Egan and Discovery NZ Ltd - 2021-002 (2 June 2021)
- Judge Bill Hastings (Chair)
- Leigh Pearson
- Paula Rose QSO
- Susie Staley MNZM
- Rob Egan
BroadcasterDiscovery NZ Ltd T/A Warner Bros. Discovery
[This summary does not form part of the decision.]
The Authority has not upheld a complaint about an interview on Newshub Nation, featuring electrical engineer and Pike River Mine researcher, Richard Healey. Mr Healey commented on his claims of ‘new crucial evidence’ the miners could have survived the explosions and of the existence of a pipeline which could be used to recover more evidence. The complaint alleged Mr Healey’s claims were speculative and unsupported by evidence, were not challenged by the host and caused emotional harm to the victims’ families. The Authority acknowledged the sensitivity of the matters discussed, which also carried a high degree of public interest. It found the broadcast clearly presented Mr Healey’s claims as one theory and from a particular perspective. The wide range of information and coverage available over a long period of time since the original events reduced any risk of viewers being misled or significantly misinformed. The Authority also found, in the context, the interview did not undermine community standards of taste and decency.
Not Upheld: Balance, Accuracy, Good Taste and Decency
 During an episode of Newshub Nation, broadcast on 22 November 2020 on Three, electrical engineer and Pike River Mine researcher, Richard Healey, commented on his claims of ‘new crucial evidence’ the miners could have survived the explosions and of the existence of a pipeline which could be used to recover more evidence:
Host: Well, this week marks a decade since 29 men were killed in explosions at Pike River Mine and 10 years of loved ones waiting for answers as to why they lost their lives. Now, some believe they have new crucial evidence… Richard… Can you tell me, what is this new evidence?
Mr Healey: Really it falls into two distinct camps. In fact, there's much more evidence available than we're going to talk about today, but the two bits that we're going to talk about are the filling of the fresh-air base at Pike River within a year of the explosion, and the existence of a pipeline, which we've only discovered in the last week or so, that should give us access into the inner workings of the mine where we hope to recover more evidence…
Host: One of the things I want to talk about is why was it important where that second explosion happened? Is it because of the theory that some miners could have survived and been waiting on the other side of that rock wall at the end of the drift?
Mr Healey: That's absolutely correct…so we think that there is a lot of evidence around survivability, for instance the area that the police filled with concrete contains two self-rescuer caches, one of which is open and apparently empty. Now, we think that that's pretty good evidence that someone was in there after the first explosion and so evidence of survivors. But we have much other evidence that suggests that survivability was possible after the [explosion of 19 November 2010].
Host: And so if survivability was possible and the men had got to the side of the rock fall after the first explosion and waited there, they may have perished in the second explosion. We don't know. But that could be where the bodies are. Is that right? And now you have some other evidence which talks about what's happened on that side of the rock wall.
Mr Healey: Hmm. So it's actually even more tragic for the families….So, in fact, if the second explosion did occur in the drift, as we suspect, the miners were on the other side of that rock fall and were probably largely unaffected by it. But one of the things that happened immediately after the second explosion was that the compressed-air feed into the mine, enough compressed air to support life for several thousand people, was switched off. So absolutely the possibility of survival reduced dramatically after the second explosion. But it wasn't directly related to the second explosion. It was related to actions taken after that. And, yes, we can imagine a situation where the men would group, for a whole lot of reasons, we have a mass of evidence around this, in the area behind the rock fall, and that is the area that has been concreted.
Host: So you say it's been concreted. You've got evidence, you say, that concrete was poured into the mine, 350 cubic metres of concrete was poured into the mine behind the rock fall where, possibly, the men would have gathered. …What do the families think of what you're revealing at the moment?
Mr Healey: …It's a really tough thing for me to sit here and talk about this, because I am intensely aware of the effects raising issues like this have on the families. So, before deciding to come forward with this, I consulted with the guys that I've been working with on this, family members, and Bernie Monk [father of victim and former spokesperson of Family Reference Group] really put it perfectly. He said, mate, don't worry about coming forward with this and telling people what we know, as a cold stone hard fact, because for 10 years I've been imagining what happened to my son in that explosion. And nothing you could tell me would be anywhere near as bad as what I could imagine. So very tough call to come out with this, but absolutely necessary.
 Rob Egan, on behalf of the Family Reference Group (made up of families of victims of the Pike River Mine tragedy), complained the broadcast breached the balance, accuracy and good taste and decency standards on the basis:
- Mr Healey’s claims of survivability were speculative and no supporting evidence was provided by him beyond referring to scan images of a self-rescuer box (which were already publicly available through the Royal Commission on the Pike River Coal Mine Tragedy).
- His claims were not challenged or contested by the host at all.
- His claims, although presented as ‘theory’ by the host, were not tested or balanced by other experts’ conclusions (despite alternative perspectives being readily available).
