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High Court of New Zealand Decisions |
Last Updated: 25 January 2018
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2010-485-002007
UNDER the Broadcasting Act 1989
IN THE MATTER OF an appeal against a decision of the
Broadcasting Standards Authority
BETWEEN TELEVISION NEW ZEALAND LIMITED
Appellant
AND BETH WEST Respondent
CIV-2010-485-002008
AND BETWEEN TVWORKS LIMITED Appellant
AND GERHARD SUNDBORN Respondent
Hearing: 21 - 29 March 2011
Counsel: J G Miles QC and B Curry for Appellants
S J Mills QC as amicus curiae
A E Scott-Howman for Broadcasting Standards Authority
Judgment: 21 April 2011
JUDGMENT OF ASHER J
This judgment was delivered by me on Thursday, 21 April 2011 at 4pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
J Miles QC, PO Box 4338, Shortland Street, Auckland 1140. Email: miles@shortlandchambers.co.nz
Russell McVeagh, DX CX10085, Auckland. Email: mike.heron@russellmcveagh.com
S J Mills QC, PO Box 4338, Shortland Street, Auckland 1140. Email: stephen.mills@shortlandchambers.co.nz
Luke Cunningham & Clere, PO Box 10357, Wellington. Email: ash@lcc.co.nz
TVNZ V WEST HC AK CIV-2010-485-002007 21 April 2011
Table of Contents
Para No
Introduction [1] TVNZ – “Hung” [4] TVWorks – “Home and Away” [7] Approach to the appeal [9] The programme standards [13] The application for leave to adduce further evidence [20] The “Hung” appeal
The programme and the scene [25]
The decision [28] The consideration of the context in which the scene occurred [32] Conclusion [45]
The “Home and Away” appeal
The programme and the scene [47]
The decision [48] The consideration of the context in which the scene occurred [51] Failure to take into account the usual content of G-rated programmes [55] The importance of previous decisions [62] The previous decisions relied on [71] Previous research [76] Failure to give reasons [81]
NZBORA considerations
Introduction [85]
The NZBORA framework [88] The extent of the s 5 analysis [93] The Authority’s s 5 consideration [107]
Conclusion in relation to “Home and Away”
[113] General conclusion
[114] Costs
[117]
Introduction
[1] These are two appeals brought by two television broadcasters,
Television New Zealand Ltd (“TVNZ”) and TVWorks
Ltd
(“TVWorks”), who have allied for the purposes of this cause. The
two programmes and the scenes in question in each
are different, although
both contain sexual content. However, there are some common issues in
relation to the approach
to the appeal, and the role and duties of the
Broadcasting Standards Authority (“the Authority”) in determining
complaints.
[2] Mr Julian Miles QC appears for both appellants. The complainants have not taken any active steps before the Authority or this Court. Mr Stephen Mills QC was appointed as amicus curiae and in that role has presented submissions in support of the Authority‘s decision and in reply to the submissions of the appellants.
[3] The Authority was represented by Mr Scott-Howman through the
hearing and he made submissions on background issues. The Authority
abides the
decision of the Court. I record that the role that he has taken in providing
background material on the Authority‘s
function and practices, and in
answering specific questions, has been helpful and appropriate
TVNZ – “Hung”
[4] An episode of the television series “Hung” was broadcast by TVNZ on channel one at 9.50pm on 22 March 2010. The scene in question involved an exchange between the central character in the programme called Ray Drecker and a female character who had appeared in previous episodes named Lenore. The particular scene commenced at approximately 10.10pm and involved Ray Drecker performing oral sex on Lenore.1 The programme was classified Adults Only 9.30pm
– 5am (“AO–9.30pm”).
[5] A complaint was lodged concerning the scene alleging that
it breached standards of good taste and decency. The
complaint was considered
by TVNZ in accordance with the initial complaints procedures set out in ss 6 and
7 of the Broadcasting Act
1989 (“the Act”). It was not
upheld.
[6] The complainant was dissatisfied with the decision of the broadcaster and referred the complaint to the Authority under s 8(1B)(b)(i) of the Act. The Authority by a majority upheld the complaint determining that the scene was not consistent with the observance of good taste and decency and that it breached Standard 1 of the Free-to-Air Television Code of Broadcasting Practice (“the Code”).2 It decided that upholding the complaint was justified under s 5 of the New Zealand Bill of Rights Act 1990 (“the NZBORA”). It considered the circumstances of the complaint and taking into account the lack of unanimity it concluded that no penalty order was
necessary, and that its decision upholding the complaint was
sufficient.
1 The scene is described in more detail at [27].
2 West v Television New Zealand Ltd BSA Decision No. 2010-073, 14 September 2010.
TVWorks – “Home and Away”
[7] An episode of the television series “Home and Away” was
broadcast by TVWorks on channel three at 5.30pm on 19
March 2010. The scene in
question involved two adult characters. During the scene the female character
was wearing long pyjama
pants, a top and a brassiere. She commenced kissing the
male character with obvious passion. She took off her top. The scene
culminated in the male character lying back on a kitchen table with the female
character straddling him and kissing him. The couple
appeared to be moving
towards intimate contact when another character walked into the room, whereupon
the couple jumped off the table
in embarrassment. The programme was classified
General (“G”).
[8] A complaint was lodged and considered under ss 6 and 7 by TVWorks. It was not upheld. The complainant then referred it to the Authority. The Authority upheld the complaint.3 It decided that the scene was in breach of Standards 1, 8 and
9 of the Code and in breach of current norms of good taste and decency in the
context in which it occurred. As it was the first time
that a complaint about
sexual content had been upheld in respect of the programme, the Authority
considered the publication of the
decision was a sufficient penalty in all the
circumstances.
Approach to the appeal
[9] These are appeals under s 18 of the Act. Section 18(4) and (5)
provide:
18 Appeal against decision of Authority
...
(4) The Court shall hear and determine the appeal as if the decision or
order appealed against had been made in the exercise of
a discretion.
(5) In its determination of any appeal, the Court may—
(a) Confirm, modify, or reverse the decision or order appealed against, or
any part of that decision or order:
(b) Exercise any of the powers that could have been exercised by the
Authority in the proceedings to which the appeal
relates.
3 Sundborn v TVWorks Ltd BSA Decision No. 2010-044, 14 September 2010.
[10] It is clear from s 18(4) that the High Court‘s jurisdiction is
not the same as in a general appeal. The decision
in Austin Nichols &
Co Inc v Stichting Lodestar4 requiring the appellate Court in
such general appeals to come to its own view on the merits does not apply. A now
considerable line
of cases has followed the approach in relation to an appeal
against the exercise of a discretion set out in May v
May:5
[A]n appellant must show that the Judge acted on a wrong principle; or that
he failed to take into account some relevant matter or
that he took account of
some irrelevant matter or that he was plainly wrong.
[11] The grounds upon which the appellate Court may
interfere with a discretionary decision of this type are
not as constrained
as those available in judicial review.6 I am grateful to counsel
for not extensively citing judicial review cases, which can only be of limited
assistance. There are differences
at least in nuance between a Court‘s
appellate jurisdiction and its supervisory judicial review jurisdiction. The
concept of
Wednesbury unreasonableness is not applicable when an appellate Court
is deciding whether to interfere with a decision made by a
tribunal in the
exercise of a discretion.7 In determining whether a decision is
plainly wrong an appellate Court is not required to consider the contours of
Wednesbury unreasonableness
and depth of review.
