Frewen and Television New Zealand Ltd - 2020-146B (9 March 2021)
- Judge Bill Hastings (Chair)
- Leigh Pearson
- Paula Rose QSO
- Susie Staley MNZM
- Tom Frewen
BroadcasterTelevision New Zealand Ltd
[This summary does not form part of the decision.]
The Authority has not upheld a complaint about an interview on Q+A, broadcast on TVNZ 1, with the Rt Hon Winston Peters, which included questions about the Government’s COVID-19 response, leaking of information regarding the ‘Green School’ funding, New Zealand First Party funding, the Serious Fraud Office investigation into the New Zealand First Foundation and a tax-payer funded trip of Mr Peters’ two friends to Antarctica. The complainant argued the interview breached the fairness standard because the broadcaster did not give Mr Peters notice of his proposed contribution regarding the various topics raised. The Authority found the wide-ranging and robust questioning was within the scope of what could be expected for a high profile and senior political figure like Mr Peters on matters of significant public interest in the lead up to a general election.
Not Upheld: Fairness
 An interview on Q+A with the Rt Hon Winston Peters, conducted by presenter Jack Tame, was broadcast on TVNZ 1 on 6 September 2020. The interview included a range of questions related to issues concerning either Mr Peters or the New Zealand First Party. Mr Tame raised the Government’s COVID-19 response, leaking of information regarding the ‘Green School’ funding, New Zealand First Party funding, the Serious Fraud Office investigation into the New Zealand First Foundation, a tax-payer funded trip of Mr Peters’ two friends to Antarctica, the proposed trans-Tasman bubble with Australia, and the New Zealanders reported missing from the live-cattle export ship sinking off the coast of Japan.
 Throughout the interview, Mr Tame repeated questions about these issues. Mr Peters generally refused to answer, on the basis that he said he had not been given notice of these topics and consequently had not been briefed. In the course of Mr Tame’s repetition of these questions, and Mr Peters’ persistent refusal to answer, they frequently spoke over one another.
 Responding to Mr Peters’ refusal to answer, Mr Tame said his questions were ‘about integrity’ and that ‘integrity is a central issue for voters in this election’. Mr Peters replied, ‘This is pure dirt’ and ‘I’m not going to waste my time, this close to an election, giving you a chance to spray dirt around on behalf of your political masters’.
 In considering this complaint, we have watched a recording of the broadcast and read the correspondence listed in the Appendix.
 Tom Frewen argued the broadcast breached the fairness standard because the broadcaster failed to fully inform Mr Peters of the contribution he would be expected to make on the programme, as required under guideline 11b.
The broadcaster’s response:
 TVNZ did not uphold the complaint for the following reasons:
- The interview focused on important matters worthy of robust examination, particularly given the rapidly approaching general election.
- The questions related to issues which personally involved Mr Peters or his partner, or which he could reasonably be expected to be across, such that he did not require briefing.
- It is not expected that news and current affairs programmes will provide lists of questions to interviewees, and a seasoned politician like Mr Peters would be well aware such issues were likely to be discussed in the lead up to an election.
- Mr Tame was forceful but not abusive or nasty and Mr Peters, who has vast experience with the media, dealt with this adeptly, putting his position across effectively and confidently.
- This sort of discussion is permitted under broadcasting standards and has high value in terms of New Zealand’s democracy and political discourse.
The fairness standard
 This standard1 states broadcasters should deal fairly with any person or organisation taking part or referred to in a programme, so the audience is not left with an unduly negative impression of them.2 A consideration of what is fair will depend on the nature of the programme, the context (including the level of public interest) and the nature of the individual.3 An individual’s status as a public figure who is familiar with the media is a relevant factor to fairness.4 It is also relevant to consider whether any critical comments were aimed at the participant in their professional or personal lives.5
Overview: Freedom of political speech and the complaint outcome
 We have watched the broadcast and read the correspondence listed in the Appendix.
 We have also considered the important right to freedom of expression, which is our starting point. This includes the broadcaster’s right to offer a range of content and information and the audience’s right to receive that content. Our task is to weigh the value of and public interest in the broadcast complained about, against the level of actual or potential harm that may have been caused, with reference to the objectives of the fairness standard.
