Cape and Radio New Zealand Ltd - 2018-013 (18 April 2018)
- Peter Radich (Chair)
- Wendy Palmer
- Te Raumawhitu Kupenga
- Paula Rose QSO
- Christopher Cape
BroadcasterRadio New Zealand Ltd
Channel/StationRadio New Zealand National
[This summary does not form part of the decision.]
Saturday Morning featured a segment in which presenter Kim Hill interviewed former MP and spokesperson for lobby group Hobson’s Pledge, Dr Don Brash, about the use of te reo Māori in New Zealand, specifically in RNZ broadcasting, without translation. The Authority did not uphold a complaint that the interview was unbalanced and unfair. The Authority found that, while Ms Hill asked Dr Brash challenging and critical questions, Dr Brash had a reasonable opportunity to put forward his competing point of view, and listeners would not have been left misinformed with regard to Dr Brash’s position. Given the level of public interest in the interview, Dr Brash’s position and his experience with the media, the Authority also found Ms Hill’s interview style did not result in Dr Brash being treated unfairly.
Not Upheld: Balance, Fairness, Discrimination and Denigration, Good Taste and Decency
 Saturday Morning featured a segment in which presenter Kim Hill interviewed Dr Don Brash, about the use of te reo Māori in New Zealand, specifically in RNZ broadcasting, without translation. Dr Brash was formerly leader of the National Party, leader of the ACT Party, a Member of Parliament, and Governor of the Reserve Bank of New Zealand, and he now acts as a spokesperson for political group Hobson’s Pledge.
 The interview focused on Dr Brash’s criticism of RNZ presenters, particularly Guyon Espiner, for using te reo during broadcasts which are predominantly in English. Dr Brash said, ‘[w]e’re being forced to listen to these sentences by Guyon Espiner without any trace of translation provided... I have no idea what he is saying’. Dr Brash later also said that ‘[Mr Espiner] makes no attempt to translate it [sentences in te reo], so I won’t even learn from what he is saying.’
 Christopher Cape complained that the treatment of Dr Brash during the interview resulted in the interview being unbalanced and unfair to Dr Brash, and prevented the audience from understanding Dr Brash’s position.
 The issues raised in Mr Cape’s complaint are whether the broadcast breached the balance, fairness, discrimination and denigration and good taste and decency standards of the Radio Code of Broadcasting Practice.
 The item was broadcast on 2 December 2017 on RNZ National. The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
Freedom of expression
 When we determine a complaint alleging a breach of broadcasting standards, we first give consideration to the right to freedom of expression. The right to freedom of expression includes both the broadcaster’s right to impart ideas and information, and the public’s right to receive that information. We may only interfere and uphold complaints where the resulting limitation on the right to freedom of expression is reasonable and justified.1 Our task is to weigh the value of the programme and the importance of freedom of expression, against the level of actual or potential harm that may be caused by the broadcast.
 In our view this broadcast carried a high level of public interest. It explored a topical and legitimate issue, about which people in the New Zealand community will hold a variety of views, and they are entitled as part of the right to freedom of expression to hear these issues discussed on television and radio and to hear others’ views. They are also entitled to hear robust, challenging discussion where issues do generate a variety of perspectives. The interviewing of public figures by journalists is an important feature of life in a democratic society.
 The question for us to consider is whether there was any harm caused by the interview and if there was, whether it warrants our intervention and warrants limiting the right to freedom of expression in this case.
Was the interview sufficiently balanced?
 The balance standard (Standard 4) states that when controversial issues of public importance are discussed in news, current affairs and 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 standard exists to ensure that competing arguments are presented to enable a viewer to arrive at an informed and reasoned opinion.
The parties’ submissions
 Mr Cape submitted:
- Ms Hill’s attitude and the resulting lack of ‘intelligent investigative questioning’ left the listening public with a lack of information regarding points Dr Brash attempted to raise.
- The main point at issue in the interview, in Dr Brash’s opinion, was that the use of te reo on RNZ without translation was unacceptable to a large portion of the public and detrimental to the public good. Ms Hill did not examine this point, preferring to attack Dr Brash about the general use of te reo instead.
- When Dr Brash tried to explain his point of view he was interrupted and criticised by Ms Hill.
- The interview did not amount to a balanced examination of the issue and as a result audience expectations were not met.
 RNZ submitted that Dr Brash was able to provide his point of view with regard to the use of te reo Māori on air and Ms Hill, through ‘devil’s advocate’ questioning, was able to alert listeners to a number of other points of view.