[12] The determination of the High Court on any appeal under s 18 of the
Act is final.8 The responsibility that follows from this provision
must be recognised.9
The programme standards
[13] Central to the decisions of the Authority were the programme standards notified and published under the Act. Section 4(1)(a) and (e) of the Act provides that
every broadcaster is responsible for maintaining in its
programmes and their
4 Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
6 Shotover Gorge Jet Boats Ltd v Jamieson [1987] 1 NZLR 437 (CA) at 439; Television New
Zealand Ltd v Viewers for Television Excellence Inc at [19].
7 G v G [1985] 2 All ER 225 (HL) at 230 per Lord Fraser, cited in Shotover Gorge Jet Boats Ltd v
Jamieson at 439 per Cooke J.
8 Broadcasting Act 1989, s 19.
9 Reekie v Television New Zealand Ltd at [23].
presentation, standards that are consistent with “the observation of
good taste and decency” and “any approved code
of broadcasting
practice applying to the programmes”. Section 21(1)(e) to (g) includes
the development of codes of broadcasting
practice as a function of the
Authority:
21 Functions of Authority
(1) The functions of the Authority shall be—
...
(e) To encourage the development and observance by broadcasters of codes of
broadcasting practice appropriate to the type of broadcasting
undertaken by such
broadcasters, in relation to—
(i) The protection of children: (ii) The portrayal of violence:
(iii) Fair and accurate programmes and procedures for correcting
factual errors and redressing unfairness:
(iv) Safeguards against the portrayal of persons in programmes in a manner
that encourages denigration of, or discrimination against,
sections of the
community on account of sex, race, age, disability, or occupational status or as
a consequence of legitimate expression
of religious, cultural, or political
beliefs:
(v) Restrictions on the promotion of liquor:
(vi) Presentation of appropriate warnings in respect of programmes, including
programmes that have been classified as suitable only
for particular
audiences:
(vii) The privacy of the individual:]
(f) To develop and issue codes of broadcasting practice of the
kinds described in paragraph (e) of this subsection in
any case where the
Authority considers it appropriate:
(g) To approve, for the purposes of this Act, codes of practice of the
kinds described in paragraph (e) of this subsection:
[14] Section 22 of the Act provides for the notification and publication of approved codes of broadcasting practice. Such codes are therefore issued under the authority of statute. They must be interpreted consistently with the NZBORA.10 A
failure to maintain standards that are consistent with approved codes of
broadcasting
10 Television New Zealand Ltd v W HC Auckland CIV-2007-485-1609, 18 December 2008 at [10].
practice can be seen as a failure to meet the statutory obligation imposed on
broadcasters by s 4(1)(e).
[15] I note that s 21(1)(e)(i) specifically refers to the development and
observance of codes in relation to “the protection
of
children”.
[16] In furtherance of its obligations under the Act the Authority
notified and published the Code. It was prepared by the New
Zealand Television
Broadcasters‘ Council on behalf of each of the country‘s free-to-air
broadcasters.11 The relevant edition is July 2009. The Code sets
out various standards, followed by guidelines. There are three standards that
are
relevant to the appeals.
[17] Standard 1 provides that broadcasters should observe standards of
good taste and decency.
[18] Standard 8 provides that broadcasters should ensure, amongst other
things, that programmes are appropriately classified and
adhere to timebands in
accordance with Appendix 1. Appendix 1 sets out free-to-air television
programme classifications. The
relevant classifications are G (general), for
programmes which exclude material likely to be unsuitable for children, and
AO–9.30pm
(adults only between 9.30pm and 5am), for programmes containing
stronger material or special elements which fall outside the adults
only
classification (which is for programmes containing adult themes and directed
primarily at mature audiences). The classification
provides that these
programmes may contain a greater degree of sexual activity, potentially
offensive language, realistic violence,
sexual violence, or horrific
encounters.
[19] Finally, Standard 9 provides that during children‘s normally
accepted viewing times broadcasters should consider the
interests of child
viewers.
The
application for leave to adduce further evidence
[20] The appellants filed further affidavits. Much of the
evidence in those affidavits was not contentious and Mr
Mills did not oppose
its admission. He did, however, oppose the admission of some of the evidence.
This included DVDs of other
scenes in programmes of the same classification and
screened in the same timeband, said to be comparable. It also included
DVDs of scenes said to be comparable which had been subject to favourable
rulings of the Authority.
[21] Rule 20.16 of the High Court Rules governs the granting of leave to
adduce further evidence on an appeal against a decision
of the Authority under s
18 of the Act.12 Rule 20.16 provides:
20.16 Further evidence
(1) Without leave, a party to an appeal may adduce further evidence on
a question of fact if the evidence is necessary to determine
an interlocutory
application that relates to the appeal.
(2) In all other cases, a party to an appeal may adduce further
evidence only with the leave of the court.
(3) The court may grant leave only if there are special
reasons for hearing the evidence. An example of a special
reason is that the
evidence relates to matters that have arisen after the date of the decision
appealed against and that are or may
be relevant to the determination of the
appeal.
(4) Further evidence under this rule must be given by affidavit,
unless the court otherwise directs.
[22] In this case leave is required. Leave may only be granted if there are “special reasons”. The principles guiding the exercise of the Court‘s discretion to grant leave have been frequently reviewed by this Court.13 The discretion is to be exercised sparingly. The presumption is that appeals will be conducted on the record, as it exists. Further evidence should be cogent, relevant and likely to be material. It should not have been available at the earlier hearing by the exercise of reasonable diligence. The appeal should not be turned into a new case. However, every case
must be considered in relation to its own circumstances. The test for
the admission
12 Broadcasting Act 1989, s 18(7).
of further evidence should not be put so
high as to require the circumstances to be wholly exceptional.
[23] In considering whether to grant leave it must be recognised that the
Authority has not conducted a formal hearing with
evidence, and is
assumed to have background knowledge and expertise. There will be occasions
when a party may wish to put
before the High Court material that was not
formally produced at the hearing although it was referred to by the
Authority.
Such material will be admissible on appeal.
[24] There was a considerable amount of new material put forward
by the appellants. Some of it was not referred to
during the appeal and can be
ignored. For instance, the new evidence on audience age did no more than show
that a great number of
children watch television at the relevant time. There
was some reference to the pre-broadcast processes of TVWorks and I
found
that evidence of no assistance. The admission of much background
material was not opposed by Mr Mills and it
can be considered. I will
determine the admissibility of the new material that was relied on where it is
necessary to do so to
determine the points on appeal.
The “Hung” appeal
The programme and the scene
[25] “Hung” could be described as a comedy drama series. It follows the life of Ray Drecker who is a teacher who had previously been a high school sports star, but has fallen on hard times with a messy divorce and a poor income, amongst other misfortunes. The economic recession functions as part of the backdrop. Ultimately, Ray drifts into a life of providing sex to women for pay. Ginia Bellafante of The New York Times described the programme in a review of 6 August 2010 as “the most topical fictional programming on television” and a “finely drawn satire of the Great
Recession”. The review goes on:14
14 Ginia Bellafante “Thomas Jane on ‗Hung‘, Symbol of the Recession” The New York Times (New
York, 6 August 2010) at C1.