- The presentation of Mr Healey’s claims caused emotional harm to the families of many victims (as noted in anonymised impact statements provided with the complaint).
The broadcaster’s response
 Discovery did not uphold Mr Egan’s complaint for the following reasons:
- Balance: The discussion was clearly signalled as approaching a narrow focus of events at Pike River, from a particular perspective, and it was not necessary for the broadcast to provide alternative perspectives. It was one part of a wider discussion of the Pike River tragedy, from different broadcasts at the time of the tenth anniversary. The period of interest is ongoing, and it is expected more information about Mr Healey’s claims will be broadcast as it becomes available.
- Accuracy: The broadcast was not materially inaccurate or misleading. The views expressed by Mr Healey were speculative and clearly based on research he had been involved in, and viewers would have been able to judge the integrity of that information for themselves.
- Good taste and decency: Taking contextual factors into consideration, including the public interest in the matters discussed, the broadcast did not exceed the boundaries of this standard and was unlikely to cause distress to a significant number of viewers.
 The balance standard1 ensures competing viewpoints about significant issues are presented to enable the audience to arrive at informed and reasoned opinions.2 The standard only applies to news, current affairs and factual programmes, which discuss controversial issues of public importance.3
 The accuracy standard4 protects the public from being significantly misinformed.5 It states broadcasters should make reasonable efforts to ensure any news, current affairs or factual programme is accurate in relation to all material points of fact, and does not mislead.
 The good taste and decency standard6 states current norms of good taste and decency should be maintained, consistent with the context of the programme. The standard is intended to protect audiences from content likely to cause widespread undue offence or distress, or undermine widely shared community standards.7
 We have watched the broadcast and read the correspondence listed in the Appendix.
Freedom of expression and overview of outcome
 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 that information. 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 objectives of the standards described above. 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 national and political significance of the Pike River Mine tragedy and public funding of the recovery mission. At the same time, we recognise this broadcast has caused emotional harm to some of the victims’ families. The tragedy continues to have a significant impact on them.
 The importance of freedom of expression is such that, at times, the exercise of this right will result in harm being felt by some. In light of the high degree of public interest, and 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.
 For the balance standard to apply, the subject matter of the broadcast must be: an issue of ‘public importance’; ‘controversial’ and ‘discussed’ in a news, current affairs or factual programme.
 We consider the question of why and how the victims of the Pike River Mine tragedy lost their lives to be a controversial issue of public importance, which was discussed in this broadcast. It is a significant event in our nation’s history and of considerable concern to members of the public. And although the recovery mission has, since the broadcast, come to a close,8 there continues to be debate about the likely causes and related issues like accountability and prospects of further research or recovery.9
 Applying the standard and relevant guidelines, we found the broadcaster met the requirements of the balance standard, taking into account:
- The programme did not purport to be a balanced examination of the issue, but rather one person’s claims of new evidence and a means of recovering further evidence.
- The programme was clearly signalled in its introduction as approaching the issue from the particular perspective of ‘some’ who ‘believe they have new crucial evidence’.
- This represented one aspect of a larger, complex and ongoing debate about the likely causes of the disaster, the prospects of success of the recovery mission and accountability for the tragedy.
- It is not necessary for each and every programme to canvass all significant views on a particular topic. It is permissible to take an in-depth look at one perspective on an issue, without the broadcaster being required to present a countering view within the same programme.10 The standard allows for balance to be achieved over time, within the period of current interest. We note in relation to the Pike River tragedy:
- The issue has been widely canvassed in news media over the last 10 years, including various theories on the causes and what unfolded in the mine.
- Mr Healey’s claims as presented in this piece, including in relation to survivability, were previously the subject of coverage in the months preceding this broadcast.11 Some of that coverage also examined the relevant findings of the Report of the Royal Commission.12
- There was also extensive coverage around the time of this broadcast and the 10th anniversary, some of which included balancing comments from Police.13 Therefore, there was a wide range of information available and viewers could reasonably be expected to be aware of significant views on the topic, including the Royal Commission's findings and the prevailing opinion that survivability was unlikely after the first explosion.14
- Additionally, the issue remains, to some extent, an ongoing topic of discussion and debate meaning it is likely to receive further coverage.15
 Accordingly, we do not uphold the complaint under the balance standard.
 The requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.16 So we first considered whether the statements in the item complained about (relating specifically to survivability), were statements of fact to which the standard applied.
