BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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CanWest TVWorks Ltd became TVWorks Ltd on 15 June 2007. Because the programme complained about was broadcast prior to this date, the broadcaster is still named as CanWest TVWorks Ltd (CanWest) except for the purpose of orders.

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Table of Contents

SectionParagraph numbers Broadcast 1-12 Complaint 13-36 Standards 37 Broadcaster's Response to the Complainant 38-51 Referral to the Authority 52-114 Broadcaster's Interim Response to the Authority 115-117 Complainant's Response to the Broadcaster’s Interim Submission 118-120 Broadcaster's Response on the Substantive Complaint 121-132 Complainant's Further Response to Interim Submissions 133-137 Interlocutory Decision 138-141 Complainant's Response to Broadcaster's Substantive Submissions 142-155 Broadcaster's Final Comment 156-165 Complainant's Final Comment 166-168 Authority's Request for Information Regarding Expert Assistance 169-170 Submissions from the Broadcaster on Appointment of Expert 171-172 Further Submissions from Complainant on Appointment of Expert 173-175 Authority's Determination 176-293 Submissions on Orders 294-297 Decision on Orders 298-301 Appendix 1 Delays in the processing of this complaint 302-314 Appendix 2 Correspondence

Headnote

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Let Us Spray – investigation into the effects of the chemical 2,4,5-T in New Zealand – interviewed residents of Paritutu who believed that various illnesses and birth defects in their families were a result of exposure to the chemical – outlined the historical and present day action taken by the Ministry of Health in relation to the people of Paritutu – discussed a serum study which measured the amount of dioxin in their system – alleged that the study was significantly flawed and downplayed level of exposure – programme allegedly unbalanced, inaccurate and unfair

Findings
Standard 4 (balance) – broadcaster did not make reasonable efforts to present significant perspectives on the criticisms of the serum study – viewers needed to be presented with the Ministry's view about the current state of scientific knowledge surrounding dioxin – upheld

Standard 6 (fairness) – failure to present significant perspectives led to unfairness to MOH and ESR – upheld

Standard 5 (accuracy) – subsumed into consideration of Standards 4 and 6

Order
Section 13(1)(a) - broadcast statement

This headnote does not form part of the decision.

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Broadcast

[1]  A TV3 Special Investigation entitled Let Us Spray was broadcast on Monday 23 October 2006¹ at 7.30pm on TV3. The presenter/reporter introduced the programme as being the result of a year-long investigation into the production and use of the chemical 2,4,5-T in New Zealand, and said:

For decades, the herbicides 2,4,5-T and 2,4-D were made in New Plymouth and sprayed all over New Zealand, and for decades many New Zealanders have blamed the dioxin contained in these chemicals for deaths, illnesses and birth defects. Successive government reports have said there’s not enough evidence to make a direct link, but that hasn’t washed with many people, especially those who lived near the Ivon Watkins Dow manufacturing plant. They have talked of a cover-up, one of the biggest cover-ups in New Zealand history.

[2]  The reporter conducted interviews with several Paritutu residents and their extended families, all of whom believed that various illnesses and birth defects in their families were a result of exposure to 2,4,5-T or 2,4-D. Some of the interviewees were highly emotional and said they felt guilty for having passed on health problems to their children and grandchildren.

[3]  An "advocate for people who believe they've been poisoned by the Ivon Watkins Dow plant", Andrew Gordon-Gibbs, gave his view that the people of Paritutu simply wanted "healthcare and recognition" which, he said, "would probably cost less than what our government spent covering it up over the years". Mr Gordon-Gibbs said that the people of Paritutu had "had their DNA blown apart" by IWD, and that many families had three generations of health problems.

[4]  The reporter interviewed Gary Green who, the programme said, had "proof he’s been poisoned" as his dioxin levels were "around six times what they should be". The reporter said that Mr Green had worked at a company "just over the way" from IWD in the mid 1980s. Mr Green outlined the various health effects he said he suffered as a result of dioxin poisoning. He said:

For me [dioxin] has attacked my endocrine system, it's attacked my gastric system, it attacks your immune system - my immune system is shot, it doesn’t work. I mean, I’ve got sores that don't heal.

[5]  The reporter stated that, from 1965 until 1971, a matron at the West Town Maternity Hospital in New Plymouth started seeing deformities "at a rate she had never seen before in 29 years of maternity work". Photographs of several babies with birth defects and deformities were shown after the reporter warned that the pictures would be "extremely disturbing". The reporter said that the matron claimed to have sent the findings of her study of over 5,000 babies to what is now the Ministry of Health, who "say they have never received it. Whatever the case, it wouldn’t see the light of day for 30 years when it was finally reviewed by Taranaki Health". The reporter said that neural tube defects in babies from Paritutu were three and a half times the national level, but Taranaki Health concluded that this was not statistically significant.

[6]  The reporter noted that New Zealand had taken part in a World Health Organisation (WHO) study of dioxin levels in breast milk in 1989, which found that the lowest levels were detected in India, New Zealand and Thailand. The reporter said:

How could this be? Well, as chance would have it, it was the first two samples analysed that were sent to the World Health Organisation and they just happened to be by far two of the lowest of the 37 samples.

[7]  Andrew Gordon-Gibbs said that this "may well have been a coincidence but I find it interesting they declined to take part in the next WHO round of breast milk testing. I believe they were aware the longer they left it the lower the levels would be".

[8]  The reporter stated that in February 2004, blood serum tests of Paritutu residents were taken, and in March 2005 the Ministry of Health (MOH) released "what would be the full and final report" showing that Paritutu residents on average had four times the dioxin levels of other New Zealanders. The reporter stated that the New Plymouth dioxin group believed that the serum study was "seriously flawed", so the programme had hired an "independent expert", forensic accountant John Leonard, to see if the concerns were warranted. Mr Leonard stated that he believed they were, and the reporter said:

In brief, John Leonard found that there were participants in the wrong group, different data sets merged, a potential omission of a key participant and lack of certainty because of the reduced sample size.

[9]  Mr Leonard said he was concerned about the accuracy of the report, and he did not think that the residents of Paritutu had been well served by the study. He said:

My recommendation would be that somebody totally independent look at this. The data is there - why not let somebody else look at it? If it's accurate then, fine, I'm wrong. But if it’s not accurate then we will find out the correct position.

[10]  The reporter interviewed Dr Mark Jacobs, the Director of Public Health at MOH, and conveyed Mr Leonard's concerns about the study. Dr Jacobs said that if there were issues around the study then MOH would like to know about them, and the item included the following exchange:

Reporter:        [Mr Leonard's] recommendations are that the serum study is reviewed with the raw
                      data by an independent... by a statistician, preferably someone off-shore. Will you
                      agree to this?

Dr Jacobs:      Well, certainly, in fact we’ve already had the study and its methodology and its
                      findings reviewed by a number of independent experts off-shore...

Reporter:        Did they have Appendix O? Did they have the raw data?

Dr Jacobs:      I think they got all of it, yes.

Reporter:        Well, I’ve asked them and they didn’t. They didn’t have Appendix O, which has
                      got the anonymous serum results in it.

[11]  The reporter put to Dr Jacobs that there were issues with the data, and she noted that MOH had not released Appendix O under Official Information Act requests. Dr Jacobs stated that the document would be released if the Ombudsman and the Privacy Commissioner indicated that there were no privacy concerns.

[12]  The reporter asked Dr Jacobs whether he understood "why people think this has been one heck of a cover-up when it comes to dioxin, Paritutu, 2,4,5-T, Ivon Watkins Dow", and he stated that he could understand the concern that there had been delays and studies with inconclusive results.

Complaint

[13]  MOH made a formal complaint about the programme to CanWest TVWorks Ltd (CanWest), the broadcaster, alleging that the programme was unbalanced, inaccurate and unfair. In the complainant's view, there were two key themes in the programme:

• There had been a consistent cover-up by the former New Zealand company Ivon Watkins Dow (IWD) and by government agencies, and this cover-up was not only historical but recent and ongoing; and
• A report recently commissioned by MOH misrepresented the exposure to dioxin (a harmful by-product of the herbicide production process) of people living in the community.

[14]  MOH stated that its complaint had three parts. First, it argued that the broadcaster had treated MOH unfairly in a premeditated and deliberate manner. The programme, it wrote, had presented without challenge claims that a cover-up was current and continuing, when the programme makers knew (or must have known) that there was extensive evidence to the contrary. MOH contended that the programme had suggested that government agencies were deliberately doing nothing, to the extent of waiting for the complainants to die, so that the problem would go away. In the complainant’s view, the broadcaster had ignored contrary evidence and wilfully failed to make contact with agencies that MOH had arranged to make available to the programme makers. It said much of the material used to support the programme’s thesis was selective and historical.

[15]  Second, MOH argued that the programme was inaccurate and untruthful because it had presented as current the claim of a Ministry cover-up about the harm attributable to dioxin. The programme was also inaccurate because it had presented a multitude of serious health problems as being caused by exposure to dioxin, without considering that some or all of those problems may have been caused by factors entirely unrelated to dioxin. The complainant maintained that there had been no attempt to refer to current scientific knowledge about the known and accepted effects of dioxin exposure, and the fact that it is not generally accepted that dioxin would be the cause of many of the health problems complained about.

[16]  Third, the complainant said that the programme was unbalanced because it "ignored, downplayed, misconstrued and misrepresented the government's and Ministry of Health's recent activities regarding dioxin exposure nationally and within Paritutu". The broadcaster had not attempted to present alternative explanations for the health complaints made by individuals on the programme. MOH argued that the programme was unbalanced because the broadcaster had deliberately chosen not to include other relevant views despite the relevance of those views having been explained to it, and despite serious criticism of individuals and agencies that were not put to those concerned.

[17]  MOH outlined its complaints under each nominated standard of the Free-to-Air Television Code.

Standard 4 (balance)

[18]  The complainant noted that the programme was a news and current affairs programme which had discussed an issue of public interest - the effects of exposure to dioxin from the operation of the Ivon Watkins Dow plant in New Plymouth. Therefore, it said, CanWest had a clear obligation to ensure that it made reasonable efforts to present significant viewpoints "other than those for which it was campaigning".

[19]  MOH said that, in 2001, the Government had adopted a "whole of government" approach to deal with the possible effects of dioxin and, in particular, to review the claims and concerns surrounding the Ivon Watkins Dow plant. It wrote:

As part of that, an interdepartmental organochlorines senior officials group was established. This group included representatives of the Ministry [of Health], the Ministry for the Environment, the Occupational Health and Safety division of the Department of Labour (DOL) and the Accident Compensation Corporation (ACC). There was, in addition, liaison and co-ordination with District Health Boards. Information about ongoing studies and action by government agencies is publicly available from the Ministry's website which has links to the other agencies represented on the senior officials group. Information demonstrating other significant points of view from that singularly presented on the programme was readily available to TV3 from the Ministry’s and other (linked) websites.

[20]  Plainly, the complainant said, the broadcaster had deliberately chosen not to present these points of view in the programme, as it had ignored material which disputed the thesis presented.

[21]  MOH stated that the "whole of government" approach had been tangibly demonstrated by the manner of the release of both the interim blood serum dioxin report and the final report in New Plymouth. It said that at the media conferences where these documents were released, representatives from the Ministry for the Environment (MfE), the Taranaki District Health Board, Occupational Safety and Health (OSH), and the Institute of Environmental Science Research (ESR) had accompanied the MOH staff.

[22]  MOH noted that TV3 had attended both media conferences. Despite this, it said, the broadcaster had failed to present any comment from ESR, despite both MOH's and ESR's efforts to be jointly available. It had never presented the criticisms of the dioxin report to ESR, which had conducted the study and written the report, for a response.

[23]  MOH stated that the broadcaster had not interviewed the Ministry's representative until shortly before the programme went to air. When MOH had been asked to participate, it had arranged to make available representatives from all government agencies which had ongoing responsibility for different areas which MOH anticipated the programme might cover. These arrangements had been conveyed to the programme’s reporter by email but she advised MOH that the presence of those other agencies was not required. The programme makers were aware that other agencies would be able to present relevant information, MOH said, but they chose not to include this information or offer any opportunity for its inclusion.

[24]  In the complainant's view, the programme had contained criticisms of the ESR study and report. It was alleged that the blood serum dioxin study ESR had carried out was seriously flawed, the data wrongly interpreted and the level of dioxin exposure of the community downplayed. MOH contended that the broadcaster must have known that Mr Leonard’s claims would have been disputed by ESR, but it did not offer ESR the opportunity to dispute his contentions.

[25]  MOH maintained that CanWest should have contacted ESR and asked it for its views about the criticisms of its report. It said MOH had given the programme makers contact details for ESR and had recommended that they contact ESR prior to the programme going to air. It noted that other broadcasters had obtained and broadcast comment from ESR on this issue.

[26]  MOH said it had given CanWest written comments from ESR prior to the broadcast, and gave contact details for the key author and project director of the report. It also argued that the peer reviewers of the ESR report, who were experts in their field and ideally placed to give comments, could have been contacted by the broadcaster. By failing to put Mr Leonard’s criticisms to the peer reviewers, MOH said, CanWest had deliberately chosen not to include a significant point of view in the programme.

[27]  The complainant argued that the programme left the clear impression that Mr Leonard was an independent expert who was properly qualified to comment on the validity of the study. However, it said, he had no expertise in the relevant fields of science, statistics, toxicology or epidemiology. A chartered accountant's expertise, it wrote, would not be expected to extend to being able to determine the validity of a scientific or epidemiological study. MOH said that CanWest had a clear obligation to ascertain whether Mr Leonard’s criticisms were in fact valid. To broadcast his views without seeking comment from ESR, the peer reviewers, or a properly qualified expert was, MOH said, a serious breach of Standard 4.

[28]  MOH noted that the programme did not include the current knowledge about the health effects of dioxin, despite the fact that it was publicly available and ascertainable from the Ministry’s website. It said that reviews on the subject were conducted every two years by the Institute of Medicine, of the US National Academy of Sciences. MOH asserted that the programme did not question any of the claims made by the Paritutu people, or make any independent inquiries as to whether there was any scientific or reasoned basis for linking their health complaints to dioxin exposure. This was despite the fact that there was information readily available to show that exposure to dioxin was linked to only some of their conditions.

[29]  MOH said that Gary Green, who claimed in the programme to have proof of dioxin poisoning, appeared to have been exposed to dioxin from sources other than the Paritutu plant. This should have been disclosed, it wrote.

[30]   The complainant also argued that viewers should have been told that Andrew Gordon-Gibbs was leading the Chemically Exposed Paritutu Residents Association, as this was relevant to the credibility of his claims.

Standard 5 (accuracy)

[31]  The complainant argued that the programme did not provide a true reflection of the response by the Ministry or other government departments to the concerns of the Paritutu community. It contended that the programme presented allegations of a cover-up while knowing that MOH had actively engaged with the community.

[32]  MOH argued that the programme did not present the current knowledge about health effects that had been shown to be associated with exposure to dioxin.

Standard 6 (fairness)

[33]  MOH contended that the failure to seek comment from ESR was a breach of natural justice as well as a serious breach of Standard 6. This was compounded by the broadcast of the fact that the peer reviewers had not seen Appendix O, it said, as this left viewers with the clear impression that this proved there had been a cover-up. The programme makers knew that Appendix O was withheld for ethical reasons, MOH wrote, and Appendix O was not relevant to the peer review.