Notionally a sex farce, “Hung” is substantively a continuing
commentary on the humiliations of middle-class life
during a downturn in
which the spending of the still well-to-do strikes many as a kind of aggravated
assault.
“Hung” is predicated on a conceptual gag – Ray Drecker, a
40-ish high- school teacher, coach and father of two,
supplements his burdened
cash flow by providing sexual companionship to women who are bored, lonely,
crazy or recovering from frigidity.
[26] The programme is set in the decaying world in and around Detroit.
The review goes on to state:
Collective aspiration and the kind of mercenary will that might move things
belong, in the universe of “Hung” to the women
in Ray‘s
immediate orbit. As a fantasy of male sexual objectification, “Hung”
is a de facto dreamscape of female
social authority. Ray is handled by two
rivalrous managers, Tanya (Jane Adams), a dishevelled poet, and Lenore (Rebecca
Creskoff),
a brassy showboat who believes she can turn him into a super brand...
.
[27] In the scene itself the female character named Lenore, referred to
in a review as one of the two women vying for management
of Ray and who has
herself used his professional services, meets him after hours in an upmarket
department store. Ray does not like
Lenore who has previously stolen some of
his personal effects in an effort to gain control over him. They talk to each
other, with
Lenore‘s theme being how he could improve his life as a
purveyor of sexual favours. The two characters begin kissing. Ray
lifts up
Lenore‘s skirt and removes her underwear. There is a brief shot of
Lenore‘s pubic hair, but Lenore‘s
genitals are not shown. Lenore
pays Ray a significant amount of extra money and obliquely asks for oral sex,
while talking to him
about his abilities and business opportunities. Ray then
performs oral sex on Lenore. The sex act cannot be seen on camera, but
there is
no doubt as to what is happening. Lenore remains fully clothed in terms of what
the camera shows and her upper clothing
is not removed. All that can be seen
are her legs around Ray‘s shoulders and his head between her legs. Lenore
talks to
him at times through the exercise, while at the same time deriving
unmistakable pleasure from his attentions. There are no shots
of genitals or
breasts.
The decision
[28] The Authority considered the scene in terms of Standard 1 requiring that broadcasters observe standards of good taste and decency. The majority noted that
the programme was screened at 9.50pm on Monday during the school term, and
the scene itself screened at 10.10pm. The programme was
classified
AO–9.30pm and was preceded by a verbal and written warning of language and
sex scenes that may offend. It noted
the adult target audience and the
expectations of viewers, influenced by the pre-publicity and the
programme‘s title.
[29] In the critical paragraph of its decision, the majority
stated:
[21] A majority of the Authority ... considers that although the context
went some way to alerting viewers to the challenging nature of the
programme, the content complained about nevertheless went well beyond the level
of sexual material that viewers would expect to see on free-to-air television.
In the majority’s view, the scene complained about was prolonged,
explicit and gratuitous, leaving nothing to the imagination
and designed solely
for the purpose of shocking and titillating the audience. In these
circumstances factors such as the programme‘s AO classification and the
use of a written and verbal warning were not
sufficient to prevent the broadcast
breaching standards of good taste and decency.
(Emphasis added.)
[30] The majority acknowledged that upholding the complaint would place a
limit on TVNZ‘s right to freedom of expression
protected by s 14 of the
NZBORA but found that to uphold the complaint placed a “justified and
reasonable” limit on that
right. It considered that upholding the
complaint would clearly promote the objective in Standard 1 of the Code, to
protect
against the broadcast of, amongst other things, sexual content that
exceeds current norms of good taste and decency.
[31] The Authority‘s Chairperson, however, dissented from
the majority‘s
decision. The decision states:
[26] A minority of the Authority ... considers that the scene complained
about was acceptable in the context in which it appeared:
in an AO-classified
programme targeted at an informed adult audience. The minority would therefore
decline to uphold a breach of
Standard 1.
The consideration of the context in which the scene
occurred
[32] Mr Miles for TVNZ submits the majority failed to adequately consider the context in which the scene occurred. He submits the determination of the majority that the scene was gratuitous and designed solely for the purpose of shocking and
titillating the audience was plainly wrong. Rather, he submits, the scene
was meaningful in the context of the storyline of the
episode and the broader
themes of the series. It was played late at night, was appropriately classified
and preceded by the appropriate
warnings.
[33] Mr Mills submitted in response that contextual factors alone will
not be enough to prevent a broadcast from breaching the
standards. Some
material, irrespective of the context in which it occurs, may go too far. The
Authority, he submitted, was best
placed to assess the degree to which material
might deviate from current community standards of good taste and decency. He
urged
the Court not to undertake an investigation into the gratuity or otherwise
of the scene, or the artistic intention behind it. These,
he submitted, are the
proper functions of the Authority and not those of the Court.
[34] In approaching this ground of appeal I recognise that I should not substitute my own judgment on the merits for that of the Authority. The Authority has the relevant expertise and the appellate role is limited by s 18(4) of the Act. Rather I approach this ground on the narrower basis set out in May v May.15 I determine whether the context in which the scene occurred is a relevant factor which the Authority failed to take into account and/or whether the conclusion of the Authority
in light of the contextual factors was plainly wrong.
[35] I accept, of course, Mr Mills‘ submission that some content,
irrespective of the context in which it occurs, may go
too far. Explicit
pornographic sex will not be acceptable on free-to-air television regardless of
its narrative context, classification,
screening time and accompanying
warnings.
[36] As a matter of general principle, however, the context in
which content occurs will be of considerable importance
in determining whether
that content breaches standards of good taste and decency. Indeed the Code
makes specific reference to context
in the guidelines to Standard 1. These
include:
1a Broadcasters will take into account current norms of good taste and
decency bearing in mind the context in which any content occurs
and
15 May v May, above n 5, at 170.
the wider context of the broadcast e.g. programme classifications,
target audience, type of programme and use of warnings etc.
(Emphasis added.)
[37] Context is used in two broad senses. The first is described as the
“context in which any content occurs”.
I refer to this as the
narrative context. It will be necessary to consider what leads up to and what
follows the scene in the
particular episode, as well as the broader storyline
and the themes of the episode and the series.
[38] The second is described as the “wider context of the
broadcast”. I refer to this as the external context.
It includes the
programme classification, the target audience, the type of programme and the
accompanying warnings.
[39] As to warnings, the guidelines to the relevant standard
continue:
1b The use of visual and verbal warnings should be considered when the
content is likely to disturb or offend a significant
number of viewers except in
the case of news and current affairs, where verbal warnings only will be
considered. Warnings should
be specific in nature, while avoiding detail which
may itself distress of offend viewers.
[40] In the critical paragraph of the majority‘s decision it
concluded that “the scene complained about was prolonged,
explicit and
gratuitous, leaving nothing to the imagination and designed solely for the
purpose of shocking and titillating the audience”.
[41] Mr Miles‘ essential submission is that the determination of
the majority that the scene was gratuitous and designed
solely for the purpose
of shocking and titillating the audience was plainly wrong. I accept this
submission.
