BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

The question of specialists working in both the public and private health sectors was

the topic when the Minister of Health (Hon Jenny Shipley) was interviewed by Pam

Corkery on RNZ's commercial network on Tuesday evening 22 March 1994.

The Minister complained to Radio New Zealand Ltd that during the interview her

integrity and that of all Members of Parliament was questioned. The broadcast, the

Minister continued, breached a number of standards including those requiring balance

and being fair to people referred to.

RNZ argued that most of the interview complied with the standards but upheld the

complaint that the host's concluding remark was in bad taste and had treated the

Minister unfairly. As a result, it said that the host had been counselled in the

principles to be applied during interviews which were intended to provide an anchor

piece for a talkback discussion.

Dissatisfied that RNZ apparently felt justified applying different standards for

talkback compared with other current affairs programmes and, consequently, had dealt

with the balance and fairness complaints inadequately, Mrs Shipley referred the

complaint to the Broadcasting Standards Authority under s.8(1)(a) of the

Broadcasting Act 1989.

For the reasons given below, the Authority, whilst agreeing with RNZ's decision to

uphold the complaint under standard R5 and s.4(1)(a) as far as the concluding remark

was concerned, declined to uphold the complaint that the action taken by RNZ was not

sufficient and by a majority upheld the complaint that a further aspect of the complaint

also breached standard R5. A majority declined to uphold the complaint that standard

R9 was breached.

Decision

The members have listened to a tape of the programme complained about and have

read the correspondence – including a transcript of the item (summarised in the

Appendix). As is its practice, the Authority has determined the complaint without a

formal hearing.

A talkback host interviewed the Minister of Health, the Hon Jenny Shipley, on Radio

New Zealand's commercial network on the evening of 22 March 1994. The interview

discussed surgeons who had chosen to leave the public health system. The host

challenged Mrs Shipley's assertion that the public had the right to know what they

were earning in the private sector so that the issues involved could be debated openly.

Mrs Shipley complained to RNZ that during the interview the host had drawn a

comparison between politicians and medical specialists, "demanding to know" her

private income and questioning her about the value of her home.

Mrs Shipley said the interviewer implied that MPs, including the complainant, were

concealing interests which were described as "everything they earn on the side".

The host's final comment, "You could have half your money in the Cook Islands",

was seriously damaging, the Minister said, adding that she was considering legal

action.

Mrs Shipley said she believed the broadcast had breached standards R5, R9, R11 and

R12 of the Radio Code of Broadcasting Practice. These require broadcasters:

R5  To deal justly and fairly with any person taking part or referred to in any

programme.

R9  To show balance, impartiality and fairness in dealing with political

matters, current affairs and all questions of a controversial nature, making

reasonable efforts to present significant points of view either in the same

programme or in other programmes within the period of current interest.

R11 To respect the privacy of the individual.

R12 To correct factual errors speedily and with similar prominence to the

offending broadcast or broadcasts.

In its response RNZ considered the complaint under the standards nominated by Mrs

Shipley, and also judged the matter under s.4(1)(a) of the Broadcasting Act 1989

which reads:

s.4(1) Every broadcaster is responsible for maintaining in its programmes and

their presentation, standards which are consistent with:

(a) the observance of good taste and decency.

RNZ first considered the matter of balance, saying that since the interview provided a

full opportunity for response the balance requirement was not contravened. Similarly,

RNZ said the interviewee had "set the record" straight immediately where necessary

and the broadcaster did not believe there were any factual errors that required

correction.

In considering the privacy complaint, RNZ said that a discussion of details, which

although personal, were matters of public record, would not appear to be an invasion

of privacy.

Turning to the complaint that the interview did not deal justly and fairly with Mrs

Shipley, RNZ said it did not believe the main part of the interview breached the

standard. It noted that the interview was part of a live talkback show, a more robust

and less formally structured format than ordinary current affairs programmes. RNZ

also observed that listeners to the particular host's programme were well-acquainted

with her style and were unlikely to be misled by her presentation.

However, it believed the comment "You could have half your money in the Cook

Islands" warranted closer examination. RNZ felt it was a throwaway line that was not

specifically intended to refer to the complainant. However, unlike other topics raised

during the interview, RNZ said this point was not matched by an opportunity for

response. It had been part of the closing remarks and the host had "talked over" the

Minister. RNZ concluded that the complaints under standard R5 and s.4(1)(a) of the

Broadcasting Act 1989 would be partially upheld as the final part of the interview

breached the codes.