[34]   In the complainant’s view, claims about past actions ranging back to 1962 presented "significant problems", particularly where untoward motives were alleged against persons who may have died or were otherwise unable to respond. It wrote:

There was no responsible attempt to consider the actions of Ministry officials having regard to the then contemporary scientific knowledge. The programme alleged a continuing cover-up by the Ministry and its predecessors. No advance warning was given of these historical criticisms and the Ministry had no reasonable opportunity to make enquiries and respond. The purpose of such historical allegations was clearly to "tar" or "smear" the Ministry’s current actions. Such conduct is unfair.

[35]  MOH argued that it had been misled about the nature of the programme because it had been assured by CanWest that the presence of other agencies was not required. Knowing that the programme was going to criticise the ESR report, it was unfair and deceitful of the broadcaster to secure MOH’s participation without apprising the Ministry of the criticisms.

[36]  The complainant outlined a number of steps that the Ministry and other agencies had taken since 2001 in response to issues faced by the Paritutu community. It argued that this information should have been referred to in the programme in order for it to be fair.

Standards

[37]  CanWest assessed the complaint under Standards 4, 5 and 6 and guideline 4c of the Free-to-Air Television Code of Broadcasting Practice. They provide:

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.

Guideline 4c

Factual programmes, and programmes shown which approach a topic from a particular or personal perspective (for example, authorial documentaries and those shown on access television), may not be required to observe to the letter the requirements of standard 4.

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Broadcaster's Response to the Complainant

Standard 4 (balance)

[38]   CanWest stated that the introduction to the documentary had made it clear that the programme was approaching the issue from the viewpoint of those people who believed that they suffered from exposure to 2,4,5-T, 2,4-D and dioxin. The reporter had said "their views, and their personal struggles, are at the heart of this story". Essentially, the broadcaster asserted, the documentary fitted within the framework envisaged by guideline 4c because it clearly identified the focus of the programme.

[39]  Against that background, CanWest considered that the programme had included sufficient material to inform viewers that there were significant points of view contrary to those expressed by those people "at the heart of the story". It had also included enough information so that viewers would understand, in broad terms, the nature of those contrary views.

[40]   Referring to MOH’s complaint that ESR’s views were not sought, CanWest said that it had asked the documentary makers to comment on this issue. They had taken the view that MOH was "clearly the party responsible for comment on the Paritutu blood serum study" because:

• MOH had commissioned the report, and had promoted and publicly presented it.
• MOH documents stated that after round one of the serum tests, in August 2004, the dioxin issue had gained greater "political significance", and as a result MOH would be in charge of communications and the "strategy/presentation" of the Paritutu blood serum report.
• When various MPs had addressed questions in the House about the blood serum study to the relevant Minister, that Minister was the Hon Pete Hodgson, Minister of Heath.
• In a draft letter obtained by the documentary makers, ESR had stated: "ESR conducted this study on behalf of the Ministry of Health who thus own the data" and "As a consequence of this, all requests for individual data must be made to the Ministry of Health directly".

[41]   During negotiations with MOH for an interview, the documentary makers stated that it was clear that MOH accepted it would be the official body responding to any allegations. An email from a senior advisor at MOH had stated that "we agree you won’t also need to interview Labour and Environment officials".

[42]  In the broadcaster's view, MOH had clearly assumed responsibility for commenting on the ESR report for the programme and, in those circumstances, CanWest did not consider it a breach of Standard 4 (balance) to seek comment only from MOH. It also found that MOH had sufficient notice of the subject matter and sufficient opportunity to present its point of view.

[43]   CanWest maintained that viewers would have understood that MOH did not accept the viewpoints expressed by the individuals interviewed for the programme. It found that the balance standard was not breached.

Standard 5 (accuracy)

[44]   The broadcaster contended that MOH's complaint had not specified any particular statement of fact as being inaccurate. In relation to the health effects of exposure to dioxin, it said there had been no statement of fact about this because the state of scientific knowledge did not allow for such a statement. It provided comments from the documentary team which noted that scientists were uncertain and divided on the issue of dioxin exposure, and that few studies had been conducted on people who had been exposed to dioxin over long periods. The broadcaster also referred to the following statement in the programme which, it said, clearly indicated there was a diversity of views on the subject:

But there was a problem, a big problem…these herbicides contain an unwanted by-product... which many scientists believe can mutate genes, damage DNA and be passed down through generations of families. The Ministry of Health says claims of multi-generational effects aren't widely accepted scientifically. But Andrew Gordon Gibbs says...

[45]  In light of the above, CanWest found that Standard 5 was not breached.

Standard 6 (fairness)

[46]  CanWest reiterated its view that it was not unfair to seek the views of MOH, rather than ESR, in relation to the serum study.

[47]  With respect to the allegation of a cover-up, CanWest noted that this was the opinion of many of the interviewees, and had been presented as such. The programme had also presented some of the evidence supporting this view, it said. The documentary team had commented that:

There is a Ministry of Health memo describing one 2,4,5-T test as a "public relations exercise" which would be carried out even though "2,4,5-T will not be found after such a time".

Even the Ministry's unwillingness to provide TV3 with Appendix O to the serum studies may be indicative of a cover up. The Ministry claimed it could not make the appendix public because of ethical considerations. However, TV3 has extensive documentation demonstrating that the Ethics Committee, reporting to the Ministry, had no such concerns. The concern itself seems without logical foundation as the material is all anonymously provided.

[48]  The documentary team also responded to the specific points in MOH’s complaint relating to unfairness. It contended that Mr Leonard was qualified to seek out mathematical errors, and noted that MOH had been given a copy of his findings soon after the broadcast.

[49]   The documentary team also noted that claims about past actions of the government went back as far as 1948. These claims had been supported by documentation used in the broadcast, it said. The reference to historical matters was not an attempt to "tar" MOH’s current actions, but it was to ensure that the interviewees had an opportunity to express their strongly held beliefs.

[50]   Furthermore, the documentary team contended that it was "truthful, accurate and fair" for the programme to report that a "highly credible science based organisation" used the wrong background levels in Part 1 of the study, that there were participants categorised in the wrong groups, that there was a merging of data sets and that Appendix O contained mathematical errors. Appendix O, it said, had 65 percent of all totals listed incorrectly.

[51]  In the context of the programme, and in light of the ongoing investigation, CanWest maintained that the item was not unfair in the manner contended by MOH. It declined to uphold the complaint.

Referral to the Authority

[52]  Dissatisfied with the broadcaster’s response, MOH referred its complaint to the Authority under section 8(1)(a) of the Broadcasting Act 1989. It said, in essence, the complaint was that the programme created misleading impressions by omitting important information. These misleading impressions were inaccurate, and showed a lack of balance and fairness. It said that many of the arguments in its complaint went to all three standards.

[53]  MOH alleged that the programme would have left viewers with the following impressions about the production and use of 2,4,5-T and 2,4-D manufactured at IWD:

• They had caused or contributed to a range of serious illnesses including cancers, strokes, miscarriages, cerebral palsy, genetic disorders, hearing problems and birth defects such as spina bifida, cleft palates and Down’s Syndrome.
• Over the last 30 years, the government has consistently failed to take proper steps to investigate these health problems, and has misinformed the public about them – either covering up, or being unwilling to uncover, the truth about the effects of 2,4,5-T and 2,4-D.
• The 2004-2005 serum study on Paritutu residents contained serious flaws and an incorrect conclusion, and its authors withheld crucial information from the study’s peer reviewers, rendering the study unreliable and misleading.
• These failures, particularly those relating to the serum study, are the responsibility of MOH.

[54]  The complainant disputed CanWest's assertion that the programme was an "authorial documentary" of the kind envisaged by guideline 4c to the balance standard. It distinguished the programme from the documentary Murder on the Blade which was considered by the Authority to fall within the definition of an authorial documentary (see Decision No. 2004-127). Noting the argument of the minority of the Authority in that decision, MOH pointed out that:

...a programme that is unashamedly targeted, presents evidence selectively, and makes little effort to present contrary views, may be unbalanced even taking into account the looser standard.

[55]   In the complainant’s opinion, CanWest had not made it clear that "a particular editorial approach had been adopted", and viewers were not sufficiently alerted that the programme would be taking a perspective rather than presenting objective journalism. On the contrary, it wrote, the programme was described as the result of a "year-long investigation", emphasising its thoroughness and depth, and referring extensively to historical events and documents.

[56]   MOH agreed that the programme presented the perspectives of those who believed they suffered from dioxin poisoning. However, it said, none of the interviewees' claims had been challenged and the interviewer had appeared to agree with them. Furthermore, the programme had used language such as "cover-up", "turning a blind eye", "poisoned", "delay and deny until you die" to reinforce the interviewees' claims.

[57]  MOH also noted that the interviewees had only featured in two parts of the five-part item. The rest of the programme had been dominated by material other than the individual perspectives, such as historical information, archival footage, IWD memos, medical statistics and studies, interviews with two experts and two advocates.

[58]  The complainant contended that the programme had used the personal stories to advance its thesis, and the programme was really about the wider issues. Because the programme was not an authorial documentary, MOH argued that the broadcaster was under a duty to do much more than merely acknowledge the existence of opposing views.

The Ministry’s view of the Paritutu events

[59]  MOH acknowledged that there were serious issues to be investigated surrounding 2,4,5-T and 2,4-D. It proceeded to outline its version of the controversy.

[60]   The complainant said that various government agencies had long been aware of the claims that Paritutu people had suffered from dioxin exposure, and a range of agencies had conducted studies and inquiries to investigate those claims. The government, it added, had frequently regulated to monitor and restrict dioxin emissions.

[61]   MOH noted that government efforts had been hampered by the historical limitations of science. For example, only since the late 1980s was the technology available to conduct serum blood tests that could accurately detect increasingly small quantities of dioxin. Furthermore, it was difficult to assess what had caused the presence of any detected dioxin, or whether it had caused any particular illnesses.

[62]   The complainant said that it was easy to criticise historical studies in hindsight, but contended that they had been conducted in good faith and were generally in keeping with the prevailing medical knowledge and standards. The findings, it wrote, were consistent with an emerging scientific consensus that only high (usually occupational) exposure was associated with increased risk, and probably only caused a limited number of conditions.

[63]   Despite many investigations and continual monitoring of international developments, MOH said that the government could prove no link between the IWD factory or 2,4,5-T and the range of ailments complained about.

Current science concerning the health effects of dioxin

[64]  MOH stated that the current scientific understanding was that medium to high exposure to dioxins could cause the severe skin condition chloracne, and four rare cancers – Hodgkin’s disease, non-Hodgkin's lymphoma, soft-tissue sarcoma, and chronic lymphocytic leukaemia. None of these conditions, it noted, had featured on Let Us Spray.

[65]   In the complainant’s view, there was insufficient evidence of association with most of the conditions mentioned in the programme. In fact, it said, the available evidence positively suggested no association with colon and spinal cancer, which were suffered by three of the people featured. The best evidence (from the Institute of Medicine of the US National Academy) was that dioxin does not cause or contribute to birth defects, or cause genes to mutate. MOH wrote:

Dioxin exposure may be associated with (that is, there is "limited or suggestive evidence" of association with) type II diabetes, spina bifida, a type of neuropathy, and porphyria cutanea tarda; and some specific cancers: prostate, multiple myeloma, and respiratory cancers.

[66]  At first blush, MOH said, it was plausible to suggest that dioxin might have contributed to the plight of the people featured in the programme with those conditions. However, those illnesses commonly arose in the absence of dioxin, so the cause was not clear. It wrote:

The likely exposure of many of those featured on the programme was so limited and indirect that it is hard to accept on the current state of medical knowledge that dioxin contributed significantly to their illnesses.

[67]  MOH observed that the Institute of Medicine of the US National Academy of Sciences reviewed all the scientific evidence every two years, and influenced what diseases were recognised for the compensation of Vietnam veterans. These studies included the world’s worst TCDD (dioxin) residential exposure that had occurred after an explosion in a chemical plant in Seveso, Italy, in 1976. This found no evidence of increased birth defects, even in those highly exposed, and only small increases in some cancer rates.

The Paritutu serum study

[68]  The complainant said that, despite the lack of evidence of exposure at Paritutu, government officials had continued to take residents' concerns seriously and, in 2001, MOH commissioned ESR to study non-occupational exposure of Paritutu residents. The ESR’s study did find evidence of significantly elevated TCDD exposure, it said, but the levels should not be overstated. They fell far short of occupational exposures associated with significant medical risks in published scientific studies. MOH said:

TCDD is just one type of dioxin. The measure used in most studies combines various dioxins weighted according to their toxicity, to give a "toxic equivalence" (TEQ). The TEQ for Paritutu residents was not found to be significantly different to those of other New Zealanders.

[69]  Nevertheless, officials had decided that the finding was important enough that they owed it to residents to inform them before completing the full study, so an interim report was released in late 2004. The participants had each been visited personally, and a press conference was attended by officials from a range of government agencies. MOH stated that the final report presented in early 2005 had concluded that the IWD incinerator was "very unlikely to be the primary cause of the elevations".

The three-fold increase

[70]  The complainant said that although the elevation was described at the interim report's press conference as "three-fold" (based on the most recent national average data), an appendix to the report noted that the national average data was out of date and said that, unless it was adjusted, the comparison with the general population would probably be understated. The adjusted figures had been used in the conclusions in the final report on the advice of the group of experts, Organochlorines Technical Advisory Group (OTAG).

Appendix O

[71]  MOH noted that the study had been published on the Ministry's website. However, one set of data had been omitted – the information in Appendix O. This was a summary of the blood tests from participants in the study. ESR had worked from the raw data to produce the interim and final studies and, at a later point, ESR had imported this data into a summary table which became Appendix O.

[72]  Unfortunately, the complainant said, due to an ESR computer glitch, much of the data was misaligned, and therefore inaccurate. However, this error had no effect on the study itself which was based on the raw data, not the summary table. Nor did it matter that the peer reviewers did not get Appendix O. MOH said that it did not pick up the glitch until it was pointed out by TV3.

The Leonard critique

[73]  The complainant acknowledged that the ESR study contained two minor errors, which were noted by John Leonard in the programme. However, it said, these errors had made no difference to the study’s conclusions. It contended that the rest of Mr Leonard’s criticisms seemed to be founded on a lack of understanding of the study and the methodology involved. MOH said it was surprised that Mr Leonard had been approached given his lack of relevant qualifications to evaluate the study, and that the broadcaster believed his criticisms over the approval of a large team of experienced international experts. It also questioned why CanWest did not discuss his concerns with ESR prior to the programme, when ESR could have explained most of them.

Standard 5 (accuracy)

[74]  MOH noted that the Authority had acknowledged that programmes could contain specific inaccuracies, or they could be misleading as a whole. It stated that its main concern about accuracy was about "the misimpressions the programme created as a whole about the effects of dioxin and the Ministry’s alleged role in covering them up". It considered each of these misimpressions individually.

1. Dioxins from 2,4,5-T and the IWD plant had caused or contributed to a range of serious illnesses among workers, nearby residents and the general population such as cancers, birth defects and miscarriages.

[75]  The complainant reiterated its view that the programme had left the misleading impression that dioxins from 2,4,5-T and the IWD plant had caused or contributed to a range of serious illnesses among workers, nearby residents and the general population such as cancers, birth defects and miscarriages. This was the belief of all the interviewees, it said, and their view was not seriously challenged in the programme. MOH stated that the programme had omitted obvious sources of scientific information that would cast doubt on this belief.

