BEFORE THE BROADCASTING STANDARDS AUTHORITY
Decision No: 115/95
Dated the 9th day of November 1995
IN THE MATTER of the Broadcasting Act 1989
AND
IN THE MATTER of a complaint by
BARRY MAGUIRE
of Auckland
Broadcaster
RADIO NEW ZEALAND
LIMITED
J Potter Chairperson
L M Loates
R McLeod
DECISION
Summary
The apparently easy availability of an order to require a person to attend an anger
management course, and the alleged lack of dedication which could be displayed by
lawyers in receipt of legal aid, were among the topics addressed on Newstalk ZB (host
Chris Carter) between 12.45 - 1.00pm on 23 March 1995.
Mr Maguire complained to Radio New Zealand Ltd that the assumptions on which
the comments were made were incorrect, that the broadcast failed to respect the
principles of law which sustain our society, and that it also denigrated the judiciary.
On the basis that the host had commented on the caller's concerns about his lawyer
and had not encouraged the flouting of the law, RNZ declined to uphold the complaint
in an informal response. As RNZ did not respond to the complaint formally within
60 working days, Mr Maguire referred the complaint to the Broadcasting Standards
Authority under s.8(1)(b) of the Broadcasting Act 1989.
When asked by the Authority for comment, RNZ apologised for the delay in replying
and maintained that the broadcast did not contravene the standards. As he was
dissatisfied with that decision, Mr Maguire referred his complaint to the Authority
under s.8(1)(a) of the Act.
For the reasons below, the Authority upheld part of the complaint and ordered the
broadcast of a summary of the decision.
Decision
The members of the Authority have listened to the item complained about and have
read the correspondence (summarised in the Appendix). As is its practice, the
Authority has determined the complaint without a formal hearing.
A caller to Newstalk ZB just before 1.00pm on 23 March expressed his anger that,
following the break-up with his partner, he had been served with an order to attend an
anger management course. It had been obtained, together with a non-molestation
order, on an ex parte basis - ie without the caller being required to attend court and
without being given an opportunity to present his side of the story. He said that he
had been unsuccessful in his efforts to defer his attendance at the course and had been
told by his solicitor, acting on legal aid, that the matter could be considered by the
court on the date set down - in about two months - to deal with the non-molestation
order.
The host (Chris Carter's) response included, among other matters, the comment that
the non-molestation orders were "issued like confetti", that lawyers acting on legal aid
were like "Woolworths lawyers" who were more concerned about their paying clients
and that the caller should outwardly comply with the anger management order but
plead diarrhoea on the day he was required to attend. Further, after asking "who the
hell does this judge think he is?", the host suggested that a judge could order a
frowning passer-by in the street to attend such a course. He also said that, if the caller
was in Christchurch, he should be careful not to be alone with the children as parents
in that situation in that city were liable to be "burnt at the stake".
Mr Maguire complained to RNZ that the above specific comments and the overall
tone suggested that the anger management order was made unjustly and thus, in those
circumstances, it was appropriate not to comply. Moreover, he wrote, the host had
presented himself as a "professional" broadcaster. He considered that the programme
had contravened standards R6 and R14 of the Radio Code of Broadcasting Practice by:
a) counselling a person to breach an Order of Court and suggesting
procedures to adopt in such a breach;
b) a gratuitous, irrelevant and unwarranted attack on the integrity of the
Christchurch judiciary; and
c) an unwarranted denigration of the integrity of the Legal Aid system and
the lawyers who accept such instructions
In an informal reply (later treated as its formal response) RNZ denied that the host
could be seen as counselling a breach of a court order and said that he was referring to
Christchurch in general and not just to the judiciary. Further he had not been referring
to legal aid lawyers as a class.
RNZ did not respond formally to the complaint within 60 working days at which time
Mr Maguire referred it to the Authority under s.8(1)(b) of the Act. RNZ apologised
and Mr Maguire then referred the substance of the complaint to the Authority.
