BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

[This summary does not form part of the decision.]

The Authority has not upheld a complaint alleging an item on Midday Report lacked balance. The item reported on findings from the Chief Ombudsman regarding ‘undignified and barren’ conditions in two prisons. It was clear the item was coming from a particular perspective. The continuing media coverage of prison conditions means the period of current interest is ongoing, and audiences would not have been misinformed by the broadcast.

Not Upheld: Balance

The broadcast

[1]  An item on Midday Report, broadcast on RNZ National on 2 June 2021, reported on two reports released by the Ombudsman criticising conditions at Christchurch Men’s and Whanganui Prisons, which ‘have been described as undignified and barren, and the progress made by Corrections [to improve conditions] as glacial’. Justice reform advocate Julia Whaipooti was interviewed about her response to the reports:

Interviewer:     What do you make of these reports? Are you particularly surprised?

Ms Whaipooti: They're just two more reports following decades and decades of similar reports. Not surprised at all. I think what the issue is, is what is the point of having these monitoring agencies, that are effectively set up to identify harm and degrading treatment in these places, to give recommendations which are accordingly time and time again ignored. And this is another example of that. We're talking about some basic human rights and standards that we should expect here in New Zealand that we are consistently in breach of. And this is another two reports that bring that to light.

Interviewer:     Yes. If the Ombudsman's recommendations aren't going to be followed up upon how is there ever going to be change?

Ms Whaipooti: I think that is exactly the point. I mean, the bigger and more urgent need, I think, for us as a country is to look at moving away from the multi-billion-dollar industry that is our prisons and how we currently run them, which are archaic and adopted from a US-type model. We need to really be looking at shifting away from that…

[2]  The item concluded, ‘RNZ News has contacted Corrections for a response to those reports.’

The complaint

[3]  David Garrett complained the item lacked balance, as it only presented one perspective:

• Julia Whaipooti ‘is a well-known far left extremist, and an advocate for closing all prisons. Her views on any criticism of the current penal system are entirely predictable, as amply demonstrated in the piece complained about, in which she essentially said that the Ombudsman’s criticisms were, while a good start, entirely inadequate’.
• ‘The interviewer made no attempt to challenge [Ms Whaipooti] … and he effectively just served up patsy questions which enabled her to further belabour her points.’
• ‘In the absence of a response from Corrections, RNZ ought to have looked further for balancing comment: to a spokesman from the National or ACT parties, or from retired criminologist Greg Newbold, who is on record as saying the best thing the government can do in the face of rising crime is to build more prisons.’

The broadcaster’s response

[4]  RNZ did not uphold the complaint for the following reasons:

• The interview was framed: ‘Two prisons inspected by the Ombudsman have been described as undignified and barren, and the progress made by Corrections as "glacial". Peter Boshier today published two reports following unannounced follow-up inspections of Christchurch Men's Prison in February 2020 and Whanganui Prison in September 2020.’
• ‘Julia Whaipooti was introduced as a “justice advocate”, she declared herself to be unsurprised by the Ombudsman’s findings and voiced some frustration that reports and recommendations for change to prison conditions seemed to be routinely ignored.’
• ‘In this context, contacting Corrections for comment represents a reasonable effort to balance the opinion of Julia Whaipooti. Corrections had a reasonable opportunity to present a different view of the reports discussed in the interview but appears not to have been prepared to give one.’

The standard

[5]  The balance standard¹ states when controversial issues of public importance are discussed in news, current affairs or 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.² The standard only applies to news, current affairs and factual programmes, which discuss a controversial issue of public importance.³

Our analysis

[6]  We have listened to the broadcast and read the correspondence listed in the Appendix.

[7]  The right to freedom of expression is an important right in a democracy and it is our starting point when considering complaints. We weigh the right to freedom of expression against the harm that may have potentially been caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified, in light of actual or potential harm caused.

[8]  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’.⁴

[9]  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’.⁵ A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.⁶

[10]  Midday Report is clearly a news and current affairs programme. It discussed issues with regard to the management of prisons in New Zealand with a focus on concerns regarding prison conditions following release of the Ombudsman’s report. This amounts to the discussion of a controversial issue of public importance. Therefore, we find the balance standard applied to this broadcast.

[11]  The assessment of whether a reasonable range of other perspectives has been presented includes consideration of a number of factors, including:⁷

• 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.

[12]  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).⁸

[13]  In this case, we consider that objective was satisfied. It was clear from the introduction that the interview was focussed on the Chief Ombudsman’s findings in regard to the two prisons, and Ms Whaipooti’s view on the findings as a ‘justice advocate’. Listeners were likely to understand that the interview was coming from a particular perspective.

[14]  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’.⁹ Considering the level of public interest in prison conditions, and the media coverage that issues relating to prisons receive,¹⁰ we find it likely that listeners would have been aware of a wide range of perspectives. Further, when criticism of the status quo (in this case the Department of Corrections’ approach to prisons and prison management) is presented, viewers can reasonably be expected to be aware of perspectives which support the status quo.¹¹ The interview also signalled this was an issue Corrections would be likely to have a view on, by concluding that RNZ had contacted Corrections for comment.

[15]  Considering the clear approach of the broadcast, focusing on a particular perspective, and that the period of current interest is ongoing for the issue, we find no breach of the balance standard.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Susie Staley
Acting Chair
22 September 2021    

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:

1  David Garrett’s complaint to RNZ – 2 June 2021

2  RNZ’s decision on the complaint – 30 June 2021

3  Mr Garrett’s referral to the BSA – 1 July 2021

4  RNZ’s confirmation of no further comments – 30 July 2021

¹ Standard 8 of the Radio Code of Broadcasting Practice
² Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
³ As above
⁴ Guideline 8a
⁵ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁶ As above
⁷ Guideline 8c
⁸ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁹ As above
¹⁰ See, for example, Michael Neilson, ‘Waikeria Prison riot: Government approves $1.35m payment to prisoners, staff for property’, NZ Herald, (online ed, 24 June 2021); Jimmy Ellingham, ‘Assaults on Manawatū Prison staff treble in five years’, Stuff, (online ed, 7 April 2021); Mike Hosking Breakfast, ‘Kelvin Davis accused of being soft on violence against prison guards’, Newstalk ZB (online ed, 30 March 2021); ‘Waikeria Prison rioters surrender after six-day stand-off; jail conditions not reason for unrest, says Kelvin Davis’, NZ Herald, (online ed, 3 January 2021); Guyon Espiner, ‘New Zealand may face torture case over women's treatment in prison - lawyer’, RNZ, (online ed, 24 November 2020).
¹¹ See Family First New Zealand and Radio New Zealand Ltd, Decision No. 2021-046 at [9]