Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Close Up – two days before General Election – item about 83-year-old skin cancer sufferer who had urgent operation cancelled three times – host explained that Minister of Health had refused to come on the show – programme included poll asking who should be next Prime Minister – allegedly unbalanced, inaccurate and unfair
Standard 4 (balance) – story presented particular example, not a discussion of wider issue – did not discuss a controversial issue of public importance – not upheld
Standard 5 (accuracy) – complainant did not identify any inaccuracies – broadcast would not have misled viewers – not upheld
Standard 6 (fairness) – complainant did not identify person or organisation treated unfairly – not upheld
This headnote does not form part of the decision.
 An item on Close Up, broadcast on TV One at 7pm on Thursday 6 November was introduced by the host as follows:
83-year-old Gordon Sutherland fears he'll die on a hospital waiting list. Gordon has skin cancer. He has tumours on his nose and last month another one appeared on his jaw. Doctors have told him he urgently needs an operation. Yesterday he was about to go into surgery, an entire surgical team was waiting, but at the last minute the operation was cancelled because of a lack of beds at Auckland Hospital. The thing is that it’s the third operation they've cancelled on Gordon in a matter of weeks. And all the time his tumours are growing, threatening his eyesight and his very life. Gordon feels like the system is letting him down, potentially killing him.
 A Close Up reporter interviewed Mr Sutherland at his home. He gave his views that the health system was to blame for his predicament, saying he was "absolutely devastated" and that "the system has knocked me back... it is not fair".
 Back in the studio, the Close Up host said:
Well clearly there are a lot of questions and concerns that need to be addressed, not just for the benefit of Gordon Sutherland but for all of us who may be or who may one day be in his position. There is no one in the studio with me now, as you can see. One would’ve thought Minister of Health David Cunliffe would have seized the opportunity to be in this seat next to me to address all these issues. His staff told us he had a family engagement. The Auckland District Health Board did offer us a clinician to interview but they weren’t disputing any of the medical facts, and we wanted someone from the Board to answer our questions about the broader issues, about system failures, about funding. They declined, but sent us a statement saying Gordon's operations had been cancelled for various reasons including lack of a bed, inability to get a full surgical team together, and because more acute patients had taken priority. They say they’re hoping he will finally get surgery in the next couple of weeks - hoping. And they're offering to meet with Gordon and his family - presumably that's if they can find a room to meet in and chairs to sit on. We will keep following this one, rest assured.
 During the programme, which screened two days before the 2008 General Election, a viewer poll was conducted, which asked, "Who do you think should be our next Prime Minister?"
 James Young made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the item was unbalanced, inaccurate, unfair and "politically loaded, a last minute effort to turn public opinion and the forthcoming vote against the current government within two days of the General Election".
 Mr Young argued that the item had "made use of an unfortunate person... to portray the current government in a bad light, implying mismanagement and blaming the underfunding common to all public services". He noted that the item was introduced by "a suitably sympathetic and appropriately deeply shocked Paul Henry". Mr Young considered it was "one of the all too many news items over recent months intended to influence the outcome of the election, but stopping short of breaching the Electoral Finance Act by actually advising viewers which way to vote".
 The complainant maintained that the item intended to blame the current government for a situation which was partly due to the nature of the illness, and "by no means entirely the fault of a health system " that had deferred Mr Sutherland's surgeries due apparently to a lack of post-operative ICU beds. He said that surely occurred quite often "under any administration with a hospital system catering for a growing population of four plus million people especially relating to the high demand specialised Intensive Care Unit ".
 The complainant contended that the Sutherlands had been "coerced" into performing a re-enactment involving getting into their car and driving to the hospital.
 Mr Young noted that the item was preceded by, and combined with, a Close Up political poll asking who should be the next Prime Minister and government. He said that polls could have a strong influence on "the undecided who invariably follow popular opinion".
 Mr Young included a transcript of the programme and highlighted the parts he believed were intentionally misleading, inaccurate, unbalanced, and that were:
...denigrating to the health system, and by implication the current government, over a situation that will always occur occasionally in any nationwide health service, in any western country, no matter who is in government.
 TVNZ assessed the complaint under Standards 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice, which 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.
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.
 Looking at balance, TVNZ maintained that the item had explained that two significant viewpoints on the issue were sought, from the Health Minister and the Auckland DHB. The Minister's reasons for not attending were clearly explained by the host, that being that "he had a family engagement". The host went on to say that the Auckland District Health Board had offered a clinician, but Close Up wanted someone to address the broader issues such as system failures and funding. The host had also quoted from a statement provided by the DHB explaining why Mr Sutherland’s surgeries had been cancelled.
 The broadcaster concluded that appropriate viewpoints were sought and adequately presented in the programme. It declined to uphold the balance complaint.
 Turning to accuracy, TVNZ maintained that the item was truthful and accurate on all points of fact and disagreed that it was misleading. It said "the comments made by Mr Sutherland were integral to the item and were his opinion - to which he is entitled". Accordingly, TVNZ declined to uphold the complaint that the item was inaccurate and misleading.
 With respect to Standard 6 (fairness), the broadcaster emphasised that the Sutherlands had agreed to take part in an interview for Close Up and were aware of the reasons for being interviewed. The segment showing the Sutherlands getting into their car was a re-enactment, but that did not result in them being treated unfairly. Such re-enactments were an "acceptable and frequently used method of visual storytelling used by current affairs programmes", TVNZ said.
 The broadcaster did not agree that either the Health Minister or the Auckland DHB were treated unfairly. As outlined in its consideration of balance, the reasons for their respective absences were explained and their perspectives were included in the broadcast. Accordingly, TVNZ declined to uphold the fairness complaint.
