Cotterall and Radio New Zealand Ltd - 2019-072 (16 December 2019)
- Judge Bill Hastings (Chair)
- Paula Rose QSO
- Susie Staley MNZM
- Stephen Cotterall
BroadcasterRadio New Zealand Ltd
Channel/StationRadio New Zealand National
[This summary does not form part of the decision.]
A complaint that segments on Morning Report which discussed the abortion legislative reform process were unbalanced was not upheld. First, the Authority found the complaint amounted to a ‘formal complaint’ for the purposes of the Broadcasting Act 1989. However the Authority found the items did not breach the balance standard as they clearly approached the topic of abortion legislative reform from a particular perspective and that listeners could reasonably be expected to have a level of awareness of significant arguments in the debate.
Not Upheld: Balance
 Two segments on Morning Report reported on the subject of abortion law reform. The first segment, broadcast on 23 July 2019, reported on the pending legislative cabinet committee decision regarding the draft Abortion Legislation Bill 2019 (the Bill). The broadcast described the options for the Bill which had been recommended by the Law Commission (all of which involved decriminalisation of abortion by its removal from the Crimes Act 1961), set out the parliamentary process for the Bill going forward and featured comment from MPs Hon Tracey Martin and Amy Adams. The segment broadcast on 24 July 2019 featured an interview with Family Planning NZ CEO Jackie Edmonds who discussed her preference between the Law Commission’s proposed options for legislative reform and the implications of different options.
 The segments were broadcast on 23 and 24 July 2019 on RNZ. In considering this complaint, we have listened to recordings of the broadcasts complained about and have read the correspondence listed in the Appendix.
 When determining whether a complaint falls within the Authority’s jurisdiction we look at whether it meets the criteria set out under section 6 of the Broadcasting Act 1989 (the Act). Amongst other requirements, the complaint must relate to a specific programme broadcast which is considered to breach broadcasting standards.1
 RNZ submitted that Mr Cotterall’s complaint was not valid as he did not identify the ‘broadcasts which went to air, or which particular parts of those broadcasts he considers to be in breach of the standards.’
 In Mr Cotterall’s original complaint he identified Morning Report as the programme broadcast and 23 and 24 July as the dates of the broadcasts he wished to complain about. We find Mr Cotterall met the requirement to identify the programme broadcast that he believed breached broadcasting standards.
 Therefore we find this amounted to a valid formal complaint under the Broadcasting Act. We now proceed to determine the substance of the complaint.
 Stephen Cotterall complained that the broadcasts breached the balance standard of the Radio Code of Broadcasting Practice for the following reasons:
- RNZ’s coverage of the removal of abortion from the Crimes Act lacked balance as no different viewpoints were presented and there was no one who was pro-life interviewed.
- ‘The abortion issue is one of the most controversial subjects in the political arena.’
- Equal air time should have been devoted to people ‘who promote the truth about unborn children.’
- It is clear that RNZ are ‘pro-abortion and don’t consider it a crime.’
The broadcaster’s response
 RNZ submitted the broadcasts did not breach the balance standard for the following reasons:
- The broadcasts focused on ‘the identification of what exactly the legislation would be that the government was to bring into Parliament to reform the current abortion laws and the political management of that process….As the content was speculative at that stage, it is difficult to see how a range of perspectives could be covered on [the issue] when the “something” at that point was speculative.’
- The broadcasts did not cover the ‘overall moral issue as to the rights and wrongs of abortion.’
- The broadcasts did not amount to a discussion for the purpose of the standard.
- RNZ featured a significant amount of coverage of the proposed legislation within the period of current interest highlighting a range of viewpoints.
 The balance standard (Standard 8) 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.
 In New Zealand we value the right to freedom of expression. Accordingly, when we consider a complaint that a broadcast has breached broadcasting standards, we weigh the value of the programme, and the broadcaster’s right to freedom of expression, against the level of actual or potential harm that might be caused by the broadcast. We recognise the value of robust political discourse in the media and the media’s role of providing balanced and accurate reporting on issues of personal and political importance. This contributes to an informed and engaged public, which is critical to a free and democratic society.
 The balance standard only applies to situations where a ‘controversial issue of public importance’ is ‘discussed’ in ‘news, current affairs or factual programmes’.2 Accordingly, when we consider a balance complaint, the first question is whether the broadcast met those three requirements.
 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.3 A controversial issue will be one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.4
 We have consistently found that abortion and related amendments to legislation amount to a controversial issue of public importance.5 It is also clear that Morning Report is a news and current affairs programme and we consider that the issue was ‘discussed’ in these broadcasts as contemplated by the standard.
 However, the assessment under this standard must take into account the way in which the programme was presented (ie did it purport to be a balanced examination of an issue or was it clearly signalled as approaching the topic from a particular perspective).6 We consider these reports were focused on the potential legislative reform, including what the Bill might look like and its process going forward (including cross-party discussions to secure support for the Bill). This was signalled from the outset.
 The reports did not purport to be a detailed examination of the possible moral and ethical reasons for and against abortion itself, but rather a presentation of specific parties’ perspectives on potential features of the proposed legislation and aspects of the legislative process.
 We acknowledge the complainant’s comment that the items did not include interviews with anyone presenting pro-life perspectives. Both items clearly approached this topic from the particular perspective of those in support of changing the law. However:
- Even those in support of changing the law had different perspectives regarding reform options and the broadcasts included comment from parties who had such differing perspectives (ie NZ First’s Hon Tracey Martin and Family Planning NZ CEO Jackie Edmonds).
- The broadcasts also acknowledged that the reform would not be universally welcomed:
- The 23 July broadcast finished with: ‘Mr Little says it’s hard to gauge how much support and opposition there is to the reforms but that will become clearer when MPs see the Bill in a few weeks.’
- The presenter in the 24 July broadcast asked Ms Edmonds whether there were likely to be doctors who would be uncomfortable with the change to abortion laws, to which she answered ‘yes’ and went on to discuss how doctors opposed to abortion could avoid performing abortions.
 In addition, the balance standard does not require that every possible view on such a complex issue be contained within one item. The standard allows for balance to be achieved over time ‘within the period of current interest’7 and abortion legislation reform as an issue is the subject of consistent media attention and public debate.
 In these circumstances, we do not consider that listeners would have expected to be presented with the full range of views on the proposed Bill or abortion generally, or that they would have been left uninformed or unable to form their own views about the topic discussed. Listeners could reasonably be expected to have a level of awareness of significant arguments in the debate.8
 Accordingly we do not uphold the complaint.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
Judge Bill Hastings
16 December 2019
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1. Stephen Cotterall’s formal complaint – 24 July 2019
2. RNZ’s response to the complaint – 29 August 2019
3. Mr Cotterall’s referral to the Authority – 11 September 2019
4. RNZ’s further comments – 1 November 2019
5. Mr Cotterall’s final comments – 28 November 2019
1 See s 6(1)(a) of the Broadcasting Act 1989
2 Guideline 8a
3 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
4 As above
5 See, for example, Right to Life New Zealand and MediaWorks TV Ltd, Decision No. 2017-052 and Right to Life and Radio New Zealand Ltd, Decision No. 2017-007
6 Guideline 8c
7 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
8 Guideline 8c