Judge and Radio New Zealand Ltd - 2023-074 (7 November 2023)
- Susie Staley MNZM (Chair)
- John Gillespie
- Tupe Solomon-Tanoa’i
- Aroha Beck
- Paul Judge
ProgrammeRNZ News Bulletin
BroadcasterRadio New Zealand Ltd
Channel/StationRadio New Zealand
[This summary does not form part of the decision.]
The Authority has not upheld a complaint that an RNZ News bulletin reporting on the arrest of Kiritapu Allan, and political commentators’ views on the implications for Labour’s election chances, breached the balance and fairness standards. The complaint considered the item favoured two ‘negative’ opinions that were ‘noticeably biased against the Labour government’ and ignored a ‘positive’ balancing view available ‘just minutes earlier’ from Minister James Shaw. The Authority found the item was balanced, having included alternative significant perspectives just prior to the news bulletin. The fairness standard did not apply to the concern of how a ‘situation’ is presented, and in any event, the Authority did not consider either Allan or the Labour Party were treated unfairly.
Not Upheld: Balance, Fairness
 The lead item on the 9am RNZ News bulletin, broadcast on 24 July 2023, reported on the arrest of (then Minister) Kiritapu Allan the night before:
Newsreader: A political commentator says Labour's chances of re-election have plummeted with Minister Kiri Allan's arrest overnight. The police say she's been charged with careless use of a motor vehicle and refusing to accompany a police officer. They say an infringement notice was also issued for having excess breath alcohol between 250 and 400 micrograms. Bryce Edwards says there will be questions for the Prime Minister Chris Hipkins.
Edwards: They've just been through so many Police Ministers, Justice Ministers and so for a Government that's fighting on law and order, to have their Justice Minister, yet another one go, and one that is being taken into custody, resisting arrest, is just going to be symbolic, I think, for a lot of voters.
Newsreader: Bryce Edwards says Ms Allan was generally seen as a likeable person around Parliament.
And a former MP says the Prime Minister should have bitten the bullet weeks ago and dismissed Kiri Allan. Māori political commentator Tau Henare says the move would have been for the greater good of the election.
Henare: Understanding that you don't want to do that [dismiss Allan] when somebody’s crook, but at the end of the day he’s [Prime Minister Chris Hipkins] got a country to run, a party to run and an election to win. What happened last night will sort of put it in the minds of people who were going to vote for Labour, ‘maybe not’. And I don't think that they will go and vote for somebody else, I just don't think they'll turn up.
Newsreader: Tau Henare says a week ago the election would have been close, but he thinks that’s now changed.
 Paul Judge complained the broadcast breached the balance and fairness standards of the Code of Broadcasting Standards in New Zealand:
- Instead of reporting ‘the facts’, as expected from a news bulletin, the bulletin favoured two opinions that were ‘noticeably biased against the Labour government’ and ‘ignore[d] another opinion to balance it, which they had at their disposal from [Minister] James Shaw, who stated just minutes earlier that people will give Kiri the benefit of understanding her issues and not see it as a general problem with the Labour government.’
- The broadcast was unfair as it ‘privileged a negative opinion of [Allan’s situation] and its effect on the public's perception of the government as the leading item in the broadcast, and then followed this up with a second negative opinion, while ignoring a more balanced and positive opinion from a third commentator on the topic who credited the NZ public with more empathy for the situation.’
The broadcaster’s response
 RNZ did not uphold the complaint, saying:
- On the morning of the broadcast, RNZ and other media reported that a minister had been arrested for driving and alcohol impairment offences; it emerged the politician involved was Kiritapu Allan and various descriptions and analyses of events followed.
- ‘As part of the news cycle, by 9am, media was focusing on any political implications of these events.’
- RNZ had already interviewed James Shaw MP, ‘who considered that New Zealanders would likely give Kiri Allan the benefit of understanding her issues and not see it as a general problem with the Labour government.’
- The 9am report ‘offered a different viewpoint. The choice to feature a less optimistic opinion was a matter of editorial judgement. It was one of a range of viewpoints offered that morning (during the period of interest).’
 The balance standard1 states that 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 viewpoints either in the same broadcast or in other broadcasts within the period of current interest, unless the audience can reasonably be expected to be aware of significant viewpoints from other media coverage. It ensures competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.2
 The fairness standard3 protects the dignity and reputation of those featured in programmes.4 It ensures individuals and organisations taking part or referred to in broadcasts are dealt with justly and fairly and protected from unwarranted damage.
 We have listened to the broadcast and read the correspondence listed in the Appendix.
 As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression and the value and public interest in the broadcast, against any harm potentially caused by the broadcast. We may only intervene and uphold a complaint where the resulting limit on the right to freedom of expression is reasonable and justified in a free and democratic society.5
 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’.6
 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’.7 A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.8
 The broadcast discussed the implications of (then Minister) Allan’s arrest – including in light of other changeover in Ministers – on public perceptions of the Labour Party and its prospects of winning the election. We consider the balance standard applied on the basis this was clearly of concern to the NZ public, had topical currency, was widely reported and analysed, and excited conflicting opinion (as demonstrated in the different views referred to in the complaint submissions).