[42] The programme was screened at 9.50pm and the scene was
screened at
10.10pm. Its programme classification, AO–9.30pm, is the highest of
the classifications. The Code states that programmes
so classified
“may contain a greater degree of sexual activity”. The episode
in question was preceded by the following
verbal and visual onscreen warning
accompanying the classification:
This programme is rated adults only. It contains frequent use of language and sex scenes that may offend some people.
[43] “Hung‘s” protagonist is a down and out
former teacher who turns to providing sexual companionship
to women for pay.
Sex plays an inevitable part of the narrative. No viewer could be surprised at
a scene with some strong sexual
content. The scene formed a natural part of the
storyline both of the episode and the series. In its immediate context the
scene
shows a reversal of the traditional role where sexual exploitation is by
men of women, and in a mildly humourous way. In terms of
the initiation of
sexual contact and payment traditional gender expectations are turned on their
head. The themes of role reversal
and the exploitation of a male for sexual
purposes are reflected in the scene. It is the only sex scene in the
particular episode.
It demonstrates a modest victory for Lenore in her battle
with Tanya for control of Ray. For Ray, it is another dollar. He performs
a
sexual service for a woman he does not like. It fits naturally into the
episode‘s storyline. It was not the case, as the
majority decided, that
the scene was designed “solely to titillate”.
[44] When both the external and narrative context of the scene are
considered I am forced to the conclusion that this aspect of
the
Authority‘s decision was plainly wrong. Naturally I have hesitated
before reaching such a conclusion given the deference
I must show to the
Authority. I bear in mind, however, that the Chairperson dissented and
that the majority erred
in failing to take into account the narrative context of
the scene in their determination.
Conclusion
[45] I conclude that the majority were plainly wrong in concluding the
scene was gratuitous and designed solely for the
purpose of shocking
and titillating the audience.
[46] Given this conclusion it is unnecessary to consider the other grounds of appeal raised by TVNZ. It is not therefore necessary for me to refer to in particular the submissions that the majority failed to take its own research into account, or failed to take into account previous determinations, or failed to give adequate reasons. Nor do I deal with the NZBORA submissions, although these were much the same in relation to both programmes. I will be referring to these issues when I consider the “Home and Away” appeal.
The “Home and Away” appeal
The programme and the scene
[47] “Home and Away” is a soap opera series focussing on the
life of the residents of “Summer Bay” offering
general family
entertainment. The scene in question involved a female character named Martha
removing her pyjama top or bathrobe
revealing her brassiere. She is
passionately kissing the male character. She proceeds to take off her top and
makes him lie down
on the kitchen table, and then straddles him continuing to
kiss him. There is an unmistakable sexual intent, but there is no actual
sex
because the parties are humourously interrupted by a much older person visiting
them who was taken aback at their passionate
engagement.
The decision
[48] The Authority concluded that the scene contained more sexual
activity than should have been included in a G-rated programme.
It
stated:
[18] In determining whether this episode of Home and Away was
appropriately given a G rating, we have considered the nature of the scene
complained about. In our view, the scene was raunchy
and sexually charged. The
removal of Martha‘s bathrobe, revealing her bra, and her straddling of
Liam on the kitchen table
as they continued to kiss passionately went well
beyond the level of sexual activity that should be included in a G-rated
programme.
[19] G-rated programmes should be suitable for children to view
unaccompanied. In our opinion, the material in this programme would
only have
been suitable for children to view when accompanied by a parent or guardian. We
consider it likely that the scene would
have been alarming and distressing to
young children when not subject to guidance.
[20] For this reason, we conclude that this episode of Home and Away
should have been rated PGR rather than G. Having reached this conclusion,
the Authority must decide whether to uphold the complaint
as a breach of
Standard 8.
[49] The Authority held that the programme breached Standard 1 (good taste and decency). It also went on to hold that it breached Standard 8 (responsible programming) and Standard 9 (children‘s interests). It specifically rejected an
argument put by TVWorks that 5.30pm was not “predominantly
children‘s viewing time”.
[50] It was submitted by TVWorks that the Authority failed to take into
account the content of the scene, the lack of any explicit
sexual touching or
talk, the consensual and loving nature of the actions and the humourous
interruption. It was also submitted that
it failed to take into account the
usual content of G-rated programmes and that there was reference to other sexual
material in other
programmes shown in the same time slot. It was argued that
the Authority failed to take into account its previous decisions where
similar
scenes had been treated as acceptable, and that the Authority failed to take
into account its own research on the likely
effect of the scene on children. It
was submitted that the Authority failed to take relevant contextual factors into
account.
Finally, TVWorks argued that the Authority‘s consideration of
NZBORA issues was “boilerplate”, that it failed to
take relevant
matters into account and was plainly wrong. It will be necessary to consider
these various submissions.
The consideration of the context in which the scene
occurred
[51] As TVWorks has submitted, the scene shows a consensual and
loving exchange between two attractive characters which
is interrupted in a
humourous way. The female has a clear sexual intention, and her
straddling of the male character
has an unmistakable sexual purpose. The
Authority accurately described it as “raunchy and sexually
charged”.
[52] The narrative context, while still relevant, does not have the
relevance that it had in relation to the “Hung”
scene. This is
because the scene was shown during children‘s normal viewing times. The
threshold of acceptability in relation
to sex scenes is far lower at 5.30pm than
later in the evening.
[53] Needless to say, programmes classified G must be suitable for children. It cannot be expected that in this time slot there will be programmes such as “Hung” which have sex as a central theme. Particularly, the programmes in this timeband will not be expected to involve a storyline that requires relatively explicit sexual
scenes. The Code indicates that broadcasters should not create a programme
context in which such scenes are required.
[54] Further, the Authority did indeed consider context, referring to it
specifically in the course of the decision. It clearly
understood
TVWorks‘ arguments in relation to the content, but made the judgment that
it was likely that the scene would have
been “alarming and distressing to
young children when not subject to guidance”. While this is strong
language, it is
not so obviously in error that it can be said to be plainly
wrong. This is a matter clearly within the Authority‘s expertise
and no
error in reasoning or failure to take into account a relevant factor has been
shown. It can be seen why such a scene could
appear to an expert tribunal to be
unsuitable for children.
Failure to take into account the usual content of G-rated
programmes
[55] TVWorks identifies various scenes from the television
programmes
“Friends”, “The Simpsons” and “Everybody Loves
Raymond”, all of which are classified G. TVWorks
says that these
contain sexual material or references that were similar and shown within the
time slot. TVWorks has sought to produce
as evidence in this appeal DVDs
containing the relevant extracts from these programmes.
[56] Mr Mills opposed the admission of these DVDs. Leave is required to
adduce further evidence on appeal under r 20.16 of the
High Court Rules. Mr
Mills argued that leave should not be given if for no other reason than the
content of other programmes is
irrelevant.
[57] I would hesitate to conclude that material from other programmes could never be relevant in an appeal. I accept the submission of Mr Miles that there may be occasions when broadcasters opposing a complaint before the Authority will assume knowledge of programming on the part of the Authority and not adduce evidence before the Authority, but on appeal may legitimately seek to do so because that same knowledge cannot be assumed of a High Court Judge.
