Stubbs and Radio New Zealand Ltd - 2019-049 (17 September 2019)
- Judge Bill Hastings (Chair)
- Paula Rose
- Wendy Palmer
- Susie Staley
- Derek Stubbs
BroadcasterRadio New Zealand Ltd
Channel/StationRadio New Zealand National
[This summary does not form part of the decision.]
The Authority did not uphold a complaint that an item on Morning Report discussing the possible boycott of the Tuia – Encounters 250 commemorations was unbalanced, inaccurate and unfair. The Authority found the item was balanced through the presentation of alternative perspectives and the existence of significant media coverage within the period of current interest. The Authority also found the broadcast did not contain any material inaccuracy with respect to Captain Cook’s first arrival in New Zealand. Finally, the Authority found the fairness standard did not apply as the complainant did not identify any person or organisation who took part in or was referred to in the broadcast who was treated unfairly.
Not Upheld: Accuracy, Balance, Fairness
 An item on Morning Report covered plans to boycott the Tuia – Encounters 250 commemorations, marking the 250th anniversary of Captain James Cook’s landing at Tūranganui-a-Kiwa. The item examined the reasons for the boycott and the development of anti-Cook art exhibitions as well as the ongoing effects of colonisation. It included comments from indigenous rights advocate Tina Ngata, artists Suzanne Tamaki and Tracey Tawhiao and the Ministry of Culture and Heritage (MCH).
 The item was broadcast on 9 May 2019 on RNZ National. As part of our consideration of this complaint, we have listened to a recording of the broadcast and read the correspondence listed in the Appendix.
 Derek Stubbs submitted the broadcast breached the balance, accuracy and fairness standards of the Radio Code of Broadcasting Practice for the following reasons:
- The subject matter was a controversial issue of public importance and ‘no reasonable effort’ was made to present significant alternative points of view.
- If the focus of the item was the call to boycott the Tuia – Encounters 250 commemorations, then that should have been all that the item covered. Choosing to interview a political activist ‘triggered the need for further investigation’ to ensure accuracy and balance.
- The interviewee’s statements were not ‘challenged or repudiated’ by the interviewer or another speaker, making the item ‘unbalanced, biased and inconsistent with Radio New Zealand[’s] responsibilities.’
- ‘While the interviewee is entitled to her opinion, Radio New Zealand has a duty to present a balanced and factually correct report. The full circumstances explaining the incident and how and why Captain Cook resorted to firearms should have been included.’
- Care should be taken with news items which may be ‘politically divisive’.
- There was no ‘commitment or comment’ about an intention for a follow-up broadcast ‘to offer an alternative point of view’.
- There was no effort to ensure accuracy in relation to all material points of fact regarding Captain Cook’s first arrival in New Zealand, ie ‘the reasons why shots were fired and people were killed.’
- The justification for the boycott is ‘not based on accurate records of the historical events.’
- There was no attempt to ‘dispute the so-called facts as presented.’
- Mr Stubbs provided examples of publications documenting the incident.1
- RNZ is responsible to its listeners and they were not treated fairly by this broadcast.
- ‘[P]erhaps the broadcasting definition of fairness should include listeners (and viewers).’
 Finally, Mr Stubbs submitted that: ‘While these kinds of biased articles…may seem insignificant in themselves, the sum total of them over time is significant and in [his] opinion is promoting disharmony in New Zealand.’ It is the responsibility of state-owned media to be ‘extra vigilant’ in the way it presents reports and news.
The broadcaster’s response
 RNZ responded that the broadcast did not breach broadcasting standards for the following reasons:
- Upholding this complaint would impinge upon RNZ’s, Tina Ngata’s and other speakers’ rights to freedom of expression.
- ‘On this occasion, what was expressed was the highest value of free speech, i.e. political speech being criticism of government planned and funded commemorations.’
- ‘Stifling such speech would lead to a greater harm to society than allowing individuals that right to communicate to the wider public whom they serve.’
- The item did not cover a controversial issue of public importance as its focus was the boycott, not ‘an in-depth examination of the commemorations themselves or the historical events that [are] intended to be celebrated.’
- The issue was not ‘discussed’ and the item was not intended to be an ‘in-depth analysis of the wider controversial issues at play.’
- Alternatively, it is not clear what other significant points of view needed to be included in the programme.
