Garrett and Radio New Zealand Ltd - 2019-056 (18 November 2019)
- Judge Bill Hastings (Chair)
- Paula Rose QSO
- Susie Staley MNZM
- David Garrett
BroadcasterRadio New Zealand Ltd
Channel/StationRadio New Zealand National
[This summary does not form part of the decision.]
The Authority did not uphold a complaint that two interviews on Morning Report with contributors to the recent report ‘He Waka Roimata: Transforming our Criminal Justice System’, published by the Te Uepū Hāpai i te Ora: Safe and Effective Justice Advisory Group, breached the balance and accuracy standards. The Authority found that the clear perspective and focus of the interviews, combined with the public interest and ongoing nature of the issue discussed, resulted in a balanced broadcast that would assist listeners in arriving at informed and reasoned opinions. The Authority also found that statements made by a host and an interviewee regarding the ‘three strikes’ law were not statements of fact to which the accuracy standard applied. Finally, the Authority found the interviews were unlikely to mislead viewers through these statements or by omission of certain information.
Not Upheld: Balance, Accuracy
 The Morning Report programme of 10 June 2019 featured two (separate) interviews with Chester Borrows and Julia Whaipooti regarding the report ‘He Waka Roimata: Transforming our Criminal Justice System’ (the Report) published by the Te Uepū Hāpai i te Ora: Safe and Effective Justice Advisory Group. Mr Borrows, former National Party MP and Chair of Te Uepū Hāpai i te Ora, spoke about the Report’s findings regarding the ongoing effects of colonisation on the justice system and the need for ‘transformational change’ to the system. Host Corin Dann raised the ‘three strikes’ law asking whether it should be repealed. Mr Borrows said ‘everyone we heard who was talking about three strikes thought it should go, so that’s a common theme across the middle of the political spectrum.’ Later in the interview Mr Borrows said ‘it’s not about three strikes, it’s about the way in which we approach the justice system.’
 Ms Whaipooti, a member of Te Uepū Hāpai i te Ora, was interviewed later in the broadcast. She reiterated the Report’s findings regarding the effects of colonisation and racism on the justice system, specifically on Māori within the system, the desire for Māori-led solutions and transformation.
 The interviews were broadcast on 10 June 2019 on RNZ National. In considering this complaint, we have listened to recordings of the broadcasts complained about and have read the correspondence listed in the Appendix.
 David Garrett submitted that the broadcast breached the balance and accuracy standards of the Radio Code of Broadcasting Practice. His submissions in the referral to the Authority on each standard are summarised below.
- The ‘wholesale reform of the justice system’ is a controversial issue of public importance.
- The potential repeal of the ‘three strikes’ law is a controversial issue of public importance.
- The enquiry commissioned by the Government and the subsequent Report has been controversial with several panel members resigning.
- The interviews were ‘soft’ and the hosts did not ask challenging questions of the interviewees.
- There was no balancing comment from ‘any National politician’ or ‘any member of an organization such as the Sensible Sentencing Trust’.
- Mr Dann’s suggestion that the ‘three strikes’ law should be repealed together with Mr Borrows’ response (including that the ‘middle ground’ of the political spectrum was supportive of the legislation being repealed) created a misleading impression that people in ‘the middle ground’ were opposed to the ‘three strikes’ law.
- Mr Garrett provided a poll to the Authority that shows 68% of respondents were in favour of the ‘three strikes’ law, while only 20% disapproved of it.
- RNZ made no mention of this poll (which was publicly available at the time) or of ‘the fact that [Māori] offenders are imprisoned under the 3S law in exactly the same proportion as [Māori] offenders in the wider justice system [meaning] the 3S law is no more or less discriminatory than the system as a whole.’
The broadcaster’s response
 RNZ submitted the broadcast did not breach the broadcasting standards raised for the following reasons:
- ‘[E]ven if the topic of reform in the justice system could be viewed as a controversial topic in the same way as euthanasia and abortion are perceived as being "controversial", the period of current interest in the topic is still open.’
- The National Party’s spokesperson on justice, Mark Mitchell, did not comment when the Report was released, nor subsequently, either on his Facebook page nor on his ‘Latest News from Mark Mitchell’ series of press releases.
- ‘Mr Mitchell has not approached RNZ with comment since the report was published either.’
- Mr Borrows’ statement regarding the ‘three strikes’ law was not inaccurate, rather it represented a difference in opinion between Mr Borrows and the complainant.
- The results of the poll provided ‘are probably not admissible and, in reality, add little to the consideration of the complaint.’
- ‘Neither the host nor the interviewee talked about the rates of crime committed by Māori in general or by Māori specifically affected by the three strikes legislation. Rather, the host put to the interviewee that it was one aspect of the justice system which could be viewed as a potential for reform.’
- ‘Mr Borrows went on later to say that the report was calling for “transformational change” rather than looking at specific pieces of legislation. This is reinforced by his comment that "…it’s not about three strikes it’s about the way in which we approach the justice system…”’
- In effect, the complainant is asking the Authority to interpose itself in the issues around the ‘three strikes’ law and make a finding of fact having interpreted the results of a public opinion survey which is not its role.