Noting that RNZ had described the host as an "experienced" broadcaster, at that stage
Mr Maguire complained that the host:
(i) presented himself to his listening audience as a person with a considerable
amount of legal knowledge;
(ii) did nothing to disabuse his audience from gaining that impression; and
(iii) proceeded to abuse and bring into contempt various participants in the
legislature and judicial systems.
After dealing with some procedural matters raised by Mr Maguire (summarised in the
Appendix), RNZ assessed the complaint under standards R6 and R14 of the Radio
Code. They require broadcasters:
R6 To respect the principles of law which sustain our society.
R14 To avoid portraying people in a manner that encourages denigration of or
discrimination against any section of the community on account of gender,
race, age, disability occupation status, sexual orientation or as the
consequence of legitimate expression of religious, cultural or political
beliefs. This requirement is not intended to prevent the broadcast of
material which is
a factual, or
b the expression of serious opinion, or
c in the legitimate use of humour or satire
RNZ reiterated the points made in its informal response and dealt specifically with the
issues numbered (i) - (iii) above. It did not concede that the host had presented
himself as a person with considerable legal knowledge and noted that the host had
several times expressly stated that he was only giving his personal opinion. On the
third point, RNZ noted that while the host's response might not be suitable for a well-
researched current affairs programme, it was not inappropriate in the robust and
colloquial talk-back environment.
With regard to the standards, RNZ questioned whether standard R6 was appropriate
in the talkback context and maintained that the denigration to the degree required by
the Authority in its interpretation of standard R14 had not occurred.
In its assessment of the complaint, the Authority focussed on the tone of the item. It
also took account of the fact that any talkback host is seen as being in a position of
authority and, by virtue of chairing the debate, is assumed by listeners to have at least
some degree of knowledge about the topic under discussion. The Authority accepts
that most hosts come across at least as highly opinionated and are assumed by
listeners to be well-informed.
Thus, although the Newstalk ZB host did not claim legal knowledge while the matter
was being canvassed, the Authority accepted that he spoke in a way which suggested
a wide-ranging general knowledge and at least some understanding of the matters being
discussed.
The caller referred to an ex parte non-molestation order and the order to attend an
anger management course although he confined his objections to the latter. The host's
comments were particularly scathing about the anger management course but he was
also critical of the ease with which non-molestation orders were obtained ("like
confetti"). Although the host asked some questions of the caller, he was not backward
in giving his immediate sympathy and support for the caller, despite the limited
information he elicited, or extending the conversation to other matters (eg the situation
in Christchurch as he perceived it). While the host did not explicitly counsel the caller
not to attend the course, his comments about how to avoid attending and the process
(eg about diarrhoea and describing lawyers acting on legal aid as "Woolworths
lawyers") reflected his obvious disdain for the process by which the order had been
imposed. Combined with the tenor of the comments, the Authority decided that the
broadcast contravened the requirement in standard R6 to show respect for the
principles of law.
While the host's remark could be taken as a criticism of the Christchurch judiciary, the
Authority did not consider it to be directed at the judiciary alone or that it amounted
to a "blackening" of them. Accordingly, it concluded that standard R14 had not been
breached.
For the above reasons, the Authority upholds the complaint that the broadcast
by Radio New Zealand Ltd of Newstalk ZB on 23 March 1995 breached standard
R6 of the Radio Code of Broadcasting Practice.
It declines to uphold the complaint which alleged a breach of standard R14.
Having upheld a complaint, the Authority may impose an order under s.13(1) of the
Broadcasting Act 1989.
The Authority accepts that talkback radio - both hosts and callers - can be
provocative, colloquial and controversial. However, it also expects that hosts will
ensure that the standards are not contravened and that extreme positions are not
accepted without at least comment to the effect that there are alternative legitimate
perspectives. In this case, however, the caller confined his objections to one aspect of
the process and, in fact, provided the balance to the host's more outspoken remarks
about other aspects. Standard R6 requires respect for the principles of law. As the
host's comments on this occasion could be taken as suggesting that valid legal
processes could justifiably be treated with disdain, if not contempt, the Authority
decided that the broadcast of a summary of this decision was appropriate.