[58] However, any such occasions will be rare. I have no hesitation in
refusing leave to TVWorks to produce this sort of material
in this appeal. If
it had been necessary to do so for the purposes of my decision in relation to
“Hung” I would have
refused the similar application of TVNZ. A
High Court Judge is singularly ill- equipped to trawl through other programmes
selected
only by one party to try and form a conclusion as to norms of
acceptability. The only way that such an exercise could be conducted
fairly
would be for the amicus, or some other party not aligned with the
broadcasters, to be given the opportunity to access
the material and
comment on it so that there was a balanced presentation. However, even if this
was done the Judge would be left
in the position of making a value judgment on
all the material before it. This goes beyond the limited nature of the High
Court‘s
appellate function.
[59] The assessment of what is usual in programmes within specific
classifications is a matter best left to the expertise of the
Authority. I
therefore do not make any finding on the usual content of programmes classified
G. The Authority explicitly considered
what should be included in such
programmes and no error of approach or reasoning has been shown.
[60] I also recognise the force of the point made in TV3 Network
Services Ltd v
ECPAT New Zealand Inc where Chambers J observed in relation to new
evidence: 16
I declined to view the videotape. It was clear that it could not come in as evidence. The fact that television was – to use Mr Allan's terminology – a
“visual medium” did not support looking at something simply because it was
itself “visual”. The videotape apparently contained excerpts from other documentaries which, so Mr Allan contended, would have fallen foul of
broadcasting standards were the Authority's decision in this case correct.
Even if that is so, where does it get us? It is no defence to a speeding
ticket to show that others have sped but not been ticketed.
[61] The complaint process is subject to the vagary of whether a potential complainant is viewing a programme at a particular time. The fact that there has been no complaint and therefore no decision on a programme has limited probative
value.
16 TV3 Network Services Ltd v ECPAT New Zealand Inc [2003] NZAR 501(HC) at [53].
The importance of previous decisions
[62] I now consider the submission that the Authority failed to take into account two of its previous decisions, and the consequences of this failure. The two decisions relied on are Simpson v TVWorks Ltd17 and Marshall v Television New
Zealand Ltd.18 TVWorks sought the leave of the Court to
adduce further evidence
including the two decisions and a DVD of the scenes subject to
complaint in
Simpson.
[63] Mr Miles referred to the following observation of Professor J F
Burrows in an assessment entitled “Assessment of Broadcasting
Standards
Authority decisions – a legal perspective”:19
Consistency of decision is one of the law‘s strongest requirements. It
is fundamental to the nature of law. It wins the confidence
of the public. Few
things bring the law into greater disrepute than two complainants getting
opposite results on similar facts. Moreover,
consistency provides guidelines for
broadcasters.
[64] I note that Professor Burrows continued:
Maintaining consistency is probably more difficult for the Authority than it
is for some other judicial bodies. This is so for two
reasons. Firstly, its
membership changes relatively frequently. Secondly, it would require a
significant effort on the part of anyone
to maintain a knowledge of all the
Authority‘s decisions going back to its inception.
[65] I agree. I note the Authority considered over 200 complaints last
year. While the authority may consider earlier decisions,
particularly where
referred to and relied on by a party to the complaint, its workload is such that
it will not be required to in
every case.
[66] I would add two further points. First, “good taste
and decency” is a
necessarily somewhat fluid concept. This is acknowledged in the guidelines
to
Standard 1 which require broadcasters to “take into account
current norms of good
17 Simpson v TVWorks Ltd BSA Decision No.2009-120, 25 November 2009.
18 Marshall v Television New Zealand Ltd BSA Decision No.2000-201, 20 December 2000.
19 Professor J F Burrows “Assessment of Broadcasting Standards Authority decisions – a legal
perspective” (April 2006) at 10.
taste and decency”.20 Secondly, there are no absolutes
in the assessment of compliance with standards in artistic works. Competent
and properly informed
decision makers can form legitimately different views as
to the compliance of a particular scene. As was observed by this Court
in the
context of challenges to immigration decisions in Singh v Minister of
Immigration:21
The problem with a principle of equality or of consistency in decision-
making in a discretionary area is that there are many borderline
cases which
will have similar or superficially similar facts which different people acting
perfectly honestly will decide in different
ways.
[67] As Professor Burrows observes, consistency is attained in law by
following precedents.22 Consistency of decision is an object of
considerable importance and one towards which the Authority should strive.
But for
the reasons above consistency in Authority decisions is not a wholly
realisable aim. The doctrine of precedent as it is applied
by Courts has no
rigid application. It must follow both that an apparent inconsistency will not
of itself amount to an error of
law and that a failure to take into account any
particular decision will not of itself amount to an error of law.
[68] Where, as here, an appellate relies on previous decisions
not, it seems, referred to in submissions to the Authority,
practical
considerations also arise. To resolve an allegation as to inconsistency the
appellate Court would have to traverse decisions
said to be comparable in what
could become a burdensome and, for the reasons above, ultimately barren
exercise. If this Court
engages too readily in assessments of comparative
footage it embarks on an evaluative exercise for which it has no skill or
training.
In contrast, this assessment is within the Authority‘s
expertise, and the assessment of community standards, and any evolution
in those
standards, uniquely so.
[69] Subject to these considerations there should be no bar to an appellate authority considering previous decisions, even those that are not referred to. The earlier decisions are not evidence as such and there is no need for leave under r
20.16. However, an appellate Court will be cautious for the reasons
already given in
20 At [1a] (emphasis added).
21 Singh v Minister of Immigration [2000] NZAR 223 (HC) at [40].
22 At 10.
accepting references to previous decisions such as the Marshall and
Simpson decisions which have not been referred to the Authority and which
are not referred to in the decisions. With some reluctance I have
decided that
I will consider these two decisions as they do relate to somewhat analogous
sexual scenes in the same time slot as “Home
and Away” and are
recent.
[70] Mr Mills, while he accepted that I could consider the previous
decisions, had reservations about whether it was appropriate
for the appellate
Court to consider DVDs containing the scenes that were the subject of the
earlier decisions. Providing it is a
relevant and useful exercise, I do not
believe that there is any difficulty in an appellate Court considering DVDs
of the scenes
that are the subject of earlier relevant decisions of the
Authority. It may be impossible to fully understand what the scene
displays and
how it compares, and therefore the relevance of the previous decision, without
such an examination. Again, the contents
are not evidence of fact. They can be
seen as akin to an appendix to a decision.
The previous decisions relied on
[71] In the Simpson decision there were two scenes in question.
In the first a teenage couple meet in a bedroom and then in a very brief scene
lie on
the bed with the female on top. There is no disrobing shown in this
scene. Unbeknown to the female character, the encounter was
being covertly
recorded by the male. The couple are then shown lying in a bed under the
covers, apparently naked. At the end of
the episode another character discovers
footage which is blurred and difficult to see but appears to be a brief shot of
a couple
kneeling on a bed kissing and the female removing the male‘s
shirt. The Authority held that the visual depiction of the storyline
and its
theme were acceptable within the G-rated programme.
