BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority¹ has not upheld a complaint a discussion on an inquiry and proposed reforms to the Retirement Villages Act 2003 breached the accuracy, balance and fairness standards, due to the broadcaster failing to provide prior warning to the complainant of the inclusion of a further participant to the discussion, and for not providing sufficient time for the complainant to respond to the new participant’s analysis. The Authority found the complainant was provided with a fair opportunity to articulate his position and to respond to concerns raised by other participants; the alleged inaccuracies amounted to analysis, to which the accuracy standard does not apply, and the analysis was not materially misleading with respect to any facts referred to. Noting the perspectives included in the broadcast, the Authority found the complainant’s concerns about balance were better addressed under accuracy and fairness.

Not Upheld: Accuracy, Balance, Fairness

The broadcast

[1]  An episode of Nine to Noon, broadcast on 26 June 2023, discussed a review into the Retirement Villages Act 2003 by the Ministry of Housing and Urban Development, as well as a Commerce Commission investigation into possible breaches of the Fair Trading Act 1986 within the retirement villages sector. The discussion was hosted by Kathryn Ryan, and featured Brian Peat, President of the Retirement Villages Residents Association (RVRA), Graham Wilkinson, President of the Retirement Villages Association (RVA) and Janine Stark, the author of a recently published article regarding the sector’s profitability. The discussion was introduced as follows:

Ryan:  Two separate probes are underway into legal protection for retirement village residents. But advocates say they're taking so long, many won't be around to see the results. 55,000 New Zealanders live in retirement villages, but residents have long complained about unfair terms that leave them out of pocket. Backed by the Retirement Commissioner, who said they have less protection than tenants in the private rental market. After years of lobbying, a review into the Retirement Villages Act is now being conducted by the Ministry of Housing and Urban Development. And in May, the Commerce Commission launched an investigation into potential breaches of the Fair Trading Act. Neither is expected to report til next year at the earliest.

[2]  Ryan and Peat then spoke for approximately 10 minutes on concerns the RVRA had with the sector, where Peat made points including:

• The 2003 Act was not fit for purpose.
• There were significant concerns about the length of time it took for operators to pay back residents’ capital after occupation of a unit ended – with the RVRA requesting law change to require payback of capital within 28 days of the end of occupation.
• Operators received all capital gains on the units, and held the residents’ money interest free for many years, which Peat did not consider to be fair. 
• The RVRA was seeking standardisation of Occupation Right Agreements (ORA), as currently these agreements were: hundreds of pages long; differed across villages; and were difficult for residents to understand.
• Weekly fees did not stop accruing on exit in 20 to 30 percent of villages, and many residents did not understand their agreements allowed for this.
• There was a 20 to 30 percent deferred management fee – that residents did not get back – which was used for refurbishment of the units when residents moved on.

[3]  Afterwards, Wilkinson from the RVA spoke with Ryan for approximately 10 minutes on the RVA’s perspective of the proposed changes. Wilkinson’s comments included the following points:

• Charging weekly fees after termination of occupation was probably unfair, and as of last October, 76% of villages no longer charged those fees, and the RVA welcomed that figure getting to 100%.
• Wilkinson explained the industry model as follows:
  
  (i)  Developers built the unit, which cost the developer substantial money. Residents then signed up to an ORA for the unit, which ‘hopefully’ would result in recovery of most of the developer’s cost, (but that it was never enough due to the facilities and care that were built into the cost), resulting in developers not making their money back on the initial ORA, therefore not being able to pay the bank back in total on day one.
  (ii)  In addition to the above, the weekly fees that were charged were approximately $100 less than what was required to pay costs, including rates, insurance, salaries, gardening and maintenance, so the operator was in reality, subsidising residents.
  (iii)  The operator made their money through the deferred management fee.
• Repayment of capital within 28 working days of termination was untenable, as time was required for a new resident to be found, and for that new resident to sell their own home, before entering the ORA, and then the previous resident could be repaid. This usually took four months. PricewaterhouseCoopers estimated operators in New Zealand would need to hold $2.2 billion in credit lines or capital sums to be able to pay back residents within 28 days of termination.
• There was no pool of money that operators held in the form of an interest free loan from residents. Any money received would have been used to pay back the banks.
• It took between 13 to 20 years to make a profit on a unit.
• The regulation in New Zealand was world leading, including ‘massive disclosure requirements’, statutory supervisors, compulsory legal advice, cooling off periods, and a mandatory code of practice.
• ORAs that included clauses which both provided capital gains to operators but made residents share in capital losses, were likely unfair, and the RVA was seeking to ban them.
• Having standardised agreements would be destructive of innovation and choice.

