14 APRIL
THE NEW ZEALAND GAZETTE
1083

is in any event mindful of the fact that fantasising is of help to
some. This was a consideration when Forum was under review in
Decision 877. In that case evidence from psychiatrists had been
called to support this view. There remains in the minds of the
Tribunal a grave doubt whether this particular publication is a
suitable vehicle to assist in marriage guidance counselling. There
have been a number of publications submitted in the past and we
would consider some of them as more suitable (For example,
Sexual Adventures in Marriage, Decision 988). Some of the
photographs are more explicit than one would expect in a book of
this nature and there are illustrations of troilism which once again
we would not consider as being helpful in the counselling situation.
The texts do not appear appropriate for the purposes to which Mr
Wright wishes to put them. We are left with the distinct impression
that the publication lacks honesty of purpose and is injurious to
the public good. It has some appeal for the prurient. In all
circumstances it is classified indecent.

District Court Judge W. M. WILLIS, Chairman.

Decision No. 8/83
Reference No. Bro. 12/83

Before the Broadcasting Tribunal

In the matter of the Broadcasting Act 1976, and in the matter of
an application by Broadcasting Corporation of New Zealand to
amend warrants for TV2 (hours of transmission):

Messrs B. H. Slane (Chairman), L. R. Sceats.

Hearing: Auckland, 30 March 1983.

Counsel: Mr J. B. Thomson for Applicant.

Amendments Applied for: An amendment to the following terms
of the warrants, viz:

Hours of transmission: Monday–Friday 1430–2400
hours

Hours during which Monday–Friday 1430–2400
advertising permitted: hours

Hours of transmission Saturday–Sunday 1200–2400
hours

Hours during which Monday–Friday 1200–2400
advertising permitted: hours

The effect of the amendments if granted will be to enable
Network Two, Television New Zealand, to extend the hours of
transmission.

ORAL DECISION

THE application fairly sets out the purpose of the application. The
evidence of Mr Monaghan has given us the programme justification
for the extension of hours. There have been no objections or
submissions from members of the public although Mr Monaghan
has mentioned that there has been some listener support for
alternative programmes to the serials available on Television 1.

The extension of the hours, in the opinion of the Tribunal, is in
the public interest and the application will be granted with the
amended time of commencement as indicated by Mr Monaghan
today, namely 23 May 1983.

Dated at Wellington this 30th day of March 1983.

For the Tribunal:

B. H. SLANE, Chairman.

Decision No. 6/83
Bro. 8/83

Before the Broadcasting Tribunal

In the matter of the Broadcasting Act 1976, and in the matter of
an application by Independent Broadcasting Company Limited
for consent to the acquisition of shares by Independent
Newspapers Limited:

Chairman: B. H. Slane.

Member: Lionel R. Sceats.

Hearing: Hamilton, 21 February 1983.

Counsel: R. L. Maclaren for the Applicant and for Independent
Newspapers Limited.

Appearance: B. N. Meltzer.

REASONS FOR DECISION

INDEPENDENT BROADCASTING COMPANY LIMITED (IBC) holds the
sound-radio warrant for Radio Waikato (1XW).

When the warrant was granted by the New Zealand Broadcasting
Authority a condition was imposed:

The total shareholding by a news company as defined by the
News Media Ownership Act 1965, whether as beneficial owner
or otherwise and whether by one or more such news companies
in Independent Broadcasting Company Limited shall not
exceed 30 percent of the authorised capital of the company.

(It is accepted that the reference ought to have been to the issued
capital.)

The original percentage permitted by the Broadcasting Authority
was 35 percent. In an appeal to the Administrative Division of the
Supreme Court, a full court (Wild, C. J. and Speight, J.) changed
the figure to 30 percent (Supreme Court, unreported, 29 July 1970).

An application was made to this Tribunal by the warrant holder
in 1977 for a substitution of 45 percent for 30 percent to enable
the acquisition of shares totalling 14.5 percent of the capital of the
company from existing shareholders by Independent Publishers
Ltd. (I.P.L.) which already held 30 percent of the issued capital.

The shares were taken up by Waikato shareholders of the warrant
holder.

On 2 February 1983 the Broadcasting Tribunal granted an
amendment sought by the warrant holder to substitute a new and
fuller clause which had the effect of strengthening the provision but
did not alter the percentage of issued capital. It also provided that
the restriction was to apply “Except with the prior written consent
of the Tribunal . . .”

The new clause covered the situation of a company such as
Independent Newspapers Ltd. (I.N.L.) which itself may not have
been by the former definition a news company since it did not
directly publish newspapers but rather owned subsidiary companies
which did.

Relying on that interpretation of a similar clause Independent
Newspapers Ltd. has already purchased shares in Capital City
Radio Ltd. the warrant holder for Radio Windy which it could not
have done if it was itself a newspaper publisher. The Tribunal
makes no comment on that transaction. It will no doubt come to
be considered at a later date.

The company has now made the present application which was
contemplated when the new clause was substituted.

It is not an application to amend the warrant. It is an application
for consent to be given to this particular transaction.

The application is necessary because I.P.L. (a wholly owned
subsidiary of I.N.L.) owns 30 percent of the capital. Both
companies are news companies within the new definition set out
in the amended Condition 5 of the warrant—I.P.L. as publisher of
the Waikato Times and I.N.L. (the proposed purchaser of shares)
as a company which has control over companies which publish
newspapers.

Mr R. B. Waddington, directly and indirectly, has a shareholding
of a little under 21 percent and wishes to sell his shares at 85 cents
to I.N.L.

The Board of I.B.C. supported the acquisition of the shares. In
evidence, Mr B. J. Paterson, a longstanding Board member, said
that I.P.L. had held 30 percent of the capital of the company since
it began broadcasting. The directors unanimously agreed to initiate
the application and saw no disadvantage in I.N.L. either directly
or through its subsidiaries holding up to 51 percent of the share
capital. They saw possible advantages in management support and
assistance with a FM application.

Mr Paterson said he had not been aware of any direction or
attempted direction or exercise of control by I.N.L. over either the
Board of I.B.C. or the shareholding of I.B.C. It had never
endeavoured to exercise a measure of control.

Mr J. H. D. Wickham was originally appointed a director of
I.B.C. by I.P.L. before I.P.L. had been acquired by I.N.L. It was,
and is, the publisher of the Waikato Times newspaper. He remains
a director. Mr J. M. Robson, Group General Manager of I.N.L.,
had more recently been appointed. The 2 were the only directors
who had an interest in or were connected with I.N.L. or I.P.L.
Although under an unofficial non-legal agreement I.P.L. had the
right to appoint 2 directors, they failed to replace a former
“nominee” when he retired and the existing directors chose Mr G.
P. McElwee to fill the vacancy. Mr McElwee has no connection
directly or indirectly with I.N.L. and did not receive instructions
or directions from either of those companies.

Mr Paterson said the news service of Radio Waikato was
controlled by a news editor and there had not been any attempt by
I.N.L. or I.P.L. or any of their subsidiaries to influence or direct
the content of the news service and editorial independence had