[76]  The causes of the various conditions featured were nowhere near as clear as the programme suggested, MOH wrote. It referred to the scientific evidence outlined in paragraphs [64] to [67] above.

Birth defects in New Plymouth

[77]  The complainant referred to the statement in the programme that “from the mid 60s to early 70s, New Plymouth, home of the Ivon Watkins Dow factory, had the highest birth defects in New Zealand”, and its reference to a study by Matron Henderson that revealed neural tube defects in Paritutu were 3.5 times the national rate. However, the programme did not report that Matron Henderson’s study showed 3.2 defects per 1000 births (1965-1972) and the only rates available at about the same time were:

• 4.5/1000 Christchurch (1970-1975)
• 3.9/1000 at National Women’s Hospital (1964-1976)
• 2.9/1000 in Dunedin (1967-1973)
• 2.5/1000 in Northland (1966-1977)

[78]  The figures for Paritutu, MOH said, were based on three babies with neural tube defects over a period of seven years.

Mutating genes

[79]  The complainant asserted that the programme had suggested dioxins were mutagenic (i.e. caused genes to mutate), and pointed to the following statements:

Andrew Gordon-Gibbs:  These people have had their DNA blown apart by that plant.

Reporter:                      A dioxin contaminant which many scientists believe can mutate genes,
                                   damage DNA and be passed down through generations of families...

Reporter:                      In the mid 60s, 2,4,5-T had been in heavy use in this country for
                                   nearly 20 years with little or no concern about the mutagenic dioxin
                                   compound.                                             

Reporter:                       ...they believe those exposed to the chemicals have passed health
                                   problems down through the generations to their children and
                                   grandchildren and beyond.                                             

[80]  Referring to the latest research from the US National Academy of Sciences in 2005, MOH said that the scientific evidence was that dioxins are not mutagenic.

[81]  The complainant stated that the broadcaster had been referred to much of this evidence in a letter from Dr Jacobs. In addition, it said, much of this was on the Ministry’s website to which the broadcaster had been directed, and it was contained in a report by the Ministry for the Environment that CanWest said it had consulted. MOH contended that any reputable scientist with dioxin expertise would have confirmed it, and it noted that CanWest had not given any details of the "many experts" it claimed to have consulted.

Not stated as fact?

[82]  MOH referred to CanWest’s argument that it "never stated as a fact that there was an established link between reproductive and/or generational health effects". It wrote:

But the question is not whether TV3 managed to use clever phrasing and quoting to avoid making a hard assertion. The question is how reasonable viewers would understand the programme. The BSA has repeatedly held that things can be significantly misleading even if they are not spelled out expressly. And anyone watching the segment on Bill French, his children and grandchildren, could not escape the firm impression that their ailments were caused by dioxin.

[83]  The complainant also noted the reporter’s statement that Gary Green "has proof that he’s been poisoned", and said it strained credibility for CanWest to argue that Gary Green "did not say he had proof that the poisoning was related to the Paritutu plant". Viewers, it said, would have been given this exact impression, particularly when the reporter later said "Gary Green too is fighting for his life and believes this plant is the reason why".

2. Over the last 30 years, successive governments have consistently denied that dioxin is linked to illnesses, failed to take proper steps to investigate these health problems, and misinformed the public about them, either covering up or being unwilling to uncover the truth about the effects of 2,4,5-T and 2,4-D.

[84]  MOH argued that the above theme was captured in the programme by the repeated phrase "they delay and deny until you die". It said this impression was misleading because, in fact, officials had on several occasions accepted that there was evidence of harm caused by IWD’s dioxins in some circumstances. Based on the exposure found in Paritutu, the Ministry had concluded that there may be health effects for individuals, and it had publicly accepted that TCDD (the strongest form of dioxin) was carcinogenic. Further, in 2005, ACC awarded compensation to some IWD workers including one of the interviewees on the programme.

[85]  MOH contended that the Ministry and other government agencies had frequently taken reasonable steps to investigate and manage the dioxin issue. For example, it wrote:

...the programme never mentioned the range of investigations, locally and nationally, into dioxin in dumpsites, water supplies, milk, sheep meat, diet generally, and sprayers’ bodies, or the recent study of cancer registrations in New Plymouth, or the healthcare package under development by the Ministry for the residents of Paritutu who are likely to have been exposed to IWD dioxin.

[86]  Again, MOH maintained, this information was available on government websites to which TV3 had been referred, and it had been mentioned by Dr Jacobs. Despite this, it said, few of these measures were mentioned in the programme and "when they were it was usually to belittle them". The picture presented in the programme of "unremitting official dishonesty" was untrue, it contended.

3. The 2004-2005 serum study on Paritutu residents contained serious flaws and an incorrect conclusion, and its authors withheld crucial information from the study’s peer reviewers, rendering the study unreliable and misleading, continuing the ongoing pattern of official negligence and cover-up.

[87]  In MOH's view, the above claims were explicit in the programme and were so heavily overstated as to be inaccurate. First, it argued that CanWest had presented the description at the press conference of a "three-fold" elevation in dioxin levels as a deliberate distortion made against the advice of some other officials. In fact, it said, the advice was contained in the interim serum study itself, and formed part of the conclusion of the final report.

[88]  Second, the complainant alleged that the programme had implied MOH withheld vital information from the serum study’s peer reviewers, and thereby misled them or at least compromised the results. In fact, the process was managed by ESR, the information did not need to be supplied, the peer reviewers did not want it, and it would have made no difference to their analysis if it had been supplied. MOH noted that the four international peer reviewers had been contacted and asked whether they had received Appendix O, but had not been asked whether it was important information.

[89]  Third, MOH contended that the programme had used John Leonard to portray the serum study as riddled with serious flaws. Two minor and inconsequential errors aside, it wrote, the accountant’s critique was based on a faulty understanding of the science involved.

[90]  Against the background of the programme's selectively presented historical catalogue of official cover-up and error, MOH maintained that these claims portrayed officials as "equally self-serving and mistake-prone". CanWest had failed to seek or include material inconsistent with that impression.

4. These failures, particularly those relating to the serum study, are the responsibility of the Ministry of Health.

[91]  MOH noted that it was the only government agency asked to comment in the programme, and contended that ordinary viewers must have formed the firm impression that the Ministry was the agency responsible for the alleged mistakes and cover-ups. CanWest, it said, persisted in treating MOH as "the sole face of wrongdoing" when this was inconsistent with what it knew to be true.

[92]  The complainant said it had provided the broadcaster with detailed information about the "whole of government" approach to the issues, and the different responsibilities of the different branches, and it had offered to make different spokespeople available. Further, other agencies had been involved with presenting the serum study.

[93]  MOH also noted that many of the programme’s allegations fell within the zone of responsibility of other agencies, such as those dealing with the environment and occupational health. CanWest, it observed, had said it would contact MfE or OSH if it had any questions, but had only contacted MfE for historical photographs.

Standard 4 (balance)

[94]  MOH contended that the programme had discussed two issues:

1. whether the production and use of 2,4,5-T and 2,4-D manufactured at the IWD factory at Paritutu caused adverse health effects among workers, nearby residents, and the country at large
2. whether the official response to concerns about the adverse health effects of that production and spraying was adequate and, in particular, whether it was sufficiently open with the public.

[95]  In the complainant’s view, these were clearly controversial issues of public importance. It noted that the Authority had previously found that balance was particularly important where an issue was high profile, emotional or hyped up, or had the potential to create panic or strongly affect large groups.² It asserted that substantial efforts should have been made to provide balance in this case because of:

• the gravity and length of the programme, which was described as a year-long investigation
• the emotional portrayal of those presented as victims
• the negative portrayal of officials as corrupt
• the inherently alarming nature of the material i.e. the suggestion that the country had been poisoned by a mutagenic carcinogen.

[96]  MOH maintained that CanWest should have provided reasonable opportunities for two groups of people with significant views on the subject to present their perspectives. These were people with knowledge and expertise, particularly scientific and medical experts, and also those who were subject to criticism in the programme. While it acknowledged that “balance-by-stopwatch” was not required, MOH noted that Dr Jacobs’ comments took up less than four minutes in the 90-minute programme.

[97]  The complainant contended that CanWest had failed to give a reasonable opportunity to present alternative perspectives by failing to include scientific information about dioxin and the views of government agencies responsible for workplace safety. It had also included only a handful of other references to the possibility that the programme’s thesis was wrong, MOH said.

[98]  Furthermore, MOH complained that CanWest had not included any information about the work that government agencies had done in relation to the dioxin issue, and had not included the Ministry’s explanation for how two blood samples with the lowest levels of dioxin came to be given to the World Health Organisation (WHO) breast milk study, despite being referred to the principal author.

[99]  MOH contended that the broadcaster should have given Dr Jacobs an opportunity to respond to the following questions:

• Does the Ministry doubt that the conditions of those featured in the programme are caused by IWD dioxin? What is the evidence?
• How does the Ministry respond to the specific criticisms the programme advanced about the adequacy of the Paritutu inquiries and measures it has been involved with?
• What is MOH’s role, compared with other government agencies?
• What steps did MOH take to ensure the serum study was performed according to international standards?

[100]  The complainant was concerned that the reporter of Let Us Spray had constantly interrupted Dr Jacobs during his interview "so that he was hardly able to complete an answer". The interview had been selectively presented, it said, so that the interviewer looked good rather than presenting the Ministry’s view.

The serum study

[101]  MOH complained that the programme had broadcast "vague allegations" about the technical flaws in the serum study such as "...there’s a possible omission, you're talking about inconsistencies and the mixing of data sets, people being in the wrong group?" The complainant argued that viewers were in no position to make any sense of such statements, and no explanation had been provided.

[102]  The complainant reiterated its concern that CanWest had failed to ask ESR for comment about Mr Leonard’s allegations. Had his report been made available, it wrote, ESR could have shown the broadcaster that it was full of errors and false assumptions, and the two actual mistakes it did identify were entirely inconsequential. Further, contrary to Mr Leonard’s call for the study to be reviewed by a biostatistician, MOH noted that it had been co-authored by a biostatistician, key calculations had been performed by another biostatistician, and a third biostatistician had been a peer reviewer of the study.

[103]  MOH submitted that the viewing public had been ill-served by being denied much relevant information about the dioxin debate and the officials’ role in it.

Was the Ministry of Health the only appropriate agency to respond?

[104]  MOH refuted CanWest’s reasons for believing that the Ministry should be the only agency to offer a response in the programme. It said that the important thing was that the Ministry had referred CanWest to ESR before the broadcast, and had explained that ESR had the expertise to answer its questions. It noted that MOH had not "promoted and publicly presented the report"; a team of officials from various agencies had done so, for the very reason that questions might arise that were better answered by officials other than those from MOH.

[105]  The complainant noted CanWest’s reference to MOH’s response "we agree you won't also need to interview Labour and Environment officials". It said that ESR staff were not Labour or Environment officials, and second, those negotiations were in respect of whether those officials needed to be present during the interview. When MOH had been told that CanWest had commissioned a review of the serum study, it had specifically told the broadcaster orally and in writing that ESR was the appropriate agency for a response to those particular questions.

Standard 6 (fairness)

[106]  MOH argued that the broadcaster had treated the Ministry and Dr Jacobs unfairly. It contended that the broadcaster was unfair to the Ministry because of the misleading impressions noted above, and because it omitted obvious sources and material as set out in the balance section (see paragraphs [94] to [105]).

[107]  The complainant maintained that it was also unfair to suggest the serum study needed an independent review, without properly explaining the rigorous peer review process. It wrote that the programme:

...did show Dr Jacobs saying the serum study’s findings had been "reviewed by a number of independent experts offshore" but apparently only as a pretext for showing the reporter saying "Did they have Appendix O? Did they have the raw data?" to which Dr Jacobs said he thought they did, and the reporter pounced with "Well I’ve asked them and they didn't". The implications are clear: the review process was fatally flawed; the Ministry had deliberately withheld key information from the reviewers; Dr Jacobs was trying to cover it up.

[108]  By failing to provide the report to ESR, MOH argued that the programme had implied that the Ministry was "the villain of the piece". The programme had built up a picture of MOH negligence and corruption persisting to the present day, by interpreting a series of events in the worst possible light. The complainant gave the following examples:

• The programme suggested that Appendix O was dishonestly held back.
• The reporter “snidely” questioned MOH’s denial that it had seen Matron Henderson’s study, saying “They say they never received it. Whatever the case...”.
• The programme implied that a 1972 inquiry by the Agricultural Chemicals Board into human and animal deformities adopted an unreasonably narrow definition of exposure. In fact, the inquiry had examined a number of potential sources of dioxin exposure and concluded that any exposure was minimal.
• The programme intimated that the Department of Health began to manage the issue as a “public relations issue” rather than a scientific one.
• The programme suggested the government was in cahoots with IWD and helped it defend a $22 million lawsuit in the US when, in fact, an MOH official gave evidence at an Environmental Protection Agency hearing into whether or not to ban 2,4,5-T. It was an administrative hearing; no damages were claimed.
• The programme left the impression that officials deliberately sent breast milk samples with low levels of dioxin for a WHO study. The first two samples were taken and analysed in Copenhagen, so this ruled out any possibility of dishonesty.
• The programme implied that the government “portrayed” New Zealand’s dioxin levels as low, because this would help agricultural exports.
• MOH was criticised for a nationwide study of dioxin levels, but this study was conducted by the Ministry for the Environment.
• The programme accused the serum study of misrepresenting the exposure of Paritutu by using an out-of-date national average, saying that “their own documents” warned them against doing this. This fact was disclosed in the interim serum study, and the corrected national average was used in the final report.
• The reporter implied there was something remiss in MOH’s failure to take court action against IWD when there was no valid legal claim that could be pursued.

Critiques of John Leonard’s findings

[109]  MOH attached reviews of the serum study and John Leonard’s criticisms completed by the following people and organisations:

• Dr Marie Haring Sweeney from the Department of Health and Human Services in Ohio, USA
• Professor Allan Smith from the University of Berkeley, California
• Dr Christopher Frampton from the Christchurch School of Medicine and Health Sciences at the University of Otago
• ESR
• Dr Jeff Fowles, the principal investigator and author of the study.

[110]  Dr Sweeney found that the ESR report had fulfilled its objective, that the ESR methodology was sound, and that Mr Leonard's comments "most likely will not affect the analytical approach or the findings of the report". Professor Smith said that "although some points are of interest and include minor corrections, I did not identify any points [Mr Leonard] made which raised substantive issues that would affect the overall interpretation of the ESR report". He found that:

• the sample size was more than adequate
• based on the half-life of dioxin, it was reasonable for ESR to back-calculate to 1987
• although some Paritutu residents had blood concentrations considerably higher than those of the general population in New Zealand, they were still about ten times lower than the lowest blood concentrations found in three previous workplace studies conducted in other countries.

[111]  Dr Frampton found "nothing within the commentary by Leonard that invalidates the claims made from the 2005 ESR report". ESR commented that Mr Leonard's report did not contain "any substantive, scientifically rational criticism".

[112]  Dr Fowles rebutted Mr Leonard’s criticisms, stating that:

• the sample size was adequate to answer the report’s core questions
• combining the two sample groups allowed the team to increase the number of demographic groups and better characterise a cross section of the community
• Mr Leonard identified two minor errors in the final report, but they were both inconsequential to the main study conclusions, and had no impact on any of the study report tables or figures.