[4]  After 10 minutes of discussion with Wilkinson, Ryan advised:

I'm sorry Graham that we weren’t able to tell you before we went to air, but we've just secured this interview with Janine Starks… who has just over the last few days published an analysis of the business structure and the profitability of the sector. So listen in Graham and then we’ll come back to you. Janine, welcome and thanks for making time for us… You've just heard from Graham there over the financial structure of the industry from development through to on sale… Can you talk us through the operating model of this industry and the analysis you've done?

[5]  Ryan and Starks then spoke for approximately six minutes, during which Starks discussed her assessment of the profitability of the sector, advising that on her modelling, on the sale of a $750,000 unit, the village developer/operator could make $1.2 million revenue through the following:

• The $750,000 upfront cost, which provided the developer with an approximately $187,000 profit margin.
• A weekly fee, totalling approximately $54,000 over the average occupancy of a unit, for things ‘a landlord would normally pay for’, noting also ‘that roughly offsets and they pay out that amount as well for the [village] maintenance and things’.
• Deferred management fees of an average of 25% of the initial unit cost, amounting on average to $187,000 which was charged at the end of the residents’ occupation.
• Capital gains of 70% (modelled on house price rises over the last seven years), roughly amounting to $500,000, which the operator retained.
• An ‘interest free loan’ to the operator of the original $750,000, which Starks estimated would net the operator approximately $250,000 over the lifespan of the ORA. 

[6]  Starks also stated her opinion that operators should have lines of credit available to pay back capital within 28 days, or alternatively, should provide residents with a share in, or the total of, the capital gains.

[7]  While Starks did not clearly engage with these questions, Ryan also questioned Starks during her interview, including:

• Could you comment on the model you’re looking at, and the ability to keep cash flow running, were that to be introduced?
• Noting that, at the time of the interview, there ‘aren’t’ any capital gains, ‘There’s the reverse in the main housing sector.’

[8]  During his right of reply (approximately one and a half minutes long), Wilkinson stated that Starks’ analysis (which he advised he had previously read) was flawed, noting:

• The analysis omits the costs involved.  For example, Starks’ inclusion of weekly fees (approx. $54,000), did not account for associated costs in the order of $70,000 to $80,000, meaning there’s an operator subsidy involved.
• The percentage profit margin quoted by Starks was ‘rubbish’, and a review of the public companies’ reports would show they ‘are currently trading [at] around half their net tangible assets.’
• '[W]hen people move to a village, they move for safety, security. They move for certainty of cost. They move for a pathway to care.’
• That approximately 100 people a week chose to move to villages, and there was a satisfaction rate of about 90%.

The complaint

[9]  Graham Wilkinson complained the broadcast breached the balance, fairness and accuracy standards of the Code of Broadcasting Standards in New Zealand on the basis he had not been advised of the inclusion of Starks in the discussion, was not provided sufficient right of reply, and that Starks’ analysis was incorrect. Wilkinson added:

Fairness

• He had been invited onto the show to discuss various matters related to the legislative review being carried out by the Ministry of Housing and Urban Development, and was informed that the interview would include himself and Brian Peat from RVA. The complainant stated that his time had been spent, as requested by the host, responding to the points made by Peat, and not to the ‘new and complicated financial issues’ subsequently raised by Starks. The complainant considered he should have been warned of Starks’ inclusion, so he could prepare a response, and being provided less than two minutes out of a 30-minute segment to respond to material he ‘could not have been fully aware of’ was ‘clearly unfair’.
• When Starks concluded her discussion, Wilkinson was told “quickly, your right of reply”. Wilkinson complained ‘This was not a right of reply. I was plainly given inadequate time and opportunity to respond to her points which were highly technical and inaccurate.’
• Directly after the complainant’s interview, the complainant contacted Nine to Noon to express concern with the lack of warning and lack of an adequate right of reply. At 11.21am RNZ made a request for further comment from the RVA, which it said could be read before the programme finished at noon. The complainant advised that 39 minutes to provide a written response was unfair and insufficient.  Instead, a statement was provided by the complainant that afternoon, with the request that RNZ air it the following day. RNZ declined this request, offering instead to place an opinion piece by the RVA on the RNZ website. The complainant did not take up this offer, considering it insufficient to address the issue.
• The points the complainant wished to be read on air to remedy the alleged unfairness included:
  
