BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

All BSA's decisions on complaints 1990-present

Mulgan & Winkler and Television New Zealand Ltd - 2021-032 (2 August 2021)

Members
  • Judge Bill Hastings (Chair)
  • Leigh Pearson
  • Paula Rose QSO
  • Susie Staley MNZM
Dated
Complainant
  • Roderick Mulgan and Patrick Winkler
Number
2021-032
Programme
1 News
Channel/Station
TV One

Summary  

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

The Authority has not upheld a complaint about an item on 1 News that discussed ‘growing calls’ for New Zealand’s right to silence laws to be urgently changed. The complaint was the item failed to present the views of the many authorities who support the status quo, or include relevant historical context, and used unduly emotive language to advance an unbalanced narrative. The Authority noted the balance standard allows for significant viewpoints to be presented over time, within the period of current interest, and does not require every programme to canvass all significant views on a particular topic. It found there was extensive coverage around the time of the broadcast that provided a range of views and information on the right to silence in cases of child abuse. It also found the broadcast approached this issue from a particular perspective and did not purport to be a balanced examination. In the context, the Authority found the broadcast did not breach the balance standard.

Not Upheld: Balance


The broadcast

[1]  An item on 1 News, broadcast on TVNZ 1 on 13 January 2021, examined ‘growing calls’ for New Zealand’s right to silence laws to be urgently changed, following an Auckland baby’s death and the failure of some of her family to assist with the investigation. The item included comments or statements from Jess McVicar on behalf of the Sensible Sentencing Trust, NZ Police, Hon Simon Bridges as Justice Spokesperson of the National Party, and Judge Andrew Becroft as the Children’s Commissioner:

Reporter:                     More than six months after 14 month old Sofia Taueki-Jackson died at the South Auckland house, silence still from some of her family.

Ms McVicar:               I think it’s cowardly. I honestly think it is an absolute cowardly move.

Reporter:                     The police say that some key members of Sofia’s family are still refusing to assist investigators. They’ve also charged a 25 year old woman with attempting to obstruct the course of justice.

[An on-screen caption displayed the corresponding statement from NZ Police:

“…despite there still being key members of Sofia’s immediate whanau who are refusing to assist the investigation team…

…Police have since charged a 25-year-old woman with Attempting to Obstruct the Course of Justice…”

NZ Police]

Ms McVicar:               Children are the most vulnerable in New Zealand, and our law is not in place to protect them. And it should be.

Reporter:                     It's a legal position that has frustrated authorities time and time again. The Kahui twins died in 2006 after also sustaining head injuries. Some family members initially refused to speak to the police.

Mr Bridges:                  I think all New Zealanders know, certainly I do, as a former Crown prosecutor, there’s far too many of these cases. People know about the Kahui twins. But of course, this is another tragic case, involving Sofia Jackson.

Reporter:                     So far Sofia’s family have not responded to requests for comment. But authorities are still asking for anyone who might have any information to come forward. There are now growing calls for change.

Mr Bridges:                  The problem at the moment is if the family clams up and those around the family do the same, police simply don't have the tools and the ability to get justice for the child. That's why National thinks actually we do need a new offence here, criminalising the non-disclosure of information.

Judge Becroft:            What I would like to see is an amendment to the right to silence. I don't want it abolished, but I think that those who are witnesses who have seen or know important details, they should be obliged to provide that information to the police. I'd like it to be a priority for this government. And I will certainly be raising it again with the incoming Minister of Justice.

Reporter:                     Changes that might make it easier for justice to be done for our most vulnerable.

The complaint

[2]  Roderick Mulgan and Patrick Winkler complained the broadcast breached the balance standard:

  • ‘The story only presented the views of people arguing for weakening the right [to silence] and did not present anyone explaining the very significant justifications for its protection.’
  • ‘There are many authorities who could have explained the rationale for the present law, including the presidents of the Auckland District Law Society (representing over 8,000 lawyers) and the Defence Lawyers Association, who routinely make themselves available to comment on such issues.’
  • The story implies (without substantiation) there is a new groundswell of support for changes to the right to silence laws.
  • The story omitted relevant historical context (eg the previously proposed Criminal Procedure Bill).
  • The story was unduly emotive in its language and examples to claim an amendment is necessary.

