Armstrong and Radio New Zealand Ltd - 2021-027 (11 August 2021)
- Judge Bill Hastings (Chair)
- Leigh Pearson
- Paula Rose QSO
- Susie Staley MNZM
- Guy Armstrong
BroadcasterRadio New Zealand Ltd
Channel/StationRadio New Zealand
[This summary does not form part of the decision.]
The Authority has not upheld a complaint about an item on The Detail that discussed Auckland Council efforts to monitor and improve the water quality and swimmability of Auckland beaches. The complaint was that the item failed to present alternative views, or test or challenge the views presented by Auckland Council representatives. The Authority noted the balance standard allows for significant viewpoints to be presented over time, and does not require every programme to canvass all significant views on a particular topic. It found there was extensive coverage around the time of the broadcast that provided a range of information on the water quality and swimmability of Auckland beaches, and the broadcast approached the issue from a particular perspective, not purporting to be a balanced examination of the adequacy of Auckland Council efforts. The fairness standard did not apply.
Not Upheld: Balance, Fairness
 An item on The Detail, broadcast on RNZ National on 1 February 2021, discussed Auckland Council efforts to monitor and improve the water quality and swimmability of Auckland beaches. The item included commentary from Auckland Council Safeswim’s programme manager Nick Vigar and Auckland Councillor Richard Hills:
Reporter: Today I'm at the beach, not because it's an Anniversary Day in Auckland, but because there's been a big problem over the summer: pollution. Aucklanders are saying it's not good enough, and I'm here to find out what's being done about it…
Mr Hills: Because insufficient money has been spent over many, many decades, you know, we now have a situation now where you get a wastewater overflow every time it rains. And I don't think in anyone's book that that's acceptable…
Reporter: People weren't paying too much attention to it until a website called Safeswim was launched by the Auckland Council three summers ago, that lights up red when there's a ‘Code Brown’. That's exactly what happened last month, and people lashed out at the Council for years of neglect. So what's really going on in the pipes? And is Safeswim doing its job?...
Mr Vigar: Did it bite us on the bum? I think it will happen every year. We have to accept, you know, Safeswim, although it’s a tool to help people manage their risk, inevitably, it will be the tool that people will judge us on… We have a team of full time people. They travel around the region and monitor your beach, they're our boots on the ground.
Mr Hills: Look for an urban city, most of our beaches are actually pretty good, especially on the North Shore where some of the complaints were coming from. You have sort of 95, 97% good water quality. But after those massive rains, after you have several months of a very, very dry season, all what we call is the first flush…everything rushing out of the storm water, drains into our beaches…
On the Isthmus, the Western Isthmus around Meola Reef and Coxs Bay and even around St Mary's Bay, that whole area is designed to overflow into the water…And that does have an impact on all of us…but definitely in those areas, those are some of the permanently closed places for swimming.
Reporter: So what’s being done about that?
Mr Hills: So what's being done in that area is there's a $1.3 billion project called the central interceptor, and that is basically increasing the capacity of pipes, which will also mean that there's far fewer overflows.
Reporter: …So it sounds like you're spending an awful lot of money on this.
Mr Hills: Yeah. So this long term plan coming up will increase our just on capital infrastructure for water from $7 billion over ten years to $11.1 billion over 10 years…
Reporter: So when you get people saying the Council’s done nothing about it, no money has been spent, it must get on your wick a little bit, especially when you get this coming from politicians who should know better?
Mr Hills: Yeah, I mean, I guess the frustration is when people say, you know, calling for inquiries, we know there's an issue, that's kind of the whole point of Safeswim to show people how bad it is in some places. But also in an urban area, you know, with billions and billions and billions of dollars, you may not get perfection on those massive rain situations. We can't, unless we're going to take cars off the road and prevent people having any storm water and wastewater…
… Some we’ll never be able to fix, such as parts of the wider [Wairau] estuary that were all built with concrete channels which heat up in the summer…
Reporter: Nick Vigar pinpoints the issue:
Mr Vigar: The really problematic thing from an Auckland perspective is not the 30 mls of rainfall, it's the beaches that light up red after two, three, four mls of rainfall…
Reporter: But when people look on the Safeswim website and it has turned red, or there are a lot of red flags there, do they have a right to get angry at that sort of historical lack of action that may contribute to this?