  (i)  ‘The analysis given by [Starks] was incorrect by including streams of income that either do not exist or have associated costs that have not been acknowledged.’
  (ii)  ‘Rather than making a profit margin from the development of villages, financial analysts have generally pointed out that most companies cannot cover the total cost of a village from the issuing of an ORA.’
  (iii)  ‘The weekly fee that operators receive from residents is a contribution only toward the related costs. Operators subsidize these village costs. [Starks] has not deducted the related expenses in her model.’
  (iv)  ‘As there is generally an overall shortfall (covered by extensive bank debt) in developing a village, there is no money sitting in a bank account gaining interest. Rather there are interest costs for the operator in covering this shortfall.’
  (v)  ‘Villages earn their return by the deferred management fee, which is received at the end of occupation of the unit. This deferral results in low weekly outgoings for residents (to help them live off their pensions) and low weekly proceeds for the operator. The operator is required to refurbish the unit from these proceeds and finance communal facilities.’
  (vi)  ‘Any increase in the capital value of the next ORA depends on the property market at the time. There has been no suggestion by the RVRA that residents share capital losses. The industry model provides certainty of returns.’
  (vii)  ‘If [Starks] was accurate on her suggestion of super-profits, it is difficult to understand why the listed retirement villages companies are trading significantly below their net asset values.’

Accuracy

• Wilkinson advised Starks’ assertions were not ‘disputed facts’ as argued by the broadcaster, but were ‘erroneous based on invalid assumptions’ and were ‘misleading and malign the retirement sector’. He stated it was ‘concerning’ Starks was able to impart inaccurate information to the public and that ‘The reputational damage that this has done to the industry cannot easily be undone.’ The specific inaccuracies the complainant alleged, included:
  
  (i)  The public would be misled to believe retirement villages made ‘super profits’ of $1.2 million on a $750,000 ORA, and the inaccuracies of Stark’s model of industry profit could be seen in the fact listed retirement villages companies were trading significantly below their net asset values.
  (ii)  It was inaccurate to state weekly fees were a source of revenue when they were used to cover the costs of running the village, and operators in fact subsidised residents’ weekly fees.
  (iii)  Starks’ inclusion of a 25% profit margin from issuing initial ORAs was an inaccurate depiction of the profitability of the industry, and most developers/operators could not cover the total costs of development through the issuing of initial ORAs.
  (iv)  It was incorrect to say the capital paid by the resident for the ORA acted as an interest free loan. Due to initial ORAs not covering the cost of development, and the need to pay back the banks, there was no fund of money in an account gaining interest.
  (v)  Capital gains in the last seven years for the retirement villages industry had been closer to 30% (less than Starks’ 70%).
  (vi)  Rather than super-profits, operators earned their return through the deferred management fee, which was received at the end of the occupancy, and which was also required to cover the cost of refurbishment of the unit.

Balance

• Wilkinson stated he should have been given an adequate chance to prepare a rebuttal to ensure balance in the broadcast. Being told “quickly, your right of reply,” and then being given inadequate time to respond was ‘not balance’.

The broadcaster’s response

[10]  RNZ did not uphold the complaint for the following reasons:

Fairness

• ‘RNZ is able to invite anyone to participate in its programmes, within reason. The choice of participants is an editorial decision and therefore outside the scope of the Broadcasting Standards. RNZ maintains very high standards of disclosure and transparency in respect of these matters and makes every effort to ensure guests know who they will appear with and that they broadly understand what is expected of their involvement, hence the on-air apologies for the late inclusion of an extra guest in this debate and the offer of an opportunity to respond. While [the complainant] may feel [they] were given insufficient time to address all of the points [they] wished to raise, interviewing is not a matter of “stopwatch” journalism whereby fairness is achieved through an equal allocation of time. Listeners were left with the very clear impression that [the complainant] strongly disagreed with Ms Starks’ analysis, thereby achieving the fairness [the complainant] felt may have been missing from the latter part of the programme.’
• By offering the complainant an opportunity to respond, RNZ provided an adequate right of reply. ‘RNZ concludes it dealt fairly with all the participants. It pointed out the fairness standard ‘exists to protect the dignity and reputation of the participants. It does not address “fairness” to the audience or whether issues/facts are “fairly” conveyed.’

