RESEARCH AND REPORTS NGĀ RANGAHAU ME NGĀ PŪRONGO

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Date published: 12 June 2023
Reviewer: Emeritus Professor John Burrows, Media Law specialist

Scope

The BSA invited Prof Burrows to independently review five decisions issued by the Authority involving the power under section 11 of the Broadcasting Act 1989 to decline to determine a complaint. The objective was to assess whether the BSA’s reasoning process and/or application of this power was appropriate and reasonable. This would provide feedback to the BSA, so it can consider any areas for improvement in the delivery of its functions, or its application of the power.

The decisions reviewed were:           

• Parvomai and Radio New Zealand Ltd - 2021-111 (13 October 2021) (Complaint over the description of a survey model as English rather than British)
• Dobson and Discovery NZ Ltd - 2022-140 (7 March 2023) (Alleged accuracy and balance breaches in AM piece on poll about political leaders)
• KS and Television New Zealand Ltd - 2020-135 (9 February 2021) (Complaint over use of te reo Māori in news and current affairs programmes)
• Foster and RDU 98.5FM Limited - 2021-035 (11 August 2021) (Alleged insufficient action by broadcaster over complaint about hip hop song)
• Morgan and NZME Radio Ltd - 2021-131 (20 December 2021) (Alleged discrimination against unvaccinated health workers on Mike Hosking Breakfast)

Results and BSA Actions

Overall, Prof Burrows found the Authority ‘performs a very difficult task very successfully’. He considered each reviewed decision ‘accords with sound common sense’ and none were wrongly decided.

Other general feedback from Prof Burrows included:

• Different purposes are served by decline-to-determine powers under section 11(a), relating to frivolous, vexatious or trivial complaints, and s11(b), those where ‘in all the circumstances of the complaint, it should not be determined by the Authority’:
  • S11(a) is a necessary power to reject investigation of complaints which would be a waste of the Authority’s time.
  • S11(b) can serve numerous purposes, including to decline to determine complaints:
    • that raise no issues of broadcasting standards
    • whose substance the Authority does not need to determine at the time because the matter can be decided on other grounds
    • involving issues the Authority has already determined in previous cases.
• A ‘decline to determine’ is a decision which is made public and, like other decisions, can be appealed to the High Court. Reasons are expected to be given, though these can be very brief – particularly under s11(a), the very purpose of which is ‘to avoid wasting the Authority’s, and the broadcaster’s, time’.
• Section 11(b) has considerable scope, allowing the Authority to decline to determine complaints in a range of circumstances including where the Authority has previously determined the issue or where the complaint is framed in offensive language.
• Approval of the Authority’s departure from normal processes of requesting the broadcast or submissions from the broadcaster in certain complaints. The truncation saves resources (for both the Authority and broadcasters) while ensuring that justice is done for all parties.

The BSA has noted the recommendations. It will take them into account in future decline-to-determine decisions and will make the report available to broadcasters and other stakeholders who may find it useful.