BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Outspoken – foreshore and seabed issue – complaint that the panel of four represented radical Maori viewpoint and item partial and unbalanced

Findings
Principle 4 – introduction set framework – those matters canvassed during broadcast – not upheld

This headnote does not form part of the decision

Summary

[1] The foreshore and seabed issue was addressed by a panel of four speakers during Outspoken, broadcast on National Radio between 8.00 and 9.00 pm on 11 November 2003.

[2] Gregory Wicksteed complained to Radio New Zealand Ltd, the broadcaster, that the item was neither impartial nor balanced. The four panellists and the two presenters, he wrote, represented only the Maori radical movement. No allowance, he added, was made for the alternative viewpoint held by the majority of New Zealanders.

[3] In response, RNZ said that the standards provided for balance being achieved over time. Other significant views, it wrote, had been advanced in the media on other occasions and it declined to uphold the complaint.

[4] Dissatisfied with RNZ's decision, Mr Wicksteed 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.

Decision

[5] The members of the Authority have listened to a tape 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. Chair Joanne Morris did not participate in the determination of this complaint, declaring a possible conflict of interest in light of the fact that she is a member of the Waitangi Tribunal that has heard the foreshore and seabed claims.

Programme

[6] The programme Outspoken , broadcast on National Radio, presents a variety of views on controversial issues. The foreshore and seabed issue was addressed in the episode broadcast between 8.00 and 9.00pm on 11 November 2003. The panel of four comprised Matiu Rei, chair of Te Ope Mana a Tai, Grant Powell, a lawyer who represented six iwi claiming interests in the foreshore and seabed in the Marlborough Sounds, Dr Alex Frame, barrister and author, and John McEnteer, a spokesperson for the Hauraki Maori Trust Board.

Complaint

[7] Gregory Wicksteed complained to RNZ that the programme was neither impartial nor balanced. The people interviewed, plus the two presenters, he wrote, represented “a tiny radical Maori movement” on the issue. No allowance, he added, had been made for the alternative view held “by the majority of New Zealanders”.

[8] Mr Wicksteed briefly summarised the main point made by each speaker, and he alleged that each had his nose in the “Treaty trough”. He noted that the three callers who spoke expressed similar views to the panellists.

[9] Referring to opinion polls which suggested that New Zealanders accepted that compensation should be paid for improperly seized land, Mr Wicksteed emphasised that the polls also disclosed that the vast majority of New Zealanders did not support Maori claims for exclusive ownership of amenities. Moreover, he wrote, about 50% of Maori supported the Government's plans to hold the foreshore and seabed in the public domain. National Radio, he concluded, “ought not to have played host to extremist loudmouths such as were heard” on Outspoken on 11 November.

Standard

[10] RNZ assessed the complaint under Principle 4 of the Radio Code of Broadcasting Practice which reads:

Principle 4

In programmes and their presentation, broadcasters are required to maintain 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.

Broadcaster's Response to the Complainant

[11] RNZ accepted that the foreshore and seabed question was a controversial issue to which Principle 4 applied, and pointed out that it required the presentation of significant points of view either in the same programme or in other programmes “within the period of current interest”. There had been, it wrote, “extensive coverage” of the question both on National Radio and elsewhere in the print and electronic media. The period of current interest, it argued, was ongoing. On the basis of the coverage elsewhere, RNZ declined to uphold the complaint.

[12] RNZ also pointed out that, during the programme's introduction, it was noted that the Government's spokesperson on the issue, Deputy Prime Minister Dr Michael Cullen, had been invited to participate but had declined. An open invitation was made for callers to express views but, as it happened, all the callers had generally supported the panellists. RNZ added that the programme had not been presented as an overview of the issue, but as an exploration of a number of particular aspects of the question. These matters, RNZ stated, had been taken into account in its decision not to uphold the complaint.

Referral to the Authority

[13] Dealing first with the “period of current interest”, Mr Wicksteed contended that it was finished as the foreshore and seabed matter had attracted little media attention recently. Nevertheless, as the period was undefined, he argued that it was difficult to prove that the period was not still open.