 The broadcast in this case carried a high value and level of public interest. The right to political speech is significant in a democratic society and particularly in the months preceding a general election, when audiences have a heightened interest in political party leadership and in robust scrutiny of those who may be seeking their vote. What this means is we would need to find a correspondingly high level of harm to conclude the interview breached the fairness standard, and to justify limiting freedom of expression.
 Considering the level of public interest, Mr Peters’ experience, and general expectations as to how politicians will be treated by the media, we have not found harm resulting in a breach of the fairness standard or justifying regulatory intervention. We expand on our reasons below.
 In his referral to the Authority, Mr Frewen indicated his complaint ‘was strictly limited to alleging a breach of Broadcasting Standard 11, Guideline 11b and was not concerned with whether the interview itself was fair or whether Mr Peters was treated fairly by the interviewer’. However, the Authority’s role is to assess compliance with the fairness standard itself. Breach of any particular guideline is only one factor relevant to this assessment. The question for the Authority is accordingly whether the broadcaster in this case has ‘dealt fairly’ with Mr Peters. Our consideration of this question will necessarily canvas broader issues.
 It is well established that the threshold for finding a breach of the fairness standard in relation to public figures and politicians (who are familiar with dealing with the media) is higher than for a layperson or someone unfamiliar with the media.7 The level of public interest in the broadcast material is also a relevant factor.
 Guideline 11b stipulates that participants and contributors should be informed, before a broadcast, of the nature of the programme and their proposed contribution, except where justified in the public interest.
 It is not reasonable for politicians to expect to have advance notice of all questions asked of them, particularly on matters of high public interest. The question is whether not giving Mr Peters notice before the broadcast of the various topics to be raised, was justified in the public interest.
 We have considered the following contextual factors relevant to assessing whether not giving Mr Peters notice of these topics was justified in the public interest or resulted in Mr Peters being treated unfairly:
- Q+A is a news and current affairs programme.
- The interview took place in the lead up to the general election, with Mr Tame repeatedly pointing out, ’we are six weeks from an election’.
- Mr Tame, and the Q+A programme generally, are known for a robust interviewing style and probing questions.
- At the time of the broadcast, Mr Peters was the Deputy Prime Minister, leader of the New Zealand First Party, and an experienced politician.
- Mr Tame raised important matters of public interest and political accountability, namely the Government’s COVID-19 response, New Zealand First Party funding, Serious Fraud Office investigations and a tax-payer funded trip to Antarctica.
- These matters involved Mr Peters and his political party.
- Members of the public could reasonably expect the media to ask such questions and Mr Peters to be familiar and forthcoming with information relating to them.
- Similarly, Mr Peters could reasonably expect to be scrutinised and asked to answer such questions, with or without notice.
- Mr Peters responded to Mr Tame’s repeated questioning in an assertive manner, and explained he was unable to answer questions where he had not been forewarned of the topic or briefed before the interview.
 In light of these contextual factors, Mr Peters’ experience as a politician, and the significant public interest in the questions asked during the broadcast, we do not consider that Mr Peters was treated unfairly. Mr Tame’s questions were limited to matters Mr Peters could expect to be asked as the leader of a political party during a general election.
 Overall, the potential harm alleged to have been caused did not outweigh the value of robust political discourse and the vital role of media in holding to account those in positions of power. This enables the public to be informed and engaged, which is critical to a free and democratic society, particularly leading up to an election.
 Accordingly, we do not uphold the complaint under the fairness standard.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
Judge Bill Hastings
9 March 2021
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Tom Frewen’s formal complaint – 9 September 2020
2 TVNZ’s decision on the complaint – 6 October 2020
3 Mr Frewen’s referral to the Authority – 3 November 2020
4 TVNZ’s response to the referral – 14 December 2020
5 Mr Frewen’s final comments – 7 January 2021
6 TVNZ’s confirmation of no further comment – 28 January 2021
1 Standard 11 of the Free-to-Air Television Code of Broadcasting Practice
2 Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
3 Guideline 11a and Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
4 Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
5 As above
6 See the New Zealand Bill of Rights Act 1990, sections 5 and 14, and Introduction: Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6
7 See, for example, Hagger and MediaWorks TV Ltd, Decision No. 2020-032; Marra and Mediaworks Radio Ltd, Decision No. 2019-023; Anderson and Radio New Zealand Ltd, Decision No. 2018-091; and Cape and MediaWorks TV Ltd, Decision No. 2018-018