[72] While acknowledging the limitations of this Court in comparison to the Authority in terms of its ability to evaluate, assess and compare such footage, I have no hesitation in concluding that the scenes that were the subject of the Simpson decision were milder in terms of sexual impact than the subject scene in “Home and Away”. The Simpson scenes are perhaps not quite so explicit, but the important distinguishing factor is that they are of much shorter duration. A child watching
them is less likely to be embarrassed or confused, simply because the scenes
are so brief that they hardly engage the viewer. This
is in contrast to the
scene the subject of this appeal, which is far longer, and its sexual content
therefore more likely to have
impact. It is also significant in considering its
weight, that Simpson was a split decision with the Chairperson‘s
vote being determinative.
[73] In the Marshall scene the complaint was about a music video
for U2‘s song
“Beautiful Day” which was broadcast between a religious
programme and a children‘s television programme
in the G timeband on a
Sunday morning. The complaint alleged that an image of a couple kissing could
not take into consideration
the current norms of good taste and decency. In the
circumstances, the Authority did not consider that the scene was licentious
or
lurid and declined to uphold the complaint. The content as described in the
decision was milder than the subject scene.
[74] I conclude that in fact there was no inconsistency between
those two decisions and the present decision. However,
I emphasise that even
if there had been some inconsistency this may well not have been
conclusive.
[75] It has not been shown that the Authority made an error or failed to
consider a relevant matter when it did not refer to these
earlier decisions.
When those decisions relied on are considered, there was no palpable
inconsistency warranting further consideration.
This ground of appeal cannot
succeed.
Previous research
[76] It is necessary to consider whether the Authority should have taken into account its own research on the likely effect of the scene on children. TVWorks referred, without objection, to earlier research carried out by the Authority on the reactions of children to what they see on television. TVNZ had referred to other research in relation to “Hung”. It was argued by TVWorks that the results of the study supported the submission that the scene would not have been alarming or distressing for children. On the basis of the contents of that research it was
submitted that children would not have had the chance to feel much emotion
before the scene ended and would simply have moved on.
[77] It is proper and indeed desirable that the Authority commission
research and this is one of its functions under s 21(1)(h)
of the Act. The
Authority can be assumed to be familiar with that research and informed by it.
The consideration of such research
is not a mandatory relevant consideration and
the Authority‘s lack of reference to its research cannot be regarded as an
error
of law. That the Authority has commissioned a piece of research
does not mean that the findings in that research are
correct, and it
certainly does not mean that the conclusions will represent the
Authority‘s policy.
[78] Here TVWorks was essentially asking this Court to draw conclusions
as to what children regard as alarming or distressing
from the research
material, and to find that the Authority should have applied such conclusions.
If I was to enter into an exercise
where I sought to interpret the research
results and apply them to this case I would be engaging in the type of
subjective exercise
that goes beyond the limited consideration dictated by s
18(4). I would be substituting my judgment for that of the Authority as
to
whether the research was reliable and what the research meant in relation to the
particular scene.
[79] Mr Mills did not oppose the reference to this research. He carefully analysed the studies and submitted that the conclusions that TVWorks seeks to draw from them are wrong. I do not propose going into the detail of this submission. It demonstrates that the application of the results of the study is an exercise of judgment best left to the Authority. What can be taken from the results and applied in the determination of a specific decision is a matter that Parliament has asked the Authority to decide. It is part of the Authority‘s discretionary exercise of its decision-making power and this Court should not substitute its own judgment. The research might be relevant if it helped establish a clear error by the Authority. It does not do so. It shows that children are affected by sexual material. Its contents are consistent with a decision that children may be adversely affected by sexual issues such as the scene in question.
[80] It has not been shown that the lack of reference to the previous
research was a failure to take into account a material relevant
consideration
and the research relied on by the appellants does not show the Authority to be
plainly wrong.
Failure to give reasons
[81] Mr Miles is very critical of the Authority for giving insufficient reasons in both the decisions. It is only necessary to consider that submission in relation to the
“Home and Away” programme. I will consider the reasons given
exclusive of those relating to the NZBORA, which are examined
later.23
[82] There is no doubt that it is good practice for tribunals to provide reasoned decisions.24 The discipline involved requires the tribunal to analyse the relevant facts and law. It enables the litigants to see that their arguments have been considered and evaluated. It ensures that the party who has lost can discern whether there is a proper basis to pursue an appeal. It enables an appellate body to discern the law and facts that have been applied, and to consider the correctness of the
decision made. Transparency of thought is a vital protection against
capricious or arbitrary decisions.25 However, the depth of the
reasoning process can be expected to vary in accordance with the role of the
tribunal and the nature of
the hearing. A District Court might give very short
reasons for a bail decision during a busy court day. Appellate Court decisions
are generally detailed and closely reasoned.
[83] I discern in TVWorks‘ submissions a wish that as well as giving conclusory reasons (such as the statement that the scene is alarming and distressing to young children) there should be further explanation and elaboration, explaining why, for instance, such a scene is alarming and distressing. This might have been helpful, but these sorts of conclusory reasons are not always well suited to elaboration. The Authority considers a very large number of appeals each year, and on the papers. The Act only requires one lawyer to sit on the panel, and the rest may not be lawyers.
The Authority must ultimately make discretionary judgments of a type
that may not
23 See [85]–[106].
24 R v Awatere [1982] NZCA 91; [1982] 1 NZLR 644 (CA) at 648. See also Lewis v Wilson & Horton Ltd [2000] 3
NZLR 546 (CA) at [75]–[84].
25 See Lewis v Wilson & Horton Ltd at [82].
be easily illuminated by long explanations. They come down to questions of
judgment, rather than the logical progression of thought.
[84] In this case it would have been preferable for the Authority to have
elaborated somewhat further than it did, but it cannot
be said that there was a
failure to give reasons. I am satisfied that the reasoning process displayed in
the “Home and Away”
decision was sufficiently transparent. The
reasons given, while concise, explained to the reader the standards and facts
and findings
relied on by the Authority in reaching its decision. They were
sufficiently discernable to be susceptible to analysis and criticism.
I am not
able to conclude that there was any failure to give adequate reasons which
amounted to an error by the Authority.
NZBORA considerations
Introduction
[85] Mr Miles for TVNZ and TVWorks presented detailed written and oral
submissions on the application of the NZBORA. He
criticised both of
the Authority‘s decisions for not properly taking into account NZBORA
considerations. I have not considered
those submissions in relation to the TVNZ
appeal as that appeal has succeeded on other grounds. It is now necessary to
consider
the submissions in determining the “Home and Away”
appeal.
[86] The application of the provisions of the NZBORA is a mandatory relevant consideration, and must be taken into account by the Authority if it is considering upholding a complaint.26 While the Courts in earlier decisions were prepared to
accept that the consideration was implicit,27 it is now clear
that the consideration,
and in particular the s 5 NZBORA analysis, should be articulated in the
Authority‘s
decision.28
13 December 2004 at [35].
27 See Television New Zealand Ltd v Viewers for Television Excellence Inc at [57].
28 See Television New Zealand Ltd v Broadcasting Standards Authority at [35].
[87] The Authority acknowledged in three separate places in its
decision that upholding the complaint would place a limit on
the
broadcasters‘ right to freedom of expression, which is protected by s 14
of the NZBORA. It did so in the context of Standard
8 (responsible
programming), Standard 9 (children‘s interests) and Standard 1 (good
taste and decency). Its consideration
in relation to each standard was
different and it determined in respect of each that the limitation was justified
as required by
s 5 of the NZBORA.