 With regard to the inclusion of the political poll, TVNZ maintained that its inclusion did not breach any broadcasting standards. In the lead-up to the election, its News and Current Affairs department included many similar polls across many news and current affairs programmes. Placement of such polls was a matter of editorial judgement. The poll was a separate event in the particular episode of Close Up, and in no way linked to the item about Mr Sutherland. Nor was the content of the item intended to influence the poll, TVNZ said.
 Dissatisfied with TVNZ's response, Mr Young referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.
 Mr Young noted that criticism of government-managed organisations was generally accepted as an inevitable part of the election campaign of any party seeking to replace the current administration. He considered that:
...in an organisation of [the] enormous size and complexity of a national health system, reliant on funding from taxes, incidents of mismanagement and examples of medical misadventure can always be found to support these allegations intended to cause anxiety and to undermine voters’ confidence in the current administration whom an opposing party is seeking to be elected in replacement.
 The complainant argued that the editorial decision to run an item involving political matters and therefore allowing "the last say" before the election, using the misfortune of one of many patients, was "unfair and unbalanced because time constraints on the programme prevented the presentation of the full facts".
 Further, Mr Young said, "the insertion of this politically sensitive item supporting the electioneering rhetoric of one party immediately following the call for the nationwide audience to vote on the preferred Prime Minister automatically linked the two as politically biased propaganda". He argued the thrust of the items was supported by the fact that the item was immediately followed by the reminder "Don't forget our poll this evening", which served to link the story directly with the poll. Mr Young considered the item "obviously reflected badly on the current administration", and would have had a profound influence on viewers deciding which way to vote in the election. "Whether it was intended or not," he said, "the whole item was therefore deceptive and lacked truth, fairness and balance".
 The complainant considered that the item put forth "outrageous allegation[s], impossible to support with facts", and that its "sensationalised, fear mongering content" would have influenced voters and was unbalanced, untruthful, unfair and misleading.
 Mr Young objected to the "loaded" question in the item about who the Sutherlands blamed for their predicament. He considered that, as Mr Sutherland had a complicated health problem that was difficult to manage, "there need not necessarily be anyone to blame for his plight". The question contributed to the lack of balance, objectivity and fairness, he said. He maintained that Mrs Sutherland's response "was non-factual supposition at best, and also had the distinct appearance of having been coached", as well as Mr Sutherland's remark, "It's costing the country thousands".
 Referring to the host's comment that "one would have thought Health Minister David Cunliffe would have seized the opportunity to be in this seat to address Gordon's issue", Mr Young considered it was an opinion and therefore unbalanced, nonfactual and unfair. "That statement supported by the empty chair [was] quite obviously a concoction clearly aimed at influencing voters," he said.
 The complainant maintained that the explanation that Mr Cunliffe could not appear because he had a family engagement "clearly lacked factual support and [was] therefore again inaccurate and unfair and aimed at portraying the Minister as heartless and uncaring, consistent with the perception that the preferred party was naturally fostering".
 Mr Young concluded his complaint by saying that, while one of those aspects could be overlooked, there was "an unmistakeable consistency of almost every aspect of this programme directly linking... to their poll, the obvious outcome of which, after the item, would undoubtedly have had an influence on undecided voters and could well have been a vital factor in the final outcome of the General Election". He said it was "a deliberate interference in the democratic process".
 The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 Standard 4 requires broadcasters to make reasonable efforts, or give reasonable opportunities, to present significant points of view when controversial issues of public importance are discussed in a programme.
 In the Authority's view, while a discussion about the wider issue of the effectiveness of New Zealand's health system would be controversial and of importance to the public, this item focused only on Gordon Sutherland's personal experience. The Authority notes that Close Up wanted to discuss "the broader issues, about system failures, about funding", but did not do so because the Minister of Health was not available for comment and the Auckland District Health Board had only offered to send a clinician. In the Authority's view, the report on Mr Sutherland's individual story did not amount to a discussion of a controversial issue of public importance to which the balance standard applies.
 Having found that the item did not discuss a controversial issue of public importance, the Authority concludes that Standard 4 does not apply, and declines to uphold the balance complaint.
 As an aside, the Authority notes that Mr Young’s primary concern was that the item was unbalanced because it was "politically loaded" due to its juxtaposition with an audience poll asking who should be New Zealand’s next Prime Minister. It accepts TVNZ’s argument that the item was not linked or intended to influence the poll, and considers that such audience polls are expected by viewers in the lead-up to the General Election.
 Mr Young highlighted parts of a transcript of the story that he considered to be inaccurate or misleading. However, the complainant has not provided the Authority with any evidence that statements made in the item about Mr Sutherland’s experience were inaccurate, or that the item was intended to influence voters. Therefore the Authority has no reasonable basis on which to uphold the Standard 5 complaint.
 Standard 6 requires that broadcasters deal justly and fairly with any person or organisation taking part or referred to in a programme. Mr Young did not nominate in his complaint who he thought had been treated unfairly, only saying that the programme was "denigrating to the health system and by implication the current government". In the Authority's view, "the health system" and "the current government" are not organisations for the purposes of the fairness standard. Accordingly, the Authority finds that Standard 6 does not apply, and it declines to uphold this part of the complaint.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
1 April 2009
The following correspondence was received and considered by the Authority when it determined this complaint:
1. James Young's formal complaint – 10 November 2008
2. TVNZ's response to the complaint – 11 December 2008
3. Mr Young's referral to the Authority – 5 January 2009
4. TVNZ's response to the Authority – 28 Januaary 2009