ORDER
Pursuant to s.13(1) of the Broadcasting Act 1989, the Authority orders Radio
New Zealand Ltd to broadcast a brief summary of this decision, approved by the
Authority, arising from the talkback broadcast between 12.00pm - 1.00pm on 23
March 1995. The broadcast shall be made on a talkback programme between
12.00 noon and 1.00pm on a weekday within one month of the date of this
decision or at such other time as approved by the Authority.
Signed for and on behalf of the Authority
Judith Potter
Chairperson
9 November 1995
Appendix
Mr Maguire's Complaint to Radio New Zealand Ltd - 19 April 1995
Barry Maguire of Auckland complained formally to Radio New Zealand Ltd about the
comments made by the host (Chris Carter) on Newstalk ZB between 12.45 - 1.00pm
on 23 March 1995.
Mr Maguire recalled that a caller to talkback had stated that he had been served with
two orders issued ex parte - a non-molestation order and an order to attend an anger
management course. In response to a question from the host, the caller confirmed that
he was legally aided. The host had then described legal aid lawyers as "Woolworths
Lawyers" who were primarily concerned with their fee paying clients. The host also
said that it might be appropriate to develop a case of diarrhoea or something similar
rather than attend the anger management course. The caller, also in response to a
question, stated that he was not calling from Christchurch where, the host said,
parents who were left alone to care for the children were liable to be burnt at the stake.
Mr Maguire complained that the host accepted, without evidence, that the two orders
were unjust and, therefore, that the caller was entitled to breach the one which required
him to attend an anger management course. Further, he had gratuitously insulted
lawyers who accepted legal aid assignments and denigrated the Christchurch judiciary.
Mr Maguire commented that he had been in legal practice for 20 years and was
familiar with the proceedings referred to and, in addition, he had accepted cases on
legal aid. In view of this background, Mr Maguire described the host's comments
about lawyers who accepted legal aid work and the type of evidence needed to obtain
ex parte orders as inaccurate. He also questioned the host's professionalism and
maintained that the comments breached standards R6 and R14 of the Radio Code of
Broadcasting Practice.
RNZ's Response to the Formal Complaint - 21 April 1995
RNZ's Operations Manager at Newstalk ZB acknowledged the complaint and advised
that it had been forwarded to the corporate office for action.
Mr Maguire's Complaint to the Broadcasting Standards Authority - 12 July
1995
As Mr Maguire did not receive a formal response from RNZ within 60 working days,
he referred the complaint to the Authority under s.8(1)(b) of the Broadcasting Act
1995.
Noting that his complaint had been made without the benefit of a transcript, Mr
Maguire asked whether he was entitled to one which might clarify the issues.
Further Correspondence
When acknowledging the complaint on 14 July 1995, the Authority advised Mr
Maguire that it had asked RNZ to respond directly to Mr Maguire on the issue of
supplying a transcript.
In reply to the Authority, Mr Maguire cited ss.10(2) and 12 of the Broadcasting Act
and, pursuant to s.10(2) and s.4C(3) of the Commissions of Inquiry Act 1908, sought
a transcript of the broadcast verified by a senior employee of RNZ.
The Authority sought RNZ's response to the request before ruling on Mr Maguire's
application.
RNZ's Response to the Formal Complaint - 31 July 1995
RNZ explained that it was its practice to respond informally initially to a formal
complaint. Complainants were advised that the informal response was not a barrier to
proceeding with the formal complaint but, on occasions, complainants were satisfied
with such a reply.
It enclosed a copy of the informal response sent to Mr Maguire, dated 3 May, and, as
his reply was not on the file, it had been assumed that Mr Maguire had not wanted to
pursue the matter.
The informal response (dated 3 May 1995) noted that a talkback host was not a
counsellor who offered serious advice. It also maintained that the references to
Christchurch dealt with the child molestation cases in that city and not to the
judiciary. Further, the comment about the caller's legal aid lawyer referred only to the
individual caller. It was not, RNZ stated, a reference to legal aid lawyers as a group.