Accuracy

• ‘Starks is a fund manager and financial columnist whose work has been published in the UK and New Zealand (The Post, The Press). She is entitled to freedom of expression by the New Zealand Bill of Rights Act.’
• ‘Starks’ comments about the financial structuring of retirement living were based on [her] published report...’ Since Starks’ work ‘challenges the “fairness” of the financial arrangements in the rest home business’, it amounts to analysis, as evidenced in the title of her report² and the requirement for accuracy does not apply to statements that are clearly distinguishable as analysis, comment or opinion.
• ‘[N]othing Ms Starks said during the on-air discussion was materially inaccurate and the broadcast was not misleading. At worst, what was stated by Ms Starks could be construed as “disputed facts” in light of the comments [the complainant] made on air after Ms Starks was interviewed.’

Balance

• ‘The segment presented a range of viewpoints. The addition of Starks’ voice and opinions to the debate increased the range of viewpoints available within the same broadcast/programme.’

The standards

[11]  The fairness standard³ protects the dignity and reputation of those featured in programmes.⁴ It ensures individuals and organisations taking part or referred to in broadcasts are dealt with justly and fairly and protected from unwarranted damage.

[12]  The purpose of the accuracy standard⁵ is to protect the public from being significantly misinformed.⁶ It states broadcasters should make reasonable efforts to ensure news, current affairs or factual content is accurate in relation to all material points of fact, and does not mislead. Where a material error of fact has occurred, broadcasters should correct it within a reasonable period after they have been put on notice.

[13]  The complaint has also been made under the balance standard⁷. However, noting the different perspectives included in the broadcast, we consider the key issues identified by Wilkinson (which focus on the possibility of the audience being misled by Starks’ comments and his not being provided sufficient opportunity to rebut) are best addressed under the accuracy and fairness standards. Accordingly, we do not address the balance standard further below.

Our analysis

[14]  We have listened to the broadcast and read the correspondence listed in the Appendix.

[15]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is demonstrably justified in a free and democratic society.⁸

Fairness

[16]  The purpose of the fairness standard is to protect the dignity and reputation of those featured in programmes.⁹ Participants and contributors should be informed, before a broadcast, of the nature of the programme and their proposed contribution, except where justified in the public interest, or where their participation is minor in the context of the programme.¹⁰ 

[17]  If a person or organisation referred to or portrayed in a broadcast might be adversely affected, that person or organisation should usually be given a fair and reasonable opportunity to comment for the programme, before the broadcast. What is ‘fair and reasonable’ will depend on the circumstances.¹¹

[18]  The issue before us is whether the complainant was treated fairly. The complainant submits he was treated unfairly because:

• he was not warned of Starks’ involvement in the discussion;
• he was therefore unprepared to respond to Starks’ comments on village profits;
• his right of reply was insufficient to allow for a proper response to Starks’ comments; and
• the time given to provide a written statement after the interview (39 minutes) was insufficient.

[19]  RNZ apologised on air for not informing the complainant of Starks’ involvement, but maintained the complainant was treated fairly as he was provided with a right of reply, and was provided with adequate time in the initial part of the interview to put forward his perspectives on the operating model of retirement villages.

[20]  Overall, we consider the complainant was treated fairly in the programme, for the following reasons:

Adequately informed prior to the broadcast¹²

• We have previously recognised that there is no general obligation on broadcasters to provide interviewees with details of all other interviewees or proposed questions.¹³
• The inclusion of Starks did not materially change the nature of the programme the complainant had signed up for, which was a discussion on concerns with, and proposed changes to, the retirement villages sector.