In its response to the Minister, RNZ said it had taken the "less than usual" course of

referring the complaints committee's recommendation to an "experienced member of

an independent outside firm". That person had confirmed the committee's

conclusions. However, RNZ noted that it had directed that the host should be

counselled about the principles to be applied to interviews which, although aimed to

provide anchor-pieces for talkback, had more in common with current affairs and news

than normal talkback.

RNZ rejected the standard R11 complaint that Mrs Shipley's privacy was breached,

pointing out that the matters discussed were on the public record. It also rejected her

request under standard R12 that the errors contained in the broadcast be corrected,

observing that the statements alleged to be incorrect were in the form of questions

from the host and were given an immediate response by Mrs Shipley. These matters

were not referred by Mrs Shipley to the Authority for review.

In her referral to the Authority, Mrs Shipley expressed concern that RNZ seemed to

be saying that this host should be regarded differently from other broadcasters.

Talkback hosts' interviews were concerned with issues of the day and were therefore

current affairs, the Minister said, adding that she would expect the same standards to

apply to talkback as to Morning Report or Checkpoint. This did not appear to be the

case however, as this host used editorialising extensively, without separating fact from

comment.

Mrs Shipley added that she was seeking from the Authority clarification over

standards applying to talkback and current affairs issues dealt with by talkback hosts

in interviews. She concluded that she did not believe RNZ had dealt adequately with

her complaints under standards R5 and R9.

In its final response RNZ said Mrs Shipley's belief that RNZ's decision was some

form of special treatment of the host was not justified. While the broadcast in

question could not be regarded in the same light as a Checkpoint interview, basic

standards must not be neglected or overturned. RNZ suggested that the Minister's

request for a general and universal policy ruling on news and current affairs was

inappropriate and outside the scope of the initial complaint.

In her final comment, Mrs Shipley said she did not believe her complaint was

"shifting ground". Newsmakers were entitled to expect the same standard of balance,

impartiality and fairness during a current affairs interview on talkback radio as on

Morning Report or Checkpoint, she said.

The Authority examined the interview to determine if there were any extracts that

were unfair to the Minister and thus in breach of standard R5. In doing so it

considered some of the general questions raised by Mrs Shipley, where they were

relevant to the complaint. The Authority noted that the style in a talkback interview

could be expected to be more colloquial and robust than in a traditional current affairs

format. It also expected that the host's personal opinions on a topic in question might

be known from the surrounding talkback discussion. Therefore, it would not be

surprising, or unreasonable, if the host's personal opinions were evident.

Nevertheless there was no question of a variation of standards being acceptable from

one host to another. The Authority examined RNZ's Complaints Committee's

comment that it was:

...well aware, as are all her listeners, of Ms Corkery's highly individual

broadcasting style, which [it] believe[d] is a factor to be considered in any

complaint such as yours.

The Authority concluded that if by this RNZ meant that this host should be treated

differently, then it disagreed.

The Authority agreed with RNZ when it upheld as a breach of standard R5 and

s4(1)(a) of the Broadcasting Act 1989 the remark about money being held in the Cook

Islands. It believed it was rude and unfair of the host to have "talked over" Mrs

Shipley after raising the matter at the end of the interview, thus denying the Minister

a chance to respond. The Authority considered RNZ had acted responsibly in

ordering that the host be counselled about the requirements for anchor piece current

affairs interviews which the Authority agreed were more akin to news and current

affairs presentations than to talkback generally.

In addition, a majority of the Authority considered that the host's persistence with

irrelevant questions regarding the value of Mrs Shipley's family home was sufficient

to constitute a further breach of standard R5. The minority disagreed. While it could

understand the comparison being drawn between medical specialists and politicians

revealing their private income, it believed aspects of the persistent questioning of Mrs

Shipley came close to exceeding the boundaries of a reasonable and fair interview.

However it considered in the context where the general point was being made about

public disclosure of private income by doctors, it was unlikely that listeners would

interpret the questions as suggesting that MPs were concealing their financial interests.

The Authority then dealt with the standard R9 complaint about balance. A majority

concurred with RNZ that balance had been provided by the interviewee as she had

responded fully to the points raised during the interview, with the exception of the

last remark, which the majority felt was more properly dealt with under standard R5.

The majority declined to uphold the standard R9 complaint.

The minority considered the "Cook Islands" comment without any right of reply to be

a breach of standard R9 in addition to standard R5.

Finally, the Authority stressed that basic standards regarding balance and fairness

should not be ignored. The person being interviewed must be dealt with in a

reasonable and fair manner and given a chance to express their point of view as

required by the balance standard. In this case, Mrs Shipley had been invited to

participate in the programme by way of an interview and she was fully entitled to

expect the same standards of balance, impartiality and fairness to be applied within

the context of a talkback programme as in other current affairs interviews.