 A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The standard applies only to news, current affairs and factual programmes which discuss a controversial issue of public importance. The subject matter must be an issue ‘of public importance’, it must be ‘controversial’, and it must be ‘discussed’.2
 The Authority has typically defined an issue of public importance as something that would have a ‘significant potential impact on, or be of concern to, members of the New Zealand public’.3 A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.4
 Having regard to the ongoing debate that surrounds the use of te reo in New Zealand broadcasting, as well as the significant amount of coverage this particular interview received,5 we are satisfied that this item amounted to a discussion of a controversial issue of public importance, for the purposes of this standard.
 Having found the balance standard applied, the next question is whether the broadcaster made reasonable efforts, or gave reasonable opportunities, to present significant points of view on this issue, either in the same programme or in other programmes within the period of current interest. The key question is what listeners would have expected from the programme, and whether as a result of the broadcast listeners would be left uninformed or unable to form their own views on the issue under discussion.6
 The essence of Mr Cape’s concerns appear to be that Ms Hill’s treatment of the issue being discussed, and her treatment of Dr Brash, prevented a balanced examination of the issue.
 We acknowledge that Ms Hill’s style of interviewing was robust and challenging, including her use of ‘devil’s advocate’ questioning, and that both parties at times interrupted each other during the interview. However, both Ms Hill and Dr Brash are known public figures with extensive experience in the media and while Ms Hill was critical of Dr Brash at times during the interview, we consider there would be a reasonable audience expectation that a long-form interview between these two individuals, discussing such a controversial and topical issue, would lead to challenging and robust debate.
 Under its Charter, RNZ is expected to (among other things): promote the concept of freedom of thought and expression as foundations of democratic society; to foster a sense of national identity by contributing to tolerance and understanding; to foster critical thought, and informed, wide-ranging debate; and to reflect New Zealand’s cultural identity, including Māori language and culture.7 These principles are consistent with this Authority’s approach to freedom of expression (see paragraph  above), and we consider the interview in this case reflected the objectives of RNZ’s Charter and was a valuable exercise of the right to free expression. As we have said, freedom of expression is the starting point in our consideration of complaints, and we may only limit that right where it is reasonable and justified to do so.
 The nature of the interview and Ms Hill’s approach do not mean that the interview as a whole was unbalanced, or that the audience would have been left uninformed with respect to the competing views surrounding this issue.
 On the contrary, we are satisfied that, over the course of the 32-minute interview, Dr Brash was given a sufficient and reasonable opportunity to present his position and his views on the topic. Dr Brash clearly put forward his view that RNZ should not use as much te reo in their broadcasts without translation, due to the majority of the New Zealand public’s inability to understand what is being said. For example, in the opening minutes of the interview, Dr Brash made the following comments:
- ‘I only don’t like it [the use of te reo in broadcasting] when it’s used on a primarily English-language broadcasting medium such as RNZ. I turn on the RNZ news to hear Morning Report and I have to listen to a couple of sentences from Guyon Espiner in te reo. …Not three percent of people listening to RNZ at that time will have the faintest clue what he’s talking about.’ (in response to Ms Hill’s question, ‘What is it that you don’t like about it [te reo] on the radio?’)
- ‘The reality is that the vast majority of New Zealanders speak primarily English, the number of people who speak primarily Māori is probably zero, and we’re being forced to listen to these sentences by Guyon Espiner without any trace of translation provided…’
- ‘If he’s saying hello he could say ‘Morena’ – I’d understand that. But he says a lot more than that. He makes no attempt to translate it so I won’t even learn from what he’s saying. In Parliament when Māori is used, it is translated, and appropriately so.’
 In addition to the views expressed by Dr Brash within this broadcast, there was a wide range of other media coverage around the time of this interview concerning Dr Brash’s views on the use of te reo without translation in broadcasting.8
 For these reasons, we do not consider that listeners would have been left uninformed about the issue being discussed, or unable to form their own views on this issue. We therefore do not uphold the complaint under the balance standard.
Was any individual or organisation taking part or referred to in the broadcast treated unfairly?
 The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.
The parties’ submissions
 Mr Cape submitted:
- Ms Hill interviewed Dr Brash in a way that was ‘provocative, manipulative’ and prevented the audience from obtaining a clear understanding of Dr Brash’s opinions.
- Ms Hill’s approach was ‘combative’ and focussed on a narrow interpretation of Dr Brash’s position.
- This approach deprived the audience of the ability to make their own informed decision on the issue of te reo translation in broadcasting.
 RNZ submitted:
- Given that Dr Brash’s comments were in the nature of political speech which is the most highly valued form of communication, there would have to be striking, relevant, and provable examples of unwarranted harm before it could be suggested that the item was unfair.
- Dr Brash was not treated unfairly in the interview.
