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 about an interview on Q+A broadcast on TVNZ 1, with the Rt Hon Winston Peters, which included questions about the Government’s COVID-19 response, leaking of information regarding the ‘Green School’ funding, New Zealand First Party funding, the Serious Fraud Office investigation into the New Zealand First Foundation and a tax-payer funded trip of Mr Peters’ two friends to Antarctica. The complainant argued the interview was biased and unfair, and breached the fairness and balance standards. The Authority found the robust questioning was within the scope of what could be expected of a high profile and senior political figure like Mr Peters on matters of significant public interest in the lead up to a general election. Regarding balance, the Authority did not consider controversial issues of public importance were ‘discussed’ for the purposes of this standard, with one exception in respect of which Mr Peters briefly presented his views. The Authority also noted Mr Peters had an opportunity to present his views on the other topics raised during the interview and the issues were otherwise widely covered in other broadcasts and media - meaning a range of viewpoints were publicly available.

Not Upheld: Fairness, Balance

Introduction

[1]  An interview on Q+A with the Rt Hon Winston Peters, conducted by the presenter Jack Tame, was broadcast on TVNZ 1 on 6 September 2020. The interview included a range of questions related to issues concerning either Mr Peters or the New Zealand First Party. Mr Tame raised the Government’s COVID-19 response, leaking of information regarding the ‘Green School’ funding, New Zealand First Party funding, the Serious Fraud Office investigation into the New Zealand First Foundation, a tax-payer funded trip of Mr Peters’ two friends to Antarctica, the proposed trans-Tasman bubble with Australia, and the New Zealanders reported missing from the live-cattle export ship sinking off the coast of Japan.

[2]  Throughout the interview, Mr Tame repeated questions about these issues. Mr Peters generally refused to answer, on the basis that he said he had not been given notice of these and consequently had not been briefed. In the course of Mr Tame’s repetition of these questions, and Mr Peters’ persistent refusal to answer, they frequently spoke over one another.

[3]  Responding to Mr Peters’ refusal to answer, Mr Tame said his questions were ‘about integrity’ and that ‘integrity is a central issue for voters in this election’. Mr Peters replied: ‘This is pure dirt’ and ‘I’m not going to waste my time, this close to an election, giving you a chance to spray dirt around on behalf of your political masters’.

[4]  In considering this complaint, we have watched a recording of the broadcast and read the correspondence listed in the Appendix.

The complaint

[5]  Linda Newton submitted the broadcast breached the fairness and balance standards of the Free-To-Air Television Code of Broadcasting Practice. She complained about a lack of integrity on the part of the broadcaster, on the basis it misrepresented the intended focus of the interview (as claimed by Mr Peters during the interview). She also complained that the broadcast was ‘utterly biased’ against, and unfair towards, Mr Peters and the New Zealand First Party with questions aiming to ‘infer that Mr Peters is dishonest’ and ‘ruin his reputation’.

[6]  In her submissions to the Authority Ms Newton also referred to a subsequent Q+A programme on 11 October 2020 (including questions allegedly showing ‘an intent to damage Mr Peter’s reputation’) as evidence of the programme’s bias. However, pursuant to section 8(1B) of the Broadcasting Act 1989, we are only able to consider complaints raised in her original complaint to the broadcaster, which did not identify the broadcast of 11 October 2020. Accordingly, this second broadcast is not addressed below.

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

• 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.
• Criticism of political and public figures is permitted and protected under the New Zealand Bill of Rights Act 1990.
• The interview covered important matters that were clearly worthy of robust examination, particularly given the rapidly-approaching general election.
• Mr Peters could reasonably expect robust scrutiny of the matters raised, as leader of the New Zealand First Party.
• It is not expected that news and current affairs programmes will provide lists of questions to interviewees.
• Regarding balance, viewers would not reasonably have expected to have been presented with a range of alternative perspectives in the context of an interview with Mr Peters as the leader of the New Zealand First Party.

The relevant standards  

[8]  The fairness standard (Standard 11) states broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. Individuals and organisations have the right to expect they will be dealt with justly and fairly by broadcasters, so the audience is not left with an unduly negative impression of them.¹ A consideration of what is fair will depend on the nature of the programme, the context (including the level of public interest) and the nature of the individual.² An individual’s status as a public figure who is familiar with the media is a relevant factor to fairness.³ It is also relevant to consider whether any critical comments were aimed at the participant in their business or professional and personal lives.⁴

[9]  The balance standard (Standard 8) states 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 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.⁵

Overview: Freedom of political speech and the complaint outcome

[10]  As this complaint concerns treatment of a political party, leader and candidate in the upcoming election, and therefore in our view it had the potential to influence voters, we have determined it under our Election 2020 fast-track procedure.

[11]  When we consider a complaint that a broadcast has allegedly breached broadcasting standards, we first recognise the important right to freedom of expression. Our task is to weigh the value of and public interest in the broadcast complained about, against the level of actual or potential harm that may have been caused, with reference to the objectives of the standards described above. We may only uphold a complaint where the corresponding limitation on the right to freedom of expression is reasonable and justified.

[12]  The broadcast in this case carried a high value and level of public interest. The right to political speech is significant in a democratic society and particularly in the months preceding a general election, when audiences have a heightened interest in political party leadership and in robust scrutiny of those who may be seeking their vote.⁶ What this means is we would need to find a correspondingly high level of harm to conclude the interview breached broadcasting standards, and to justify limiting freedom of expression.⁷

[13]  Considering the level of public interest, Mr Peters’ experience, and general expectations as to how politicians will be treated by the media, we have not found harm resulting in breaches of either the fairness or balance standards, or that justifies regulatory intervention. We expand on our reasons below.

