Colman and Radio New Zealand Ltd - 2004-072
- Joanne Morris (Chair)
- Tapu Misa
- Paul France
- Diane Musgrave
- John Colman
ProgrammeNine to Noon
BroadcasterRadio New Zealand Ltd
Complaint under s.8(1)(a) of the Broadcasting Act 1989
Nine to Noon – commentator (Hana O’Regan) compared the impact of views of the leader of the National Party (Dr Brash) to those of Hitler – allegedly offensive, irresponsible, unbalanced, unfair and inaccurate
Principle 1 (good taste and decency) – context – not upheld
Principle 4 (balance) – another perspective on extensively debated controversial issue – not upheld
Principle 5 (fairness) – focus of comparison on process, not policy – not upheld
Principle 6 (accuracy) – limited factual comparison accurate – not upheld
This headnote does not form part of the decision.
 Commentator Hana O’Regan was interviewed by the presenter (Linda Clark) on National Radio’s Nine to Noon between 9.54 and 10.00am on 11 February 2004. She referred to a recent speech on race relations and the foreshore and seabed issues made by the leader of the National Party (Dr Donald Brash), and drew a comparison between the impact of that speech and the rise of Adolf Hitler in Germany.
 Nine to Noon, broadcast each weekday, is a magazine programme which includes news and current affairs, along with items such as book readings and book reviews.
 John Colman complained to Radio New Zealand Ltd, the broadcaster, that the comparison of Dr Brash’s views with those of Hitler was “reprehensible”, “irresponsible and unbalanced”. He contended that the interview should have been terminated after the first reference to Nazi Germany, but the commentator had been allowed to continue speaking.
 RNZ assessed the complaint under Principles 1, 4, 5 and 6 of the Radio Code of Broadcasting Practice. They read:
In programmes and their presentation, broadcasters are required to maintain standards which are consistent with the observance of good taste and decency.
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.
In programmes and their presentation, broadcasters are required to deal justly and fairly with any person taking part or referred to.
In the preparation and presentation of news and current affairs programmes, broadcasters are required to be truthful and accurate on points of fact.
Broadcaster's Response to the Complainant
 RNZ considered first whether the broadcast contravened the requirement for good taste and decency in Principle 1. It pointed out that the comments were expressed in a “mildly passionate” rather than a “venomous” manner, and were the commentator’s genuinely-held opinion in the debate following Dr Brash’s “Orewa” speech. It also referred to the New Zealand Bill of Rights Act 1990 and argued that it was RNZ’s responsibility to broadcast a range of views including those which some people found offensive. It declined to uphold the Principle 1 aspect of the complaint.
 Turning to the requirement for balance in Principle 4, RNZ accepted that Dr Brash’s “Orewa” speech was a controversial issue and noted that it had been widely discussed in other programmes on National Radio and elsewhere in the media. The period of current interest, it argued, was on-going. In view of these other comments, together with the reasonable efforts which it had made to broadcast a range of views, RNZ did not accept that Principle 4 had been transgressed.
 As for the fairness requirement in Principle 5, RNZ said that the commentator, in response to a challenge from the presenter, had stated explicitly that she was not comparing Dr Brash with Hitler. Rather, she said, she regarded the process under which both men were elected leaders of political parties, as comparable. Moreover, RNZ added, the presenter had repeated at the end of the interview that Dr Brash was not being compared with Hitler, and it declined to uphold the Principle 5 aspect.
 Observing that the complainant had not explicated the part of the interview which he regarded as inaccurate, and noting that it was unable to detect any inaccuracies, RNZ declined to uphold the complaint that Principle 6 had been contravened.
Referral to the Authority
 When he referred his complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989, Mr Colman focused on two aspects.
 First, with regard to the presenter’s “disclaimer” at the end of the interview, Mr Colman argued that it amounted to an admission that the standards had been breached. It was, he said, an acknowledgement “of fault” and that there was no place in any commentary for comparisons with Hitler and the Holocaust.
 Secondly, Mr Colman contended that the overriding message during the item was that a comparison with the Holocaust was being made. That message, he said, could not be hidden by RNZ’s word-by-word analysis of the interview.
Broadcaster’s Response to the Authority
 RNZ rejected the proposition that the discussion included any reference to the Holocaust. It reiterated the point that the role of the broadcaster was to inform the public of things which might offend them. It also wrote:
There is the point too that the complainant’s referral to the Broadcasting Standards Authority does not specify which of the standards first nominated in the complaint to Radio New Zealand are alleged to have been breached. This places the broadcaster in an invidious position of having to implicate itself rather than respond to implications of breach from the complainant. This is not a role which Radio New Zealand believes it should adopt. In the first instance we rejected all aspects of the complainant’s allegations and maintain that position.
Complainant’s Final Comment
 Mr Colman pointed out that his complaint had left the broadcaster in no doubt as to which standards he considered had been breached.
 The members of the Authority have listened to a tape of the item complained about, and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 The Authority agrees with Mr Colman, with regard to RNZ’s observation in para , that the broadcaster was not left in any doubt as to the broadcasting standards to which the referral related. The Authority accepts that complainants may not raise new standards in a referral which were not explicitly or implicitly raised in the original complaint. However, it does not believe that it is necessary for the complainant to record precisely the standards in issue when, because of dissatisfaction with the broadcaster’s decision, the complaint is referred to the Authority.
 The Authority is in no doubt that the broadcast complained about did not seriously suggest that the policies of Dr Brash and Adolf Hitler were similar.
 On this occasion, after the commentator had referred to both Dr Brash and Hitler, the commentator made it explicit that the reference was to one of process in that both men were elected leaders of political parties. The commentator’s explanation was repeated by the presenter at the end of the exchange when she (the presenter) also made clear that the views expressed were those of the commentator and not the broadcaster. The Authority has determined the complaint taking these contextual issues into account.
 The Authority considers that the reference to Hitler on this occasion did not transgress the standard relating to good taste and decency. When determining complaints which allege a breach of this standard, the Authority is required to take context into account. In addition to those matters mentioned in para , the Authority notes that the comments were made in an opinion piece by a commentator who was talking about the “tyranny of the majority”.
 In addition, the Authority is of the view that the remark was not unbalanced and in contravention of Principle 4. The speech at Orewa by Dr Brash, to which the commentator was referring, has received media coverage, not only by RNZ, but also extensively in the other electronic and print media. Further, the presenter noted that Dr Brash had been interviewed by RNZ that morning. While the commentator on this occasion only provided one perspective on a highly controversial issue, the Authority unhesitatingly finds that a range of balancing views had been provided elsewhere by the time of the broadcast complained about.
 The Authority does not accept that the broadcast was either unfair to Dr Brash (Principle 5) or inaccurate (Principle 6). Dr Brash made a political speech containing debatable statements which were being debated by the commentator. The comparison between Dr Brash and Hitler was made within the confines of the debate and, as noted above, was presented as one person’s view about the similarity of processes rather than any similarity of racial or other policies.
For the above reasons, the complaint is not upheld.
Signed for and on behalf of the Authority
1 July 2004
The following correspondence was received and considered by the Authority when it determined this complaint:
1 John Colman’s Formal Complaint to Radio New Zealand Ltd – 11 February 2004
2 RNZ’s Response to the Complainant – 15 March 2004
3 Mr Colman’s Referral to the Broadcasting Standards Authority – 20 March 2004
4 RNZ’s Response to the Authority – 21 April 2004
5 Mr Colman’s Final Comment – 27 April 2004