Garbutt and Radio New Zealand Ltd - 2020-140 (9 March 2021)
- Judge Bill Hastings (Chair)
- Leigh Pearson
- Paula Rose QSO
- Susie Staley MNZM
- Russell Garbutt
BroadcasterRadio New Zealand Ltd
Channel/StationRadio New Zealand
[This summary does not form part of the decision.]
A complaint about an interview between Susie Ferguson and Hon Judith Collins regarding issues which arose in the preceding day’s Leaders’ Debate was not upheld. Given the level of public interest in the interview and Ms Collins’ position and experience with the media, the Authority also found Ms Ferguson’s interview style did not result in Ms Collins being treated unfairly. Given the framing and structure of the interview, there was no lack of balance. The question about Ms Collins’ motivations for praying (and her photograph being taken) in a chapel was not likely to encourage the different treatment, or devalue the reputation, of Christians. The accuracy standard did not apply as the relevant statements were comment, analysis or opinion.
Not Upheld: Fairness, Balance, Discrimination and Denigration, Accuracy
 On 7 October 2020 on RNZ’s Morning Report, Susie Ferguson interviewed National Party leader Hon Judith Collins about issues which arose during the Leaders’ Debate from the previous evening. The interview ran for approximately 11 minutes. The first half of the interview focused on border closures and Ms Collins’ comment from the debate that Samoa had gone into lockdown ‘a month earlier than us’. Ms Ferguson and Ms Collins both suggested the other was spreading ‘misinformation’ and did not have the correct information about travel restrictions and lockdown. The interview also canvassed whether the National Party was supporting borders being closed or opened:
Ferguson: …National were not calling for the border to be closed at the time. In fact, Simon Bridges called for the border to be closed here two hours before it was announced…so the fact that you called it two hours before it happened… is significant. Is it?
Collins: Well, you don't think that's significant, that we were calling for it before the Cabinet even met about it?
Ferguson: By two hours?
Collins: Well, if you want to get –
Ferguson: You said it was a month, you said, you said –
Collins: It was well beforehand in terms of questioning what was going on. So actually, you know, I think that you do need to focus on what's important –
Ferguson: Well,…I think information is important and getting the facts straight is important. And it would seem that you didn't have that right last night.
Collins: Well, I did have it right. We did ask for it earlier…
Ferguson:…And you also asked for the borders, well National asked for the borders to be opened to Australia and China, if I remember rightly.
Collins: Well, you don't remember rightly.
 Ms Ferguson then asked Ms Collins about a number of issues relating to the National caucus and its performance leading up to the election:
- ‘What is the difference between making up policy on the hoof and a leader's call?’
- ‘…the reason I'm asking you about this is in connection with Denise Lee and the policy that you announced regarding Auckland Council. She is the spokesperson. You say that the policy had been prepared for a couple of weeks. Why did your local government spokesperson not even know about it?’
- ‘When was the last time you shared polling numbers with your caucus?’
- ‘…talk to me about the photo over the weekend of you praying.’
- ‘If it wasn't virtue signalling, was it signalling to the evangelical right wing of your caucus?’
- ‘How confident are you going into the last 10 days, last week of the campaign?’
 Ms Collins responded positively to the final question:
You know, I'm totally reenergized and I must say, talking to you…every week, Susie, is just one of the things that keeps me going so that I can every day go out there and sell a vision for New Zealand that is not a negative frightened vision, but a vision of hope and aspiration. And that's what I love to do.
 Russell Garbutt complained the item breached the fairness, balance, accuracy, and discrimination and denigration standards for the following reasons:
- RNZ uses a system where the interviewee’s audio becomes inaudible when the interviewer speaks, which ‘results in the interviewer “talking over” the interviewee whenever the interviewer interrupts the interviewee’.
- ‘The important part of an interview is the answers to the questions, and when the listener is denied being able to hear an answer, then the systemic fault of the system is exposed – particularly when the interviewer is biased.’
- ‘The obvious and clear bias and lack of impartiality demonstrated by Susie Ferguson’.
- Ms Ferguson continued to interrupt Ms Collins when asking a question regarding border control, ‘which is clearly inextricably linked to border testing’ but Ms Collins was unable to answer the question.