The relevant standards
 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.
 The accuracy standard (Standard 9) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact and does not mislead. The objective of this standard is to protect audiences from being significantly misinformed.1
Freedom of expression and public interest
 The right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, is the starting point in our consideration of complaints. Equally important is our consideration of the level of actual or potential harm that may be caused by the broadcast. We may only interfere and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.
 It is an important role of journalists and the media in general to report on issues that widely affect New Zealand society and promote frank public discourse and discussion, which is an important feature of the right to freedom of expression and our democratic society.
 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
 Morning Report is a news and current affairs programme. While the possible repeal of the ‘three strikes’ law was only briefly mentioned in Mr Borrows’ interview, the larger issue of the possible effects of colonisation on the justice system and how to transform the system to combat these effects was discussed throughout both interviews. Considering the Government’s current push to investigate the justice system and the widespread effect transformational change may have on New Zealand, we find this amounted to a controversial issue of public importance for the purposes of this standard.
 The assessment of whether a reasonable range of other perspectives has been presented includes consideration of a number of factors, including:5
- whether the programme purported to be a balanced examination of an issue
- whether the programme was clearly signalled as approaching a topic from a particular perspective
- whether the programme was narrowly focused on one aspect of a larger, complex debate
- whether listeners could reasonably be expected to be aware of views expressed in other coverage, including coverage in other media.
 Ultimately, the objective is to enable the audience to arrive at an informed and reasoned opinion (which is important to the operation of an open and democratic society).6
 In this case, we consider that objective was satisfied. It was clear throughout that both interviews were focussed on the preliminary findings of the Report and the perspectives of two of the Report’s contributors. While the discussion between the hosts and interviewees covered a large topic (issues with the justice system) the discussion was rooted in the findings of the Report. We consider listeners were likely to understand that the interviews were focussed on the Report and its findings.
 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 Considering the level of public interest in the justice system and the media coverage that proposed legislative changes receive, we find it likely that viewers would have been aware of a wide range of perspectives, including that of the National Party, about possible issues within the justice system and what, if any, change is required to improve it.8 We also note this is a public conversation that is ongoing as Te Uepū Hāpai i te Ora continue to investigate possible change and transformation.
 Considering the clear approach of the broadcast, focussing on perspectives of those involved with the Report, and the significant media coverage within the period of current interest, we find balance was achieved. We consider the broadcast would have enabled the audience to arrive at an informed and reasoned opinion.
 Therefore we do not uphold the complaint under the balance standard.
 Determination of a complaint under the accuracy standard occurs in two steps. The first step is to consider whether the programme was inaccurate or misleading. The second step is to consider whether reasonable efforts were made by the broadcaster to ensure that the programme was accurate and did not mislead.9 Being ‘misled’ is defined as being given ‘a wrong idea or impression of the facts.’10 Programmes may be misleading by omission.11
 The complainant has submitted that the following exchange between Mr Dann and Mr Borrows was inaccurate and misleading:
Dann: One example would be the ‘three strikes’ law I mean surely what your Report has found would I imagine, argue that that law should go right?
Borrows: Well I think everyone we heard who was talking about ‘three strikes’ thought it should go. So that’s a common theme across people in the middle of the political spectrum.
 The requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact. With regard to Mr Dann’s question, it is clearly his opinion presented as a question to Mr Borrows, rather than a statement of fact. Therefore the accuracy standard does not apply.
 Considering the language used, specifically ‘I think’,13 we find Mr Borrows’ response to be a statement of opinion regarding the people he spoke to followed by a statement of analysis regarding a theme that arose in his research, not a statement of fact about the efficacy or general popularity of the ‘three strikes’ law. Therefore Mr Borrows’ response is also a statement of analysis or opinion to which the accuracy standard does not apply.
 We also find the interviews were unlikely to mislead listeners through this exchange about the ‘three strikes’ law or through the omission of the poll or other information provided by the complainant. The ‘three strikes’ law was raised only briefly during a wider discussion about the findings of the Report and the effects of colonisation on the justice system. As discussed under the balance section, listeners were likely to understand the focus of the interviews and the perspectives of the interviewees.
 Therefore, we do not uphold the complaint under this standard.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
Judge Bill Hastings
18 November 2019
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 David Garrett’s formal complaint – 10 June 2019
2 RNZ’s response to the complaint – 9 July 2019
3 Mr Garrett’s referral to the Authority – 18 July 2019
4 RNZ’s further comments – 7 August 2019
5 Mr Garrett’s final comments – 13 August 2019
6 RNZ’s confirmation of no further comment – 19 August 2019
1 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
2 Guideline 8a
3 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
4 As above
5 Guideline 8c
6 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
7 As above
8 See for example: National: 'Soft on crime' govt has led to gang recruitment (RNZ, 6 October 2019); Victims neglected by Govt’s soft on crime agenda (Scoop, 7 August 2019)
9 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
10 Attorney General of Samoa v TVWorks Ltd, CIV-2011-485-1110
11 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
12 As above
13 Guidance: Accuracy – Distinguishing Fact and Analysis, Comment or Opinion, Broadcasting Standards in New Zealand Codebook, page 62