[113]  Dr Fowles made the following comments:

I question the motives of the television network and the reviewer in spending 18 months quietly searching for flaws or fomenting areas of doubt about what is a very well-reviewed and accepted study, and above all in exploiting community fears and distrust in government in order to gain media attention.

Having personally met a number of the Paritutu study participants, I am saddened that the report had any flaws whatsoever in it, and I apologise to them for that, but I hope sincerely that they realise that this politically motivated and unscientific review by someone without relevant qualifications, makes absolutely no change to the conclusions of the report.

Further information

[114]  MOH urged the BSA to request the following material:

• The field tape of the interview with Dr Jacobs.
• Any promotional material or promos for the programme.
• An explanation of who the broadcaster was referring to in its complaint when it said it had sought the views of a "wide range of scientific experts in New Zealand and overseas", in particular which scientists or sources believed dioxin was mutagenic and caused birth defects.

Broadcaster’s Interim Response to the Authority

[115]  Prior to providing its submissions on the substantive referral, CanWest wrote to the Authority questioning whether MOH’s complaint should continue, or at least in its current form. It asserted that MOH had now accepted the accuracy of the essential criticism of the serum study contained in the programme. As the broadcaster understood the position, the head of the serum study (Dr Jeff Fowles) had reviewed his report in light of the concerns expressed in the programme. He had recalculated the conclusions reached, and acknowledged that the people who participated in the study were exposed to peak levels of dioxin as early as the 1960s.

[116]  In CanWest’s view, this information had serious implications as it meant that those people had been exposed to much higher levels of dioxin than had previously been acknowledged by any government agency.

[117]  The broadcaster claimed that MOH (on behalf of all government agencies including ESR) had commissioned a firm called Allen and Clarke to review the serum study, and this report was not due to be completed for three months. It suggested that it would be reasonable to ask the complainant to reformulate its complaint, or to await the outcome of the commissioned report before proceeding.

Complainant's Response to the Broadcaster's Interim Submission

[118]  In MOH’s view, Dr Fowles' new comments did not affect its complaint as his conclusions were based on further calculations using information from the US Institute of Medicine which had only become available after the serum study took place. That new information had enabled him to generate a more refined analysis, it said.

[119]  MOH noted that the serum study did not say that there were no periods of peak exposure between 1962 and 1987. It merely said that, on the basis of the residents’ blood analyses and the state of scientific knowledge at the time, the authors could not clearly identify any years when exposures were higher. MOH contended that Dr Fowles’ comments did not affect the most significant conclusion from the study - that there might be a slight elevation in risk of death from cancer for some exposed residents. In particular, his comments did not suggest any greater increased risk of cancer than had been already stated by the Ministry.

[120]  The complainant noted that only a relatively small portion of Let Us Spray discussed the serum study. Looking at each of the criticisms in the item, MOH maintained that its complaint about these criticisms was not affected by Dr Fowles' conclusions. It was of the view that the new information did not suggest that the serum study was wrong, or understated the level of exposure to dioxin. Nor did it vindicate Mr Leonard’s criticisms, it wrote.

Broadcaster's Response on the Substantive Complaint

Standard 4 (balance)

[121]  CanWest stated that it did not contend Standard 4 had no application to the programme. However, it did argue that guideline 4c applied, as the programme considered a controversial issue from a particular perspective. This meant that the programme did not require the same degree of coverage of other significant perspectives as might have been the case in other current affairs programmes.

[122]  The broadcaster contended that the questions for the Authority were whether a viewer, watching the programme for the first time, understood:

1. that there were other significant points of view on the controversial issue, and
2. broadly the essence of the other significant points of view.

[123]  In framing the controversial issue of public importance, CanWest stated that it was important that the Authority recognised that the issue under discussion was not the historical use of dioxin in New Zealand. The issue, it said, was "whether the authorities' response to concerns expressed by residents and others about the possible negative health impacts was adequate".

[124]  The broadcaster contended that viewers "could not help but be aware" that MOH (on behalf of all government agencies involved) did not accept that the adverse health impacts suffered by the interviewees were caused by dioxin exposure, and did not accept that the government response had been anything less than adequate and appropriate.

[125]  With respect to the involvement of ESR in the programme, CanWest maintained that this was primarily an issue of fairness. It contended that the programme met the test formulated in paragraph [122] above, and it was not critical who presented the essence of other significant points of view. It wrote:

As long as the audience can appreciate who holds those points of view and what, in general terms, the significant viewpoints are, balance is achieved.

[126]  Looking at John Leonard's evidence, the broadcaster remained adamant that the "overwhelming weight of evidence is that the serum study was flawed". As such, it said, the requirement for balancing statements was "much reduced".

Standard 5 (accuracy)

[127]  CanWest maintained that the only inaccuracy specified in the complaint was the allegation that the serum study contained serious flaws. It remained satisfied that the study was indeed flawed, and said it appeared that MOH had begun acknowledging and rectifying those flaws.

Standard 6 (fairness)

[128]  The principal issue of fairness, CanWest wrote, was whether or not the programme should have interviewed ESR about the serum study. Having read the evidence that MOH was "running, controlling and driving the serum study", it concluded that the programme was not unfair to ESR.

[129]  The broadcaster noted that reporters or producers always had to make a decision about who to interview to represent a particular point of view. In this case, it said, they had chosen the government agency which "owned" and managed the media presentation of the study.

[130]  Looking at the alleged unfairness to Dr Jacobs and MOH, CanWest asserted that Dr Jacobs had many advisors present at the interview. It suggested that if the complainant had particular concerns about aspects of the interview that should have been included in the interview, it should spell them out in a reasonably detailed manner.

[131]  In the broadcaster's view, Dr Jacobs was "dealt with extremely fairly". The parts of his interview that were used in the programme, it said, canvassed all the significant and relevant issues, and did not appear to have been edited in an unreasonable manner.

[132]  CanWest provided a detailed response from the Let Us Spray documentary team, which included the following points:

• the serum study did contain serious flaws in the methodology, the data and the interpretation of the data which made the study unreliable and misleading
• MOH was ultimately responsible for the serum study
• medical records had been acquired for the Paritutu residents who featured in the story and their potential exposure from the IWD plant was assessed through their work history, place of residence, duration of exposure and proximity to the plant
• it was unnecessary to challenge the views of the Paritutu residents and it would have been difficult to question their beliefs
• the programme never stated that any of the individuals could link their health conditions to agrochemicals, but emphasized the difficulty they had in proving clear causes
• the science around whether dioxin was mutagenic was unsettled, but many scientists did believe that to be the case
• the chronology of actions taken by MOH and other agencies in relation to dioxin was partial and inaccurate
• much of the historic content did not involve current MOH staff and it would have been unfair to ask current personnel about issues reaching back three or four decades
• the programme was accurate in its central thesis: that the investigations by MOH into the dioxin issue had not been thorough or satisfactory
• a peak exposure period in Paritutu had been established meaning that residents’ exposure levels were far higher than originally claimed in the serum study
• the serum study contained much more than two minor errors (the documentary team attached a report from an environmental chemist who had reviewed Mr Leonard’s findings and agreed with them) and the programme makers stood by Mr Leonard’s report
• the peer reviewers did not receive vital background information, and they relied on the data being grouped correctly; it was not
• MOH was aware of when the programme was scheduled to screen, yet its response arrived one working day before the programme (on a Friday, the programme was broadcast the following Monday evening)
• Dr Jacobs supplied the required balance on the contemporary issues (the serum study and related matters), comment from ESR was not required
• correspondence showed that Professor McQueen had been asked to give evidence at the EPA hearing by the Dow Chemical Company
• one of the authors of the breast milk study had explained that it was a coincidence that the lowest two samples were sent to be analysed, and this was reported.

Complainant's Further Response to Interim Submissions

[133]  MOH confirmed that it did not wish to withdraw or revise any part of its complaint. The substance of its complaint, it said, was TV3's failure to include material in the programme that contradicted its main points, which made the documentary unbalanced, misleading and unfair.

[134]  The latest reported comments from Dr Fowles, the serum study’s main author, did not affect MOH’s complaint, it said. Having read scientific literature published after the serum study was released, Dr Fowles was able to make further calculations using the serum study’s data, and give a clearer guide to the estimated likely timing of peak exposure at Paritutu.

[135]  MOH emphasised that the study did not say there were no periods of peak exposure. It merely said that, on the basis of the blood serum results and scientific knowledge at the time, the authors could not clearly identify any years when exposure was higher. Dr Fowles’ calculations did not alter the study’s most significant conclusion, that there may be a slight elevation in risk of death from cancer due to dioxin exposure.

[136]  Further, the complainant emphasised that Dr Fowles' calculations were not for the purpose of reviewing the serum study, but to help MOH target a health programme to Paritutu residents. It noted that the programme’s criticisms of the serum study were not borne out by Dr Fowles’ latest comments, and only a relatively small portion of the programme was concerned with the serum study.

[137]  In conclusion, MOH maintained Dr Fowles' comments had been misunderstood; they did not suggest that the study was wrong, or that it understated the level of dioxin exposure. The comments were not relevant to the criticisms in the documentary, which were largely related to delays before testing, the use of outdated data, the failure to provide raw data to peer reviewers, and Mr Leonard’s claims that the report was methodologically flawed. Dr Fowles’ comments did not vindicate Mr Leonard’s analysis, MOH said.

Interlocutory Decision

[138]  In its referral, MOH argued that the Authority should ask or require CanWest to provide a copy of the field tape of the interview with Dr Jacobs in order for it to assess whether standards of balance and fairness had been breached, particularly in the editing of the interview. It also submitted that the Ministry should be provided with a copy of the tape in order to complete its response effectively.

[139]  On 10 October 2007, the Authority issued an interlocutory decision (ID2007-012) ordering CanWest to supply it with the field tape of the full interview with Dr Jacobs, pursuant to section 12 of the Broadcasting Act 1989 and section 4C of the Commissions of Inquiry Act 1908. The Authority explained that it required a copy of the field tape in order to make a proper assessment of balance and fairness in the selection and editing process, as these were significant aspects of MOH’s complaint. The Authority also noted that, in its submissions, CanWest had relied on an aspect of the interview with Dr Jacobs that had not been broadcast. CanWest supplied the field tape to the Authority.

[140]  On 26 October 2007, the Authority issued an interlocutory decision (ID2007-012B) deciding that it would supply the field tape to MOH in order to complete its submissions on balance and fairness.

[141]  On 29 October 2007, CanWest advised the Authority that it intended to judicially review the order made in ID2007-012B. A Judicial Review hearing was later scheduled for 25 August 2008. On 23 July 2008, one month before the hearing date, CanWest withdrew its application for review. The Authority supplied the complainant with a copy of the field tape on 11 August 2008 so that it could finalise its submissions.

Complainant’s Response to Broadcaster’s Substantive Submissions

Standard 4 (balance)

[142]  MOH maintained that the programme did not fit under guideline 4c. It considered that, if Let Us Spray was not a standard current affairs programme as argued by CanWest, it should have adhered to higher standards, as the programme was high impact, heavily promoted, and relatively lengthy.

[143]  The complainant believed the issue of whether dioxin was linked to health effects was an issue discussed in the programme. The only balancing view presented was a handful of fleeting references to MOH’s position, which was inadequate, it said, especially given the substantial amount of information presented for the other side. The information also misrepresented MOH’s and the government’s views, for example that they had denied the health effects of dioxin.

[144]  MOH reiterated its arguments that CanWest should have provided MOH and ESR with John Leonard’s report and allowed them time to prepare responses. It referred to the Authority’s Decision No. 2002-178 which stated that when material is used to criticise, either the material or a fair summary should be provided to the person criticised. MOH maintained Dr Jacobs had asked for the report, when he said in the interview "if you’ve got that advice we want to see it".

[145]  MOH argued that, although CanWest relied on the interview with Dr Jacobs as providing balance, the programme omitted significant parts of his responses, failed to ask fundamental questions, asked questions he could not answer, and failed to approach the agencies Dr Jacobs referred it to. MOH attached a transcript of the interview and outlined the passages it thought should have been included.

[146]  In addition, MOH believed ESR should have been interviewed. Dr Jacobs had made it clear that he could answer questions about the serum study but only ESR could answer criticisms. Viewers were entitled to hear the perspective of the people who conducted the study as well as those who commissioned it, MOH said.

[147]  The complainant also maintained that the limitations of John Leonard’s expertise should have been made known to viewers, particularly that he had no scientific background and no experience in conducting or reviewing scientific studies.

[148]  Finally, MOH argued that the programme should have included a range of material contained in Dr Jacobs' letter to CanWest following the interview, which was relevant to MOH’s views. It said that CanWest had claimed the letter arrived too late, but had not told MOH when the programme was screening even though it knew MOH was preparing further information.

Standard 5 (accuracy)

[149]  MOH maintained viewers would have been left with a clear impression that dioxin caused or contributed to the interviewees’ health conditions, largely because of the absence of any information inconsistent with those individuals' views. References throughout the programme to dioxin as toxic, harmful, poisonous, mutagenic, and so on, also contributed to this impression, as well as frequent reference to many health conditions.

[150]  Individual elements of the programme could be justified, MOH said, but the overall picture painted was that dioxin had caused the ill health of the interviewees and many others. It was not saying that dioxin could not have had any role, but the programme’s portrayal of the link as certain was not justified, and therefore inaccurate. The complainant also noted that the programme did not explain that the exposure and impact of dioxin was likely to vary greatly between the different people featured on the programme.

[151]  MOH asserted that the programme created the inaccurate impression that MOH had consistently failed to investigate dioxin, misinformed the public, and covered up the truth about dioxin. It accepted that the government could be criticised, but considered that by omitting a fair presentation of MOH’s perspective, the programme left a stronger impression of negligence and cover-up than was warranted.

[152]  The complainant reiterated its contention that the programme was inaccurate in stating the serum study contained serious flaws and an incorrect conclusion, and that information had been withheld from the study’s peer reviewers. It also repeated its assertion that MOH had been wrongly depicted as the sole agency responsible for addressing the concerns of Paritutu.

Standard 6 (fairness)

[153]  MOH maintained that the imbalance in the presentation of Dr Jacobs' interview also made it unfair to him. It noted that the interviewer had interrupted him at least 45 times during the interview. MOH also considered the presentation of the interview portrayed Dr Jacobs as either lying or incompetent, because viewers would have been left with the impression that he had seen Mr Leonard’s report. The excerpts shown also conflated that report with other correspondence regarding Paritutu, which was patently unfair to Dr Jacobs, MOH said.

[154]  MOH noted that the programme makers had waited until the last weeks before the programme screened to conduct the interview, and had not fully and fairly put the criticisms to Dr Jacobs, or properly included his responses in the programme. This was patently unfair, MOH said.

[155]  The complainant asserted that the broadcaster was also unfair to MOH in its presentation of a number of aspects of the programme, namely that:

• MOH had managed dioxin concerns as a "public relations issue"
• a Ministry of Health official had given evidence for IWD in a lawsuit
• the government had selectively chosen New Zealand’s samples for a World Health Organisation breast milk study
• the government had a valid legal case against IWD but had chosen not to take action.