Mr Hills: I think people have a right to get angry and sometimes their anger turns into action… And now we're finally getting on top of those things…
Reporter: Would it be too cynical to say that Safeswim has been a great tool for scaring people into paying up?
Mr Hills: I guess, yeah, it probably is cynical to say that. We didn’t probably expect it to be that way. But it has been a tool to show people how serious the issue is because there was no way before…
 Dr Guy Armstrong, a member of Milford WEEPS, originally complained the broadcast breached the balance, accuracy and fairness standards. He subsequently limited his complaint to the balance and fairness standards, on referral to the Authority, and also clarified the complaint was made by him as an individual rather than on behalf of Milford WEEPS.
 Dr Armstrong provided detailed arguments to support his complaint including:
- Only Auckland Council representatives were interviewed despite the views of others being ‘advanced and criticised’.
- ‘The interviewer’s queries were “patsy” questions. No attempt was made to test the interviewees’ views or provide other views to [achieve] balance.’
- ‘Furthermore, there was no mention of consultation of iwi, for their perspective on water, the health of which is central to their view of the environment…There was no acknowledgement of Te Mana o te Wai, the guiding principle for water management in NZ since 2014…’
- A number of ‘value statements’ and ‘factual statements’ were identified as incorrect and should have been challenged or tested.
 In response to the broadcaster’s decision on the complaint, which suggested the views of Milford WEEPS were not significant for the purposes of this broadcast or the balance standard, Dr Armstrong submitted:
- The complaint was focused on ensuring the broadcast addressed the broader issue of Auckland’s waterways being contaminated with sewage.
- He was not arguing Milford WEEPS should have been consulted for the story, but that there were other organisations that should have been.
The broadcaster’s response
 RNZ did not uphold the complaint:
- Balance: ‘The Detail episode titled “Cleaning Auckland’s Beaches” sought to give an overview of the water quality issues affecting beaches throughout the Auckland area…For the purposes of this particular programme, and the application of the broadcasting standards to the programme, yours was not a significant point of view.’
- Fairness: ‘The Fairness standard ensures that broadcasters should deal fairly with any person or organisation taking part or referred to in any broadcast. As your organisation was not invited to participate in the programme, this standard is not applicable to your complaint.’
 In RNZ’s response to the referral it submitted:
- ‘It appears that at best there may be some area of “disputed fact” between what the complainant presents and what it was that the experts in the programme who were interviewed said.’
- ‘In such a specialist area, the broadcaster is entitled to rely on the word of such experts as they explain the issue put to them.’
- ‘The introduction to the programme was quite clear, it was looking at the issue of “pollution” on beaches and “what was being done about it”. It was logical that public officials holding responsibilities in this area would be interviewed.’
 The balance standard1 states when controversial issues of public importance are discussed in news, current affairs or factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest. The purpose of this standard is to ensure competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.2
 The fairness standard3 protects the dignity and reputation of those featured in programmes. The objective in assessing fairness is to weigh the broadcaster’s right to freedom of expression against the right of individuals and organisations to be treated fairly.
 We have listened to the broadcast and read the correspondence listed in the Appendix.
 We have also considered the right to freedom of expression, which is our starting point. This includes the broadcaster’s right to offer a range of information and the audience’s right to receive it. Our task is to weigh the value of, and public interest in, the broadcast against the level of actual or potential harm that may have been caused, with reference to the balance standard's objectives. We may only intervene and uphold a complaint where the level of harm justifies placing a reasonable limit on the right to freedom of expression.
 This broadcast carried a high degree of public interest, given the significance of the water quality issue in Auckland and the political implications of this issue on a national level. In this light, and in light of the wide range of coverage provided by other reporting over time, we have not found harm caused by this broadcast at a level that justifies intervening or restricting the right to freedom of expression. We explain our reasons below.