The NZBORA framework
[88] Section 14 of the NZBORA provides:
14 Freedom of expression
Everyone has the right to freedom of expression, including the freedom to
seek, receive, and impart information and opinions of any
kind in any
form.
[89] The right to freedom of expression includes the right to present
offensive material. In Handyside v United Kingdom it was observed in the
European Court of Human Rights:29
[Freedom of expression] is applicable not only to “information”
or “ideas” that are favourably received or
regarded as inoffensive
or as a matter of indifference, but also to those that offend, shock or disturb
the State or any sector of
the population. Such are the demands of that
pluralism tolerance and broadmindedness without which there is no
“democratic
society”.
[90] There is no doubt that a finding of breach of the standards involves an imposition on the right to freedom of expression, even if no direct restraint is involved. The mere upholding of a complaint without penalty can dampen future expression. The question for the Authority in every case if it is considering upholding a complaint, is whether its decision is such a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s 5. Any limit on freedom of expression imposed by the Authority is one prescribed by law. So the issue comes down to whether upholding the complaint can be
demonstrably justified in a free and democratic
society.
29 Handyside v United Kingdom [1976] ECHR 5; (1979-80) 1 EHRR 737 at [49].
[91] Section 5 provides:
5 Justified limitations
Subject to section 4 of this Bill of Rights, the rights and freedoms
contained in this Bill of Rights may be subject only
to such
reasonable limits prescribed by law as can be demonstrably justified in a free
and democratic society.
[92] The Authority carried out the s 5 exercise in relation to each
breach of each of the three standards. I consider it would
have been
preferable to carry out the s 5 weighing as a single exercise. There is a
single complaint, and in the end if it is unheld
there will be a single order,
irrespective of how many standards are breached. The s 5 determination should
involve balancing the
right to freedom of expression against the limits
resulting from upholding the complaint taking into account the breaches of each
of the standards but weighing those breaches as a whole, rather than piecemeal.
But the approach taken of examining each breach,
if anything, favoured TVWorks
as each breach of standard individually offered less justification. This was
not a material error.
The extent of the s 5 analysis
[93] The Supreme Court considered the correct approach to the s 5 exercise in R v Hansen.30 In applying Hansen it must be remembered that the primary issue was how the reverse onus for possession of drugs under s 6(6) of the Misuse of Drugs Act 1975 should be approached under s 6 of the NZBORA. It was necessary to determine the standard against which consistency with the Bill of Rights was to be measured. The application of s 5 was therefore a secondary issue. It was observed
in that case that the NZBORA does not mandate any one method or sequence of
application for applying and reconciling the NZBORA
provisions.31
[94] In Hansen the majority of the Judges approached the s 5
exercise by applying the decision of the Supreme Court of Canada in R v Oakes
and the cases that
30 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1.
31 At [61].
followed it.32 Tipping J in Hansen provided this adapted
summary of the Oakes
approach:33
This approach can be said to raise the following issues:
(a) does the limiting measure serve a purpose sufficiently important to
justify curtailment of the right or freedom?
(b) (i) is the limiting measure rationally connected with its
purpose?
(ii) does the limiting measure impair the right or freedom no more than is
reasonably necessary for sufficient achievement of its
purpose?
(iii) is the limit in due proportion to the importance of the objective?
Here the limiting measure is the Authority‘s decision.
[95] There has been some judicial difference as to whether the Authority needs to go through a s 5 exercise in relation to its determination of individual complaints as distinct from Standards.34 I agree with the approach adopted in more recent cases
that its decisions must involve a s 5 analysis.35
[96] Mr Miles for TVWorks submits that in order to be compliant with the NZBORA the Authority in considering s 5 must follow a process of “structured reasoning”. He derives support for this proposition from an article by Claudia Geiringer and Steven Price “Moving from Self-Justification to Demonstrable
Justification – the Bill of Rights and the Broadcasting Standards
Authority”.36 In his
submissions he sets out a detailed analytical process which he asserts the Authority should have followed but did not. He submits that the Authority failed to carry out such a process, and rather inserted boilerplate paragraphs into its decision. Relying
on The New Zealand Bill of Rights Act: A Commentary37
it was submitted that it was
32 R v Oakes [1986] 1 SCR 103. See [120]–[124] per Tipping J, [203]–[205] per McGrath J and [272] per Anderson J following R v Chaulk [1993] 3 SCR 1303 which essentially summarised the Oakes approach.
33 At [104].
34 For a view that it was not necessary to carry out the exercise in relation to decisions see TV3
Network Services Ltd v Holt [2002] NZAR 1013 (HC) at [37]–[41].
35 See n 26.
37 Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (Lexis
Nexis, Wellington, 2005) at 6.12.2.
necessary in such an enquiry to consider the significance in a particular
case of the NZBORA values, the importance of the public
interest, the extent of
intrusion of the particular right, the limits sought to be placed on the
application of the NZBORA provision,
and the effectiveness of the
intrusion in protecting the interests put forward to justify the limits.
He submits the
Authority did not carry out a full s 5 analysis involving the
exploration and evaluation of free speech values and conflicting
legislative objectives, and a process weighing up the strengths of the interests
of each side.
[97] The degree of formalism required of a decision-making body will vary
according to the nature of that body. As was observed
in R (SB) v Governors
of Denbigh High School in relation to the decision of a school excluding a
student for wearing a particular form of clothing and in overturning
a
Court of Appeal decision:38
I consider that the Court of Appeal's approach would introduce “a new
formalism” and be “a recipe for judicialisation
on an unprecedented
scale”. The Court of Appeal's decision-making prescription would be
admirable guidance to a lower court
or legal tribunal, but cannot be required of
a head teacher and governors, even with a solicitor to help them. If, in such a
case,
it appears that such a body has conscientiously paid attention to all
human rights considerations, no doubt a challenger's task will
be the harder.
But what matters in any case is the practical outcome, not the quality of the
decision-making process that led to
it.
[98] The Authority consists of four members, one of whom (the Chairperson) must be an experienced lawyer, one of whom is appointed after consultation with representatives of the broadcasting industry and one of whom is appointed after consultation with “representatives of public interest groups in relation to broadcasting”.39 The Authority is a more legally sophisticated body than a school board. However, the only person required to be a lawyer is the Chairperson and the Authority has a large volume of cases each year which it must deal with promptly. There must be caution in imposing too formulaic and detailed analytical
requirements on such a body, which may greatly add to the time taken for decisions and their bulk. Although the Authority must always clearly and transparently explain
the reasons for its decision, at the moment Authority decisions are
commendably
38 R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100 at [31].
39 Broadcasting Act 1989, s 26.
brief and to the point. I accept Mr Mills‘ argument that it would be
unwise to excessively judicialise the process of the
Authority.
[99] In carrying out this s 5 balancing exercise of right breached against justification for the breach, the importance of the particular form of expression that is affected is relevant. Distinctions can be made between different types of speech. In Campbell v MGN Ltd Baroness Hale said:40
There are undoubtedly different types of speech, just as there are different
types of private information, some of which are more
deserving of protection in
a democratic society than others. Top of the list is political speech... .
