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 under the accuracy standard about a 1News report on the Principles of the Treaty of Waitangi Bill (Bill). The complainant alleged the broadcast’s framing of the Treaty principles as partnership, participation, and protection (the Three Ps) was ‘incomplete and confused’, and describing the Bill’s three principles as ‘new’ erroneously suggested the Bill was rewriting the Treaty principles. The broadcast stated, ‘there are no principles that have been expressly defined or set out in law’ and recited the Three Ps as the ‘current main three principles’. In the context of the segment, the reporter’s comments were unlikely to mislead viewers, and any potential harm caused was not at a level justifying intervention. Additionally, it was not misleading, in the context, to refer to the Bill’s three principles as ‘new’.

Not Upheld: Accuracy

The broadcast

[1]   An item during the 14 November 2024 broadcast of 1News reported on ‘chaotic and unprecedented scenes [erupting] in Parliament’ that day during the first reading of the Principles of the Treaty of Waitangi Bill (Bill).

[2]  Five minutes into the item, the 1News presenter asked, ‘So, what does the Bill actually propose, and crucially, what are some of the differences between it and the current Treaty principles?’. Reporter Katie Bradford then said:

The concept of Treaty principles was introduced in the Treaty of Waitangi Act 1975. Through the years, it has developed through various case law and pieces of legislation. Crucially, there are no principles that have been expressly defined or set out in law. That’s what David Seymour says he is trying to do. 

Let’s compare the current main three principles with the Bill before Parliament. 

On partnership, the Treaty created a relationship between Māori and the Crown and both parties must act with the utmost good faith. The new Principle One states the government has full power to govern and Parliament has the full power to make laws in the best interests of everyone. 

The second current principle addresses participation. At present, the Crown is to provide tangata whenua with the opportunity to engage with the decision-making processes at all levels. Proposed Principle Two, the Crown recognises and respects and protects the rights hapū and iwi had when they signed Te Tiriti. Those rights differ from the rights everyone has, only when they are specified in legislation, Treaty settlements, or other agreements with the Crown. 

Principle three addresses protection. The existing understanding is that the government prioritises the active protection of Māori interests, rights, taonga and rangatiratanga. The new proposed Principle Three states everyone is equal before the law and entitled to equal protection and benefit without discrimination. Everyone is entitled to the equal enjoyment of the same human rights without discrimination. 

One of the major concerns from opponents of the Bill is the absence of any mention of tino rangatiratanga. That loosely translates to Māori autonomy. The Bill proposes to take those principles to a referendum for the public once passed, but it’s a Bill that looks doomed to never get to that stage. 

[3]  The segment ended with the 1News presenter explaining the process by which a bill becomes an Act of Parliament.

The complaint

[4]  Sean Rush complained the broadcast breached the accuracy standard of the Code of Broadcasting Standards in New Zealand because it recited the Treaty principles as partnership, participation, and protection (the Three Ps) – ‘an incomplete and confused framing’ of the Treaty principles. The broadcast then compared the ‘incomplete list’ of principles to the Bill’s three ‘new’ principles, suggesting the Bill’s principles ‘were made up or a fiction’.

[5]  The complainant provided detailed submissions, key points from which are summarised below:

Framing of the Treaty principles

• In 1989, the Fourth Labour Government published Principles for Crown Action on the Treaty of Waitangi. This document elucidated five Treaty principles from various Court judgments and Waitangi Tribunal decisions, including the Court of Appeal’s decision in Lands¹ - ‘the foundation for what the [Treaty] principles are’ in New Zealand law.

The five principles are:

a)  the Crown’s right to govern

b)  self-management, or rangatiratanga

c)  equality

d)  reasonable cooperation, and

e)  redress.  

• These five principles should have ‘more prominence in news reporting than statements by academics or [government] agencies’ given they are based on Court decisions, including Lands, which ‘remains binding as a statement of law’. Reciting the Treaty principles as being partnership, participation, and protection ‘gives an incomplete and therefore inaccurate description of the true position’.
• Specifically, the broadcast should have discussed:
  • the principle of the Crown’s right to govern
  • that the ‘active protection’ principle is a component of Article 2 of the Treaty and ‘stems from a need to fetter the Crown’s right to govern where such right might interfere with the right to Tino Rangatiratanga’
  • Article 3 of the Treaty of Waitangi, ‘equality before the law (fulfilled by Māori being afforded British citizenship)’.
• TVNZ received money from the Public Interest Journalism Fund which required recipients to portray the Treaty principles as partnership, participation, and active protection. TVNZ ‘were contractually bound to provide the public the previous Government’s propaganda on this subject without disclosing they were contractually bound to do so’, and so ‘their ability to report objectively (and accurately) was compromised’.