 Mr Healey’s claims in relation to prospects of miners surviving the explosions, as presented by him, were qualified throughout the item:
- ‘…we think there is a lot of evidence…’
- ‘…we think that’s pretty good evidence…’
- ‘…we have much other evidence that suggests that survivability was possible…’
- ‘…if the second explosion did occur in the drift, as we suspect…’
- ‘…we can imagine a situation where the men would group, for a whole lot of reasons…’
 Mr Healey’s claims were also introduced by the host in qualified terms:
- ‘…some believe they have new crucial evidence…’
- ‘…why was it important where that second explosion happened? Is it because of the theory that some miners could have survived…’
- ‘You've got evidence, you say…’
 This language presented Mr Healey’s claims as views or opinions, rather than statements of fact. Although his claims referred to ‘evidence’, Mr Healey’s position is clearly an opinion based on analysis of the information available to him and his own research and findings, which in his view is ‘pretty good evidence’. It was clear from the programme this was only one theory.
 Additionally, any risk of the audience being ‘misled’ as envisaged by the standard, was reduced given this qualified presentation of the ‘theory’ and Mr Healey’s ‘claims’, as well as the wealth of coverage over the years and around the time of the 10th anniversary.
 Accordingly, we do not find any breach of the accuracy standard.
Good taste and decency
 As we have said, we understand programmes on this topic will always carry a risk of upsetting and affecting those involved. Applying this standard and relevant guidelines, the question for the Authority is whether the content of the broadcast overall exceeded audience expectations and was likely to cause widespread undue offence or distress to the general audience, or undermine widely held community standards.17
 The context in which the content occurred and the wider context of the broadcast are highly relevant to this assessment.18 In this case, relevant factors include:
- The nature of the programme: Newshub Nation is a news and current affairs programme that provides in-depth, long-form journalism on matters of national and political interest.
- The programme’s classification and scheduling: The programme was an unclassified news and current affairs programme (it is not required to carry a rating) and aired at 10am on Sunday.
- Audience expectations and signposting: The discussion of theories in relation to causes and survivability at Pike River Mine was within audience expectations of a news and current affairs programme revisiting the tragedy on its 10th anniversary. The introduction also referred to Mr Healey’s claims, clearly signposting the subject matter and likely nature of the discussion. Viewers had an opportunity to exercise ‘choice and control’ and make an informed decision about whether to watch the programme.
- Public interest in the broadcast: There was a high degree, given the national and political significance of Pike River, the public funding of the recovery mission and the 10-year anniversary.
- Other factors: We consider the broadcaster treated the issue in a duly sensitive and respectful manner. The host asked Mr Healey what the families thought about the information he was revealing, and Mr Healey acknowledged the effects on them of raising such issues.
 In this context, while acknowledging the highly sensitive nature of this subject matter for the families of victims, we find the broadcast did not undermine widely shared community values. We have not found harm at a level that justifies limiting the right to freedom of expression, and we therefore do not uphold this part of the complaint.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
Judge Bill Hastings
2 June 2021
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Rob Egan’s formal complaint – 1 December 2020
2 Discovery’s decision on the complaint – 11 December 2020
3 Mr Egan’s referral to the Authority – 2 January 2021
4 Discovery’s confirmation of no further comment – 11 January 2021
1 Standard 8 of the Free-to-Air Television Code of Broadcasting Practice
2 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
3 As above
4 Standard 9 of the Free-to-Air Television Code of Broadcasting Practice
5 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
6 Standard 1 of the Free-to-Air Television Code of Broadcasting Practice
7 Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
8 Tess McClure “Pike River Mine families accept end of mission to find victims ‘with heartbreak’” Guardian (online ed, Auckland, 30 March 2021)
9 Joanne Naish “Getting to vital evidence in Pike River mine will cost $8m, mining experts say” Stuff (online ed, New Zealand, 11 May 2021)
10 Bidwell and Radio New Zealand Ltd, Decision No. 2020-003 at  and 
11 Michael Morrah “Pike River families astonished at electrical expert's new revelations about the explosion” MSN News (online ed, New Zealand, 23 July 2020); Joanne Carroll “New Pike River theory claims miners may have survived explosions” Stuff (online ed, New Zealand, 23 July 2020); Michael Morrah “Pike River: Electrical expert says explosion, rockfall trapped miners days earlier than believed” Newshub (online ed, New Zealand, 23 July 2020); “Pike River families call for inquiry after police admit not looking at 'black box' after first explosion” NZ Herald (online ed, New Zealand, 26 June 2019)
12 “Pike River families calls for explosion speculation to end” Radio New Zealand (online ed, New Zealand, 3 December 2020); “Police should continue attempts to send cameras into Pike River Mine - electrical engineer” Radio New Zealand (online ed, New Zealand, 30 January 2021)
13 “Pike River families calls for explosion speculation to end” Radio New Zealand (online ed, New Zealand, 3 December 2020); “Police should continue attempts to send cameras into Pike River Mine - electrical engineer” Radio New Zealand (online ed, New Zealand, 30 January 2021)
14 Report of the Royal Commission on the Pike River Coal Mine Tragedy, Volume 1, Part 1
15 Above n9
16 Guideline 9a
17 Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
18 Guideline 1a