Fairness

[14]  As noted by TVNZ, 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.⁸ The Authority has previously recognised it is an essential element of free speech that even the most trenchant criticism of public figures, in their professional capacity, be allowed. The question is whether such criticism overstepped the boundaries of fairness and strayed into personally abusive territory.⁹

[15]  We have considered the following contextual factors relevant to assessing whether the broadcast went too far or resulted in Mr Peters being treated unfairly:

• Q+A is a news and current affairs programme.
• The interview took place in the lead up to the general election, with Mr Tame repeatedly pointing out, ’we are six weeks from an election’.
• Mr Tame, and the Q+A programme generally, are known for a robust interviewing style and probing questions.
• Mr Peters is the Deputy Prime Minister, leader of the New Zealand First Party, and an experienced politician.
• Mr Tame raised important matters of public interest and political accountability, namely the Government’s COVID-19 response, New Zealand First Party funding, Serious Fraud Office investigations and a tax-payer funded trip to Antarctica.
• These matters involved Mr Peters and his political party.
• Members of the public could reasonably expect the media to ask such questions and Mr Peters to be familiar and forthcoming with information relating to them.
• Similarly, Mr Peters could reasonably expect to be scrutinised and asked to answer such questions, with or without notice.
• Mr Peters responded to Mr Tame’s repeated questioning in an assertive manner.

[16]  In light of these contextual factors, Mr Peters’ experience as a politician, and the significant public interest in the questions asked during the broadcast, we do not consider that Mr Peters was treated unfairly. Mr Tame was persistent but not personally abusive, and his questions were limited to matters Mr Peters could expect to be asked as the leader of a political party during a general election.

[17]  Regarding Mr Peters’ view he was not forewarned, and therefore not able to be briefed, about a number of the topics raised, we agree with the broadcaster that in general it would be unreasonable for politicians to expect to have advance notice of all questions asked of them, particularly on matters of high public interest.

[18]  Overall, the potential harm alleged to have been caused did not outweigh the value of robust political discourse and the vital role of media in holding to account those in positions of power. This enables the public to be informed and engaged, which is critical to a free and democratic society, particularly leading up to an election.

[19]  Accordingly, we do not uphold the complaint under the fairness standard.

Balance

[20]  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’.¹⁰

[21]  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’.¹¹ A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.¹²

[22]  We acknowledge the interview raised various controversial issues of public importance. However, except in one case, we do not consider these issues were ‘discussed’ for the purposes of the balance standard. Mr Tame asked repeated questions about these and, for the most part, Mr Peters refused to answer the questions or discuss them.

[23]  There was a limited discussion of the trip to Antarctica. Although Mr Peters did not answer the questions put to him, he referred to this ‘trend’ being started by the National Party which had taken ‘countless’ people there in the ‘hope that one day soon in the future, when we do need business funding then we can go to the public of this country…’. Mr Peters’ view on this point was therefore briefly presented in the broadcast.

[24]  The remaining issues raised were of heightened topical interest and as such were canvassed in other broadcasts by TVNZ as well as by other media, meaning a range of viewpoints were publicly available.¹³ Although he chose not to respond, Mr Peters was nevertheless given opportunities to present his points of view through Mr Tame putting these questions to him.

[25]  In these circumstances we have not found actual or potential harm under the balance standard which outweighs freedom of expression or justifies regulatory intervention. Accordingly, we do not uphold this part of the complaint.

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

16 October 2020    

Appendix

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

1  Linda Newton’s formal complaint – 7 September 2020

2  TVNZ’s decision on the complaint – 5 October 2020

3  Ms Newton’s referral to the Authority – 11 October 2020

4  TVNZ’s response to the referral – 15 October 2020

5  Ms Newton’s final comments – 15 October 2020

¹ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
² Guideline 11a and Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
³ As above
⁴ As above
⁵ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁶ See the New Zealand Bill of Rights Act 1990, sections 5 and 14, and Introduction: Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6.
⁷ Guideline G1a, Election Programmes Code of Broadcasting Practice
⁸ See, for example, Hagger and Mediaworks TV Ltd, Decision No. 2020-032; Marra and Mediaworks Radio Ltd, Decision No. 2019-023; Anderson and Radio New Zealand Ltd, Decision No. 2018-091; and Cape and MediaWorks TV Ltd, Decision No. 2018-018.
⁹ Kiro and Radioworks Ltd, Decision No. 2008-108 at [78]
¹⁰ Guideline 8a
¹¹ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
¹² As above
¹³ Regarding the issue of the Government’s COVID-19 response, see: Election 2020 - Covid 19 coronavirus: Winston Peters takes swipe at Labour over response (NZ Herald, 2 September 2020) and Winston Peters says latest 'lockdown' outside Auckland 'should never have happened' (1 News, 10 September 2020); regarding the issue of funding for the Green School, see: PM defends James Shaw over Green School controversy, but Winston Peters lashes out at coalition partner (1 News, 1 September 2020) and NZ First and Greens fighting for survival, trying to kill each other off amid Green School debacle (NewsHub, 2 September 2020); regarding the issue of New Zealand First Party funding, see: NZ First Foundation received tens of thousands of dollars from donors in horse racing industry (RNZ, 12 February 2020) and How a Christchurch city race track bagged Provincial Growth Fund money (Stuff, 10 August 2020); and regarding the issue of the SFO investigation, see: Winston Peters stands by party in face of Serious Fraud Office referral (11 February 2020), Barry Soper: Winston Peters' trustee the subject of SFO raid (NZ Herald, 21 April 2020) and NZF Foundation spent $130k on company run by Winston Peters' lawyer (RNZ, 27 May 2020).