- ‘The interview started with Susie asking Ms Collins – “why are you continuing to peddle your view that…”. If this is not a clear example of bias, disdain and disrespect, then I don’t know what is’.
- ‘The question regarding the picture of Ms Collins praying was completely out of order and unacceptable. For Susie Ferguson to suggest that it was a staged stunt to appease the far-right, fundamentalist sector was an affront. As Ms Collins pointed out, she went into this chapel alone and shut the door but reporters and photographers followed her in.’
- Mr Garbutt said he copied his complaint to Ms Collins and received a response saying ‘Susie Ferguson has, in my opinion, crossed the line on several occasions and today was the worst. I really appreciate you taking the step you have.’
- ‘This is in direct contrast to the response from RNZ that said that “The interview terminated on a friendly note with Ms Collins paying Ms Ferguson a compliment and vice versa”. If RNZ doesn’t understand sarcasm, then it should be explained to them.’
The broadcaster’s response
 RNZ disagreed with the complainant’s characterisation of the interview and submitted that the broadcast did not breach the nominated standards:
- ‘The interview was conducted in a cordial manner without voices being raised or unnecessary interruptions.’
- ‘There were times when Ms Collins spoke over the interviewer and also times that the interviewer interrupted to focus the interview on particular issues.’
- ‘The interview was conducted at a reasonably fast pace and at times Ms Collins spoke at length.’
- ‘Ms Collins is an able media performer and she was not fazed by the different questions put to her in the interview.’
- ‘The interview terminated on a friendly note with Ms Collins paying Ms Ferguson a compliment and vice versa.’
 The fairness standard1 protects the dignity and reputation of those featured in programmes.2 It requires broadcasters to deal fairly with any person or organisation taking part or referred to in any broadcast. A consideration of what is fair will depend on the nature of the programme, the context of the programme, and the nature of the individual.3 For example, an individual’s status as a public figure familiar with dealing with the media is a relevant factor when considering what is fair.4 It is also relevant to consider whether any critical comments were aimed at the participant in their business or professional life, or their personal life.5
 The balance standard6 requires broadcasters to present significant alternative viewpoints in news, current affairs and factual programmes which discuss controversial issues of public importance. This standard ensures competing views about significant issues are presented enabling viewers to arrive at an informed and reasoned opinion.7
 The discrimination and denigration standard8 protects against broadcasts which encourage the denigration of, or discrimination against, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status or as a consequence of legitimate expression of religion, culture or political belief.
 The accuracy standard9 protects the public from being significantly misinformed.10 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 Authority’s Election Complaints Fast-Track Process contemplates fast tracking of ‘programmes that relate to election or referenda matters that may influence a vote’.11 While this complaint may have qualified for the fast track process, as it was only referred to us two days before the election, there was insufficient time to fast track it. Accordingly, it was processed under our standard procedures.
 We have listened to the broadcast and read the correspondence listed in the Appendix.
 We recognise the value of robust political discourse in the media and the 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 in the lead-up to an election. 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.
 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.12
 The Authority has previously recognised that it is an essential element of free speech that even the most trenchant criticism of public figures, in their professional capacity, be allowed. The question is whether such criticism overstepped the boundaries of fairness and strayed into personally abusive territory.
 We acknowledge that some may have found Ms Ferguson’s interview style aggressive. However, we do not consider her questions or comments went beyond the level of robust scrutiny and political analysis that could reasonably be expected in an interview with a politician during an election or that this resulted in Ms Collins being treated or portrayed unfairly. Comments were not aimed at her in a personal capacity but explored her party’s performance and her performance as party leader, including the impacts of her actions during the lead up to an election. We are satisfied that any potential harm caused to Ms Collins in this respect did not outweigh the importance of the right to freedom of expression.
 Regarding Mr Garbutt’s concerns about the broadcaster’s system which automatically renders the interviewee inaudible when the interviewer talks, this did serve to facilitate interruption of Ms Collins and the muting of some responses. However, Ms Collins was given opportunities to speak at length throughout the interview, at one stage after expressly requesting, and being granted, an opportunity to answer without interruption. Accordingly, we are satisfied that the broadcaster’s use of such a system did not result in any unfairness to Ms Collins.
 Accordingly, we do not uphold the complaint under the fairness standard.
