BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

NZ On Air was the subject discussed on Radio Liberty's Freespeak broadcast

between 9.00am–12 noon on 5 April 1995. Expressing Radio Liberty's philosophical

opposition to the concept on which NZ On Air was based, presenter Deborah

Coddington described it as "Nazis On Air". Moreover, she said, it funded parasites

and the director, Dr Ruth Harley, was the commissar of culture. The presenter urged

listeners not to pay the broadcasting fee and said that NZ On Air, when it used debt

collectors and had people imprisoned, would claim that it was following orders just as

had the guards at Auschwitz.

The Chair of NZ On Air, Merv Norrish, complained to Radio Liberty that the

broadcast was inaccurate, in bad taste, unfair, unbalanced and failed to respect the

principles of law.

As NZ On Air did not receive a response within 60 working days, it referred the

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

Broadcasting Act 1989. At that stage, Dave Henderson of the Radio Liberty Network

advised the Authority that it had responded to the complaint in April and later sent

the Authority a copy of that response. The Authority forwarded a copy to NZ On

Air which then referred the complaint to the Authority under s.8(1)(a) of the Act.

Arguing that Radio Liberty encouraged political views which were not generally

advanced in the media, Mr Henderson declined to uphold the complaint. He later

accepted that it was incorrect to suggest that people would be imprisoned for the non-

payment of the broadcasting fee.

For the reasons below, the Authority upheld aspects of the complaint and ordered

Radio Liberty to broadcast an apology and summary of this decision.

Decision

The members of the Authority have read a transcript of the item complained about

and have also read the correspondence (summarised in the Appendix). As is its

practice, the Authority has determined the complaint without a formal hearing.

On Radio Liberty's Free Speak programme broadcast on 5 April 1995, presenter

Deborah Coddington expressed some opinions about NZ On Air, its director (Dr Ruth

Harley), its staff and the groups who applied for funds.

Referring to Radio Liberty's philosophical opposition to NZ On Air, the organisation

was described as "Nazis on Air". Freespeak included the following comments:

That we are now broadcasting proves wrong the fatuous statements put out by

that commissar of culture, Dr Ruth Harley, she who heads this government

department, "Nazis on Air". 'Without the broadcasting fee, most New

Zealand programmes wouldn't be made', she says. What rot! How quickly

the bureaucrat moves to defend her fat salary, paid by us. She and her

comrades are no better than the dole bludgers, the ACC parasites, the solo

mothers who think it's their right to procreate while you and I pay for it.

...

Dr Ruth's braying about the broadcasting fees being vital for New Zealand

production is just nonsense. She's a mouthpiece for the parasites who queue

up at her door with their politically correct, wishy-washy rubbish, with their

hands out for money.

...

Don't pay your broadcasting fee. Refuse, like me, on the grounds that in this

day and age somebody like "Nazis On Air" has no right to force ... to use force

to extract this money from you. They will put the debt collectors onto you, as

they have to me, but if enough of us don't pay they'll be stuffed. So let them

come and get me. I'm waiting for you, commissars. I may, in future, be

broadcasting from a holding cell in Mount Eden but I will still be right and you

will be wrong. You may claim you are just doing your job. I remind you of

the SS orderly at Auschwitz who, when on trial for injecting 300 inmates with

carbolic acid into their hearts, replied, 'I did it on orders, of course'.

NZ On Air complained to Radio Liberty that the comments were inaccurate, in poor

taste, unfair, unbalanced and lacked respect for the principles of law which sustain

society. It alleged that the following standards were breached. They require

broadcasters:

R1   To be truthful and accurate on points of fact in news and current affairs

programmes.

R2   To take into consideration currently accepted norms of decency and good

taste in language and behaviour, bearing in mind the context in which any

language or behaviour occurs..

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

programme.

R6   To respect the principles of law which sustain our society.

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.

As a response was not received within 60 working days, the complaint was referred to

the Authority. Radio Liberty then provided the Authority with a copy of its fax sent

to NZ On Air in April (but not received) which the Authority forwarded to the

complainant. At that stage the complaint was referred to the Authority on the basis

that NZ On Air was dissatisfied with the response.