Intellectual and educational
speech and expression are also important in a
democracy, not least because they enable the development of individuals‘
potential
to play a full part in society and in our democratic life. Artistic
speech and expression is important for similar reasons, in fostering
both
individual originality and creativity and the free-thinking and dynamic
society we so much value. No doubt there are
other kinds of speech and
expression for which similar claims can be made.
[100] Political speech may be at the top of the list and any
decision by the Authority that has the effect of restraining
such expression
will need clear justification. A short scene involving a raunchy sexual exchange
in a light television programme
designed to entertain is, in contrast, towards
the bottom. I accept the submission for TVWorks that the programme reflects
and
explores issues that arise in modern society, including marital problems and
sexuality, and in an Australian context which is relevant
to New Zealand. But
the scene cannot be said to be educative or informative, or the sexual part to
reflect a central theme of the
programme.
[101] In assessing the justifiable limitations threshold, the content of the Code and the relatively mild remedies available to the Authority for any breach are also relevant. The Authority will generally be considering programmes after they have been shown, and so often will not be restraining any broadcast. The issue will be the penalty for breaching the standards, and there will be no direct prevention of expression. If this is the case in relation to a complaint, it will indicate a lower
threshold of justification. While any Authority decision upholding a
complaint can
40 Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 at [148].
have a chilling effect on future expression, the impact is much greater if
there is an actual restraint imposed which stops a programme
from being
broadcast at all.
[102] The decision in relation to the scene in the “Home and
Away” programme involved no direct curtailment of expression
and is in
that category, in contrast to, say, an order to refrain from broadcasting a
programme under s 13(1)(b) of the Act.
[103] Therefore the nature of the decision-making body and its workload, and the importance of the type of expression restrained will be relevant to the degree of formalism required in the s 5 consideration. So will the impact of the restraint. More formal reasoning will be required if a limit is placed on a major decision or
policy of a government department41 rather than a limit placed on
a short scene in an
episode in a television drama.
[104] Given the non-judicial nature of the Authority and the
volume of its throughput, the low rating of the importance
of the scene in
terms of free speech, and the limited public consequences of the
Authority‘s decision, a full step-by-step
Oakes analysis was
not required. Indeed, there have been a considerable number of appellate
decisions that have accepted a s 5 proportionality
assessment where there has
not been any detailed analysis.42 Nevertheless, I agree with
Claudia Geiringer and Steven Price that a true “boilerplate”
consideration which only records,
without reasons, that the Authority has given
weight to the provisions of the NZBORA is unlikely to be adequate.43
The Authority should, in its own reasoning, show transparently why
it has reached the conclusion that the limitation is justified
under s 5, and
not by reference to generic statements in other earlier decisions.
[105] I am satisfied that it is unnecessary for the Authority to undertake a detailed analysis of the factors relevant to s 5 in its written decision, although on occasions this may be appropriate. Generally a succinct summary of reasons will be
sufficient.44 If the nature of the summary
indicates that there has been no proper s 5
41 See for example Ministry of Health v Atkinson (2010) 9 HRNZ 1 (HC).
42 See for example Television New Zealand Ltd v Broadcasting Standards Authority at [35]–[36]
and Television New Zealand Ltd v W at [19].
43 At 306.
44 See above n 42.
exercise carried out, then the Court may well conclude that there has been a
failure to take into account a relevant consideration.
[106] I have no hesitation in rejecting the general proposition of the
appellants that the Authority in a decision such as this,
should articulate and
explain a detailed process of structured reasoning along the lines they put
forward.
The Authority’s s 5 consideration
[107] I turn now to the exercise carried out by the Authority. The right of freedom of expression is important, but as observed, the type of expression here is far from being the most deserving of protection. The Authority explains clearly its justification for the limitation on the right. In relation to its first ground in upholding the complaint, it observes that it does so to “ensure that broadcasters take care to correctly classify programmes so that children are not exposed to unsuitable
material”.45 In relation to the complaint that
there is a breach of Standard 9,
children‘s interests, it concludes that the material was “unsuitable for broadcast during G time” and that upholding the complaint is justified and reasonable in the circumstances.46 In relation to Standard 1, the good taste and decency standard, it concludes that upholding the complaint would ensure that television broadcasters
“take care to ensure that sexual content which exceeds the G
classification is not broadcast during the G timeband when children
are likely
to be watching television unaccompanied”.47
[108] There seems to me to have been a proper s 5 balancing process and a sufficient although rather bare explanation. It is not fair to typify the determinations as “boilerplate”, although it would have been helpful if they had been less conclusory and contained more reasons. The sentences, although brief, show a proper understanding of the s 5 exercise and the proper conduct of that exercise. I do not accept the description by TVWorks of the explanation as arbitrary. I take into
account that shorter reasons can be justified for a s 5 decision
relating to a short sex
45 At [21].
46 At [30].
47 At [35].
scene, than might be expected if a complaint concerning a significant
political programme was being upheld.
[109] Further, it was legitimate for the Authority in the course of
explaining its process in carrying out the s 5 exercise to refer
to other
earlier decisions of the Authority, although care must be taken in this exercise
as to rely exclusively on an earlier decision
could tip the explanation into
boilerplate.
[110] I am not prepared to carry out my own s 5 balancing exercise. In the
absence of any relevant error of fact or principle,
and in the absence of a
conclusion which is plainly wrong, the Court will not interfere with the
Authority‘s decision. For
this Court to carry out the process would be
to usurp the role of the Authority and to apply its own judgment.
[111] In this regard I follow the approach in the majority of recent High
Court s 18 appeals.48 This Court is an inferior position to the
Authority when it comes to assessing how the right is affected, and what is a
reasonably
necessary and justified limit in the circumstances. On the other
hand, this is a task in which the Authority is specially qualified.
[112] I conclude that the Authority did consider the provisions of the
NZBORA and carried out a proper s 5 exercise. The fact that
it did not break
that exercise down into a series of steps is not fatal to its decision. The
essential balancing exercise has been
carried out.
Conclusion in relation to “Home and Away”
[113] In the end, TVWorks has failed to make out any of its grounds of appeal. The conclusion that was reached by the Authority was one that was open to it. There
were no demonstrable errors or failures to take into account relevant
considerations
or
the taking into account of irrelevant considerations. The decision was not
plainly wrong. TVWorks appeal therefore cannot succeed.
General conclusion
[114] The TVNZ appeal in relation to the “Hung” programme
(CIV-2010-485-
2007) is allowed, and the Authority‘s decision is reversed. I am not
clear whether any further order will be required and note
that submissions on
the point varied. Now that the decision on the merits of the appeal has been
given, I reserve the question of
whether any further specific orders, such as an
order for a rehearing, should be made.
[115] If particular orders are sought submissions should be filed within 21
days with submissions in reply within a further 14 days.
[116] The appeal against the decision relating to the “Home and
Away” programme (CIV-2010-485-2008) is dismissed, and
the decision of the
Authority in relation to that programme is confirmed.
Costs
[117] It is unlikely that any costs issues will arise, but cost issues are
reserved.
[118] Under s 99A of the Judicature Act 1908 I order that Mr Mills‘
reasonable fees and his junior‘s fees be paid out
of public funds. I am
grateful to Mr Mills for his thorough and helpful
submissions.
...................................
Asher J
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URL: http://www.nzlii.org/nz/cases/NZHC/2011/435.html