[3]  In their referral to the Authority, Mr Mulgan and Mr Winkler submitted the presentation of significant viewpoints on this issue within the period of interest, as identified by TVNZ in its response to the complaint (below), was provided by media outlets other than TVNZ. They submitted this does not satisfy the standard, and balance must be provided by the broadcaster itself.

[4]  They also submitted that, in their experience, ‘popular understanding as to the benefit of the right [to silence] is negligible’, such that viewers cannot reasonably be expected to have a broad understanding ‘of the purposes and advantages for the existence of the right’.

[5]  Finally, in light of TVNZ’s response to their referral, which identified stories in which TVNZ had canvassed alternative viewpoints on the issue (below), Mr Mulgan and Mr Winkler made further submissions including:

  • The item called “What is the right to silence?” of 12 March 2021 appeared only as a written story on the 1 News website, which does not have the weight or reach of a broadcast on 1 News, and therefore makes only a ‘very limited contribution to balancing the impact of the video item that was originally broadcast’.
  • This item also post-dates the complaint and ‘raises the possibility TVNZ created it…to improve its record on the right to silence issue after the adequacy of its balance was challenged’, as ‘[t]here had been no new “event” such as the original Sensible Sentencing Trust statement…to spur this new piece’.
  • ‘[A]lthough the issue of constraining the right to silence in situations of intra-family violence has been argued for years, the genesis of the item of 13 January was a statement made by the Sensible Sentencing Trust after a high-profile child murder…The period of interest for balance should therefore, in our submission, be the period of heightened interest that follows [this] new event, and not the issue’s long-term background.’
  • As the relevant ‘new event’ was the statement by the Sensible Sentencing Trust, ‘The period of interest as to that discrete event and therefore the opportunity to provide balance, had expired by 12 of March’.

The broadcaster’s response

[6]  TVNZ did not uphold the complaint for the following reasons:

  • ‘Significant viewpoints on this issue have been canvassed in the media within the period of interest…1 We therefore do not consider that it was necessary for this programme, in the interests of ensuring viewers were fully informed, to include the further contextual information that [the complainants] have argued was required.’
  • ‘The 1 News story is very clear why the calls [for changes to the right to silence laws] came about and who was making the call – the Sensible Sentencing Trust, and the National Party Justice Spokesperson, in light of the recent death of Sofia Taueki-Jackson.’
  • ‘The Committee considers that this issue is one where the “period of current interest” is longer, and we note that conversations about this right are periodically reignited given current events, such as the prosecution being discussed here.’
  • The item was not unduly emotive, and emotion shown by some of the commentators reflected their personal perspective, the representation of which is acceptable in news reporting and under the standards.

[7]  In TVNZ’s response to the referral and, specifically, in response to the complaint that alternative views had only been provided by media outlets other than TVNZ, it identified a number of stories in which it had canvassed significant viewpoints on the issue.2

The standard

[8]  The balance standard3 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. The purpose of this standard is to ensure competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.4

Our analysis

[9]  We have watched the broadcast and read the correspondence listed in the Appendix.

[10]  We have also considered the right to freedom of expression, which is our starting point. This includes the broadcaster’s right to offer a range of information and the audience’s right to receive it. Our task is to weigh the value of, and public interest in, the broadcast against the level of actual or potential harm that may have been caused, with reference to the balance standard's objectives. We may only intervene and uphold a complaint where the level of harm justifies placing a reasonable limit on the right to freedom of expression.

[11]  For the reasons below, we have not found such harm in this case.

Does the balance standard apply?

[12]  For the balance standard to apply, the subject matter of the broadcast must be: an issue of ‘public importance’; ‘controversial’; and ‘discussed’ in a news, current affairs or factual programme.5

[13]  We consider the question of whether right to silence laws should change in cases of child abuse to be a controversial issue of public importance, which was discussed in this news broadcast.

[14]  Therefore, the balance standard applies.