In its response, Radio Liberty expressed difficulty in dealing with some aspects of the

complaint because of the lack of specificity, but denied that any of the comments had

breached any of the nominated standards. It pointed out that the description of Dr

Ruth Harley as commissar had previously been used elsewhere in the media. Arguing

that it was an act of decency to highlight NZ On Air's philosophical realities and that

the organisation had declined several invitations to appear on-air and present its views,

Radio Liberty's Mr Henderson said in response to the alleged imbalance:

[The presenter] made it very clear that these are her views. For that I

completely support her. You and your associates have been given every

opportunity to come on air and discuss the issue, and in particular to endeavour

to point out where you believe she is wrong. Incidentally, that option is still

open in the interests of balance, impartiality and fairness.

In conclusion, he said the presenter had openly advanced her political views and the

actions of NZ On Air, which sought to suppress those views, came close to

contravening aspects of the Human Rights Act.

In its complaint to the Authority, NZ On Air maintained that the broadcast contained

or implied three specific factual inaccuracies. First, it said, failure to pay the

broadcasting fee did not result in incarceration; secondly, NZ On Air had a statutory

right to collect the broadcasting fee; and thirdly, the organisation was a Crown entity

and not a government department. It also argued that the other standards were

contravened and, it concluded:

As to R9, nowhere in the programme did [the presenter] state that the views

expressed were her own. The programme made no reference to the fact that NZ

On Air is carrying out its statutory functions and obligations given it under an

Act of Parliament. The programme made no effort to present both points of

view, either in the programme or in other programmes. Given the methods

adopted by Radio Liberty in this programme, Radio Liberty's invitation for NZ

On Air to appear on a programme would not, in our view, have resulted in

achieving any balance, impartiality or fairness. NZ On Air is not required to

undertake what would clearly have been a fruitless exercise.

By way of a telephone reply to these matters, Radio Liberty's Mr Henderson

accepted the item was wrong to refer to incarceration. It should, he said, have referred

to bankruptcy which, he added, was just as bad. He insisted that NZ On Air had not

adequately explained the reasons for the broadcasting fee and ten minutes of unedited

air-time were offered to do so.

In its assessment of the complaint, the Authority focussed on the item's opening

comments which stated:

Good morning and welcome to "Freespeak", a programme which attacks

bureaucracy, political correctness, fascism from the right or the left and anything

else which endangers the freedom of New Zealand citizens.

From the start it was made clear that the remarks which followed were comments

made from a strong libertarian perspective and, indeed, could be fairly extreme.

Having explicitly outlined the perspective for the comment, the Authority accepted

that the presenter's editorial observations on current affairs need not be balanced. In

addition, they could well be contentious and unfair and, possibly, they might

deliberately take an approach that would be regarded as an extreme line in order to

provoke debate.

Nevertheless, the broadcaster retained the obligation that the comments comply with

and observe the standards of good taste and decency, that they respect the principles

of law and, because they covered current affairs, that they be factually accurate.

Radio Liberty acknowledged that the broadcast was inaccurate to state that

incarceration was the penalty for non-payment of the broadcasting fee. It was also

inaccurate, the Authority decided, to describe NZ On Air as a government department.

Although the distinction between a Crown entity and a department of government

might not be important to all listeners, it is of fundamental importance as far as

accountability is concerned and, in a current affairs item where the presenter intended

to seek the Minister's comment, it was a distinction which the commentator should

have made.

NZ On Air complained that the item was inaccurate in not acknowledging its right to

collect the broadcasting fee. As the broadcast said that the organisation had no right to

use force to extract the fee, and did not suggest that it had no right to collect the fee in

itself, that aspect of the complaint was not upheld.

In view of the acknowledged bias, the Authority did not consider the item unbalanced.

It was of the opinion that the call for listeners not to pay the fee was at the borderline

of acceptability, but considered that in its context it could be seen as the expression of

an extreme opinion rather than a rallying cry for widespread civil disobedience.

Because of the context, the Authority did not accept that most of the critical and

unpleasant comments about the organisation, its staff or the applicants for funding

were in breach of the good taste standard.

There was one comment, however, which the Authority unhesitatingly decided was a

clear breach of the standard. It regarded the analogy drawn to Auschwitz as highly

offensive, not only in itself but because it detracted from and cheapened a major crime

against humanity. It was a comment for which there was no justification.

For the reasons given above the Authority upholds the complaint that Freespeak

broadcast on Radio Liberty on 5 April 1995 breached standards R1 and R2 of the

Radio Code of Broadcasting Practice.

It declined to uphold the other aspects of the complaint.