Broadcaster’s Final Comment

Standard 4 (balance)

[156]  CanWest maintained that the programme fitted under guideline 4c to the balance standard, because the introduction made it clear that the topic was approached from a particular perspective, and this was reinforced by the emphasis on the stories of the interviewees. Standard 4, it said, was about the rights of viewers, and whether a first time viewer new to the subject would have understood the relevant significant points of view on the topic discussed. It reiterated that the issue discussed was whether government authorities’ response to Paritutu’s concerns about possible negative health effects was adequate.

[157]  With regard to that issue, the significant perspectives were those of the residents, and of the government to whom the residents expressed their concerns. The residents’ concerns were put to Dr Jacobs, and his response clearly set out the government perspective, which was that if more information came to light MOH would revisit the issue. Viewers would have understood that perspective as it was given significance in the programme, the broadcaster said. CanWest reiterated its contention that Dr Jacobs on behalf of MOH was the right person to express the government’s position, and it was not necessary to present separately ESR's perspective.

[158]  The broadcaster concluded that more than sufficient material was included in the programme to meet the requirement for balance.

Standard 5 (accuracy)

[159]  CanWest maintained that a first time viewer would have understood that the link between dioxin exposure and all health effects was not proven, but that dioxin is a poison and was likely to be harmful to some extent. The programme presented the beliefs of the residents that such a link existed, but also made it clear that the jury was still out regarding whether dioxin could have the health effects described.

[160]  The broadcaster was satisfied that the programme never alleged there was a cover-up by the government. Where there was criticism of the government's actions it was clearly distinguishable as opinion rather than a point of fact, it said. A first time viewer would have understood that the residents felt let down and the government had done a certain amount of investigation and was prepared to do more if there was sufficient evidential basis.

[161]  CanWest argued that the criticisms of the serum study were not stated as points of fact, but as a matter of analysis, some of which was demonstrably properly founded as the investigation after the programme established an earlier peak exposure period which in turn meant higher contamination levels. Viewers would have understood that the programme had raised questions about the serum study which the government was prepared to investigate.

[162]  CanWest considered that whether MOH was responsible for the dioxin issue was not a matter of accuracy, but one of balance. It argued that MOH was the responsible agency and was able to provide the government perspective. Viewers would have understood that, it said.

Standard 6 (fairness)

[163]  CanWest maintained it was difficult to see how the programme and/or the interview with Dr Jacobs was unfair to government agencies, MOH, ESR or Dr Jacobs. It said sufficient information was given to MOH of the overall subject matter of the proposed interview and the nature of the topic to be addressed. Prior to the interview, time was provided for preparation and briefing of Dr Jacobs and, following the interview, time was allowed for providing additional material. Further, adequate excerpts of the interview were included in the programme to present the agencies’ perspective.

[164]  Dr Jacobs was portrayed as genuinely concerned and willing to consider any issues that had a firm evidential basis, CanWest said, and there was no evidence that any person or organisation had suffered harm as a result of the programme. The broadcaster concluded that without allegations or evidence of harm, there was no basis for finding unfairness.

[165]  CanWest attached a detailed response from the Let Us Spray documentary team, which included the following points:

• it was the function of free and independent media in a democracy to fearlessly allow those affected by government action or inaction to tell their stories
• the programme made it clear that there were differing views about the science around dioxin
• ordinary viewers would not have been left with the impression that dioxin caused all of the health effects outlined in the programme, but would have realised that the Paritutu residents were expressing their opinions
• MOH did not approach the programme makers at any stage in the three weeks after the interview with Dr Jacobs to say that there was any need to contact ESR
• it was not necessary or possible to provide balance to the historical information in the programme
• MOH did not ask to see Mr Leonard’s findings before the broadcast, and gave no indication that they were preparing further information
• with respect to the breast milk study, any official with even fundamental knowledge of organochlorine exposure would have known that the first two samples sent from younger participants were likely to be those least exposed.

Complainant’s Final Comment

[166]  The complainant repeated a number of its arguments with regard to:

• the peak exposure period in Paritutu
• the health effects of dioxin
• the allegation of cover-up made by the programme
• the lack of opportunity for MOH to respond to John Leonard’s report
• TV3’s failure to acknowledge the involvement of other agencies besides MOH
• the unfairness to MOH due to the vagueness of Leonard’s allegations as included in the programme
• the programme’s misrepresentation of a "$22 million court case"
• the editing of Dr Jacobs’ interview for the programme.

[167]  MOH submitted that, given the complex scientific issues that had been raised, the Authority should exercise its powers under the Broadcasting Act to co-opt additional members to assist with the determination of its complaint. The difficulty, it said, was that most reputable New Zealand scientists with expertise in organochlorines already had some involvement in the serum study. The Authority could therefore consider someone with general scientific expertise who would be familiar with scientific, ethical and methodological processes, or an organochlorines expert from Australia or overseas. MOH also questioned whether it would be helpful to convene opposing experts nominated by both parties to debate the issues raised.

[168]  Finally, the complainant listed a number of questions for the broadcaster and requested that the Authority require CanWest to provide responses.

Authority’s Request for Information Regarding Expert Assistance

[169]  The Authority asked MOH to identify the specific points in its original complaint which it considered the Authority would require assistance to determine.

[170]  MOH responded with a list of issues that it believed required some scientific expertise to evaluate, along with corresponding page references to its original complaint, its referral, and the transcript for the programme. Those issues were as follows:

Standard 4 (balance)

• Whether the scientific evidence and research omitted from the programme was significant and relevant and sufficiently accessible that it ought to have been included.
• Whether the accountant Mr Leonard had the expertise to evaluate the study and whether his views were accorded undue authoritativeness, and whether opportunities were provided to challenge them.
• Whether the roles of other government agencies in relation to dioxin and health were significant enough that they ought at least to have been mentioned.
• The extent to which ESR’s role and expertise meant that it should properly have been contacted for comment.

Standard 5 (accuracy)

• Were the causes of the conditions as clear as the programme suggested? For example, did the scientific evidence support the programme’s suggestions about birth defects and mutating genes?
• Were the comparisons between workers, residents and pregnant mothers in the North Island scientifically valid?
• What would reputable scientists with expertise in the research in dioxin and health have told TV3 if they had been consulted?
• What was the significance and reasonableness of the steps taken by MOH and other government agencies to deal with dioxin – in particular with respect to evolving scientific knowledge about dioxin?
• Whether the serum study contained serious flaws and an incorrect conclusion, omitted crucial information, and was unreliable and misleading.
• Whether peer reviewers of studies like the serum study would normally have received the information in Appendix O, and whether it may have made any difference to their conclusions.
• Whether the Leonard critique was fundamentally flawed and based on a faulty understanding of the science.
• Whether MOH had primary responsibility for all the failures claimed.

Standard 6 (fairness)

• Whether the reviewers’ assessments of the Leonard critique demonstrated that the Leonard critique was unfair.
• Whether TV3’s selection and presentation of historical material was fair to the government.
• Whether it was fair to report that the Agricultural Chemical Board’s definition of exposure was unnecessarily narrow.
• Whether the breast milk samples for the WHO study could have been selected dishonestly, and hence whether it was unfair to suggest they may have been.
• Whether it was fair to use animal dioxin studies as a basis for supporting criticisms about the application of the science to humans.
• Whether it was fair to suggest that there are any tenable grounds for a lawsuit against IWD.

Submissions from the Broadcaster on Appointment of Expert

[171]  CanWest submitted there was no need for the Authority to co-opt an expert as suggested by the complainant. With or without an expert, it said, the "science" could not be determined by the Authority. All parties accepted that there was no definitive position regarding the health effects of dioxin poisoning, it said. The same applied to issues of the methodology of the serum study; the Authority need not establish "that the flaws found [by John Leonard] were the right or the only flaws, it need only find that there was a sufficient justification for the criticism made of the study".

[172]  The broadcaster considered that appointment of a scientific expert would only increase time and cost, would not be beneficial, and would present considerable difficulty with regard to selecting an appropriate expert acceptable to both parties and the Authority. It noted that the Authority was capable of assessing voluminous material and was in a position to assess "whether a proper amount of the government 'perspective' was incorporated into the content of the programme".

Further Submissions from Complainant on Appointment of Expert

[173]  MOH said it did not expect the Authority to resolve the question of causation regarding dioxin and the health effects featured in the programme. However, the Authority had to determine whether the programme’s depiction of the issues was justified by the science and not misleading or unfair.

[174]  Second, MOH noted that CanWest had raised a lot of scientific points many of which involved scientific methodology with which the Authority was unlikely to be familiar. Third, the complainant emphasised that the validity of John Leonard’s findings was pivotal to the complaint. MOH had not accepted that the study was flawed, and "certainly not to the extent portrayed in Let Us Spray". Fourth, MOH pointed to the debate about the significance of Dr Fowles' new calculations following the programme to demonstrate the usefulness of expertise in determining the complaint.

[175]  Finally, the complainant reiterated its concern that none of the information provided to CanWest after Dr Jacob’s interview was incorporated into the programme.

Authority’s Determination

[176]  The members of the Authority have viewed a recording of the broadcast complained about and the field tape of the interview with Dr Mark Jacobs, and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Expert Assistance

[177]  Having considered the submissions from both parties, the Authority decided that it was not necessary to appoint an expert, for the following reasons.

[178]  The Authority's task is to determine whether Let Us Spray complied with broadcasting standards - that is, whether it breached standards of balance, accuracy and fairness, as alleged by the complainant. In this instance, the Authority is of the view that MOH’s complaint can be appropriately and adequately considered without the Authority delving into contentious areas of science. For example, the Authority finds it unnecessary to consider whether the criticism of the serum study was valid, or whether the health conditions suffered by Paritutu people could be linked with dioxin according to the latest studies.

[179]  Instead, the Authority considers that its role in determining whether broadcasting standards were met will be fulfilled by a consideration of whether the information in Let Us Spray was balanced so the audience understood all the issues, and fair to those taking part or referred to in the programme.

[180]  It should be noted, therefore, that while this complaint alleges numerous breaches of Standards 4, 5, and 6 which overlap in a number of areas, the Authority considers that this complaint is largely about balance rather than accuracy, and that issues of fairness arise from failures to ensure compliance with the balance standard.

[181]  The Authority notes that the written submissions from both parties have strayed into issues which were not actually covered in the Let Us Spray programme. It has therefore been careful to ensure that only points which were raised in the programme, and in the subsequent formal complaint, have been addressed in the determination of this complaint.

The Nature of the Programme

[182]  Before dealing with the substantive complaint, the Authority considers that it would be helpful to give its account of the programme in question.

[183]  Let Us Spray was a 90-minute programme which screened at 7.30pm on a Monday evening, a slot usually reserved for the current affairs programme 60 Minutes. It was billed as a TV3 Special Investigation, and was presented by a well-known journalist and regular reporter for 60 Minutes, Melanie Reid, who introduced the programme as being "the result of a year-long investigation". She went on to describe it as "a 90-minute special documentary". This framing is important to the Authority’s consideration of balance.

[184]  What followed, in the Authority’s view, was a powerful, gripping and at times emotionally harrowing programme. Few viewers would have been unmoved by the images of babies with shocking deformities, and the painful accounts of those whose families had suffered a seemingly disproportionate number of birth defects, illnesses and early deaths.

[185]  At the core of the story, as the reporter said, were the views and personal struggles of the people of Paritutu, New Plymouth. They believed that they and their families had been poisoned by their exposure to the chemicals 2,4,5-T and 2,4-D, which was produced in Paritutu by Ivon Watkins Dow between 1962 and 1987. The residents claimed that successive governments had failed them by not taking their claims seriously, and by putting economic interests before their health needs. In the Authority’s view, this was an important story which deserved to be told.

[186]  However, while the Authority agrees that the personal stories of the people of Paritutu were at the heart of the programme, it considers that the programme had two other distinct strands.

[187]  First, the programme outlined the historical context to the concerns of Paritutu residents and workers at the IWD plant. This included the history of 2,4,5-T and 2,4-D production and use in New Zealand, the growing international concerns about the effects of dioxin, and the importance of agricultural exports to the economy. It also encompassed the attitudes and responses from successive governments and their agencies, particularly the health authorities, to the growing health concerns of the people of Paritutu.

[188]   Second, the programme looked at the more recent responses of current health authorities. This included the serum study report which was commissioned by the Ministry of Health, conducted by ESR, and released in 2005.

[189]  As will be evident from its consideration of the balance standard, the Authority is of the view that the most significant aspects of this complaint lie in the broadcaster’s handling of the contemporary issues – that is, the serum study and the overall adequacy of action taken by the health authorities, which overlap to an extent.

[190]  Having outlined its view of the programme and how this affects the determination of this complaint, the Authority now proceeds to determine each aspect of MOH’s complaint under the standard or standards which it considers are most relevant and appropriate.

Standard 4 (balance)

[191]  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. In the Authority’s view, Let Us Spray discussed the issue of whether public health authorities had adequately investigated, reported and acted on the beliefs of people who lived or worked in Paritutu that dioxin exposure had caused serious health effects (such as illness, deformity, and death) for them and their families. This was clearly a controversial issue of public importance.

Authorial documentary

[192]  CanWest has argued that Let Us Spray was about the "personal stories" of the people who believed they had been poisoned by dioxin, and therefore it fell within guideline 4c because it approached the topic from a particular perspective. Guideline 4c to the balance standard states:

Factual programmes, and programmes shown which approach a topic from a particular or personal perspective (for example, authorial documentaries and those shown on access television), may not be required to observe to the letter the requirements of Standard 4.

[193]  As outlined in paragraphs [186] to [188] above, the Authority disagrees with the broadcaster's view. It finds that the programme clearly went beyond the personal stories of Paritutu residents, discussing historical facts and allegations about the conduct of government agencies in relation to dioxin. It also looked at the adequacy of the response by current public health authorities, questioning why they did not take action sooner, and whether the serum study was flawed.

[194]  Further, the way the programme was framed would have given viewers a definite expectation that it would be a serious, detailed and comprehensive report on the effects of dioxin poisoning in New Zealand. The programme was introduced as being “the result of a year-long investigation” and described as a "90-minute special investigation". The reporter did not state that the programme was a personal view or a one-sided investigation.

[195]  For these reasons, the Authority finds that viewers were entitled to expect that all significant perspectives would be provided so that they could reach an informed decision about the issue under discussion. Accordingly, it concludes that Let Us Spray was not the sort of programme covered by guideline 4c, and therefore the usual requirements of the balance standard applied.

[196]  Bearing this in mind, the Authority now turns to consider each aspect of MOH's complaint under the balance standard.

The Serum Study

[197]  Part of the programme discussed the dioxin serum study which was conducted by ESR and released by the Ministry of Health in 2005. The reporter said that the final report showed that "Paritutu residents on average had four times the dioxin levels of other New Zealanders". The following exchange took place between the reporter and John Leonard, a forensic accountant hired by the broadcaster to "crunch the numbers":

Voiceover:          But the New Plymouth dioxin group and some of the test’s participants
                         believe the serum study is seriously flawed. They claim the data has been
                         wrongly interpreted and this downplays the degree of the dioxin
                         contamination problem.

Leonard:            What I understand they’re saying is, "We don’t know what the hell
                         happened".

Voiceover:          So we hired an independent expert to see if these concerns are warranted.

Leonard:             I think they are, yes. The...

Voiceover:          John Leonard, a forensic accountant, studied the data we obtained along
                        with the Government’s own documentation.