The period of current interest

[15]  The wording of the balance standard is clear that a broadcaster should make reasonable efforts to present significant perspectives ‘either in the same programme or in other programmes within the period of current interest’. This means balance is allowed to be achieved over time, and broadcasters are not required to present every perspective on a controversial issue within every broadcast discussing that issue.6 Placing such a requirement on broadcasters would itself unreasonably limit their exercise of freedom of expression and editorial control, and in particular their freedom to present programmes or interviews from a particular perspective.7

[16] Given the ongoing nature of discussion and debate about this issue, reflected by its ongoing currency in politics,8 and media,9 and its ongoing coverage by multiple broadcasters and media outlets, we consider the period of current interest in this case is ongoing.

[17]  In addition, we do not agree with the complainants’ suggestion surrounding the definition of ‘the period of current interest’ and consequent limitation on other reports or media that it may be appropriate to take into account. Decisions under the balance standard are fact and context specific. The period of current interest in any case will depend upon the nature of the issue and relevant coverage before and after the broadcast.  

Assessment of whether reasonable range of perspectives presented

[18]  Our task, then, is to assess whether the range of perspectives presented by TVNZ within the period of interest was reasonable.

[19]  We found the broadcaster presented a reasonable range of perspectives, taking into account:10

  • The programme did not purport to be a balanced examination of the issue, but rather a presentation of calls for changes to right to silence laws, as advocated by the Sensible Sentencing Trust, National Party and Children’s Commissioner Judge Becroft.
  • The programme was clearly signalled in its introduction as approaching the issue from the particular perspective of those calling for law change following the death of a baby.
  • This perspective represented one aspect of a larger, complex and ongoing debate about the right to silence. As above, it is not necessary for each and every programme to canvass all significant views on a particular topic.
  • Viewers could reasonably have been expected to be aware of alternative views regarding right to silence laws in child abuse cases:
    • The issues have been widely canvassed in news media, both by TVNZ and other outlets.11
    • For example, TVNZ presented alternative perspectives, including: Hon Andrew Little’s view ‘a change in law could impact innocent people’, and changing the law would need a ‘widespread, broad, rigorous public debate’ on 18 February 2020;12 Associate Professor Khylee Quince’s view there were ‘real risks’ in waiving or changing the right to silence on 12 March 2021; and Sir Geoffrey Palmer’s view that any suggestion the right to silence should be altered or removed was ‘totally unpalatable’.13
    • Given the long-term and recently heightened interest in this issue, we consider viewers could reasonably be expected to be aware of these alternative views as expressed in other coverage, including in other media.

[20]  Additionally, as above, we consider this area remains an ongoing topic of discussion and debate, and the period of current interest is ongoing. It has received coverage since the broadcast, which included views in favour of preserving the right to silence,14 and is likely to receive further coverage in future. We note the purpose of the standard is to enable the audience to arrive at an informed and reasoned opinion, which requires a broad understanding of the main perspectives, rather than a technical understanding of the ‘purposes and advantages for the existence of the right’ or its operation in the context of legal proceedings as submitted by the complainants.

[21]  In response to some of the complainants’ other specific submissions:

  • In our view, the broadcast did not include ‘unduly emotive language’. In any event, the inclusion of such language is an editorial decision rather than a standards issue and is consistent with the broadcast being presented from a particular perspective as noted in paragraph [19].
  • The complainants’ argument that the programme incorrectly implied a community groundswell of support for changes to relevant laws is not something that can be addressed under the balance standard (which addresses issues concerning the presentation of significant points of view). 

[22]  For the reasons above, we consider TVNZ has provided a reasonable range of perspectives within the period of current interest, and in the context.

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

 

Judge Bill Hastings

Chair

2 August 2021    

 