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

Broadcasting Act 1989. Although some of the critical, indeed abusive comment

broadcast was acceptable given the extreme context in which it was placed, the

Authority considered that the specific reference to Auschwitz was an extreme example

of the breach of the good taste standard. It was a statement, it decided, for which a

broadcast apology was appropriate.

Order

Pursuant to s.13(1) of the Broadcasting 1989, the Authority orders Radio Liberty

to broadcast a brief summary of this decision and an apology approved by the

Authority, arising from the Freespeak broadcast between 9.00–12 noon on 5

April 1995. The broadcast shall be made on a Freespeak programme between

9.00am and 12 noon on a weekday within 20 working days 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 M Potter
Chairperson
14 December 1995

Appendix

NZ On Air's Complaint to Radio Liberty – 6 April 1995

Merv Norrish, chair of NZ On Air, complained to Radio Liberty in regard to some of

the comment made on Radio Liberty's Freespeak broadcast between 9.00am–12 noon

on 5 April 1995.

The broadcast, Mr Norrish wrote, breached standards R1, R2, R5, R6 and R9 of the

Radio Code of Broadcasting Practice. It had contravened these standards, he

continued, as it was factually inaccurate, breached currently accepted norms of good

taste and decency, did not deal fairly with NZ On Air, its Executive Director (Dr Ruth

Harley) or its employees, did not respect the laws which sustain our society and did

not demonstrate balance, impartiality or fairness.

A transcript of the broadcast was attached in which, among other comments made by

the presenter (Deborah Coddington), New Zealand On air was called "Nazis on Air",

its staff were considered to be no better than dole bludgers, Dr Harley was described

as the mouth-piece for the parasites who sought money from NZ On Air, and

incarceration was said to be the penalty for those who did not pay the broadcasting

fee. Expressing her intention not to pay the fee, the presenter concluded:

So let them come and get me. I'm waiting for you, commissars. I may, in future,

be broadcasting from a holding cell in Mount Eden but I will still be right and

you will be wrong. You may claim you are just doing your job. I remind you of

the SS orderly at Auschwitz who, when on trial for injecting 300 inmates with

carbolic acid into their hearts, replied, 'I did it on orders, of course'. Ladies and

gentlemen, later on in the programme I hope to have the Honourable Maurice

Williamson on the phone to harangue him about "Nazis on Air". He has agreed

to speak to me. His secretary is just trying to find the time.

NZ On Air's Complaint to the Broadcasting Standards Authority – 6 July 1995

As it did not receive a response from the broadcaster, after 60 working days NZ On

Air referred the complaint to the Broadcasting Standards Authority under s.8(1)(b) of

the Broadcasting Act 1989.

Radio Liberty's Response to the Authority – 14 August 1995

In an undated fax received by the Broadcasting Standards Authority on 14 August, Mr

Dave Henderson of the Radio Liberty Network advised that it had faxed a response to

the complaint to NZ On Air in April 1995. In addition, he commented:

I note with some considerable concern that when I rang this afternoon to discuss

this matter, your phone was answered as "New Zealand On Air". Clearly you

have some close relationship with these people if you are working in the same

offices. I can't see how you can begin to imagine that you are an impartial body,

and I am disappointed that you consider yourself eligible to deal with this

matter.

Quite frankly, we have got far more important things to do than to handle this

pointless needling. I would be grateful if you left us alone.

Further Correspondence

The Authority asked NZ On Air (on 14 August 1995) to comment on the point about

the fax sent in April. Following a reminder sent on 30 August, NZ On Air advised the

Authority that it had no record of having received the fax. In view of the fact that

some other material it had received from Radio Liberty had been incorrectly addressed,

NZ On Air suggested it was possible that the fax in April had been sent to the wrong

address. It suggested that the Authority seek a copy of it.

The Authority sent a copy of NZ On Air's reply to Radio Liberty Network on 7

September and after a reminder dated 29 September, in a letter dated 3 October Mr

Henderson enclosed a copy of a letter dated 19 April which it said had been faxed to

Mr Norrish of NZ On Air at that time. Mr Henderson observed:

As you know, this whole affair is complete nonsense. Your independence in the

matter is completely in doubt, and unlike yourselves and NZ On Air, we simply

do not have the resources to pour people into tasks that are really quite

pointless.

Radio Liberty's Response to the Formal Complaint – dated 19 April 1995 and

received by the Authority on 5 October 1995

Radio Liberty's Mr Henderson refuted all the aspects of the complaint contained in

NZ On Air's letter of complaint dated 6 April.

