Garrett and Television New Zealand Ltd - 2019-093 (9 March 2020)
- Judge Bill Hastings (Chair)
- Paula Rose QSO
- Susie Staley MNZM
- Judge Bill Hastings
- David Garrett
BroadcasterTelevision New Zealand Ltd
[This summary does not form part of the decision.]
The Authority did not uphold a complaint that an item on 1 News about the release of the Department of Corrections’ strategy ‘Hōkai Rangi’, aimed at reducing the disproportionately high number of Māori in prisons, was unbalanced. The Authority recognised that the item discussed a controversial issue of public importance to which the balance standard applied, but found that the broadcaster provided sufficient balance for viewers. The item included a number of significant viewpoints on the issue, including comment from: Corrections Minister, Hon Kelvin Davis; justice campaigner, Sir Kim Workman; Corrections Chief Executive, Christine Stevenson; and the National Party’s spokesperson for Corrections, David Bennett. Hōkai Rangi was also widely reported on in other news media during the period of current interest. While the complainant wished for different individuals to be interviewed and/or to be given more air time, the Authority found that did not result in the news item being unbalanced or prevent the audience from reaching an informed view on the issue.
Not Upheld: Balance
 The item that is the subject of this complaint led the 1 News bulletin at 6pm on 19 August 2019. 1 News presenter Simon Dallow introduced the item as follows:
Reducing the disproportionately high number of Māori in prison will be tackled in a major strategy unveiled by the Government. Official figures show 52% of the total prison population – that’s nearly 5,000 inmates – are Māori, and that compares to Māori making up only 16% of the overall New Zealand population. The new approach aims to eventually lower the prison population to be on par with the general population figure. For more details here is political reporter, Maiki Sherman.
 The item focused on the goals of the strategy and the fact that Hōkai Rangi was co-designed with Māori. It featured comment from: Corrections Minister, Hon Kelvin Davis; justice campaigner, Sir Kim Workman; Corrections Chief Executive, Christine Stevenson; and the National Party’s spokesperson for Corrections, David Bennett.
 In considering the complaint, the members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
 David Garrett complained that the item did not adequately present an alternative perspective, in breach of the balance standard (Standard 8) of the Free-to-Air Television Code of Broadcasting Practice. Mr Garrett’s main points were that:
- Sir Kim Workman’s views featured heavily in the item and his views had already been featured heavily on another broadcast on RNZ earlier that day.1
- No other competing viewpoint was featured apart from ‘a short approximately 20-second’ statement by David Bennett, which by the complainant’s calculation was a fifth of the time given to Sir Kim.
- Mr Garrett was concerned that Mr Bennett was not the right person to comment on behalf of the National Party.
- Someone more qualified or with more expertise on the issue, for example a leading criminologist in New Zealand who was critical of the strategy (or someone with a similar perspective), should have been interviewed for an opposing view.
The broadcaster’s response
 TVNZ acknowledged that the item discussed a controversial issue of public importance to which the balance standard applied. However it found no breach of the standard for these reasons:
- Significant viewpoints were included in the broadcast on Hōkai Rangi.
- Mr Bennett has been the National Party’s spokesperson for Corrections since 12 March 2018.
- It is sufficient that both viewpoints were adequately represented; they do not have to be given equal time.
- Balance can be achieved over time within the period of current interest in relation to the issue.
The relevant standard
 The balance standard (Standard 8) ensures that broadcasts discussing controversial issues of public importance include competing viewpoints about the issue to enable audiences to arrive at an informed and reasoned opinion on the issue.2
 The standard only applies if the issue discussed is a controversial issue of public importance. When controversial issues of public importance are discussed in news programmes, the standard requires broadcasters to 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.3
 The right to freedom of expression, which includes the broadcaster’s right to impart ideas and information and the public’s right to receive that information, is an important and fundamental right in New Zealand. Accordingly, recognising the importance of this right is the starting point for us when we consider a complaint that broadcasting standards have been breached. Our task is then to weigh the broadcaster’s right to freedom of expression and the value and public interest in the broadcast item, against the level of actual or potential harm that might have been caused by the broadcast.4
 The harm alleged in this case is that by omitting balancing viewpoints, the broadcaster did not enable viewers to arrive at an informed and reasoned opinion on the issue being discussed, namely the merits and likelihood of success of the new Hōkai Rangi strategy.
 The same harm was alleged by Mr Garrett to have been caused by the RNZ Morning Report item broadcast the same day, referenced in his complaint (paragraph  above). On considering Mr Garrett’s complaint about the RNZ item, we determined that:5
- Reporting on the release of Hōkai Rangi carried high value and legitimate public interest. Issues surrounding the justice system and the experience of Māori within the system are of public importance.