Appendix

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

1  Roderick Mulgan and Patrick Winkler’s formal complaint – 10 February 2021

2  TVNZ’s decision on the complaint – 10 March 2021

3  Mr Mulgan and Mr Winkler’s referral to the Authority – 6 April 2021

4  TVNZ’s response to the referral – 4 June 2021

5  Mr Mulgan and Mr Winkler’s final comments – 9 July 2021


1 RNZ “Woman charged with attempting to obstruct justice over death of Auckland baby girl” Newshub (online ed, New Zealand, 11 January 2021); George Block “Auckland baby homicide: Woman charged with attempting to obstruct justice” Stuff (online ed, New Zealand, 11 January 2021); Blair Ensor and Edward Gay “Right to silence: Should people be forced to speak to police when a child is killed?” Stuff (online ed, New Zealand, 26 September 2020); George Block “Whānau won't help police after Auckland baby's 'catastrophic' head injuries” Stuff (online ed, New Zealand, 19 September 2020); Julia Gabel “Flat Bush toddler death: Family members refuse to help police with investigation” NZ Herald (online ed, New Zealand, 19 September 2020); Georgia-May Gilbertson “Sensible Sentencing Trust wants to abolish right to silence in child abuse cases” Stuff (online ed, New Zealand, 3 March 2020); James Fyfe and Ella Prendergast “Justice Minister Andrew Little rules out revoking right to silence, lawyer concerned change could lead to wrongful convictions” Newshub (online ed, New Zealand, 18 February 2020); Rachel Sadler “Andrew Little clashes with Ryan Bridge over 'right to silence' law changes” Newshub (online ed, New Zealand, 18 February 2020); Vita Molyneux “Time for the right to silence to be amended or abolished, says Children's Commissioner” Newshub (online ed, New Zealand, 17 February 2020)
2 Anna Whyte “What is the right to silence?” 1 News (online ed, New Zealand, 12 March 2021); Irra Lee “'We’ve got to see the whole ecosystem' - New Police Minister wants holistic view in tackling family violence” 1 News (online ed, New Zealand, 22 November 2020); Breakfast “'This bill doesn't trust judges' - Defence lawyer concerned over Sexual Violence Legislation Bill” 1 News (online ed, New Zealand, 23 June 2020); Anna Whyte “National promises to make not reporting instances of child abuse a criminal offence” 1 News (online ed, New Zealand, 18 February 2020); “'There should be no right to silence' - Call for caregivers to be charged when family stays silent over child abuse” 1 News (online ed, New Zealand, 16 March 2018)
3 Standard 8 of the Free-to-Air Television Code of Broadcasting Practice
4 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
5 Guideline 8a
6 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
7 See Bidwell and Radio New Zealand Ltd, Decision No. 2020-003 at [15]
8 In addition to the previously proposed Criminal Procedure Bill (2011), as raised by the complainants, Parliament has more recently discussed the right to silence in light of the Children’s Commissioner’s calls for law reform ((19 February 2020) 744 NZPD 16359) and the Sexual Violence Legislation Bill ((11 February 2021) 749 NZPD)
9 Anna Whyte “National promises to make not reporting instances of child abuse a criminal offence” 1 News (online ed, New Zealand, 18 February 2020); Rachel Sadler “Andrew Little clashes with Ryan Bridge over 'right to silence' law changes” Newshub (online ed, New Zealand, 18 February 2020); Georgia-May Gilbertson “Sensible Sentencing Trust wants to abolish right to silence in child abuse cases” Stuff (online ed, New Zealand, 3 March 2020); Blair Ensor and Edward Gay “Right to silence: Should people be forced to speak to police when a child is killed?” Stuff (online ed, New Zealand, 26 September 2020); Anna Whyte “What is the right to silence?” 1 News (online ed, New Zealand, 12 March 2021); Samira Taghavi “Sexual violence bill could see more innocent Māori face jail” Stuff (online ed, New Zealand, 23 June 2021
10 Guideline 8c
11 Anna Whyte “National promises to make not reporting instances of child abuse a criminal offence” 1 News (online ed, New Zealand, 18 February 2020); Rachel Sadler “Andrew Little clashes with Ryan Bridge over 'right to silence' law changes” Newshub (online ed, New Zealand, 18 February 2020); Georgia-May Gilbertson “Sensible Sentencing Trust wants to abolish right to silence in child abuse cases” Stuff (online ed, New Zealand, 3 March 2020); Blair Ensor and Edward Gay “Right to silence: Should people be forced to speak to police when a child is killed?” Stuff (online ed, New Zealand, 26 September 2020)
12 Anna Whyte “National promises to make not reporting instances of child abuse a criminal offence” 1 News (online ed, New Zealand, 18 February 2020)
13 Anna Whyte “What is the right to silence?” 1 News (online ed, New Zealand, 12 March 2021)
14 Anna Whyte “What is the right to silence?” 1 News (online ed, New Zealand, 12 March 2021); Samira Taghavi “Sexual violence bill could see more innocent Māori face jail” Stuff (online ed, New Zealand, 23 June 2021)