BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

Mr Mark Middleton, stepfather of a murdered 13 year-old girl, publicly threatened to kill the murderer should he be granted release from prison on parole. Because of this threat, the Children, Young Persons and Their Families Agency (CYPFA) removed a foster child whom he had been looking after for three years. In an item on Holmes broadcast on TV One at 7.00pm on 27 August 1999, Mr Middleton was interviewed about CYPFA’s actions. CYPFA's position was advanced in the interview by Hon Roger McClay, Commissioner for Children.

Mr Bracey complained to Television New Zealand Ltd, the broadcaster, that the item breached broadcasting standards as it failed to respect the principles of law, and was unbalanced. The former requirement was breached, he wrote, as the powers and functions of the Parole Board were not explained, and he argued that a spokesperson for the Corrections Department or the Parole Board was necessary to provide balance.

Explaining that CYPFA's decision to remove the foster child was the issue addressed in the item, and that it was canvassed in a balanced way, TVNZ declined to uphold the complaint. Furthermore, it wrote, the parole process had been dealt with in an earlier interview with Mr Middleton,

Dissatisfied with TVNZ's decision, Mr Bracey referred his complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority declines to determine the complaint.

Decision

The members of the Authority have viewed the item complained about and have read the correspondence which is listed in the Appendix. In this instance, the Authority determines the complaint without a formal hearing.

Mr Mark Middleton, stepfather of Karla Cardno who was murdered when aged 13, and Hon Roger McClay, Commissioner for Children, were interviewed on the Holmes programme broadcast on TV One on 27 August. Because Mr Middleton had publicly threatened to kill his stepdaughter’s murderer should he be released from prison by the Parole Board, the Children and Young Persons and Their Families Agency (CYPFA) had removed from Mr Middleton’s care a boy he had been fostering for three years. During the item, Mr McClay pleaded with Mr Middleton to withdraw his threats toward the murderer. He declined to do so.

Mr Bracey complained to TVNZ that the item breached G5 of the Television Code of Broadcasting Practice as it failed to respect the principles of law, and standard G6 as it dealt with a controversial issue in an unbalanced way.

In regard to standard G5, Mr Bracey pointed out that the item failed to explain the operation of the Parole Board. The Board, he added, was required to consider among other matters the likelihood of an offender committing further offences, whether any other person would be affected by an offender’s release, any recommendations made by the sentencing judge, and submissions from a range of people. The item, Mr Bracey noted, did not advise whether Mr Middleton had made a submission to the Parole Board.

As for the balance requirement in standard G6, Mr Bracey considered that a representative from either the Corrections Department or the Parole Board should have been interviewed to explain the framework under which parole was granted or denied.

Expressing sympathy for Mr Middleton, Mr Bracey said he was concerned that the public exposure of Mr Middleton could result in his being prosecuted for threatening to kill. Mr Bracey concluded:

The item vividly portrayed Mr Middleton’s "life sentence", his anguish, bitterness and rage, as well as the insensitivity and ineptitude of the Children, Young Persons and their Families Service.

TVNZ considered the complaint under the nominated standards. They require broadcasters:

G5  To respect the principles of law which sustain our society.

G6  To show balance, impartiality and fairness in dealing with political matters, current affairs and all questions of a controversial nature.

TVNZ began by expressing the opinion that the complaint was at cross-purposes with the editorial intent of the item. The item, it wrote, was not about the Parole Board: rather it was about CYPFA’s decision to remove a foster child from Mr Middleton’s care. In TVNZ’s opinion:

Within this context, a discussion of the Parole Board and its powers and functions did not seem necessary or appropriate.

In response to Mr Bracey’s comment that material earlier broadcast about the Parole Board should have been repeated on 27 August, TVNZ said it was impractical for every running story to repeat the detail contained in earlier items.

TVNZ acknowledged that the work of the Parole Board was a legitimate subject for investigation from time to time. However, it added, it was not relevant to the item broadcast on 27 August. Accordingly, TVNZ did not regard standard G5 as relevant to the complaint.

Turning to standard G6, TVNZ maintained that the item was appropriately balanced given the subject matter of the item. Alternative views, it pointed out, had been advanced by Mr McClay and Mr Middleton.

When he referred his complaint to the Authority, Mr Bracey contended that there would not have been an item had Mr Middleton not threatened to take the law into his own hands and to murder the killer of his stepdaughter should he be granted parole. CYPFA’s action in removing the foster child was a direct consequence of the threat and, Mr Bracey wrote:

A first-time viewer to the 27 August item may well have concluded that Mr Middleton was powerless and had no recourse in regard to the pending September Parole Board Hearing.

In its report to the Authority on the referral, TVNZ contended that Mr Bracey was advancing the view that a different story – ie one about the Parole Board – should have been screened.

In his final comment, Mr Bracey maintained that the "first time viewer" of the 27 August item was given no background context relating to the Parole Board and its responsibilities. He reiterated his point that CYPFA’s actions followed Mr Middleton’s public threat and, accordingly, the 27 August broadcast breached the nominated standards.

The Authority’s Findings

In his referral to the Authority, Mr Bracey repeats his complaint that the item breached the standard G5 as it failed to explain the operation of the Parole Board, and that it lacked balance (a breach of standard G6) because it failed to interview a person - such as a Department of Corrections spokesperson - who could advise on the Parole Board’s procedures and the probable outcome of Mr Dally’s application.

TVNZ’s response to the complaint, the Authority observes, was to explain that the editorial purpose of the item was to examine CYPFA’s decision, and to enable Mr McClay to advance his argument to Mr Middleton. The Parole Board’s processes, TVNZ added, had been explained in an earlier item when Mr Middleton had made his threat. It was not necessary, it argued, to repeat that detail in this item.

Mr Bracey advised that he had not seen the earlier item, and considered that the failure to explain the Parole Board’s operation on the 27 August item undermined respect for the maintenance of law.

Having viewed the item and read the correspondence, the Authority does not accept Mr Bracey’s submissions. The 27 August item, it notes, explored Mr Middleton’s reaction to CYPFA’s actions. It considers that the balance which was necessary for this item was provided by Mr McClay. Secondly, in respect to Mr Bracey’s claim that the item did not cover matters which he considered highly relevant, the Authority concludes that his complaint is based substantially on a matter of viewer preference. Complaints based on a complainant’s preference, as s.5(c) of the Broadcasting Act makes plain, are not in general capable of being resolved by the complaints procedure established by the Act. In these circumstances, the Authority declines to determine the complaint under s.11(b) of the Act.

For the reasons above, the Authority declines to determine the complaint.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
11 November 1999

Appendix

The following correspondence was received and considered by the Authority when it determined the complaint:

1. Mr O Bracey’s Complaint to Television New Zealand Ltd – 1 September 1999

2. TVNZ’s Response to the formal Complaint – 21 September 1999

3. Mr Bracey’s Referral to the Broadcasting Standards Authority – 27 September 1999

4. TVNZ’s Response to the Authority – 8 October 1999

5. Mr Bracey’s Final Comment – 14 October 1999