[14] Mr Wicksteed pointed out that RNZ offered no evidence to support its contention that other different points of view had been covered in other programmes. He also questioned the point of RNZ's invitation to Dr Cullen, when he would have known he would be “surrounded by a handful of Maori radicals with extremist views”. Nevertheless, Mr Wicksteed added, someone else should have been invited to represent the majority of New Zealanders.

[15] As for RNZ's statement that the programme was confined to some particular aspects, Mr Wicksteed asked why Dr Cullen had been asked to participate. He concluded:

It's practically impossible for a radio listener to demonstrate a breach of Principle 4, because in effect, the complainant must attempt to prove a number of negatives. [RNZ's] reply shows that a breach of Principle 4 is bound to be dismissed if a broadcaster chooses to focus on verbal technicalities rather than the substance of the complaint. I have shown that the invited panel of four, along with the two hosts of the programme, presented the foreshore and seabed issue in a biased manner.

Complainant's Final Comment

[16] In his final comment, Mr Wicksteed argued that Principle 4 allowed a broadcaster to present an unbalanced programme, and to argue that was only “potentially unbalanced” depending on the content of other programmes.

[17] Programmes, he wrote, should also have unbiased presenters, but that did not apply to Gideon Porter and Paul Diamond, the presenters of Outspoken on 11 November. In that programme, he wrote:

They encouraged four Maori bigots to vent their spleen on the foreshore and seabed issue.

[18] Placing the focus on the spirit of Principle 4, he contended, would ensure a finding by the Authority that RNZ had failed to comply with the standard.

Authority's Determination

[19] The programme Outspoken broadcast on National Radio on 11 November 2003 was introduced in the following way:

Tonight on Outspoken , the foreshore and seabed debate, who owns it, should anyone have private title and are Maori ownership claims modern day opportunism or a historical fact?

[20] The Authority acknowledges that the matter was a controversial issue of public importance to which the requirement for balance in Principle 4 applied. However, the Authority does not accept that there was a breach of balance on this occasion. The Authority considers that the programme was a discussion which attempted to put the foreshore and seabed issue into a historical, legal and philosophical framework. A number of informed participants were invited who could be expected to provide background information and throw some light on a highly complex issue which was being widely discussed in the media. They discussed, among other things, the history and motivation behind Maori lodging the claims, and the reaction of some Maori to the Crown's position.

[21] The Authority considers that it was legitimate to examine this issue from the perspectives of those who were closely involved or could offer some expert knowledge. The Authority accepts that these perspectives were sympathetic to the Maori claimants. The Authority also notes that Dr Michael Cullen was invited to give the Crown's view on the issue, but declined to do so.  

[22] However, the Authority does not accept the complainant's description of the panel as "a handful of Maori radicals with extremist views". Two were Pakeha of whom one had acted for six of the Marlborough iwi involved in the Court of Appeal decision that brought the seabed and foreshore issue to public attention, and was in a position to offer insight into the case. The other, Dr Frame, is a barrister and writer with expertise in public law and constitutional issues. The Authority notes, in fact, that some of Dr Frame's comments were at variance with those expressed by others on the panel – for example, on the nature and extent of customary title.

[23] The complainant argued that "ordinary Kiwis who hold the majority view could have been included in the panel". The Authority notes that "ordinary Kiwis" were invited to participate in the discussion by calling into the programme, and that three took the opportunity to do so. It further notes that the inclusion of "an ordinary Kiwi" on the panel would have added little useful information to the programme, which it considers was designed to elicit information rather than promote argument.

[24] The Authority does not consider that the interviewers displayed bias. In its view, the interviewers merely steered the panel to answer questions which had been aired in other media.

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

Signed for and on behalf of the Authority

Tapu Misa
Member
4 March 2004

Appendix

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

1.    Gregory Wicksteed's Complaint to Radio New Zealand Ltd – 12 November 2003

2.    RNZ's Response to the Formal Complaint – 27 November 2003

3.    Mr Wicksteed's Referral to the Broadcasting Standards Authority – 1 December 2003

4.    RNZ's Response to the Authority – 4 December 2003

5.    Mr Wicksteed's Final Comment – 9 December 2003