The Authority, whilst agreeing with Radio New Zealand Ltd's decision to

uphold the complaint as far as the concluding remark was concerned, declines

to uphold the complaint that the action then taken by the broadcaster was

insufficient. A majority upholds the complaint that the questioning about the

value of Mrs Shipley's home was also in breach of standard R5. The majority

declines to uphold the complaint that there was a breach of standard R9.

Having upheld a complaint the Authority may impose an order under s.13(1) of the

Broadcasting Act 1989. It does not intend to do so for two reasons. First, the

decision to uphold an aspect of the complaint was a majority decision only, and

secondly, it considered that the action taken by RNZ was sufficient.

As a result of the increasing prominence of talkback programmes, the Authority

advises that it will give priority to investigating possible revision of the Codes of

Broadcasting Practice to include specific reference to talkback programmes.

Signed for and on behalf of the Authority

Iain Gallaway
Chairperson
22 August 1994

Appendix

The Minister of Health's Complaint to Radio New Zealand Limited

In a letter dated 20 April 1994, the Minister of Health (Hon Jenny Shipley)

complained to Radio New Zealand Ltd about an interview conducted by Pam Corkery

she had given for the commercial network on Tuesday evening, 22 March.

The issue was the matter of specialists working in both the public and private health

sectors which, the Minister said she had stated in Parliament, did not amount to a

conflict in interest. The Minister continued:

I anticipated the interview with Ms Corkery to be just such a discussion. By

the end of the interview, however, Ms Corkery had called into question my

integrity and honesty, and that of all MPs.

That had occurred, she said, as Ms Corkery compared medical specialists to

politicians who both might have a private income. Ms Corkery had asked her about

her family home and, despite her efforts to remain on the principal topic, Ms Corkery

continued in a personal vein and had concluded:

You could have half your money in the Cook Islands.

The Minister maintained that the broadcast breached the standards relating to privacy,

balance, dealing fairly and correcting factual errors. She concluded:

I consider that this interview seriously breached these Codes. I look forward

to a prompt response to my concerns. In the past I have been willing on many

occasions to speak to Pam on any issue of public concern. In the meantime I

do not intend to do any interviews with Pam Corkery. I made this clear, with

an explanation as to why, when a request was received from her on 11 April.

On air she chose to comment on my non-availability without referring to the

reason why. In fact she said no reason was given for the refusal. I will leave

this matter to you to deal with.

RNZ's Response to the Formal Complaint

RNZ informed the Minister of its Complaints Committee's decision in a letter dated

11 May 1994. Because of the Minister's concern, RNZ's Chief Executive (Mr Nigel

Milan) advised her that the Committee's recommendation had been considered by an

"experienced member from an outside firm" who had confirmed the conclusion and

recommendations.

In summary, while declining to uphold the full complaint, RNZ had upheld the aspect

of the complaint that the final comment breached the requirement that people be dealt

with fairly and the standard requiring good taste and decency.

The Complaints Committee's papers which accompanied this letter began by dealing

with the alleged breaches of each standard.

As for balance, RNZ argued that the talkback format in itself provided the

opportunity for a full response. Accordingly, neither s.4(1)(c) of the Act nor

standard R9 was contravened.

The Minister's privacy was not breached, TVNZ maintained, as the information

about her property was contained in the Parliamentary record and its value was

recorded in public offices.

The aspect of the complaint which referred to just and fair dealing dealt with the

segment of the interview when Ms Corkery argued that those who earned a public

income should also disclose their private income. As Ms Corkery had not implied

unethical or illegal behaviour (except possibly in her final comments), RNZ did not

uphold that aspect.

As there were no factual errors, RNZ stated, the standard requiring their correction

had not been put in jeopardy.

Moreover, RNZ added, it had been decided it was appropriate to assess the complaint

against the standard in s.4(1)(a) of the Act, requiring good taste and decency, in the

context of "good manners", in conjunction with the standard R5 requirement referring

to dealing fairly.

It then proceeded to assess the complaint about the final comments on the following

basis:

i) the broadcast is part of a live talk-back interview, not a structured

Current Affairs analysis. The subject matter is closely connected with

a "current affair" in the contemporary news, but the broadcast is in the

context of an altogether more robust and less formally structured

format.

ii) Corkery has her own individual and well known style which inevitably

emerges in and colours her on-air work, most of which is "live". The

Committee therefore feels justified in regarding the broadcast in a

different light from that in which it might assess, for example, a

"Morning Report" or "Checkpoint" item. That is not to say, however,

that the basic standards may be neglected or overturned. It is

nevertheless a fact that listeners to Corkery's programme are well

acquainted with her style and unlikely to be misled by her

presentation.