- Dr Brash is experienced with dealing with the media, and holds what some would consider to be contentious views. He was given the courtesy being allowed to speak at length on occasions, he spoke passionately in parts of the interview, and was allowed to interrupt and interject the interviewer at other points of the interview.
 The broadcast that is the subject of this complaint involved a public figure being interviewed and the views he expressed being challenged. The Authority has previously recognised that the threshold for finding a breach of the fairness standard in relation to politicians or public figures is higher than for a lay person or someone unfamiliar with dealing with the media.9
 The interviewing of public figures by journalists is an important feature of life in a democratic society and an important feature of the exercise of freedom of expression. There was a high level of public interest in this interview and in Dr Brash’s opinion, as a former MP and spokesperson for Hobson’s Pledge. In our view, when a person puts himself or herself into the public arena and wishes to speak on matters of public interest, he or she has to expect to be challenged.10
 We are satisfied that in this case Dr Brash was given a fair and reasonable opportunity to put forward his point of view during this long-form interview. While Dr Brash was the subject of scrutiny and critical questioning from Ms Hill during the interview, we do not consider this went beyond what Dr Brash would reasonably expect, or that it resulted in Dr Brash being treated unfairly to an extent which would justify limiting freedom of expression.
 Accordingly we do not uphold the complaint under the fairness standard.
Did the broadcast breach any other broadcast standards?
 Mr Cape also raised the good taste and decency (Standard 1) and discrimination and denigration (Standard 6) standards in his complaint. Our reasons for finding these standards were either not applicable or not breached are set out below.
Good Taste and Decency
 Mr Cape submitted that the treatment of Dr Brash and his point of view fell short of community standards of good taste and decency. Mr Cape stated that an interview that should have been an investigative piece instead descended into ‘talkback opinion and aggressive argument’ from Ms Hill.
 While the interview comprised a robust discussion of potentially challenging and controversial issues, it was unlikely to cause widespread undue offence or distress or undermine widely shared community standards, as envisaged by the standard. It did not contain any type of material ordinarily considered under the standard such as offensive language, sexual material or violence.
 We therefore do not uphold the complaint under Standard 1.
Discrimination and Denigration
 Mr Cape submitted that Ms Hill displayed discriminatory attitudes towards Dr Brash and people who hold similar views during the interview.
 The discrimination and denigration standard applies only to recognised ‘sections of the community’, which is consistent with the grounds for discrimination listed in the Human Rights Act 1993.11 Neither Dr Brash nor people who hold similar views to Dr Brash can be considered a ‘recognised section of the community’ for the purposes of this standard. Therefore this standard is not applicable.
 In any event, we note that while Ms Hill was critical of Dr Brash and his position during the interview, her comments lacked the level of malice or invective required to find a breach of the discrimination and denigration standard.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
18 April 2018
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Christopher Cape’s original complaint – 18 December 2017
2 RNZ’s response to the complaint – 20 December 2017
3 Mr Cape’s referral to the Authority – 30 January 2018
4 RNZ’s confirmation of no further comment – 13 February 2018
1 See sections 5 and 14 of the New Zealand Bill of Rights Act 1990, and Introduction: Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6.
2 Commentary – Balance, Broadcasting Standards in New Zealand Codebook, page 18
3 As above
4 As above
5 See: https://www.stuff.co.nz/national/maori-language-week/99472015/don-brash-clashes-with-kim-hill-over-his-te-reo-stance (Stuff, 2 December 2017), http://www.newshub.co.nz/home/new-zealand/2017/12/don-brash-defends-anti-m-ori-language-stance.html (Newshub, 2 December 2017), https://thespinoff.co.nz/media/02-12-2017/a-play-by-play-of-kim-hills-medium-rare-roasting-of-don-brash/ (The Spinoff, 2 December 2017)
6 Commentary – Balance, Broadcasting Standards in New Zealand Codebook, page 18
7 See https://www.radionz.co.nz/about/charter at sections (2), (3), (5)(d) and (5)(g)
8 See: http://www.newshub.co.nz/home/new-zealand/2017/11/don-brash-infuriated-by-reporters-speaking-te-reo.html (Newshub, 27 November 2017), https://www.tvnz.co.nz/one-news/new-zealand/don-brash-utterly-sick-use-te-reo-maori-reporters (TVNZ, 27 November 2017), http://www.newshub.co.nz/home/new-zealand/2017/11/don-brash-s-scathing-statement-on-te-reo-usage.html (Newshub, 29 November 2017)
9 See, for example, Holland and MediaWorks TV Ltd, Decision No. 2017-048.
10 See the discussion in the Authority’s decision, Francis, Gouge and Thompson and TVWorks Ltd, Decision No. 2011-104 at paragraphs  to .
11 Commentary – Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 15