Does the balance standard apply?
 For the balance standard to apply, the subject matter of the broadcast must be an issue of ‘public importance’, it must be ‘controversial’ and it must be ‘discussed’ in a news, current affairs or factual programme.4
 An issue of public importance is something that would have a significant potential impact on, or be of concern to, members of the New Zealand public.5 A controversial issue will be one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.6
 We consider the issue of the water quality and swimmability of Auckland beaches and, in particular, the question about the appropriate balance between reasonable rates and adequate measures in response, to be a controversial issue of public importance. This is particularly so in light of the ongoing nature of public interest and debate about this issue, and its national political implications, which have recently culminated in announcements by the Minister for Local Government Hon Nanaia Mahuta about four publicly owned water infrastructure entities covering Northland, Auckland, Central North Island and South Island.7
 Therefore, the balance standard applies.
Assessment of whether reasonable range of perspectives presented
 The wording of the balance standard is clear that a broadcaster should make reasonable efforts to present significant perspectives ‘either in the same programme or in other programmes within the period of current interest’. This means balance is allowed to be achieved over time, and broadcasters are not required to present every perspective on a controversial issue within every broadcast discussing that issue.8 Placing such a requirement on broadcasters would itself unreasonably limit their exercise of freedom of expression and editorial control, and in particular their freedom to present programmes or interviews from a particular perspective.9
 Given the ongoing public debate about this issue, we consider the period of current interest is ongoing.
 The question of whether the range of perspectives presented by RNZ within the period of interest was reasonable will always be fact and context dependent, reflecting the wider broadcasting environment within which audiences view content.10
 We found the broadcaster presented a reasonable range of perspectives, taking into account:11
- The programme did not purport to be a balanced examination of the wider issue around the appropriate balance between reasonable rates and adequate measures in response, but rather an examination of specifically what the Auckland Council was doing about it.
- The programme was clearly signalled in its introduction as approaching the issue from the particular perspective of those attempting to address the problem, with a view to understanding the nature of the problem and what was being done.
- This represented one aspect of a larger, complex debate about water quality issues in Auckland and national water policy.
- In relation to the water quality and swimmability of Auckland beaches:
- The issue has been widely canvassed in media since 2018, both by RNZ,12 and other outlets.13
- Viewers could reasonably have been expected to be aware of alternative views regarding appropriate measures in response to water quality issues, including those of the National Party as presented by RNZ,14 and those of Dr Armstrong and Milford WEEPS as presented by other media outlets.15
- Additionally, this area remains an ongoing topic of discussion and debate, and the period of current interest is ongoing. It has received coverage since the broadcast16 and is likely to receive further coverage in future.
 For the reasons above, we consider RNZ provided a reasonable range of perspectives within the broadcast, and we do not uphold the complaint under the balance standard.
 As above at , the fairness standard protects the dignity and reputation of those featured in programmes.
 The complaint does not identify any individuals or organisations featured in the broadcast, who were allegedly treated unfairly. The complaint suggests the fairness concern relates to the broadcast not having ‘fairly’ presented the facts, however, this is not what the fairness standard is designed to address.