He said that there was nothing untruthful or inaccurate in the presenter's remarks, that

they did not breach the standards of good taste and decency, that the reference to

"Commissar" Harley was a term used in a "North and South" article, that the item had

dealt fairly with both Dr Harley and the organisation and that the allegation about

failing to respect the principles of law lacked specificity.

Expressing his support for the views advanced by the presenter and that the offer to

NZ On Air to discuss the issues on air remained open, Mr Henderson said the

presenter was encouraged to advance her political views. Suppression of such views,

he continued, came close to breaching the Human Rights Act. Arguing that it would

correct factual inaccuracies if any were shown, Mr Henderson concluded:

Once again I reaffirm that Deborah is keen to have someone representing NZ On

Air to come on her show to discuss the issue in depth. As for a broadcasting

organisation that has no intention whatsoever of applying for or expecting to

receive any NZ On Air funding at any time, you will find that we are, in fact,

possibly the ideal organisation in this country to present a fair and unbiased

view of NZ On Air.

NZ On Air's Response to the Authority – 20 October 1995

The Authority sent NZ On Air a copy of Radio Liberty's reply and requested

comment on both the substance of the reply and the procedure in view of the time

limits set out in the Broadcasting Act 1989 with which the Authority must comply.

On behalf of NZ On Air, Chief Executive, Chris Prowse, in his reply dealt first with

the procedural point and submitted that as it had received a reply to its complaint on 6

October, it had 20 working days from that date to refer the complaint to the Authority

for investigation and review under s.8(1)(a) of the Act. It had taken that step and

went on to comment on the substance of the complaint.

With respect to the complaint that the broadcast had been inaccurate – and in breach of

standard R1 – Mr Prowse said that it was incorrect, in view of the Imprisonment for

Debt Limitation Act, to state that incarceration was the penalty for those who did not

pay the broadcasting fee. Contrary to the claim in the broadcast, he continued, NZ On

Air had a right to collect the broadcasting fee and it was incorrect to describe the

organisation as a government department.

As for the aspect of the complaint referring to good taste and decency, Mr Prowse

wrote:

The analogy drawn by Ms Coddington between NZ On Air carrying out its

statutory functions and obligations and the SS orderly at Auschwitz who was

tried for injecting camp inmates with carbolic acid, in our view, goes well beyond

the standards of decency and good taste. Indeed, it is disturbing and offensive.

While not objecting to public comment on its operations, Mr Prowse maintained that

the references to "Nazis On Air", to the "Commissar of Culture" and such words as

"parasite" went beyond the acceptable limits.

The references to Auschwitz, "Nazis On Air" and to Dr Harley as the "commissar of

culture" and her "comrades", Mr Prowse stated, also breached the requirement in

standard R5 that people referred to be dealt with fairly.

The suggestion to listeners not to pay the public broadcasting fee was said to amount

to a breach of standard R6.

Standard R9 requires balance and Mr Prowse noted:

... nowhere in the programme did Ms Coddington state that the views expressed

were her own. The programme made no reference to the fact that NZ On Air is

carrying out its statutory functions and obligations given it under an Act of

Parliament. The programme made no effort to present both points of view,

either in the programme or in other programmes. Given the methods adopted by

Radio Liberty in the programme, Radio Liberty's invitation for NZ On Air to

appear on a programme would not, in our view, have resulted in achieving any

balance, impartiality or fairness. NZ On Air is not required to undertake what

would clearly have been a fruitless exercise.

Further Correspondence

The Authority decided to accept the referral from NZ On Air under s.8(1)(a) as it was

referred within 20 working days of receipt of the broadcaster's response to the

complaint. It advised the parties accordingly.

It also asked for Radio Liberty's response to the complaint which contained the

details which it had said were lacking in the initial letter of complaint.

Radio Liberty's Response to the Authority – 30 October 1995

Mr Henderson of the Radio Liberty Network responded by telephone to the

Authority's request for comment.

He acknowledged that the item had been wrong to refer to the possibility of

incarceration as a penalty for non payment of the broadcasting fee. It should, he said,

have referred to bankruptcy which, he added, was just as bad.

Otherwise he stood by the comments contained in the broadcast and repeated the offer

of airtime for the complainant to explain the reason for the broadcasting fee. He

described the offer of 10 minutes of unedited air time as very generous.

As for the complaint that the item was unfair, Mr Henderson observed that a decision

on fairness inevitably involved some degree of subjectivity.