Reporter:           Your figures are quite a lot different to their figures. Your figures show this
                         [holding her hands up at different heights to indicate the difference]; their
                         figures are more like this [holding hands up closer together].

Leonard:            That’s correct, yes. That’s because they’ve got two people in the wrong
                         place. Now if you take that...

Voiceover:          In brief, John Leonard found there were participants in the wrong group,
                         different data sets merged, a potential omission of a key participant and
                         lack of certainty because of the reduced sample size.

Leonard:            What I’m saying is there is enough information here for me to have
                         concerns about the...the accuracy of it.

Reporter:           How concerned are you about the accuracy of it?

Leonard:            Academically it’s...it is concerning and I guess for the people in Paritutu it
                        would be emotionally very concerning.

Reporter:           So you don’t think the people of Paritutu have been well served by the
                        study?

Leonard:           No, I don’t think they have. My recommendation would be that somebody
                        totally independent looks at this. The data is there – why not let somebody
                        else look at it? If it’s accurate then, fine, I’m wrong. But if it’s not accurate
                        then we will find out the correct position for the people of Paritutu.

[198]  In addition to the allegations outlined above, the programme also referred to Appendix O of the serum study in the following exchange between the reporter and Dr Jacobs:

Voiceover:        We put to Dr Jacobs the conclusion from our independent expert John
                        Leonard.

Reporter:          His recommendations are that the serum study is reviewed with the raw
                        data by an independent...by a statistician, preferably someone off-shore.
                        Will you agree to this?

Jacobs:            Well, certainly. In fact we’ve already had the study and its methodology and
                        its findings reviewed by a number of independent experts off-shore
                        [interrupted]

Reporter:          Did they have Appendix O? Did they have the raw data?

Jacobs:            I think they got all of it, yes.

Reporter:          Well, I’ve asked them and they didn’t. They didn’t have Appendix O, which
                        has got the anonymous serum results in it.

Jacobs:             Well, I mean, my assumption is that they had received it, I mean we can
                        double check that.

Reporter:          Does that concern you?

Jacobs:            Well, I mean, I would have assumed that the independent reviewers would
                        get access to the full report so they can, you know, they can make a
                        considered judgment on whether there’s issues with the methodology.

[199]  In the Authority’s view, these segments of the programme raised concerns about the accuracy, validity and integrity of the serum study. Further, the critique was clearly linked to the controversial issue discussed in the programme – whether the response by public health authorities to the concerns about dioxin had been adequate. Accordingly, the Authority finds that CanWest was required to make reasonable efforts, or give reasonable opportunities, to present significant points of view on the specific matters raised in relation to the serum study.

[200]  The following discussion took place in the programme between the reporter and Dr Mark Jacobs from MOH, directly after the exchange with Mr Leonard:

Jacobs:        And if you’ve got that advice we want to see it. I mean if there’s issues around
                   the methodology, we want to know. I mean, that was why we [interrupted]

Reporter:      Well, I’ll tell you what, since October 2005, this [holding up a piece of paper]
                    has been sent to the Health and Disability Commissioner, the Minister of
                    Health, the ESR study team, from people in the community. The issues
                    have already been canvassed.

Jacobs:        Well, I mean I’m aware of issues like concerns being raised by different people
                    in the community [interrupted]

Reporter:     These exact issues have been raised by people in the community.

Jacobs:        I mean, all we can do is go away and look again to see whether there’s new
                   issues that are being raised that haven’t been dealt with previously.

[201]  The Authority finds that the above exchanges were insufficient to provide balance on the criticisms of the serum study. CanWest has argued that MOH was the appropriate body to respond to the criticisms of the serum study, because it commissioned the study and drove the communications strategy. However, the Authority notes that the questions put to Dr Jacobs were not about the management and communication of the study; they were technical and specific questions about the way the study was conducted. These questions required a level of expertise and familiarity with the serum study and its methodology that Dr Jacobs clearly did not have. He did not know the significance that the programme makers had attached to Appendix O. He was not sufficiently acquainted with the methodology of the report to answer questions about mixed data sets, or whether the peer reviewers received the raw data. In other words, in order to achieve balance, input was required either from the organisation that conducted the serum study, ESR, or from someone able to speak on ESR's behalf.

[202]  The Authority considers that it was reasonable for CanWest to approach MOH in the first instance. It notes that the broadcaster gave MOH only a general indication of the subject matter, and it was on this basis that MOH agreed to be interviewed about the serum study. It is acceptable journalistic practice not to provide interviewees with a specific question line in advance of an interview. However, as noted above, it is clear from the exchanges between Dr Jacobs and the reporter that Dr Jacobs did not have sufficient detailed knowledge of the serum study to provide the significant perspective that would have satisfied the requirement for balance.

[203]  The Authority considers that if MOH were to be given a reasonable opportunity to give a response on ESR’s behalf, it needed to be given enough information about the criticisms of the study to allow a considered response to be prepared. In the Authority’s view, neither ESR nor MOH could respond effectively without either a copy of Mr Leonard’s report, or an adequate summary of his criticisms.

[204]  The Authority notes that, following the interview, MOH asked ESR to respond to the questions which had been put to Dr Jacobs; ESR’s response was subsequently relayed to CanWest, but CanWest maintained that it arrived too late for inclusion in the programme.

[205]  The broadcaster contended that it was given no indication by MOH that it should have approached ESR for comment on the serum study, or that a further response from MOH was forthcoming. However, the Authority notes that Dr Jacobs indicated in the interview that MOH wanted to see Mr Leonard's analysis. He said "if you’ve got that advice we want to see it. I mean if there’s issues around the methodology, we want to know". The Authority also points out that the responsibility for ensuring that a programme complies with broadcasting standards lies with the broadcaster.

[206]  From the broadcaster’s correspondence, it appears that the programme makers were so confident that Mr Leonard’s findings were correct that they deemed it unnecessary to seek an alternative perspective. However, following the broadcast, the serum study and John Leonard’s comments were reviewed by ESR and by a number of other reputable people (see paragraphs [109] to [113] above). While acknowledging the presence of two minor errors in the report, the consensus of the reviewers appears to be that these were inconsequential to the report’s findings. Without making a judgment about who is right or wrong, the Authority considers that there was clearly an alternative significant perspective on Mr Leonard’s specific criticisms that the broadcaster should have sought and included in Let Us Spray. Without this, viewers would have been unable to make an informed judgment as to whether the serum study was flawed in the way suggested by the programme.

[207]  This was not a situation where the broadcaster was rushing to meet a nightly news deadline; on the contrary, the programme’s reporter acknowledged that it was the result of a year-long investigation.

[208]  The Authority also acknowledges that Standard 4 allows for balance to be provided within the period of current interest. However, at no stage in the two years since the broadcast has CanWest broadcast an alternative perspective on the specific criticisms of the serum study that were contained in Let Us Spray.

[209]  In these circumstances the Authority finds that CanWest did not make reasonable efforts, or give reasonable opportunities to present significant perspectives on this part of the controversial issue under discussion, within the programme or within the period of current interest.

[210]  The Authority acknowledges that CanWest was exercising its right to freedom of expression (section 14 of the New Zealand Bill of Rights Act 1990) in broadcasting the programme which questioned the actions of a government department. The Authority has acknowledged the importance of section 14 and the values underlying the right to freedom of expression³. However, "the right of freedom of expression is not an unlimited and unqualified right"⁴. The Authority must ensure that, if it is considering upholding this part of the balance complaint, the restriction on the broadcaster's right to freedom of expression is prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society (section 5 of the Bill of Rights Act 1990).

[211]  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. Accordingly, the Authority considers that upholding a complaint under the balance standard would place a justified limitation on a broadcaster's right to freedom of expression.

[212]  The Authority must now consider whether it would be a reasonable and proportionate limit on CanWest's freedom of expression to uphold a breach of the balance standard on this occasion. It acknowledges that the questioning of official and government actions is an important part of a functioning democracy. However, such scrutiny must be balanced by a response from the appropriate agency so that viewers are able to reach an informed view on the matter under discussion.

[213]  As discussed above, the significant perspective which was omitted from this programme was critical to viewers' ability to reach an informed view on whether the serum study was valid, and therefore whether MOH had responded adequately to the concerns of Paritutu residents. Upholding this part of the balance complaint would signal the importance of providing the public with all significant sides of a controversial issue under discussion. Accordingly, upholding this part of the complaint would clearly promote the objective of Standard 4 (as outlined in paragraph [211] above).

[214]  In these circumstances, the Authority upholds the aspect of the balance complaint relating to the serum study.

Information about the Health Effects of Dioxin

[215]  A large part of MOH’s complaint was that the programme did not present the current knowledge about the health effects of dioxin. MOH said the programme did not question any of the claims made by Paritutu residents, or make independent inquiries as to whether there was any scientific basis for their concerns. It complained about statements such as these:

Andrew Gordon-Gibbs:     These people have had their DNA blown apart by that plant.

Reporter:                         A dioxin contaminant which many scientists believe can mutate
                                      genes, damage DNA and be passed down through generations
                                      of families.

Reporter:                        In the mid 60s, 2,4,5-T had been in heavy use in this country for
                                      nearly 20 years with little or no concern about the mutagenic
                                      dioxin compound.

Reporter:                        ...they believe those exposed to the chemicals have passed health
                                      problems down through the generations to their children and
                                      grandchildren and beyond.

[216]  The Paritutu residents interviewed in the programme listed numerous health effects that they and their families suffered, and which they believed were the result of dioxin exposure. These included types of cancer (such as colon and skin cancer), birth defects, multiple sclerosis, immune system deficiencies, spinal problems, deafness, cerebral palsy, heart conditions and Down’s Syndrome.

[217]  The Authority agrees with CanWest that the residents were entitled to express their beliefs in this manner. However, if there was absolutely no foundation for their beliefs, there would be no basis for the programme's assertion that the Ministry of Health should have taken more action in relation to dioxin exposure. The Authority considers that, by suggesting that MOH's response was inadequate, the programme implicitly accepted there was a possibility that some or all of these health concerns were caused by exposure to dioxin in Paritutu.

[218]  As a consequence, the Authority finds that the parts of the programme which discussed the health complaints of Paritutu people were inextricably linked to the controversial issue of whether public health authorities had adequately investigated, reported and acted on their concerns.

[219]  In the Authority’s view, it was not necessary for the programme to present a comprehensive explanation of the health effects of dioxin. However, in order for viewers to make an informed decision about whether MOH’s response to the dioxin issue was adequate and reasonable, they needed to be presented with the Ministry’s view about the current state of scientific knowledge surrounding dioxin. The Authority acknowledges that the programme did contain the following references:

[Near the start of the programme]

"...many New Zealanders have blamed the dioxin contained in these chemicals for deaths, illnesses and birth defects. Successive government reports have said there’s not enough evidence to make a direct link, but that hasn’t washed with many people..." (Reporter)

"Our Ministry of Health says claims of multi-generational effects aren’t widely accepted scientifically." (Reporter)

[Towards the end of the programme]

"Firstly, the recognition that there was a link between exposure to dioxin and some cancers was really only formalised in '97..." (Dr Jacobs)

"...I think part of it was because of the fact that there was still a lot of uncertainty around the science...you know, what the health implications were of exposure until the ’97 identification..." (Dr Jacobs)

[220]  However, in the context of a 90-minute programme, the Authority finds that the above brief references were not sufficient to put the residents’ claims into context. It notes that the interviews with Paritutu people were compelling and emotional, and the photographs of deformed babies would have had a particularly profound impact on viewers. While it is not necessary for the Authority to reach a conclusion as to whether their beliefs were valid, it is clear that an alternative significant perspective existed which should have been presented to viewers with sufficient detail and purpose to allow them to reach an informed view on the issue.

[221]  Having viewed the field tape, the Authority notes that Dr Mark Jacobs discussed the current state of knowledge about the health effects of dioxin in his interview with the reporter. Those parts of the interview were not broadcast. Dr Jacobs told the reporter that there was a clear link between dioxin and four "relatively rare" cancers, and some evidence of a link to babies born with spina bifida (where the father was exposed), but that it was not widely accepted scientifically that exposure to dioxin caused multi-generational birth defects. He also made the point that the science was unclear and still evolving.

[222]  Accordingly, the broadcaster knew that MOH had a view based on its assessment of the current state of knowledge about dioxin which conflicted with the beliefs of Paritutu people that dioxin was responsible for all of their health complaints, and that this view had guided its actions. In the Authority's view, this was clearly a significant viewpoint relevant to the issue of whether the Ministry had acted appropriately in response to the concerns of Paritutu residents. In order to meet the requirements of Standard 4, the Authority finds that the broadcaster needed to more fully convey this perspective to viewers, rather than relying on the minimal references contained in the programme. Without this, viewers were not in a position to form a considered view as to whether MOH’s actions had been inadequate, as suggested by the programme.

[223]  Accordingly, the Authority concludes that the broadcaster did not make reasonable efforts, or give reasonable opportunities, to present significant points of view on this aspect of the controversial issue under discussion.

[224]  The Authority acknowledges that upholding this part of the Standard 4 complaint would place a limit on the broadcaster’s right to freedom of expression. However, it finds that MOH's view on the current scientific knowledge about the health effects of dioxin was important to viewers' ability to reach an informed view on whether MOH had responded adequately. Upholding this part of the balance complaint would signal the importance of providing the public with all significant sides of a controversial issue under discussion. Accordingly, upholding this part of the complaint would clearly promote the objective of Standard 4 (as outlined in paragraph [211] above).

[225]  In these circumstances, the Authority upholds this part of the Standard 4 complaint.

John Leonard’s qualifications

[226]  MOH argued that, as a chartered accountant, John Leonard was not qualified to review the serum study. It said that viewers should have been told that he had no expertise in the relevant fields of science, statistics, toxicology or epidemiology. In the Authority’s view, the programme was entirely honest about Mr Leonard’s area of expertise. He was described as a forensic accountant; the programme did not give a false or misleading impression that he had any science-related qualifications. Further, Mr Leonard himself suggested that a different sort of expertise was needed to check his conclusions.

[227]  The Authority declines to uphold this aspect of the Standard 4 complaint.

Comment from other agencies

[228]  MOH argued that the broadcaster should have sought comment from other agencies such as the Department of Labour and Ministry for the Environment. The broadcaster submitted that MOH was the appropriate agency to respond.

[229]  Because the programme clearly focused on the actions of public health authorities in relation to Paritutu residents’ dioxin exposure - as opposed to any environmental or employment-related issues - the Authority agrees with the broadcaster that it was reasonable for MOH to be contacted for a response. It does not uphold this part of the complaint.

Gary Green

[230]  MOH argued that the programme should have disclosed that Gary Green had been denied ACC cover, and that he may have been exposed to dioxin from sources other than Paritutu. It also noted that Mr Green had a preformatted letter on his website to be emailed to the Prime Minister or Health Minister asking for, among other things, compensation. CanWest noted that Mr Green had said in the programme that he had proof that he’d been poisoned – not proof that his poisoning was related to the Paritutu plant. Further, he had worked in one of the areas in Paritutu where the highest dioxin contamination in the soils was found.

[231]  In the Authority’s view, it was not necessary for the broadcaster to include any further information about Gary Green as suggested by MOH. The programme made it clear that Mr Green had worked in Paritutu in the mid 1980s, and the reporter emphasised that his exposure had occurred a long time ago by saying:

It is hard, though, to comprehend, because what you’re saying is that you got hit with something you didn’t see 20 years ago.

