Brooking and Television New Zealand Ltd - 2009-012
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Breakfast – interview with Garth McVicar from the Sensible Sentencing Trust regarding a 21- month prison sentence given to a man found guilty of illegally selling his large gun collection on the black market – discussion about whether sentences in New Zealand were long enough – allegedly unbalanced
Standard 4 (balance) – item discussed a controversial issue of public importance – viewers only provided with one significant viewpoint – upheld
This headnote does not form part of the decision.
 A segment during Breakfast, broadcast on TV One at 7.10am on Thursday 18 December 2008, included an interview with Garth McVicar from the Sensible Sentencing Trust. The interview focused on the previous day’s sentencing of a man to 21 months imprisonment for illegally selling his large gun collection on the black market.
 The Breakfast presenter sought the Sensible Sentencing Trust’s view on the man’s sentence. Mr McVicar said it was too lenient, and that the judge had “got it wrong”. During the interview, the presenter and Mr McVicar discussed sentencing laws in general and whether judges in New Zealand were giving criminals appropriate sentences. They also discussed several specific cases and whether the sentences imposed were adequate.
 At the end of the interview, the presenter stated:
So what do you think – was [the man’s] 21-month sentence long enough? Was it enough of a deterrent? Let us know what you think.
 After inviting viewers to give their opinion on the man’s sentence, the programme’s other presenter said:
Now, he’s a good man that Garth. Are you still there Garth? Happy Christmas to you by the way. You’ve had, I think, a very successful year for the Sensible Sentencing Trust too, and he works so very hard for it. So have a good Christmas and New Year Garth.
 Roger Brooking made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging the item was unbalanced. He argued that the interview enabled Mr McVicar to present his criticisms of the judge and to “repeatedly air his right wing populist views about law and order, generally criticise judges for being lenient on criminals and expound his belief that this fails to send a message of deterrence to other criminals in the community”.
 The complainant considered that, “no attempt was made to present the other side of the argument on sentencing and law and order issues”. He argued that other people should have been interviewed, such as a lawyer or criminologist, to counterbalance Mr McVicar’s views. Mr Brooking stated that there was extensive evidence which conclusively proved that prison fails to act as a deterrent to offending, and that this information should have been included also.
 Mr Brooking considered that it was totally inappropriate for the broadcaster to present “the reactionary views of an unqualified right wing individual as if he was the oracle on sentencing law”, and argued that the presenters had expressed sympathy for Mr McVicar’s viewpoint.
 TVNZ assessed the complaint under Standard 4 of the Free-to-Air Television Code of Broadcasting Practice. It provides:
Standard 4 Balance
In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.
Broadcaster's Response to the Complainant
 TVNZ stated that Breakfast was “a mixture of news, serious interviews, magazine segments, review and often frequent good-natured ribbing at the expense of almost anyone in the headlines or visiting the set”. It contended that the issue of sentencing was topical and that the viewpoint of the Sensible Sentencing Trust was frequently sought by the public. It considered that Mr McVicar was simply voicing his genuinely held opinions on sentencing in New Zealand.
 The broadcaster noted that Standard 4 allowed for balance to be achieved in the same programme or in other programmes during the period of current interest. It pointed out that, the day before Breakfast’s interview with Mr McVicar, both One News and One News Tonight had included full reports on the sentencing of the man. These items, it said, contained footage of the sentencing judge and his words to the man and included comment from the Hamilton Police. It provided the Authority with copies of these items.
 TVNZ considered that it had made reasonable efforts to present significant points of view, and that balance had been achieved over more than one programme. It declined to uphold the complaint.
Referral to the Authority
 Dissatisfied with TVNZ’s response, Mr Brooking referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.
 In response to TVNZ’s argument that reasonable efforts had been made to present significant views, the complainant contended that the comments from the Hamilton Police in the One News report did not relate to the man’s sentence, but to the illegal black market in firearms. He argued that it was “a stretch” for TVNZ to use the comments made by the judge at sentencing to justify its belief that reasonable opportunities were given to present significant points of view.
 Mr Brooking said that, “while the One News stories were about [the man’s sentence], the Breakfast interview was not”. He considered the interview related to penal policy in general and the so-called failings of the justice system. He argued that the issue relating to the man’s sentence was “just the lead-in” to a wider discussion and that other significant perspectives were needed for the item to be balanced.
 The complainant maintained that the item had lacked impartiality because the presenters had supported Mr McVicar’s opinions, expressed sympathy for his views and had not challenged him to justify his point of view.
Authority’s Request for Further Information
 After completing a preliminary assessment of the complaint, the Authority offered TVNZ an opportunity to provide it with copies of other programmes it had broadcast on the subject of “whether judges in New Zealand should be handing down longer sentences”, within the period of current interest.
