the provisions were not relevant. The debates on Holmes did not allow party leaders to promote policies unchallenged, it wrote, rather leaders were required to account for those policies, and the agenda and content of the programme was determined by journalists. TVNZ continued:

Because Holmes is a current affairs programme it is entitled to exercise its editorial independence by selecting participants in televised debates, and by choosing what questions are to be asked and by whom. Fairness and balance is required as the standard indicates, but in the view of the [complaints] committee that is achieved so long as the various leaders are treated equally according to the criteria established for their inclusion in the televised debates.

[11] As for the participants, TVNZ said the debates had been confined to those parties which had seats in the outgoing Parliament.

[12] TVNZ considered that ss.79B and 77 of the Broadcasting Act, cited by the complainant, were not relevant to current affairs and news output. Further, it said, decisions by the Electoral Commission under ss.73 and 74A were not applicable and, TVNZ advised:

The committee concluded that the broadcast of the leaders’ debate on Holmes was fair and balanced and that editorial justification existed to support the view that in the terms of the general election the programme included a sufficiently wide range of significant viewpoints to comply with standard 4. Accordingly your complaint was not upheld.

The Referral to the Broadcasting Standards Authority

[13] In its referral, the party acknowledged that the complaint was confined to the Leaders’ Debate broadcast on Holmes on 15 July. However, it added, the same issues applied to the Minor Leaders’ Debate broadcast on 20 July, and to other interviews on TV One of the same leaders by Kim Hill during the same week. The referral also noted that the letter of complaint had been treated by TVNZ as a "formal complaint" under the Codes of Practice while its focus was on forthcoming Minor Leaders’ Debate. Accordingly, it pointed out, it had not raised all the standards issues which would have been aired had the letter been a formal complaint.

[14] Following on from this point, the CHP said that standard G6 of the Code was more appropriate than the standard nominated by TVNZ. Indeed, it suggested that TVNZ had deliberately avoided assessing the complaint under the requirements for balance, fairness and accuracy in standard G6. It continued:

The CHP submits that the inclusion or exclusion of a political party from an election programme dealing with choices voters have must be demonstrably impartial and fair. The CHP accepts that TVNZ’s decision was consistent but was unfair because:

i) the criteria used to select who would appear was based on a poll taken three years earlier, namely the last General Election; and

ii) Jim Anderton was included even though his Party did not have an MP when the House rose.

[15] Restricting participation to parties represented in Parliament, the CHP argued, was too narrow and it:

… effectively means that no new party can get ahead in this democracy because the State broadcaster has determined it will not include in documentary or current event programmes parties that do not have an MP.

[16] The Party concluded:

Christian Heritage is asking the [Electoral] Commission to address this issue even though the election is now history. Further, the Commission is urged to take the unusual step of making recommendations to the Government to ensure there are processes that apply during elections that would allow a political party to seek immediate redress when an issue like this comes up. Thank you for considering the Party’s appeal.

The Broadcaster’s Response to the Authority

[17] TVNZ made five points in its response to the Authority. First, it considered that it was an in-house matter for TVNZ as to how it dealt with the original letter of complaint and, as a strenuous effort was made to deal with the issues promptly, a reply had in fact been sent within 24 hours.

[18] Second, TVNZ acknowledged that Standard 6 was relevant as well as Standard 4, but as all parties had been treated according to realistic editorial criteria, it had not been breached.

[19] Third, the initial response had included a reference to "free time" as it was raised in the complaint, although the letter of complaint appeared not to recognise the distinction between "election programmes" as defined in the Broadcasting Act, and programmes categorised as news and current affairs.

[20] Fourth, Mr Jim Anderton had been included, as had Mr Peter Dunne, as both were sitting members who were likely to retain their seats.

[21] Fifth, as to the aspect of the complaint which referred to Guideline 5c and the requirement to ensure editorial independence, TVNZ contended:

[A] realistic assessment was made in choosing which parties should have their policies analysed and challenged in the various pre-election current affairs programmes.

