BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The complainant referred a complaint concerning an item broadcast on 1 News accompanied by submissions in excess of 100 pages, indicating further submissions would be required. The Authority ordered the complainant to resubmit the complaint in a more proportionate form, constituting a single submission not exceeding 2,000 words, within 20 working days of this decision.

Order to resubmit complaint in a form not exceeding 2,000 words within 20 working days

Background

[1]  On 27 May 2023, the complainant referred a complaint concerning an item broadcast on 1 News on 12 April 2023. The broadcast discussed a leak of classified documents from the Pentagon, reported some of the content leaked (including material concerning the war in Ukraine) and also discussed issues with landmines in Ukraine.

[2]  The complainant’s referral relied on multiple broadcasting standards. At a high level, it raised concerns regarding the depiction of particular countries (particularly Russia), other perspectives he considered should have been included and the depiction of a butterfly mine victim. It was approximately 100 pages in length, including reproductions of many news articles he considered of relevance in demonstrating alternative perspectives on matters such as the Ukraine war. He also included what appear to be copies of a request under the Official Information Act 1982 to several government agencies and a complaint to the Independent Police Conduct Authority. The complainant also indicated further submissions would be necessary (and has sent three further emails with additional material as at the date of this decision, with an additional 170 pages).

[3]  Noting the quantity and irrelevance of some of the submissions, Authority staff considered the submissions would have a disproportionate effect on the Authority’s resources, generating unreasonable delay or workload relative to their value in determining the complaint. Staff therefore requested the complainant resubmit his complaint in a more proportionate form, being a single submission not exceeding 2,000 words.

[4]  The complainant has refused to comply with this request.

Outcome: Order to resubmit complaint

[5]  As a quasi-judicial body tasked with receiving and determining broadcasting complaints,¹ we are able to manage our processes and affairs as necessary to advance our statutory purposes.

[6]  Section 10 of the Broadcasting Act 1989 imposes on obligation on us to provide for as little formality and technicality as permitted by the requirements of the Act, a proper consideration of the complaint, and the principles of natural justice.

[7]  It is well established the requirements for natural justice may vary with the circumstances of the case, taking into account ‘the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth’.²

[8]  Importantly, natural justice does not encompass the right to have irrelevant and excessive submissions and supporting material considered by the Authority. Our legislation also envisions the Authority only consider relevant submissions when determining complaints.³

[9]  Having considered the nature of the broadcast and complaint, we do not consider the principles of natural justice require submissions of the nature and quantity submitted, particularly in circumstances where:

• Much of the submissions relate to issues concerning the Russia‑Ukraine war and/or other matters involving the United States which are not the focus of this broadcast (and when the Authority has previously cautioned the complainant to consider whether such issues are best addressed by this Authority).⁴
• The Official Information Act requests and Independent Police Conduct Authority complaint are unconnected to the issue of whether this particular broadcast breached broadcasting standards (the issue this Authority is tasked with determining).

[10]  Section 12 of the Broadcasting Act 1989 confers certain Commissions of Inquiry Act 1908 powers on the Authority. Section 4C(1)(c) of the Commissions of Inquiry Act provides that a Commission may:

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. (emphasis added)

[11]  In the above context, we consider it reasonable to direct the complainant to resubmit his complaint in an acceptable form, being a single document of no more than 2,000 words (including the words in any attachments or materials for which links are provided).

[12]  We direct the complainant to resubmit his complaint in this form within 20 working days of this decision. Failure to do so may mean we decline to determine the complaint.  

Order

The Authority orders the complainant to submit a single submission in support of his complaint, not exceeding 2,000 words (including the words in any attachments or materials for which links are provided) within 20 working days of this decision.

Signed for and on behalf of the Authority

Susie Staley
Chair
9 August 2023

Appendix

The correspondence listed below was received and considered by the Authority when issuing this decision:

1  Wakeman’s referral to the Authority – 27 May 2023

2  Authority staff’s request to resubmit complaint – 8 June 2023

3  Wakeman’s refusal to comply with timetabling request – 10 July 2023

4  Wakeman’s further submissions – 12, 16 and 17 July 2023

¹ Broadcasting Act 1989, s 21(ba)
² See Radio New Zealand Ltd v Ellis [2006] NZAR 1 (HC) at [43] citing Peters v Collinge [1993] 2 NZLR 554 (HC) at 566–567
³ Broadcasting Act 1989, s 10(1)(b)
⁴ See Wakeman and Television New Zealand Ltd, Decision No. 2023-005 at [21]