 TVNZ stated that on 14 December 2008, it had broadcast an item on One News that reported on Parliament’s “rushing through” of changes to the Sentencing Act 2002 via an amendment which became the Sentencing (Offences Against Children) Amendment Act 2008. It noted that the item included an interview with the Chief Executive of Barnardos, who suggested that sentencing in itself was not the answer but part of the solution.
 The members of the Authority have viewed a recording of the broadcast complained about and the additional items provided by TVNZ, and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 Standard 4 requires broadcasters to maintain standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.
 When the Authority considers an alleged breach of the balance standard, it must first decide whether the item complained about discussed a controversial issue of public importance. On this occasion, the item discussed whether judges in New Zealand should be handing down longer sentences. In the Authority’s view, this was a controversial issue of public importance to which the balance standard applied.
 During the interview, the broadcaster gave Mr McVicar ample opportunity to put forward his view that the sentences being handed down in New Zealand were not long enough, and therefore were not acting as a deterrent to criminals. The Authority considers that because this perspective was controversial, it needed to be balanced by the presentation of the opposing view – that longer sentences did not necessarily act as a deterrent.
 Given the nature of the programme and the style and length of the interview, the Authority considers that the opposing view did not necessarily have to come from another interviewee; the interviewer could have presented an alternative viewpoint by acting as devil’s advocate and challenging Mr McVicar’s assertions. This did not occur – in fact, the presenter implicitly accepted Mr McVicar’s view when asking viewers, “Was [the man’s] 21-month sentence long enough? Was it enough of a deterrent?”
 The Authority considers that the programme did not give viewers any sense that Mr McVicar’s views on sentencing were debateable or contentious. As a result, it finds that the broadcaster did not make reasonable efforts to present significant perspectives on the controversial issue under discussion within the Breakfast programme on 18 December 2008.
 Having reached this conclusion, the Authority turns to consider whether balance was provided by “other programmes within the period of current interest”, as allowed by Standard 4.
 With respect to the initial items given to the Authority by TVNZ, the Authority notes that the One News item showed the judge sentencing the man convicted of illegally selling firearms, and the One News Tonight item related to the illegal black market in firearms. The additional One News item supplied to it by TVNZ (see paragraph ) addressed the issue of changes being made to the Sentencing Act 2002, by way of an amendment.
 The Authority finds that none of the items relied on by the broadcaster as providing balance discussed the same controversial issue as Breakfast on 18 December – whether judges in New Zealand should be handing down longer sentences. As a result, the Authority finds that the broadcaster did not provide balance on that issue within the period of current interest.
 Having reached this conclusion, the Authority must consider whether to uphold this complaint as a breach of Standard 4.
 The Authority acknowledges that upholding the Standard 4 complaint would place a limit on the broadcaster’s right to freedom of expression, which is protected by section 14 of the New Zealand Bill of Rights Act 1990. In Decision No. 2008-014, the Authority determined that upholding a complaint under Standard 4 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. In that decision, the Authority described the objective of Standard 4 in the following terms:
... the balance standard exists to ensure that competing arguments are presented to enable a viewer to arrive at an informed and reasoned opinion. The standard only applies to programmes which discuss "controversial issues of public importance", and therefore this objective is of vital importance in a free and democratic society.
 With that in mind, the Authority must consider whether it would be a reasonable and proportionate limit on TVNZ’s freedom of expression to uphold a breach of Standard 4 on this occasion. It finds that upholding this complaint would ensure that when an interviewee only puts forward one perspective on a controversial issue, broadcasters make reasonable efforts to either challenge that perspective or present the alternative view in another programme within the period of current interest. In this respect, upholding this complaint clearly promotes the objective of Standard 4, and therefore places a justified and reasonable limit on TVNZ’s freedom of expression. The Authority therefore upholds the complaint that the item breached Standard 4.
For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of Breakfast on 18 December 2008 breached Standard 4 of the Free-to-Air Television Code of Broadcasting Practice.
 Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. It does not intend to do so on this occasion. The Authority is satisfied that its decision will serve as a reminder to TVNZ to ensure that when interviewees coming from a particular perspective discuss controversial issues of public importance in news, current affairs or factual programmes, efforts are made to challenge those views or to provide alternative viewpoints during other programmes within the period of current interest.
Signed for and on behalf of the Authority
10 June 2009
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Roger Brooking’s formal complaint – 19 December 2008
2. TVNZ’s response to the formal complaint – 3 February 2009
3. Mr Brooking’s referral to the Authority – 12 February 2009
4. TVNZ’s response to the Authority – 26 February 2009