 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’.13
 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’.14 A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.15
 The subjects covered in the interview, namely, the National Party’s position on the Government’s COVID-19 response and border closures, as well as possible issues within the National Party caucus and Ms Collins’ motivations for certain actions in the lead-up to the 2020 election, were clearly of concern to the New Zealand public ten days before the election. The issues were controversial.
 However, Ms Collins was given a reasonable opportunity to express her views during the interview. Taking the following contextual factors into account, we are satisfied the requirements of the balance standard were met:16
- The introduction and framing of the item made it clear Ms Collins was being interviewed on issues which arose in the previous night’s debate and allegations about the internal politics in the National Party. The purpose of the questions was for Ms Collins to respond to these allegations.
- The nature of the interview was robust which was in line with audience expectations of RNZ and Ms Ferguson, given it was a political interview involving a prominent political figure with extensive media experience.
- As noted above at paragraph , Ms Collins was given opportunities to speak at length throughout the interview, at one stage after expressly requesting, and being granted, an opportunity to answer without interruption.
- It is a common interview technique for interviewers to take a position and challenge the interviewee from that position.17
- Given the interview was a follow-up to a political debate shortly before a general election, listeners of RNZ could reasonably be expected to have a level of awareness of alternate views to those expressed by Ms Ferguson.
 The complainant’s submissions, in part, appeared to identify interviewer bias as a foundation for a complaint under the balance standard. However, as discussed above, the purpose of the balance standard is to ensure competing viewpoints on significant issues are presented to enable listeners to arrive at their own informed and reasoned opinions.18 Where reasonable opportunities to present such viewpoints are presented, any perspective or bias of an interviewer will not result in a breach of this standard.19 Considering the relevant contextual factors, particularly the opportunities Ms Collins was presented to express her perspectives, this interview did not breach the balance standard.
 Accordingly, we do not uphold the complaint under the balance standard.
Discrimination and Denigration
 Mr Garbutt was concerned by the question about Ms Collins’ motivations for praying in a chapel and the photograph taken of her.
 However, this standard does not apply to content denigrating individuals, which is addressed under the fairness standard.20 It is concerned with content that encourages the different treatment of members of a particular section of the community, to their detriment, or devalues the reputation of a particular section of the community.
 We do not consider the question about Ms Collins’ expression of her Christian beliefs had the effect of condemning or encouraging differing treatment, or devalued the reputation, of Christians. Therefore we find no breach of this standard.
 The complainant has expressed concern about the following lines of questioning from Ms Ferguson:
- ‘…why did you peddle misinformation over New Zealand's border closure and Samoa?’
- ‘…talk to me about the photo over the weekend of you praying…I just know that everything during an election campaign you will know is likely to be captured on video or by audio or by photography. And so therefore everything is essentially up for grabs or calculated. I'm just interested in why you chose to pray publicly…If it wasn't virtue signalling, was it signalling to the evangelical right wing of your caucus?’
 However, regardless of what may be suggested by these questions, they represent comment, analysis or opinion presented as opportunities for Ms Collins to provide explanations for her views and actions. The accuracy standard does not apply to comment, analysis or opinion.21 In any event, Ms Collins was given the opportunity to respond to these points, minimising any risk of listeners being misled by the comments.
 Accordingly we do not uphold the complaint under the accuracy 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 Russell Garbutt’s formal complaint – 7 October 2020
2 RNZ’s response to the complaint – 14 October 2020
3 Mr Garbutt’s referral to the Authority – 15 October 2020
4 NZ’s confirmation of no further comment – 30 October 2020
1 Standard 11 of the Radio 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 Standard 8 of the Radio Code of Broadcasting Practice
7 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
8 Standard 6 of the Radio Code of Broadcasting Practice
9 Standard 9 of the Radio Code of Broadcasting Practice
10 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
11 Broadcasting Standards Authority “Fast track complaints process for election related content” <www.bsa.govt.nz>
12 See, for example, Hagger and MediaWorks TV Ltd, Decision No. 2020-032 and Marra and MediaWorks Radio Ltd, Decision No. 2019-023
13 Guideline 8a
14 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
15 As above
16 Guideline 8c
17 See for example Garrett and Radio New Zealand Ltd, Decision No. 2017-079 at 
18 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
19 See also Garrett and Radio New Zealand Ltd, Decision No. 2017-079 at 
20 Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
21 Guideline 9a