[232]  Although Mr Green may have been exposed to dioxin from other sources, the Authority considers that this was not relevant to the programme. None of the Paritutu residents was able to provide positive proof that their ailments were the result of exposure to dioxin. Mr Green was simply an illustration of someone who had proven elevated levels of dioxin in his blood and had ascribed his serious health effects to that poisoning.

[233]  For the above reasons, the Authority finds that Standard 4 was not breached in this respect.

Andrew Gordon-Gibbs

[234]  MOH argued that the programme should have disclosed that Andrew Gordon-Gibbs, one of the interviewees, was the head of the Chemically Exposed Paritutu Residents Associations. In the Authority’s view, this particular piece of information was not necessary to viewers' understanding of the controversial issue of public importance. Mr Gordon-Gibbs was introduced as "an advocate for people who believe they’ve been poisoned by the Ivon Watkins Dow plant" and it would have been clear to viewers that he had a particular perspective and agenda. The Authority declines to uphold this part of the complaint.

Standard 6 (fairness)

[235]  Standard 6 requires broadcasters to deal justly and fairly with any person or organisation taking part or referred to in a programme. There are two main elements to MOH’s fairness complaint: unfairness to ESR, and unfairness to the Ministry.

Unfairness to ESR

[236]  The Authority notes that there was only one reference to ESR throughout the Let Us Spray programme. This was by the reporter, when she told Dr Jacobs that the community’s concerns about the study had been raised with various agencies including "the ESR study team". However, the serum study criticised in the programme was conducted and written by ESR. The Authority considers that members of the research and scientific community would have been aware that ESR was the author of the study being criticised in the programme. Further, any member of the public could have easily accessed this information via the internet. For these reasons, the Authority concludes that ESR was an organisation "taking part or referred to" in Let Us Spray.

[237]  In its consideration of Standard 4 (balance) in paragraphs [197] to [214] above, the Authority found that the broadcaster failed to provide viewers with an alternative significant perspective on John Leonard's critique of the ESR serum study. It noted that the broadcaster did not need to approach ESR directly for this perspective if it believed that MOH had taken ownership of the study, but it was clear that Dr Jacobs was unable to give a meaningful response to Mr Leonard's report. The Authority has concluded that the broadcaster needed to at least give MOH sufficient details about Mr Leonard’s criticisms so that it could have sought a response from ESR. If this had occurred, viewers would have been advised that ESR - and a number of other credible people in the field - found that Mr Leonard had only identified minor and inconsequential flaws in the study.

[238]  Conducting research is a core part of ESR’s work,⁶ and the Authority considers that strongly criticising the validity and integrity of a study conducted by ESR would have had a negative effect on the professional integrity of the organisation. The Authority considers that ESR was treated unfairly by the broadcaster because Mr Leonard's conclusions were broadcast without obtaining ESR's response to his specific criticisms. It reiterates that the broadcaster was not under any time pressure which may have limited its ability to seek that perspective; the investigation had been ongoing for over a year before the broadcast.

[239]  Accordingly, the Authority finds that CanWest treated ESR unfairly by broadcasting forceful and specific criticisms of its study without presenting the ESR’s perspective.

[240]   As discussed above in relation to the balance standard, the Authority acknowledges that upholding the fairness complaint would place a limit on the broadcaster's right to freedom of expression. In Decision No. 2008-014, the Authority determined that upholding a complaint under Standard 6 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 6 in the following terms:

One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.

[241]  The Authority must now consider whether it would be a reasonable and proportionate limit on the broadcaster's freedom of expression to uphold a breach of the fairness standard on this occasion. It has found above that the item created a negative impression through the omission of a key perspective which led to ESR being unfairly portrayed.

[242]  Upholding a breach of the fairness standard on this occasion would not prevent broadcasters from questioning the quality of research conducted on behalf of government agencies. Rather, it would ensure that such research is portrayed in a fair manner. Had ESR’s perspective on Mr Leonard’s criticisms been included in the programme, the Authority considers that viewers would have been left with a very different impression about ESR’s performance. In this respect, upholding this complaint clearly promotes the objective of Standard 6 as described above.

[243]  In these circumstances, the Authority finds that upholding this part of the fairness complaint places a justified and reasonable limit on CanWest’s freedom of expression. It therefore upholds the complaint that ESR was treated unfairly in this respect.

Unfairness to MOH

[244]  The Authority agrees with the complainant that MOH was treated unfairly by the broadcaster. It finds that two aspects of the programme contributed to the unfairness, and each of these matters is discussed below.

[245]  First, the Authority notes that a large part of MOH’s complaint was that the programme left the impression that there had been a historical and ongoing cover-up of the dioxin problem in Paritutu by the Ministry and other government agencies. The Authority will deal with the historical aspect of the programme in a separate section of the decision (see paragraphs [255] to [260]).

[246]  Regarding the current Ministry of Health and the recent steps it had taken with respect to the dioxin issue in Paritutu, the Authority agrees with MOH that the programme questioned whether the allegedly inadequate response by health authorities was a result of a deliberate cover-up. For example, the reporter asked Dr Jacobs:

Is it any wonder that the people down there have a saying about the Ministry of Health and it is "they will delay and deny until you die"?

Do you understand why people think this has been one heck of a cover-up when it comes to dioxin, Paritutu, 2,4,5-T, Ivon Watkins Dow?

I mean, do you understand why affected people have felt that the health department has been more interested in protecting the New Zealand economy than protecting public health?

[247]  The Authority considers that the criticisms of the recent serum study are relevant to the cover-up allegation. In its consideration of Standard 4 above (see paragraphs [197] to [214]), the Authority has found that the omission of ESR’s perspective on the serum study and the implication that the peer reviewers had been denied Appendix O – whether it came directly from ESR or through MOH on ESR’s behalf – amounted to a breach of the balance standard. Because MOH was portrayed as being responsible for the serum study, the Authority considers that the omission of an alternative view on Mr Leonard’s report also led to MOH being treated unfairly. If the programme had conveyed the view held by ESR and other reviewers that the flaws identified by Mr Leonard were inconsequential, it would have weakened the suggested appearance of a cover-up by the current Ministry of Health.

[248]  Further, the Authority notes that the Ministry’s view about the known health effects of dioxin was also relevant to the question of whether there had been a cover-up. It has already concluded (see paragraphs [215] to [225]) that the omission of this view led to the programme being unbalanced. If the programme had conveyed MOH’s perspective that the science around dioxin was unsettled and its belief that few of the health conditions suffered by Paritutu people had a strong, if any, link with dioxin, the Authority considers that this would have gone some way towards answering the “cover-up” allegation.

[249]  In these circumstances, the Authority is of the view that the broadcaster treated MOH unfairly by not including a response to the serum study criticisms or the Ministry’s view about the health effects of dioxin.

[250]  The second aspect of the programme which the Authority considers was unfair to MOH relates to the following statements:

Reporter:       It was at this point our Ministry of Health embarked on an extensive
                     nationwide study of dioxin levels. However, of the 1834 blood serum
                     tests done, none were taken from the residents of Paritutu. Again
                     the people with potentially the highest exposure were left out.

Resident:       There have been strategy and delay tactics until you die and they don’t care.

Reporter:        By now many New Plymouth people were well and truly fed up.

Resident:       ...they should be nailed by the arse to the fence.

[251]  The Authority accepts that it was the Ministry for the Environment, not MOH, that conducted the study referred to by the reporter and criticised by the residents. The Authority considers that this unwarranted criticism of MOH for a study that it was not involved in contributed to the unfairness to the Ministry.

[252]  Having found that the broadcaster treated the complainant unfairly in these respects, the Authority must consider whether it would be a reasonable and proportionate limit on the broadcaster's freedom of expression to uphold a breach of the fairness standard on this occasion.

[253]  In the Authority’s view, upholding a breach of the fairness standard on this occasion would not prevent broadcasters from questioning the actions of organisations. Rather, it would ensure the performance of such organisations is portrayed in a fair manner. In this respect, upholding this complaint clearly promotes the objective of Standard 6 as outlined in paragraph [240] above.

[254]  In these circumstances, the Authority finds that upholding this part of the fairness complaint places a justified and reasonable limit on CanWest’s freedom of expression. It therefore upholds the complaint that MOH was treated unfairly in this respect.

Historical Claims and Cover-Up

[255]  The complainant argued that the broadcaster treated MOH unfairly because it was not given advance notice that the programme would be referring to past actions of Ministry officials dating back to 1962. This also relates to the Ministry’s complaint that the programme alleged that there had been a historical cover-up of the dioxin problem in Paritutu by the Ministry and other government agencies.

[256]  In paragraphs [246] to [248] above, the Authority has found that the programme did question whether the allegedly inadequate response by current health authorities - including the serum study - was the result of a deliberate cover-up. However, with respect to the historical allegations about former administrations, the Authority considers that the programme did convey that the science surrounding dioxin and potential health effects was extremely limited during previous decades. This was illustrated by news footage from the mid 1980s showing the then Director of Public Health saying:

And we know full well that I myself for example, provided it were properly boiled, could drink many litres of the ready-to-use 2,4,5-T spray each day and it would not affect my health.

[257]  In light of this, the Authority considers that viewers would more likely have been left with the impression that previous health authorities had been ignorant of the possible effects of dioxin, rather than having participated in a deliberate cover-up. The Authority also notes that the programme referred to the following steps taken by official agencies in relation to the dioxin issue:

• the 1972 Agricultural Chemicals Board investigation of birth defects
• regulatory changes restricting the amount of dioxin in 2,4,5-T
• a Ministerial inquiry into potential dioxin exposure from IWD in 1986
• New Zealand’s participation in the WHO breast milk study in 1989-1990 and 2001
• the Ministry of Health’s decision in 2001 to commission ESR to conduct dioxin tests in Paritutu and the release of that study in 2005.

[258]  In the Authority's view, the programme made it clear that public authorities had taken several official steps over the years to investigate the dioxin issue. Although the programme questioned whether these steps had been sufficient – and this was a legitimate question to explore – it was clear that action had in fact been taken.

[259]  The Authority considers that it was not necessary for the programme to report that MOH had announced plans to develop a healthcare package for Paritutu residents exposed to dioxin. This plan was still very much in its infancy at the time of the broadcast.

[260]  For the above reasons, the Authority finds that MOH was not treated unfairly because it was not given an opportunity to comment on the historical information. It declines to uphold this part of the complaint.

Unfairness to Dr Jacobs

[261]  In its referral, MOH argued that the broadcaster treated Dr Jacobs himself unfairly, in addition to its arguments that the Ministry was treated unfairly. The Authority’s task is to review the broadcaster’s decision on the complaint. Because this issue was not raised in MOH’s original complaint to the broadcaster, the Authority has no jurisdiction to consider whether Dr Jacobs was treated unfairly.

John Leonard's qualifications

[262]  In paragraph [226] above, the Authority noted that John Leonard was described as a forensic accountant, and found that the programme did not give any false or misleading impression that he had any science-related qualifications. It disagrees with the complainant that MOH and ESR were treated unfairly simply because the broadcaster did not explain the "limitations" of Mr Leonard’s expertise; his qualifications were truthfully given and were not embellished by the programme.

[263]  The Authority declines to uphold this part of the fairness complaint.

Matron Henderson's study

[264]  The programme referred to a study conducted by a New Plymouth matron of over 5,000 babies which recorded birth defects in that region. The reporter said:

The New Plymouth matron says she gave the findings of her study of over 5,000 babies to what is now the Ministry of Health. They say they have never received it. Whatever the case, it wouldn’t see the light of day for 30 years when it was finally reviewed by Taranaki Health.

[265]  MOH complained that the reporter’s comment, "Whatever the case..." questioned the Ministry's denial that it had never seen the study. The Authority does not agree with the complainant that the reporter’s remark was unfair. While it may have conveyed a degree of scepticism, the fact remains that the Ministry's perspective – that it had not seen the report – was put forward. Viewers were able to decide for themselves what to believe. For these reasons, the Authority finds that MOH was not treated unfairly in this respect.

Agricultural Chemicals Board study

[266]  The programme referred to a 1972 inquiry by the Agricultural Chemicals Board (ACB) into a potential link between 2,4,5-T exposure and birth defects. Interviewee and 2,4,5-T researcher Bruce “Wildblood” Crawford said of the study:

One of the really telling things was that they defined exposure in a very, very narrow way. Unless it was tasted in the water, or a mother had been directly, you know, around spraying, they discounted exposure. So if she lived in an area where aerial spraying had occurred, that wasn’t considered good enough exposure. If her husband came home from work with his clothes soaked in 2,4,5-T, that wasn’t considered good enough exposure. So they basically discounted a lot of potential birth defects on that basis.

[267]  MOH raised this portion of the programme in its referral to the Authority as part of its argument that the programme was unfair to the Ministry. However, the Authority does not accept that a criticism of the ACB study reflected negatively on the Ministry. In fact, the programme explicitly stated that the inquiry team was convened "not by the Department of Health" but by the ACB.

[268]  Accordingly, the Authority declines to uphold this part of the complaint.

Suggestion that MOH was "in cahoots" with IWD

[269]  This part of the complaint refers to the following statement by the reporter:

Meantime, across the other side of the world in America, Dow US was facing a $22 million court case over 2,4,5-T. Who did they turn to? None other than the Kiwis – namely Professor McQueen, the consultant toxicologist to the New Zealand Department of Health who’d been the principal advisor in the birth defects inquiries. What’s more he got the all clear from the then Minister of Health to give evidence for Dow US. His proposed testimony was:

The New Zealand Department of Health remains firm in its belief that as presently used 2,4,5-T is not a health hazard.

[270]  MOH argued that this suggested the Ministry helped Dow defend a lawsuit. In fact, it said, Professor McQueen gave evidence about New Zealand’s birth defect data at an Environmental Protection Agency hearing into whether or not to continue a partial ban on the use of 2,4,5-T. It was an administrative hearing where no damages were claimed. In response, CanWest argued that the correspondence showed that Professor McQueen had been asked by Dow to give evidence. It said that the hearings had ended up with Dow giving up its battle to continue selling 2,4,5-T, at a cost of $22 million.

[271]  Having reviewed the arguments from both parties, the Authority concludes that the statement was not unfair to MOH. Although it may have suggested that Professor McQueen had given evidence in a lawsuit, as opposed to an administrative hearing, the salient point was that Dow had asked him to give evidence in support of its position. MOH has not disputed that Dow approached Professor McQueen, nor has it taken issue with the programme’s reporting of Professor McQueen’s proposed testimony. In these circumstances, the Authority concludes that the reporter’s statement was not unfair to MOH.

Breast Milk Study – participation in second round of testing

[272]   MOH argued that the following statement by Andrew Gordon-Gibbs in the programme was unfair, because the programme did not include the Ministry’s perspective as to why New Zealand had not participated in the second round of breast milk testing:

It may well have been a coincidence [that the two lowest samples were sent] but I find it interesting they declined to take part in the next WHO round of breast milk testing. I believe they were aware the longer they left it the lower the levels would be.

[273]  The Authority does not agree with the Ministry that the above statement was unfair, for the following reasons. First, viewers were well aware that Mr Gordon-Gibbs, as an advocate for Paritutu residents who believed they were affected by dioxin, was approaching the issue from a particular perspective. The Authority considers that viewers may well have treated his comments with a degree of scepticism against that background. Second, Mr Gordon Gibbs was entitled to offer his opinion on the matter, and clearly couched his statement as speculation. Accordingly, the Authority finds that it was not necessary for the programme to include MOH’s perspective on this issue. It concludes that MOH was not treated unfairly in this respect.