- ‘The extent of the criticism levelled by the participants was addressed by comments provided from the Ministry of Culture and Heritage which is funding the commemorations.’
- The broadcaster’s obligation is to ensure that significant perspectives are covered within the period of current interest, not in a single item. The commemorations are not being held until October-December 2019 ‘so the period of current interest is still open in the topic.’
- The accuracy standard is not intended to prevent the publication of material that is distinguishable as analysis, comment or opinion.
- Ms Ngata’s comments were ‘an expression of her comment, analysis or opinion.’
- ‘To the extent that her comments about people being killed could be considered factual, they were based on her research into the journals of Banks, Parkinson and Hawkesworth along with Cook’s own journals, as well as Nicholas Thomas’s book “The Voyages of Captain James Cook”.’
- Her statements would not have misled listeners as to the reasons for the boycott of the commemorations, which was the focus of the item, not a detailed examination of the records of Cook’s landing in New Zealand.
- ‘[G]iven the number of differing accounts of what actually happened at each of the encounters, and indeed the number of encounters that Ms Ngata was referring to, there is the possibility that different figures could be used.’
- It is unclear from the complaint which person or organisation was treated unfairly in the item.
- If the complaint is that James Cook was treated unfairly in the broadcast, then the fairness standard does not apply as it does not apply to deceased people.
- ‘[I]t would be difficult to see what unwarranted damage had been caused to James Cook’s reputation.’
The relevant standards
 The accuracy standard states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead. The purpose of this standard is to protect the public from being significantly misinformed.2
 The balance standard states that 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 fairness standard states that broadcasters should deal fairly with any person or organisation taking part or referred to in any broadcast. Its purpose is to protect the dignity and reputation of those featured in programmes.3
 The right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, is the starting point in our consideration of complaints. Equally important is our consideration of the level of actual or potential harm that may be caused by the broadcast. We may only interfere and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.
 We note the complainant’s submission that ‘biased’ reporting may promote disharmony in New Zealand. However, the importance of freedom of expression is such that, at times, the exercise of it may cause disharmony or offence. The Authority’s role is to achieve a sensible balance between those outcomes recognising that the sharing of different perspectives contributes to our community’s social, cultural and intellectual growth.
 We are also conscious that inciting racial disharmony is an offence under the Human Rights Act 1993.4 It is outside our jurisdiction to determine whether such an offence has occurred. However, it is illustrative of Parliament’s approach to such matters that the offence is not triggered without ‘threatening, abusive or insulting’ language,5 none of which we consider to be present in this broadcast.
 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 complainant’s primary concern is the accurate reporting of events which allegedly occurred when Captain Cook landed and what he considers to be important information and context about the events that he wished to be included in this item. Regarding whether historical events amount to controversial issues of public importance, we have previously found:9
…while a historic event may be of great public interest at the time and may continue to be of historical interest, the later discussion or analysis of such an event will not necessarily be considered a controversial issue of public importance.
 We agree that a similar approach is appropriate in this case and that events associated with Captain Cook’s arrival do not constitute a controversial issue of public importance for the purposes of the standard.
 However, the focus of the broadcast in question was the protests surrounding the Tuia – Encounters 250 commemorations in light of the controversial perception of Captain Cook within Aotearoa, specifically amongst Māori, and the ongoing effects of colonisation. We find that the upcoming Tuia – Encounters 250 commemoration is a controversial issue of public importance, considering the diversity of views about whether a commemoration is appropriate, what should be commemorated, widespread media coverage and the impending protests.
 Further, we accept that this issue was ‘discussed’ as contemplated under the standard and that Morning Report is a ‘news, current affairs and factual programme’. On this basis, we agree that the balance standard applies and we now turn to whether RNZ made reasonable efforts to present significant points of view within the programme or in the period of current interest.
 The assessment of whether a reasonable range of other perspectives has been presented includes consideration of a number of factors, including:10
- whether the programme purported to be a balanced examination of an issue
- whether the programme was clearly signalled as approaching a topic from a particular perspective
- whether the programme was narrowly focused on one aspect of a larger, complex debate
- whether listeners could reasonably be expected to be aware of views expressed in other coverage, including coverage in other media.