Suggesting the principles in the Bill are ‘new’

• Principles One and Three of the Bill are ‘near identical’ to principles A) and C) from Principles for Crown Action on the Treaty of Waitangi. Principle Two of the Bill ‘is where there is a departure of sorts’. As such, presenting the Bill’s principles ‘as being somehow “new” [gives] an inference they were made up or a fiction’ of the ACT Party. The broadcast gave ‘a wrongful perception of the Bill as “rewriting” the principles when this is incorrect’.
• ‘TVNZ were providing an important explainer to lay people on what the principles were and how they related to those set out in the Bill. Viewers of TVNZ’s broadcast were left in no doubt that the Treaty Principles Bill did not have any relationship to established Treaty principles when, quite clearly, this is not the case.’
• ‘TVNZ deliberately chose to hide established Treaty principles that supported key aspects of the Bill, rather than report them accurately. To omit to inform the public that actually there are Treaty principles upon which the Bill is based is a clear breach of Standard 6 – Accuracy.’

The broadcaster’s response

[6]  Television New Zealand Ltd (TVNZ) did not uphold the complaint for the following reasons:

• The reporter said (emphasis added by TVNZ), ‘Let’s compare the current main three principles with the Bill before parliament.’ ‘The “Three Ps” are the most well-known principles, and it is reasonable for the 1News explainer to focus on them.’ 
• While ‘many more’ Treaty principles have been developed, focussing on the Three Ps, ‘which are considered to be the “overarching principles”, is not misleading or inaccurate.
• It is also reasonable to reference the Three Ps as being the ‘main three principles’. The reporter ‘[did] not state that there are no other principles, and in fact the statement “main three principles” allows that there are others’. For example, an article by The Spinoff explains the Three Ps as ‘the most well-known principles’, and the New Zealand Law Society’s submission on the Principles of the Treaty of Waitangi Bill stated, ‘Courts of general and specialist jurisdictions have also developed a body of jurisprudence about the Treaty principles, which has tended to emphasise three interrelated and overlapping Treaty principles: partnership, active protection and redress.’²
• The five principles listed in Principles for Crown Action on the Treaty of Waitangi ‘are not unfettered, and to focus on them while not mentioning the Three Ps as the Reporter did, would have been misleading’.
• Further, the Lands case ‘is just one source of the principles which have been developed. It is not a final or definitive source of principles’.
• ‘The 1News item discussed the Treaty Principles and the Treaty Principles Bill. It is not required in this context to discuss the Treaty Articles, noting that the Treaty is not used in law.’
• ‘TVNZ is editorially independent from the government. That editorial independence is enshrined in the Television New Zealand Act 2003.’³ ‘NZ On Air was in charge of administering the [Public Interest Journalism Fund]. Under The Broadcasting Act of 1989, the government cannot give NZ On Air any direction on any programme or content, including newsgathering or current affairs content.’⁴ Irrespective, ‘TVNZ did not receive money from the Public Interest Journalism Fund to state that partnership is one of the Treaty Principles.'

The standard

[7]  The purpose of the accuracy standard (Standard 6) is to protect the public from being significantly misinformed.⁵ The standard states:⁶

• Broadcasters should make reasonable efforts to ensure news, current affairs or factual content:
  • is accurate in relation to all material points of fact
  • does not materially mislead the audience (give a wrong idea or impression of the facts).
• Where a material error of fact has occurred, broadcasters should correct it within a reasonable period after they have been put on notice.

Our analysis

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

[9]  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 where the level of harm means that placing a limit on the right to freedom of expression is reasonable and justified.⁷

Framing of the Treaty principles

[10]  The complainant alleges Katie Bradford’s framing of the Treaty principles as the Three Ps was ‘incomplete’, ‘confused’ and gave an inaccurate description of the Treaty principles.

[11]  In the broadcast, Bradford said:

The concept of Treaty principles was introduced in the Treaty of Waitangi Act 1975. Through the years, it has developed through various case law and pieces of legislation. Crucially, there are no principles that have been expressly defined or set out in law. That’s what David Seymour says he is trying to do. Let’s compare the current main three principles with the Bill before Parliament.

[12]  Although there has been much judicial and legal reference to the principles of the Treaty, there has been ‘no definition or attempt to define what the principles of the treaty mean in legislation in a general way’.⁸ As a result, there is no definitive or exhaustive list of Treaty principles, and ‘the courts and the Waitangi Tribunal have been required to interpret what the principles of the Treaty of Waitangi are’.⁹

[13]  The Waitangi Tribunal has stated the Three Ps articulation of Treaty principles, cited by Bradford, is outdated and reductionist.¹⁰ However, Bradford did not suggest the Three Ps were all-encompassing or that other Treaty principles do not exist. She signalled an intention to look at ‘the current main three principles’ – inferring there were others – and clearly stipulated there were ‘no principles that have been expressly defined or set out in law’. Given this framing of her comments, and the lack of a generally agreed definitive list of Treaty principles, we consider Bradford’s comments unlikely to mislead viewers in any material way.