 Accordingly, the fairness standard does not apply.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
Judge Bill Hastings
11 August 2021
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Dr Guy Armstrong’s formal complaint – 15 February 2021
2 RNZ’s decision on the complaint – 10 March 2021
3 Dr Armstrong’s referral to the Authority – 19 March 2021
4 RNZ’s response to the referral – 11 May 2021
5 Dr Armstrong’s emails clarifying standards complained about in referral, and identity of complainant – 13 July 2021
1 Standard 8 of the Radio Code of Broadcasting Practice
2 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
3 Standard 11 of the Radio Code of Broadcasting Practice
4 Guideline 8a
5 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
6 As above
7 “Water reforms: New entities proposed to take responsibility of infrastructure” RNZ (online ed, 30 June 2021)
8 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
9 See Bidwell and Radio New Zealand Ltd, Decision No. 2020-003 at 
10 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
11 Guideline 8c
12 “Auckland's contaminated beaches” RNZ (online ed, 12 February 2018); “Takapuna beach unswimmable for five days” RNZ (online ed, 16 February 2018); “Accept new rate or dirty beaches - Auckland Mayor” RNZ (online ed, 15 March 2018); “Dirty Auckland beaches 'not acceptable in 2018'” RNZ (online ed, 26 June 2018); “Numerous Auckland beaches off limits to swimmers after heavy rain” RNZ (online ed, 4 January 2021); “Where is safe to swim?” RNZ (online ed, 5 January 2021); “Some Auckland beaches safe for swimming again” RNZ (online ed, 9 January 2021); “Cleaning Auckland's beaches” RNZ (online ed, 1 February 2021); “Dozens of Auckland beaches unsafe for swimming after rain” RNZ (online ed, 12 April 2021); “Poor infrastructure not only reason beaches become unsafe for swimming – Safeswim” RNZ (online ed, 12 April 2021); Louise Ternouth “New pipeline to make Auckland's polluted beaches a thing of the past” RNZ (online ed, 28 May 2021); “Water reforms: New entities proposed to take responsibility of infrastructure” RNZ (online ed, 30 June 2021)
13 Laine Moger “Human waste the leading contaminant at Auckland beaches, DNA tests show” Stuff (online ed, 13 November 2018); Kendall Hutt “Thousands call for filthy Auckland estuary to be cleaned up, made swimmable” Stuff (online ed, 12 February 2020); Tess Nichol “Unswimmable Auckland: The problem with our city's beaches” Metro (online ed, 13 February 2020); “Pollution anger: Wairau Estuary” Rangitoto Observer (online ed, 21 February 2020); Guy Armstrong “Guy Armstrong: It's time to clean up poo at Auckland beaches” NZ Herald (online ed, 4 March 2020); Denise Piper “Swimming spots to avoid: Nearly 100 water sites across NZ unsafe for swimming” Stuff (online ed, 14 November 2020); Josephine Franks “More than 50 Auckland beaches declared no-swim zones” Stuff (online ed, 3 January 2021); “Dozens of Auckland beaches deemed unsafe to swim in” 1 News (online ed, 4 January 2021); “Dozens of Auckland beaches deemed unsafe to swim in, the second time in a week” 1 News (online ed, 9 January 2021); Tom Dillane “Auckland's worst beaches: Urgent rates rise required, worst-polluted sites ranked” NZ Herald (online ed, 16 January 2021); Stewart Sowman-Lund “It’s going to be 20 years before Auckland’s shitty beach woes go away” The Spinoff (online ed, 18 January 2021); Rachel Sadler “Nearly 40 Auckland beaches overwhelmed by faecal contamination, deemed unsafe for swimming” Newshub (online ed, 11 April 2021)
14 “Numerous Auckland beaches off limits to swimmers after heavy rain” RNZ (online ed, 4 January 2021)
15 Kendall Hutt “Thousands call for filthy Auckland estuary to be cleaned up, made swimmable” Stuff (online ed, 12 February 2020); “Pollution anger: Wairau Estuary” Rangitoto Observer (online ed, 21 February 2020); Guy Armstrong “Guy Armstrong: It's time to clean up poo at Auckland beaches” NZ Herald (online ed, 4 March 2020)
16 Rachel Sadler “Nearly 40 Auckland beaches overwhelmed by faecal contamination, deemed unsafe for swimming” Newshub (online ed, 11 April 2021); “Dozens of Auckland beaches unsafe for swimming after rain” RNZ (online ed, 12 April 2021); “Poor infrastructure not only reason beaches become unsafe for swimming – Safeswim” RNZ (online ed, 12 April 2021); Louise Ternouth “New pipeline to make Auckland's polluted beaches a thing of the past” RNZ (online ed, 28 May 2021); “Water reforms: New entities proposed to take responsibility of infrastructure” RNZ (online ed, 30 June 2021)