Fair and reasonable opportunity to comment¹⁴

• The complainant was able to speak at length about the RVA’s position on the operation of the sector, and the proposed changes.
• During his interview, the complainant was asked to speak on the profitability of the sector, in anticipation of Starks’ comments, and was able to articulate how the sector operates.
• We note the fairness standard does not oblige broadcasters to offer a right of reply to every potentially adverse comment made during a broadcast. That would be unworkable and an unreasonable fetter on the rights of participants to voice opinions on current issues. The standard requires broadcasters to offer those adversely affected by relevant content a ‘fair and reasonable opportunity to comment for the programme’ (ensuring, for example, a response to any significant new matters raised). While the complainant considers he was not provided with sufficient right of reply, through his comments he was able to convey to the audience his perspective that: Starks’ analysis was flawed; Starks failed to account for costs when including weekly fees as profit; and that Starks’ assertion that developers made a 20% profit margin was ‘rubbish’. We consider in this context there was no unfairness and the complainant was given a fair and reasonable opportunity to respond.
• The list of points the complainant sought to have read out subsequent to the broadcast (in order to rectify his perceived lack of an adequate right of reply), were all points substantively covered at some point throughout the broadcast (including the parts before Starks’ interview) and therefore were conveyed to the audience.
• As a prominent businessman, and longstanding member and President of the RVA, the complainant would be familiar with media dealings.¹⁵ In our view, and noting in particular the points he was able to convey as outlined above, he did not appear ‘caught out’ by Starks’ involvement.

[21]  Considering the above (particularly the fact that all key points raised in the subsequently provided written statement were substantively addressed in the broadcast), we also do not consider the 39-minute window given to the complainant to provide a written statement before the end of the broadcast resulted in any unfairness.

[22]  For the above reasons, the Authority does not uphold the complaint under the fairness standard.

Accuracy

[23]  Determination of a complaint under the accuracy standard occurs in two steps. The first step is to consider whether the programme was inaccurate or misleading. The second step is to consider whether reasonable efforts were made by the broadcaster to ensure that the programme was accurate and did not mislead.

[24]  The requirement for factual accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact. However, broadcasters should still make reasonable efforts to ensure analysis, comment or opinion is not materially misleading with respect to any facts referred to, or upon which the analysis, comment or opinion is based.¹⁶

[25]  In assessing whether a statement was a statement of fact, or was analysis, comment or opinion, the following factors may be relevant:

• The language used
• The type of programme
• The role and reputation of the person speaking
• The subject matter
• Whether the statement is attributable to someone
• Whether evidence or proof is provided.

[26]  Applying the above factors, we consider most listeners would have understood Starks was providing her analysis of the sector, in particular noting  Ryan, on introducing Starks to the show, asked Starks to walk Ryan through Starks’ ‘analysis’ of the sector’s financial model, and Wilkinson, in his right of reply, stated Starks’ ‘analysis is flawed’.

[27]  In these circumstances, the accuracy standard does not apply unless the analysis was materially misleading with respect to any facts referred to, or upon which the analysis was based. We do not consider it was noting:

• Starks identified the key assumptions behind her analysis (as outlined in paragraph [5]).
• The complainant was able to provide alternative information regarding her assumptions and his perspective that Starks’ analysis was flawed.
• The host also challenged some of the assumptions in her questioning around cost flow issues and capital gains (as outlined in paragraph [7]).

[28]  This meant audience members were able to make up their own minds as to the calibre of the analysis and likely scale of sector profits, and were unlikely to be misled.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Tupe Solomon-Tanoa’i
Member
20 November 2023    

Appendix

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

1  Graham Wilkinson’s formal complaint to RNZ – 27 June 2023

2  RNZ’s response to the complaint – 5 July 2023

3  Wilkinson’s referral to the Authority – 6 July 2023

4  RNZ’s confirmation of no further comment – 11 August 2023

¹ Susie Staley declared a conflict of interest and did not participate in the determination of this complaint.
² Janine Starks “Research Report – Analysis of Retirement Village Costs” Money Tip (June 2023)
³ Standard 8, Code of Broadcasting Standards in New Zealand
⁴ Commentary, Standard 8, Code of Broadcasting Standards in New Zealand at page 20
⁵ Standard 6, Code of Broadcasting Standards in New Zealand
⁶ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand at page 16
⁷ Standard 5, Code of Broadcasting Standards in New Zealand
⁸ Introduction, Code of Broadcasting Standards in New Zealand at page 4
⁹ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
¹⁰ Guideline 8.2
¹¹ Guideline 8.4
¹² Guideline 8.2
¹³ Huriwai and Discovery New Zealand Ltd, Decision No 2022-061 at [18]
¹⁴ Guideline 8.4
¹⁵ Guideline 8.1
¹⁶ Guideline 6.1