 Ultimately, the objective is to enable the audience to arrive at an informed and reasoned opinion (which is important to the operation of an open and democratic society).11
 In this case, we consider that objective was satisfied. This broadcast was clearly introduced and presented as coming from the perspective of indigenous rights activists. Listeners would not have expected it to include a comprehensive analysis of the arguments in favour of holding the Tuia – Encounters 250 commemorations (including any historical perspectives on why Captain Cook’s arrival should be commemorated). The broadcast narrowly focussed on the proposed boycott (including the reasoning behind it, noting the lasting effects of colonisation for Māori).
 Additionally the broadcast did feature balancing comment from MCH, who are responsible for overseeing the Tuia – Encounters 250 commemorations:
…Tuia will be about acknowledging colonisation and having some hard and honest conversations about our history. Some events will be led by Iwi and hapu who will share their account of [Captain] Cook and their own voyages.
 Finally we are satisfied that listeners will be aware there are other perspectives regarding the Tuia – Encounters 250 commemorations. The encounters, and more specifically the proposed boycott of the commemorations, have received significant media attention, covering a range of perspectives that contribute to this discourse.12
 Considering the clear focus of the broadcast, the presentation of conflicting perspectives and the significant media coverage within the period of current interest, we find balance was achieved. We consider the broadcast would have enabled the audience to arrive at an informed and reasoned opinion with respect to the proposed boycott of the Tuia – Encounters 250 commemorations.
 Therefore we do not uphold the complaint under the balance standard.
 The accuracy standard is concerned only with material inaccuracy. For example, technical or unimportant points unlikely to significantly affect the audience’s understanding of the programme as a whole are not material.13
 We acknowledge that aspects of Captain Cook’s first arrival and the ensuing conflict remain in dispute amongst historians. However, as we have noted in relation to the balance standard, the focus of this item was the proposed boycott of the Tuia – Encounters 250 commemorations (including the reasoning behind it, noting the lasting effects of colonisation for Māori).
 In this context, we do not consider that precise details of Captain Cook’s arrival, eg whether Captain Cook fired on Māori in an unprovoked manner, were material to the item as a whole, or would have significantly affected listeners’ understanding of the item. The story did not purport to be a detailed examination of the historical events, but instead explored why indigenous rights activists and others consider it inappropriate to commemorate the encounters.
 Therefore we do not uphold the complaint under this standard.
 The complainant suggests that presentation of allegedly inaccurate facts in the broadcast amounted to the unfair treatment of the listeners. However, the fairness standard only applies to people or organisations who take part in or are referred to in the broadcast in question.
 As the complainant has not identified any person or organisation who took part in or was referred to in the broadcast, the fairness standard does not apply.
 Therefore we do not uphold the complaint under this standard.
For the above reasons the Authority does not uphold the complaints.
Signed for and on behalf of the Authority
Judge Bill Hastings
17 September 2019
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Derek Stubbs’ formal complaint – 19 May 2019
2 RNZ’s response to the complaint – 14 June 2019
3 Mr Stubbs’ referral to the Authority – 4 July 2019
4 RNZ’s further comments – 25 July 2019
5 Mr Stubbs’ final comments – 12 August 2019
6 RNZ’s final comments – 12 August 2019
1 ‘The Trial of The Cannibal Dog – Captain Cook in the South Seas’ by Dame Anne Salmond, ‘Captain James Cook’ by Richard Hough, and Captain Cook’s original diaries.
2 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
3 Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
4 Human Rights Act 1993, s 131
5 As above, s 131(1)(a) and (b)
6 Guideline 8a
7 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
8 As above
9 Lee and Radio New Zealand Ltd, Decision No. 2017-088 at , Lee and MediaWorks TV Ltd, Decision No. 2016-044 at 
10 Guideline 8c
11 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
12 See for example: Tuia 250 Voyage flotilla announced (The Informer, 14 May 2019), Lizzie Marvelly, Lizzie Marvelly: A tour from one murder scene to the next (NZ Herald, 18 May 2019), Leigh-Marama McLachlan, Critics say the $20 million Cook landing commemorations ignore Māori pain (The Spinoff, 10 May 2019), Tuiā 250 chance to tell Māori version of history (Waatea News, 21 May 2019), Jody O’Callaghan, Cook arrival to Aotearoa event 'encourages awkward conversations', MP says (Stuff, 11 July 2019)
13 Guideline 9b