[22] It concluded:

It is submitted that because the issue is one of editorial discretion, the Authority may wish to consider whether an issue of standards is involved here.

The Complainant’s Final Comments

[23] CHP responded to each of TVNZ’s points. First, it pointed out that TVNZ decided to apply the Television Code to the complaint and, accordingly, was now subject to the Authority’s jurisdiction. As for the second point, the CHP wrote:

TVNZ’s double speak must be obvious to all. For years the Company has excluded the CHP from being reported on the basis of opinion polls. When the CHP uses that as a gauge, suddenly TVNZ decides that was not the basis of the decision as to which parties could participate in the Debates.

[24] TVNZ’s argument that it applied editorial freedom, the CHP added, was used contrary to Standard 6.

[25] Third, the CHP stated that the Electoral Commission accepted that news and current affairs might also be an "election programme" under the Broadcasting Act. The Commission was now considering whether it could deal with disputes such as the present one and, the CHP declared, if it did not resolve that matter, the CHP intended to seek a Declaratory Judgment from the High Court.

[26] As the fourth point, the CHP noted that TVNZ’s decision to include leaders was whether the party was represented in the last Parliament. Now, it argued, the criteria was the perceived ability to win a seat.

[27] The CHP maintained:

CHP submits that the Broadcasting Act and the Voluntary Codes place limits on editorial decision-making, especially when it comes to sensitive political reporting such as occurs at election time. TVNZ should not be allowed to use editorial freedom to pre-empt an election outcome. This is undemocratic and is counter to freedom of speech.

The Authority’s Determination

[28] The standards under which the CHP’s complaint is to be assessed is the first matter to be resolved. The CHP argued that the complaint alleged a breach of standard G6, and that TVNZ was incorrect in confining its assessment to Standard 4.

[29] The Free-to-Air Television Code of Broadcasting Practice was revised in 2001 and a new code came into effect on 1 January 2002. Standard G6 was a standard in the code which has been replaced. It required balance, fairness and accuracy in programmes which dealt with political matters, among other issues.

[30] The balance aspect in Standard G6 is now part of Standard 4 of the revised code (see para [9]) and TVNZ assessed the complaint under this standard. As the CHP’s complaint also raises issues of fairness, the Authority intends to assess the complaint under Standard 6, in addition to Standard 4. It reads:

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

[31] The Authority notes the CHP’s comments that it believes that news and current affairs programmes such as the Leaders’ Debate are "election programmes" under the Broadcasting Act, and that it is discussing the matter with the Electoral Commission. This is a debate which at this stage has not been resolved. Accordingly, the Authority has not taken the provision relating to "election programmes" into account and has considered the complaint that the Leaders’ Debate, by excluding the leader of the Christian Heritage Party, failed to comply with the broadcasting standards relating to balance and fairness.

[32] TVNZ argued that it exercised editorial discretion when deciding which leaders to invite to participate in the Leaders’ Debate. The yardstick used, it continued, was to invite the leaders of the political parties which were represented in the outgoing Parliament.

[33] The Authority understands that leaders of political parties not represented in the outgoing Parliament might consider the process was unfair to them, particularly if their rating in opinion polls was similar to some of the parties which were represented.

[34] Nevertheless, the Authority does not accept that the process used by TVNZ breached the standards. It considers that TVNZ has the right to select the leaders to take part provided it is done in a way which can be justified in terms of balance and fairness. The Authority concludes that the TVNZ’s selection process met these criteria, and it declines to uphold the complaint.

[35] 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 above reasons, the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
17 October 2002

Appendix

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

1. The Christian Heritage Party’s (CHP) Complaint to Television New Zealand Ltd – 18 July 2002
2. TVNZ’s Response to the Formal Complaint – 19 July 2002
3. CHP’s Referral to the Broadcasting Standards Authority – 14 August 2002
4. TVNZ’s Response to the Authority – 21 August 2002
5. CHP’s Final Comment – 6 September 2002