 We are satisfied RNZ met the requirements of the balance standard and there was no breach, because:
- The news item was clearly framed as coming from a particular perspective (‘A political commentator says Labour's chances of re-election have plummeted with Minister Kiri Allan's arrest overnight. …Bryce Edwards says there will be questions for the Prime Minister Chris Hipkins.’)
- It is within the broadcaster’s editorial discretion to take such an angle and to include an additional, similar perspective from another interviewee; balance is not achieved by the ‘stopwatch’ – it does not require equal time to be given to alternative perspectives.
- The standard also does not require alternative perspectives to be presented within a single item or even within a single programme. Balance can be achieved over time, within the period of current interest.
- As acknowledged in the complaint, RNZ broadcast an interview with Minister James Shaw containing a countering view earlier in the day, approximately 30 minutes before the 9am news bulletin, which included comments such as:
- ‘Ultimately, I think that in a situation like this, the vast majority of people will see it for what it is’ which is ‘a person who has been in a state of distress and, you know, has kind of gone through this episode. I don't think that that reflects on the wider Labour team at all.’
- In response to the number of ‘ministerial scandals’, Minister Shaw stated ‘I don’t think any Political Party is immune to that’ referring to ‘high profile situations’ leading to resignations within the National Party. He went on to note ‘I think politics is very high pressure and people are under a lot of stress and of course, they are also in the public eye. So when something goes awry, you know, it tends to kind of play out in a fairly spectacular manner in the media.’
- Other coverage at the time of this broadcast also contained significant viewpoints,9 and the issue of Allan’s arrest and subsequent resignation continued to be covered widely by RNZ and other media.
 Finally, we note the inclusion of opinion in a news bulletin is an issue of editorial discretion and personal preference which is not capable of being resolved by a complaints procedure.10
 We do not uphold the balance complaint.
 The complaint appears to allege the broadcast was unfair as it ‘privileged a negative opinion’ on the implications of Allan’s arrest rather than a ‘more balanced and positive opinion’. The fairness with which a ‘situation’ is presented is not captured under this standard, which protects the dignity and reputation of particular individuals or organisations featured in programmes.11
 To the extent the complaint could possibly be read as alleging unfairness to either the Labour Party (through references to the Government), or to Allan, we are satisfied neither was treated unfairly in the broadcast, noting:
- 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
- It is not unfair to the Labour Party to include ‘negative’ comments regarding its election chances, which reflected each commentator’s opinion on the situation, and were in any event balanced by Minister Shaw’s earlier comments.13
- The Authority has consistently 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 (including, for example, in the context of a broadcast reporting on Hon Dr David Clark’s (then-Minister of Health) breach of applicable COVID-19 Alert level 4 ‘lockdown rules’).14 The question is whether such criticism overstepped the boundaries of fairness and strayed into personally abusive territory. This brief news report concerning Allan’s arrest, and political commentary on the impact of that on Labour’s election chances, did not cross that line.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
7 November 2023
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Paul Judge’s formal complaint to RNZ – 24 July 2023
2 RNZ’s decision on complaint – 9 August 2023
3 Judge’s referral to the Authority – 14 August 2023
4 RNZ’s confirmation of no further comments – 21 September 2023
1 Standard 5, Code of Broadcasting Standards in New Zealand
2 Commentary, Standard 5, Code of Broadcasting Standards in New Zealand at page 14
3 Standard 8, Code of Broadcasting Standards in New Zealand
4 Commentary, Standard 8, Code of Broadcasting Standards in New Zealand at page 20
5 Introduction, Code of Broadcasting Standards in New Zealand at page 4
6 Guideline 5.1
7 Guideline 5.1
8 Guideline 5.1
9 See for example, “Kiri Allan quits after being charged with reckless driving, refusing to accompany police officer” Newshub (online ed 24 July 2023) which included comments from Allan’s East Coast electorate; and Felix Desmarais “Did Labour just lose the election?” 1 News (online ed, 24 July 2023): ‘Deputy Prime Minister Carmel Sepuloni said she didn't think voters were concerned with such ructions, but people spoken to by 1 News had nuanced and informed views on them.’
10 Broadcasting Act 1989, s 5(c)
11 See Palestine Solidarity Network Aotearoa and Television New Zealand Ltd, Decision No. 2021-028 at  for a similar finding
12 See for example Robinson and Discovery NZ Ltd, Decision No. 2021-133 at 
13 See also Broadcasting Standards Authority | Te Mana Whanonga Kaipāho “Complaints that are unlikely to succeed” at “Fairness applied to politicians/public figures”
14 See Hagger and MediaWorks TV Ltd, Decision No. 2020-032