RNZ concluded:
As you may know our talkback hosts don't deliberately set out to upset people.
Talkback is an avenue for people to express their opinions and discuss matters
of concern to themselves and the wider community. I trust the information I
have provided helps elucidate the matters of concern to you, and dispels any
impression that Chris Carter was somehow suggesting his caller flout the law.
RNZ acknowledged that Mr Maguire's letter in which he expressed his intention to
continue with the complaint had, by accident, not been attached to the file. It intended
to write to Mr Maguire and apologise.
As for the request for a transcript of the broadcast, RNZ was prepared to make an
exception from its usual practice of charging for cassettes and was arranging for one to
be sent to Mr Maguire "making up in some small measure for the confusion which
occurred".
Mr Maguire's Reply to the Authority - 24 August 1995
Having listened to the tape, Mr Maguire confirmed that he wished to proceed with his
complaint. He said that there were other comments which breached standards R6 and
R14. They were:
* that non-molestation orders are issued like confetti
* that lies can be told to the Court with impunity
* that the judge "had no right" to make the order the caller was complaining
about
* that New Zealand was like a fascist society
* that a judge might order a passer-by who frowned to attend an anger
management course
* that requests by court officials that orders be complied with was a "little
game"
* that on the basis of inadequate information about the particular case, the
host had commented: "who the hell does this judge think he is?"
Moreover, Mr Maguire wrote, the host presented himself as a person with reasonable
legal knowledge and had abused the legislature, the judges, legal aid lawyers and court
officials. Mr Maguire concluded:
I personally consider such a broadcast to be contemptible "as a whole" if not in
relation to any particular element earlier complained of.
Mr Maguire's letter of 24 August also included a copy of a letter to the Authority
dated 16 August which he said he had omitted to fax to the Authority at the time.
That letter dealt with his request for a copy of the tape which, having been received,
was no longer relevant. Nevertheless, Mr Maguire wrote:
... it remains my opinion that any complainant is entitled by law to receipt of
any transcript or any documentation put before the Authority by a broadcaster
and that such should be made without charge. My letter of 20 July 1995
outlines the legal justification for this view. I request that you put before the
Authority both a copy of this letter and my letter of 20 July 1995
notwithstanding the concession made in paragraph 1 above.
He also expressed surprise that RNZ had sent the Authority a copy of its 3 May
letter, observing:
The above letter was sent to the Authority without my knowledge or consent
and without a copy of my response to the letter being similarly sent to the
Authority.
RNZ had not sent him a copy of its letter of 31 July to the Authority. In that letter,
RNZ had commented that the complaint was received one day before the statutory
time for complaints expired. Mr Maguire stated:
There is absolutely no legal basis for such a comment and I seek your
confirmation no adverse repercussion will result from my complying with
statutory time limits.
Mr Maguire concluded:
I reiterate my surprise and amazement that the Respondent appears freely able
to correspond with the Authority without forwarding me copies of the same.
This is particularly bizarre as such correspondence appears to:
(a) request adverse inferences to be taken from the fact I complied with
statutory time limits, (see (d) above).
(b) forward to the Authority a letter addressed to me which expressly stated
that it was "not referable to the Broadcasting Standards Authority for
review".
Given I have already pointed out my letter to the Authority of 20 July 1995 the
fact that the Authority is bound by the provisions of the Commissions of
Inquiry Act 1989 I seek your comments as to how the above matters in any way
evidence compliance with that Act.
RNZ's Response to the Procedural Matters Raised and to the Substance of the
Complaint - 26 September 1995
The Authority sought RNZ's comments before responding to the matters raised by
Mr Maguire.
RNZ stated that it did not usually supply tapes free of charge to complainants but
had done so on this occasion in light of the "exceptional circumstances".