Expressing the opinion that the comment about the Cook Islands was meant to be "a

throw-away line" which referred to other matters of current public interest, RNZ

noted however that the Minister was not given an opportunity to respond to it. It

was expressed as a retort and RNZ concluded:

The [Complaints] Committee, bearing in mind all these aspects, considered

Corkery's concluding remarks and the manner of their delivery to be unjustified.

They were not made to elicit a "straight" answer from an evasive interviewee,

and the Committee believes that this final part of the broadcast was in bad taste

and unfair in that no effective opportunity was given to the complainant to

respond.

The Minister's Complaint to the Broadcasting Standards Authority

Dissatisfied with aspects of RNZ's reasoning, in a letter dated 9 June 1994, the

Minister referred her complaint to the Broadcasting Standards Authority under

s.8(1)(a) of the Broadcasting Act 1989.

Referring to RNZ's comment that Ms Corkery's style justified applying the

standards in a different manner, the Minister said that RNZ seemed to regard Ms

Corkery differently from other broadcasters. She continued:

The fact is, however, that within the talkback format of Ms Corkery's and

others' shows the host conducts interviews on issues of the day - in other

words, current affairs. I would expect that the same standards that apply to

programmes such as Morning Report and Checkpoint would apply to these

interviews. It does not appear to be the case however and Ms Corkery uses

editorialising extensively as part of her show, without separating comment from

fact.

The Minister recorded the reason for the referral:

I am seeking from the Broadcasting Standards Authority clarification over the

standards that apply to the talkback format and the current affairs issues that

are dealt with by talkback hosts in interviews with the day's newsmakers.

As a consequence of RNZ's approach, the Minister argued that her complaints about

balance and dealing with people fairly had not been dealt with adequately. She

concluded:

Moreover, to my knowledge this is the first time the question of the

news/current affairs guidelines has been interpreted so "clearly" by the

broadcaster. This is a very important policy question and I look forward for

your considered ruling on this issue.

RNZ's Response to the Authority

As is its practice, the Authority sought the broadcaster's response to the referral. Its

letter is dated 10 June 1994 and RNZ's reply, 14 June.

RNZ said that the Minister was incorrect to argue that her complaint was the first to

deal with the news/current affairs status of talkback. It referred to Decision No: 24/91

(dated 17 June 1991) where the talkback host presented editorial comments as fact.

RNZ noted that this differed from the present complaint where the host posed a

number of questions or "statements-for-response". It continued:

It is difficult to find support in that programme format for a contention that

opportunity was denied Mrs Shipley to make balancing comments or to

respond with her views and statements.

It was also incorrect, RNZ continued, to reach its decision as implying that different

standards (or none at all) applied to Ms Corkery's broadcasts. While her broadcasts

might not be regarded in the same light as, say, a Checkpoint item, "basic standards

must not be neglected or overturned".

RNZ then argued that some of the matters raised by the complaint were matters of

editorial policy and asked whether it was appropriate to ask the Authority, in a

complaint referral, such general questions. It stated:

Mrs Shipley's letter of 9 June to the Authority ought to be such a reference for

review. The Company respectfully suggests that her request for general and

universal policy rulings on News and Current Affairs standards which apply to

talk-back programmes is inappropriate on a number of counts.

It was inappropriate, first, as it was outside the scope of referral; secondly, because

the issue had been dealt with in Decision No: 24/91; thirdly, as RNZ acknowledged

already that the standards applicable to current affairs applied when talkback dealt

with current affairs; and fourthly, the Authority had questioned in the earlier decision

whether a universal ruling - as opposed to commonsense "case-law" was possible.

The Minister's Final Comment to the Authority

When asked to comment briefly on RNZ's reply, in a letter dated 4 July 1994 the

Minister disagreed with RNZ's contention that she was "shifting ground", observing:

At issue is the question of treatment of an interviewee by an interviewer, and in

particular the principle of balance and fairness in relation to my interview with

Pam Corkery.

Reporting that she had agreed to the telephone interview about an answer given during

question time in Parliament, the Minister stated:

I believe the day's Ônewsmakers' are entitled to expect the same standard of

balance, impartiality and fairness during a current affairs interview on talkback

radio they would on ÔMorning Report' or ÔCheckpoint', and to be dealt with

justly and fairly on the same basis.

Describing the matter as important, the Minister concluded:

These standards I believe, were not adhered to during the interview at the centre

of my complaint, and the response from Radio New Zealand, while upholding

part of my complaint, did not satisfactorily address this issue. There is this

issue as it applied to this interview and the issue in principle which I believe

needs to be clarified.