- Accordingly, the Authority would need to find a proportionately high level of actual or potential harm caused by the broadcast to interfere and find a breach of broadcasting standards.
 We found in relation to Mr Garrett’s complaint about Morning Report, that the introduction of the Hōkai Rangi strategy, and the wider issue of overrepresentation of Māori in the corrections system (which that strategy sets out to address), are controversial issues of public importance for the purposes of the balance standard. We consider that this reasoning applies to the present item and that the balance standard applies.
 We found that in the Morning Report item sufficient balance was achieved taking into account: the signalled approach of the discussion; the follow up interview with a National MP, who gave an alternative perspective; and significant media coverage of the issue within the period of current interest, which enabled the audience to arrive at an informed and reasoned opinion. We concluded in that case that any restriction on the broadcaster’s right to freedom of expression would have been unreasonable.
 The key question for us in the present case was whether TVNZ made reasonable efforts to provide balance either within the 1 News item broadcast on 19 August 2019, or within the period of current interest in this particular issue.
 We have concluded that TVNZ met its obligations under the standard and provided sufficient balance, taking into account the following:
- The individuals who were interviewed for the 1 News item, as well as the reporter, made comments which adequately reflected differing perspectives of whether the strategy had the right focus and would achieve the desired outcome. For example, the following comments were included:
- ‘Despite the by-Māori-for-Māori strategy, the Government stopped short of a target to reduce huge Māori prison roll, instead aiming to reduce the total prison population by 30% in 15 years, and a new five-year target.’ (reporter)
- ‘If we look at 30% over 15 years, I guess we can expect 10% over five years.’ (Hon Kelvin Davis)
- ‘Although everyone agrees that’s quite a stretch.’ (reporter)
- ‘Over five years that’s a big ask because we really are talking, I think, about a multi-generational shift.’ (Christine Stevenson, Corrections CE)
- ‘This whole strategy requires a major culture change within the Department of Corrections.’ (Sir Kim Workman)
- ‘Change some approach with caution.’ (reporter)
- ‘That culture where the prisoner is first, and not the system, can actually mean that we don’t have a prison system that’s effective.’ (David Bennett, National Party Corrections spokesperson)
- As we noted in relation to Mr Garrett’s complaint on this topic addressed in Decision No. 2019-079, the standard clearly recognises that balance is not achieved by a ‘stopwatch’; in other words, alternative perspectives do not have to be given equal broadcast time to satisfy the requirements of the standard.6 Although Mr Bennett’s statement was brief, it clearly presented an opposing view, from his perspective as the National Party’s spokesperson for Corrections.7
- Equally, who provides significant viewpoints on the issue being discussed is a matter of editorial discretion for the broadcaster, so long as the requirements of the standard are met. Therefore, the fact that the item did not contain comment from another individual, whom Mr Garrett wished to be interviewed did not result in the item being unbalanced. The item sufficiently canvassed significant perspectives on the topic.
- Finally, we noted that the issue received significant coverage from TVNZ and other news outlets within the period of current interest.8 There was a high level of public interest and media discourse relating to Hōkai Rangi upon its release and what effect, if any, it might have on the rate of Māori in the corrections system. A wide range of perspectives was available to the public, enabling audiences to arrive at an informed view.
 In these circumstances we consider that the broadcaster fulfilled its obligations under the balance standard and we did not find any actual or potential harm which justifies us taking action to limit the right to freedom of expression in this case. We therefore do not uphold the complaint.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
Judge Bill Hastings
9 March 2020
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1. David Garrett’s formal complaint – 3 September 2019
2. TVNZ’s response to the complaint – 8 October 2019
3. Mr Garrett’s referral to the Authority – 31 October 2019
4. TVNZ’s confirmation of no further comment – 13 November 2019
1 Mr Garrett also complained about this Morning Report broadcast, and his complaint was not upheld by the Authority: see Garrett and Radio New Zealand Ltd, Decision No. 2019-079
2 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
3 As above, page 18
4 Introduction: Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6
5 Garrett and Radio New Zealand Ltd, Decision No. 2019-079 at 
6 Garrett and Radio New Zealand Ltd, Decision No. 2019-079 at 
8 See for example Radical changes being made to reduce Māori imprisonment (TVNZ Marae, 25 August 2019), 'Humanising' prisoners: Strategy launched by Corrections to reduce Māori reoffending (Newshub, 19 August 2019) and Hōkai Rangi: The plan to reduce Māori in prison from 52 percent to 16 (RNZ, 19 August 2019)