As for the copy of its 3 May letter to Mr Maguire, RNZ said that it believed that the
Authority should be supplied with all relevant material. The letter had explained to
Mr Maguire, RNZ maintained, that it was an informal response rather than a formal
response to the complaint and thus not referrable to the Authority under the Act.
However, it did not detract from Mr Maguire's rights under the Broadcasting Act.
Once the Authority had become involved with a complaint, RNZ continued, it
considered that all communications should be with the Authority. It wrote:
In metaphorical terms and not speaking in a strictly legal manner, the Authority
is assumed to have become the complainant's agent, as it also has to some extent
become the agent of the Company. It is for the Authority to refer
correspondence at that stage from each to the other party if it sees fit. The
Company does not concede an obligation to copy a complainant in to what it
writes under these circumstances to the Authority, which is known to follow the
custom of copying relevant correspondence from each to each as part of its
review preparation process.
RNZ said the reference to the 20 working day time limit on complaints was intended
merely to put its actions - by responding informally - into perspective.
RNZ then dealt with the substance of the complaint in which it treated its informal
response of 3 May as its initial substantive response. It began by summarising nine
points which, it said, had been made in the initial letter of complaint from Mr
Maguire. In his letter of complaint to the Authority dated 24.8.95, RNZ added:
The complainant cites several extracts from or summaries of parts of the
broadcast as further examples of encouragement by the "host" to listeners to
ignore or act against the law.
The complainant had argued:
Carter presented himself [to the audience] as a person with legal knowledge and
did nothing to prevent listeners from gaining that opinion. He abused and
brought into contempt Parliament; judges (said to assume powers which they
exercise without regard to fact); legal aid lawyers (the Woolworth's reference);
Justice Department officials ("little game" reference trying to enforce court
orders).
RNZ pointed out that the caller had objected only to the fact that an unnamed judge
had made an ex parte order requiring him to attend an anger management course. He
had not objected to the ex parte non-molestation order and agreed with the host that
they might be issued after the applicant (usually a woman) had been telling lies.
The caller was concerned with the order requiring attendance at an anger management
course and had told the host (in response to a question) that he was in receipt of legal
aid.
RNZ then dealt with the substantive issues.
RNZ did not accept that the host presented himself as a person with considerable
knowledge or that the comments were inappropriate on a talkback programme. It
questioned whether a talkback programme in the current context could indeed be
considered a broadcast which could breach standard R6. Standard R14, it argued, had
not been breached as the broadcast had not involved a "blackening" of the people
referred to.
RNZ concluded:
Finally, the Company is in some difficulty concerning the application of Mr
Maguire's final comment, that he found the broadcast "contemptible as a
whole", to the Programme Standards cited.
The Company regrets that Mr Maguire should have found the broadcast
objectionable, and looks forward to receiving the Authority's opinion and
decisions. It also acknowledges once more its fault in failing to respond formally
to the original complaint within time, and again offers its apologies.
Further Correspondence
On 2 October 1995, the Authority advised Mr Maguire that in view of contrasting
requirements in ss.10 and 12 of the Broadcasting Act 1989, it did not consider that a
complainant was automatically entitled to a copy of a tape supplied by the
broadcaster unless the Authority specifically adopted the procedures in s.12.
It also informed Mr Maguire that RNZ's use of the term "not referable" in its letter to
him of 3 May did not amount to "confidential" and thus its referral to the Authority
by RNZ was appropriate.
Further, once a complaint had been referred to the Authority, the Authority did not
consider that the parties were required to provide copies to each other of their
correspondence with the Authority.
Mr Maguire's Final Comment -13 October 1995
In his final comment, Mr Maguire continued to maintain that it was unfair - and
contrary to the principles of natural justice - to deny the complainant access to the
tape the broadcaster provided to the Authority. Further, it was unfair to refer to a
letter expressly when it was recorded that it was not referable.
Mr Maguire considered that either parts of the item - or the item in full - breached
standard R6. Standard R14, he added, was not his concern. He listed four reasons
why he believed RNZ's defences to be unacceptance and, if accepted, would lead to a
further deterioration of broadcasting standards.
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