Breast Milk Study – lowest two samples

[274]  Having noted that the WHO 1989 breast milk study detected the lowest levels in India, New Zealand and Thailand, the reporter said:

How could this be? Well, as chance would have it, it was the first two samples analysed that were sent to the World Health Organisation and they just happened to be by far two of the lowest of the 37 samples.

[275]  MOH argued that this statement implied that there had been a cover-up involved in sending the two lowest samples for testing. It said that this was not possible, because the samples were not analysed before they left New Zealand.

[276]  The Authority acknowledges that the statement did imply that the samples had been analysed before being sent to the WHO study. However, the reporter’s words "as chance would have it", left open the possibility that it was coincidental that the first two samples had the lowest dioxin levels. The broadcaster did not actually state that the lowest samples had been sent deliberately. Further, references to the breast milk study were only a very brief part of the 90-minute documentary. The Authority considers that this particular part of the programme would not, in itself, have left a negative impression of the former or current MOH administration.

[277]  In these circumstances, while noting that this was a borderline decision, the Authority considers that upholding a breach of the fairness standard in relation to this statement would not be a reasonable or justified limitation on the broadcaster's right to freedom of expression guaranteed by section 14 of the Bill of Rights Act 1990.

[278]  Accordingly, the Authority concludes that the reporter’s comment was not unfair to MOH and it declines to uphold this part of the complaint.

Suggestion that the Government portrayed dioxin levels as low

[279]  Directly after Andrew Gordon-Gibbs’ assertion that New Zealand had not participated in the second WHO breast milk study (see paragraph [272]), the reporter said:

Why is this so important? Well, having low levels of dioxin is a pretty big factor for a country like New Zealand, so heavily dependent on agricultural exports.

[280]  MOH argued that this statement confused dioxin in humans with dioxin in animals. However, the Authority agrees with CanWest that the point being made was that "high dioxin levels would not be good for a country reliant on export trade". Whether or not dioxin had affected our agricultural exports, the appearance of dioxin exposure would be damaging to New Zealand’s trade reputation. The Authority considers that this was a valid link for the programme to make.

[281]  The Authority does not consider that MOH should have been given an opportunity to respond to the reporter’s comment .The reporter was simply musing on a possible link between breast milk samples with low dioxin concentrations being sent to the WHO study, and New Zealand’s international export reputation. It was an historical matter referred to by way of background material. For these reasons, the Authority concludes that the reporter’s statement was not unfair to MOH, and it does not uphold this part of the complaint.

Serum Study data

[282]  Referring to the interim report released by MOH following the first round of serum tests in Paritutu, the reporter said:

The national average they’ve used is seven years out of date and this puts a bias on the results. Using the corrected national average of just over two, Paritutu people are not three times, but five times the national average. So the press and public were misinformed. You have to ask why they used outdated figures when their own documents warned them that doing this, and I quote, "will give excessively high typical population levels".

[283]  MOH pointed out that the interim serum study itself pointed out that using the outdated national average was likely to underestimate the true magnitude of dioxin elevation in the study group. Moreover, it said, the adjusted national average was used in the final report. MOH said it was unfair to suggest that some other internal document contained a warning about using the figure that had been ignored in the study.

[284]  The Authority finds no unfairness in the reporter’s statement. Irrespective of whether the correct figure was used in the final report, it was a legitimate criticism that the interim report had used an out-of-date national average, and that this fact was not referred to when health officials gave a press conference about the results. The Authority considers that this part of the programme was not unfair to MOH, and it declines to uphold this part of the complaint.

Court action against IWD

[285]  MOH said the reporter implied that MOH had failed to take court action against IWD when it could have done so, by asking a series of hectoring questions without foundation.

[286]  Towards the end of the programme, the reporter asked Dr Mark Jacobs why "recompense has never been sought from Dow". Dr Jacobs said:

We did get advice on that and the advice was that, as far as we can tell, Dow were operating within the permissions that they were given at the time, now...which then means that there isn’t the capacity to try and seek that legal redress in that sort of formal sense.

[287]  The reporter questioned Dr Jacobs' view, and he responded that the issue was "not a closed book" and "if more information comes to light, I mean, we will continue to redress that".

[288]  In the Authority’s view, while it was clear that the reporter felt that there was a legal case against IWD, Dr Jacobs clearly put forward MOH’s view that there was not. Further, he indicated that the issue would be re-examined if "good information that potentially could stand up in court" was put forward. The Authority considers that this element of the programme was not unfair to MOH; it was clearly allowed to put forward its perspective on the issue. The Authority does not uphold this part of the fairness complaint.

Standard 5 (accuracy)

[289]  Several of the matters discussed above in the Authority’s consideration of Standard 4 (balance) and Standard 6 (fairness) were also raised under the accuracy standard. The Authority considers that its decision in respect of balance and fairness adequately and appropriately addresses all aspects of MOH’s complaint. For example, the Authority is not the appropriate body to determine the merits of John Leonard’s critique of the ESR serum study, but it has considered whether the programme should have presented alternative perspectives on that issue, and whether this was unfair to ESR and MOH.

[290]  In these circumstances, the Authority subsumes the Standard 5 complaint into its consideration of balance and fairness.

Conclusion

[291]  In conclusion, the Authority has found that aspects of the broadcast of Let Us Spray breached standards of balance and fairness. The broadcaster failed to make reasonable efforts to include significant perspectives on the serum study and the health effects of dioxin, and this in turn led to ESR and MOH being treated unfairly.

[292]  These matters were critical to the overall presentation of the controversial issue of public importance: whether public health authorities had adequately investigated, reported and acted on the beliefs of people who lived or worked in Paritutu that dioxin exposure had caused serious health effects (such as illness, deformity, and death) for them and their families.

[293]  The Authority points out that its findings should not be viewed as restricting legitimate investigation and criticism of actions of government departments. It reiterates that this was an important story which deserved to be told; the people of Paritutu were entitled to express their beliefs about dioxin and how the government had failed them. However, it is essential that investigations into controversial issues of public importance be presented in a fair and balanced way. This ensures that viewers are adequately informed of the issues, and that the people and organisations being criticised have a reasonable opportunity to put forward their side of the story.

 

For the above reasons the Authority upholds the complaint that the broadcast by CanWest TVWorks Ltd of Let Us Spray on 23 October 2006 breached Standards 4 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

Submissions on Orders

[294]  Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act. It invited submissions on orders from the parties.

[295]  MOH submitted that the Authority should order TVWorks to broadcast a comprehensive summary of the Authority’s decision on both 3 News and 60 Minutes. It said that the statement should be presented orally and visually on screen. MOH argued that, in relation to Let Us Spray, the statement should refer to the Authority’s findings that:

• the documentary depicted a series of Paritutu residents with health conditions and implicitly accepted that all or some of these were caused by dioxin exposure, but failed to broadcast the Ministry’s references to the current scientific consensus that dioxin did not have those effects;
• because of that, viewers were denied proper information about alternative viewpoints that would enable them to reach informed views and the programme was therefore unbalanced and unfair toward the Ministry and ESR;
• the programme made severe criticisms of the Paritutu serum study of residents, accusing the Ministry of Health and ESR of downplaying the effects of exposure, but did not put those criticisms to experts who could respond to them, including the authors of the study;
• when reputable scientific reviewers did see those criticisms, they agreed that the criticisms were largely inconsequential;
• in two years since the documentary, the broadcaster had never broadcast that rebuttal; and
• again, this meant the programme was unbalanced and unfair towards the Ministry of Health and ESR.

[296]  MOH said that it accepted the broadcaster’s assurance that the programme was made in good faith, and it did not seek an apology or any order for costs.

[297]  The broadcaster submitted that the only order the Authority should make was for the broadcast of a statement. It noted that Let Us Spray was not a 60 Minutes report but a 3 News Special, and therefore a more appropriate time for a statement would be at the end of 3 News at approximately 7pm.

Authority's Decision on Orders

[298]  The Authority has considered the submissions on orders from both parties. It is of the view that it is appropriate to order TVWorks to broadcast a statement containing a comprehensive summary of the upheld aspects of its decision. The statement must be presented verbally and also visually on screen, within one month of the date of this decision. The Authority’s usual practice is for the broadcaster to draft a proposed statement for approval, and it intends to follow that procedure in this case. However, it agrees with MOH that the points outlined in paragraph [295] are important parts of the Authority’s decision.

[299]  The Authority has also ordered a statement to be broadcast in respect of Decision No. 2007-015, which relates to a complaint by the Institute of Environmental Science and Research Ltd (ESR)about Let Us Spray. In the Authority’s view, the statements for these two complaints should be combined as they cover much of the same material.

[300]  In previous instances where the Authority has ordered a broadcast statement in relation to a one-off programme or one which does not have a regular timeslot, it has directed that the statement be broadcast during a similar timeslot on the same day of the week as the original broadcast (see, for example, Decision No. 2007-138). It follows that approach in this case, and orders that the statement must be broadcast on a Monday evening on TV3 directly prior to the 7.30pm programme.

[301]  The Authority has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 in ordering the broadcast of a statement under section 13(1)(a) of the Broadcasting Act 1989. The Authority considers the order it has made on this occasion is consistent with the New Zealand Bill of Rights Act's requirement that limits on freedom of expression must be prescribed by law, be reasonable, and be demonstrably justifiable in a free and democratic society.

Order

The Authority makes the following order pursuant to section 13 of the Broadcasting Act 1989:

Pursuant to section 13(1)(a) of the Act, the Authority orders TVWorks Ltd to broadcast a statement approved by the Authority. That statement shall:

• be broadcast within one month of the date of this decision
• be presented both verbally and visually on screen
• be broadcast on TV3 on a Monday evening directly prior to the 7.30pm programme, on a date to be approved by the Authority
• contain a comprehensive summary of the upheld aspects of the Authority's decision.

The Authority draws the broadcaster's attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

Signed for and on behalf of the Authority

 

Joanne Morris
Chair
5 August 2009

Appendix 1

[302]  The programme Let Us Spray was broadcast on 23 October 2006 and the complainant’s full referral to the Authority was received on 2 March 2007. As a matter of record, the Authority wishes to document the reasons why there has been such a lengthy delay in the determination of this complaint.

Scope of the referral

[303]  Having received notification that MOH had referred its complaint to the Authority, the broadcaster questioned the scope of the referral, arguing that MOH had raised matters that had not been included in its original formal complaint. On 28 March, it asked the Authority to reach a preliminary view on which parts of the referral required a response from the broadcaster.

[304]  After considering the broadcaster’s request, the Authority advised the broadcaster on 27 April 2007 that it would agree to determine the scope of the complaint by way of an interlocutory decision. It asked the broadcaster to make a submission outlining the parts of the complaint that it considered were added at the referral stage and so should not be considered by the Authority.

[305]  On 6 June 2007 the Authority contacted the broadcaster again, having received no submissions. The broadcaster advised that a company takeover had been given priority and that it hoped to be able to focus on the complaint at the end of that week.

[306]  On 27 June 2007, having received no further correspondence from the broadcaster, the Authority’s Legal Manager conducted a preliminary assessment of the complaint. The broadcaster was advised that, although some points had been expanded on in MOH’s referral, the Authority would probably decline to consider only one issue: MOH’s complaint in the referral that the broadcaster had treated Dr Mark Jacobs unfairly. CanWest was asked to provide its submissions on the complaint by 10 July 2007 so that it could be placed before the Authority at its July board meeting.

[307]  CanWest advised the Authority that it would be unable to meet this deadline, but it was “reasonably confident” that it could provide submissions in time for the Authority’s August meeting. They were provided on 7 August 2007 in time for the meeting.

Field Tape and Interlocutory Decisions

[308]  Following this, the Authority was able to complete a preliminary assessment of the complaint at its August 2007 meeting. This included a consideration of MOH’s request that the broadcaster be compelled to provide it with a copy of the field tape of the interview with Dr Mark Jacobs. The Authority agreed that, under the principles of natural justice, MOH should have the opportunity to review the field tape. It communicated this to the broadcaster on 11 September 2007.

[309]  On 4 October 2007, CanWest advised the Authority that it would provide the field tape to the Authority but not to MOH. The Authority responded that same day and reiterated its view that MOH should have an opportunity to view the tape, and asked CanWest to provide the field tape to the Authority by 8 October. CanWest refused to comply with this request by letter of 9 October.

[310]  On 10 October 2007 the Authority released an interlocutory decision (see Decision No. ID2007-012) ordering CanWest to supply it with a copy of the field tape under section 12 of the Broadcasting Act 1989 and section 4C of the Commissions of Inquiry Act 1908. The field tape was received by the Authority on 12 October 2007.

[311]  Having considered legal arguments from both parties, the Authority released an interlocutory decision on 26 October 2007 (see Decision No. ID2007-012B) ordering CanWest to supply MOH with a copy of the field tape under section 12 of the Broadcasting Act 1989 and section 4C of the Commissions of Inquiry Act 1908.

Judicial Review proceedings

[312]  On 31 October 2007, the Authority received notice that CanWest was seeking to judicially review the Authority’s interlocutory decision ordering it to provide the field tape to MOH.

[313]  A hearing date was eventually set down for 25 August 2008. Nine months after filing the judicial review proceedings, and one month before the hearing date, CanWest filed a notice of discontinuance. MOH was provided with a copy of the field tape on 11 August 2008.

Additional meetings scheduled

[314]  After the parties’ final submissions were received on 10 February 2009, the Authority scheduled a special meeting to consider MOH’s request that it seek expert assistance to determine aspects of the complaint. Having determined that it did not require any expert assistance, the Authority was finally able to proceed to determine the substance of this complaint in March 2009. Given the extraordinary delays, the Authority scheduled extra meetings, additional to its ordinary five-weekly meetings, in order to progress the matter as quickly as possible.

Appendix 2 Correspondence

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

1. Ministry of Health’s formal complaint – 20 November 2006
2. CanWest’s decision on the complaint – 22 December 2006
3. MOH’s referral to the Authority – 2 February 2007
4. MOH’s submissions on referral – 2 March 2007
5. CanWest’s response to the Authority questioning scope of complaint – 28 March 2007
6. MOH’s response to CanWest – 11 July 2007
7. CanWest’s interim submissions on referral – 30 July 2007
8. CanWest’s substantive submissions on referral – 7 August 2007
9. Documentary team’s submissions – 7 August 2007
10. MOH’s response to interim submissions – 15 August 2007
11. MOH’s response on CanWest’s substantive submissions – 8 September 2008
12. CanWest’s response – 31 October 2008
13. Documentary team’s response – 31 October 2008
14. MOH’s response and request for appointment of expert – 2 December 2008
15. MOH’s response to Authority’s request – 30 January 2009
16. CanWest’s response to request for appointment of expert – 3 February 2009
17. MOH’s final comments on appointment of expert – 10 February 2009
18. MOH’s submissions on orders – 9 July 2009
19. CanWest’s submissions on orders – 22 July 2009

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¹The reasons for the delays in processing this complaint are outlined in Appendix 1.

²See Decision Nos. 2000-030, 2005-115 and 1995-025

³See Decision No. 2008-040

⁴P v D and Independent News Auckland Ltd [2000] 2 NZLR 591, per Nicholson J