[14]  We do not agree it was necessary, in the interests of accuracy, to give more prominence to the five principles outlined in the Principles for Crown Action on the Treaty of Waitangi document. The principles in the Bill are not identical to those principles. The choice to discuss that document, or mention any similarities between its documentation of Treaty principles and the contents of the Bill, is a matter of editorial discretion and personal preference.¹¹ The complainant may have preferred Bradford’s analysis to include additional background on the development and origins of the Bill’s principles, but such a complaint is not, in general, capable of being resolved by a complaints procedure because it relates to the exercise of discretion.

[15]  If there was any harm caused by the broadcaster’s approach to analysis of the Bill, it is not at a level justifying our intervention.¹²

Suggesting the principles in the Bill are ‘new’

[16]  The complainant said describing the principles proposed in the Principles of the Treaty of Waitangi Bill as ‘new’ gave ‘a wrongful perception of the Bill as “rewriting” the principles’ when the Bill ‘draws on principles that have been determined by the Courts and [Waitangi Tribunal]’. We do not consider the complainant’s interpretation of ‘new’ in this context is likely to mirror that of most viewers.

[17]  The Bill itself is a ‘new’ document attempting, as Bradford indicated, to expressly define Treaty principles in legislation. Whether or not the principles it documents were derived from previous jurisprudence, the set outlined in the Bill is ‘new’. In our view, the reference to a ‘new principle’ signals a reference to the Bill’s content, rather than the origins of that content.

[18]  If it was misleading in any way, in the context of this broadcast, we can identify no harm likely to result which is sufficient to justify our intervention.

Other aspects of complaint 

[19]  Finally, our role is to consider complaints about programmes not complying with the Code of Broadcasting Standards. We have no role or powers in connection with the Public Interest Journalism Fund or any editorial decisions it may or may not encourage. There is no evidence it influenced the broadcast, and it is not relevant to the accuracy standard. 

[20]  Accordingly, we do not uphold this complaint under the accuracy standard.

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

Signed for and on behalf of the Authority

Aroha Beck
Acting Chair
9 June 2025    

Appendix

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

1  Rush’s original complaint – 15 November 2024

2  TVNZ’s decision – 13 December 2024

3  Rush’s referral to the Authority – 6 January 2025

4  TVNZ’s response to the referral – 31 January 2025

5  Rush’s further comments – 11 February 2025

6  Rush’s further comments – 11 March 2025

7  TVNZ’s further comments – 11 March 2025

8  Rush’s further comments – 11 March 2025

9  TVNZ’s confirmation of no further comment – 19 March 2025

¹ New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641
² Tommy de Silva “The principles of the Treaty of Waitangi, explained” The Spinoff (online ed, 3 February 2024); Jesse Savage Principles of the Treaty of Waitangi Bill – Submission of the New Zealand Law Society Te Kāhui Ture o Aotearoa (New Zealand Law Society, 7 January 2025) at 3.4
³ “How TVNZ news and current affairs is funded” 1News (online ed, 26 August 2024); Television New Zealand Act 2003, ss 12 and 28
⁴ Anna Murray “Can the govt make TVNZ and RNZ stop using te reo Māori?” 1News (online ed, 28 November 2023)
5 Commentary, Standard 6, Code of Broadcasting Standards in New Zealand, page 16
⁶ Standard 6, Code of Broadcasting Standards in New Zealand
⁷ Introduction, Code of Broadcasting Standards in New Zealand, page 4
⁸ Te Rōpū Whakamana i Te Tiriti o Waitangi | The Waitangi Tribunal Ngā Mātāpono | The Principles (Wai 3300, 2024) at 67
⁹ Carwyn Jones “Carwyn Jones: The Treaty bill is an act of extreme bad faith” E-Tangata (online ed, 21 July 2024); Te Rōpū Whakamana i Te Tiriti o Waitangi | The Waitangi Tribunal Ngā Mātāpono | The Principles (Wai 3300, 2024) at 67
¹⁰ Te Rōpū Whakamana i Te Tiriti o Waitangi | The Waitangi Tribunal Hauora (Wai 2575, 2019) at 79-80 and 163
¹¹ Broadcasting Standards Authority | Te Mana Whanonga Kaipāho “Complaints that are unlikely to succeed” <bsa.govt.nz>
¹² For a similar finding, see Wong and Discovery NZ Ltd, Decision No. 2024-091 at para [17]