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Mitchell and Morris and Television New Zealand Ltd - 2004-036, 2004-037

Members

  • Tapu Misa
  • Diane Musgrave
  • P Adds - Co-opted Member
  • R Bryant

Complainants

  • David Mitchell of Nelson
  • Ewan Morris of Wellington

Dated

1st April 2004

Number

2004-036–037

Programme

Sunday

Channel/Station

TV One

Broadcaster

Television New Zealand Ltd


Chair Joanne Morris declared a possible conflict of interest because of knowing one of the complainants and also as a member of the Waitangi Tribunal that was to hear the foreshore and seabed claims, so did not participate in the determination of these complaints.


Complaint
Sunday – item examined response of the Marlborough District mayor to the Court of Appeal decision on foreshore and seabed customary claims – complaints that item inaccurate, unbalanced, inflammatory and used gratuitously clips of race riots in Britain

Findings
Standard 4 – no balance to the mayor’s response in regard to deteriorating race relations, to comments about the decision’s possible impact on harbour development and aquaculture or to Dr Mitchell’s comments on the foreshore and seabed – uphold

Standard 5 – no inaccuracies – no uphold

Standard 10 – clip of race riot not inappropriate – no uphold

Order
Broadcast of statement

This headnote does not form part of the decision


Summary

[1] An item on Sunday reported the response of the Mayor of the Marlborough District (Mr Tom Harrison) to the Court of Appeal’s decision to allow eight Iwi in the South Island to test their claims before the Maori Land Court. The Court’s decision dealt with the foreshore and seabed issue as it affected the Marlborough Sounds. The item was broadcast on TV One at 7.30pm on 6 July 2003.

[2] David Mitchell complained to Television New Zealand Ltd, the broadcaster, that the inclusion of a clip of a violent race riot in Britain was inflammatory. He also complained that the item failed to report adequately the issues which were significant to Maori.

[3] Ewan Morris complained that the item was unbalanced and inaccurate and displayed a strong bias against the Maori claim for the foreshore and seabed. That was apparent in the hostile questioning of the spokesperson for the Iwi as opposed to the conciliatory style of the questions to the Mayor of the Marlborough District.

[4] In response to Mr Mitchell, TVNZ pointed out that the item reported the views of an elected official from the geographical area covered by the court case. It also considered that the item dealt with the issues in a balanced way given the time constraints. It declined to uphold the complaint.

[5] In response to Mr Morris, TVNZ argued that the item was balanced in view of the contributions from the Iwi spokesperson and the Mayor. It also contended that the Maori identity issue, which was raised by the port company representative interviewed who was part Maori, was relevant to the debate. It declined to uphold Mr Morris’ complaint.

[6] Dissatisfied with TVNZ’s decisions, Mr Mitchell and Mr Morris referred their complaints to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority upholds the complaints that the item was unbalanced.

Decision

[7] The members of the Authority have viewed a video and read a transcript of the programme complained about, and have read the correspondence which is listed in the Appendices. The Authority determines the complaints without a formal hearing. Mr Peter Adds, Senior Lecturer in Maori Studies at Victoria University, was co-opted as a person whose qualifications and experience were likely to be of assistance to the Authority. Chair Joanne Morris did not participate in the determination of these complaints, declaring a possible conflict of interest in light of her personal knowledge of one of the complainants coupled with the fact that she is a member of the Waitangi Tribunal that is to hear the foreshore and seabed claims.

Programme

[8] An item on Sunday focused on the response of the Mayor of the Marlborough District, Mr Tom Harrison to the foreshore and seabed issue as it affected the Marlborough Sounds. The item was broadcast following the Court of Appeal’s decision to allow eight Iwi in the South Island to test their claims before the Maori Land Court.

Complaint – David Mitchell

[9] In his complaint to TVNZ, David Mitchell questioned the relevance of the inclusion of a film clip of a race riot in Britain when Molotov cocktails were thrown. Mr Mitchell considered that the Mayor’s view about the possibility of race riots in New Zealand were extreme, and had not been challenged sufficiently. Mr Mitchell wrote:

My belief is that the comments on race riots were exaggerated and unreasonable, and that the riots in Britain had nothing at all to do with the issues under discussion in New Zealand. In my view, the inclusion of such inflammatory material breached the principle that requires broadcasters to exercise care and discretion when dealing with the issue of violence and the further requirement that any violence shown needs to be justified by the context. I also believe the manner of the presentation of this item was likely to incite hatred against the Maori claimants in the foreshore case.

[10] Mr Mitchell also complained that the item failed to report fairly and adequately on the issues which were significant to Maori. Explaining that he was not a Maori but a journalist with an interest in the issues, he contended that the item was deficient in the following ways:

  • While John Mitchell of Ngati Tama of Golden Bay, who was involved in the foreshore case, was interviewed, no efforts were made to speak to the tangata whenua of the Marlborough Sounds; (This aspect of the complaint was later withdrawn when the complainant accepted that John Mitchell featured as spokesperson for the Iwi involved in the Court action);
  • While the views of Mr Sean Bolt of Port Marlborough Ltd were advanced to show that not all Maori agreed with the foreshore claims, it was not reported that the port company was wholly owned by the District Council;
  • The grievances of the Marlborough Sounds Iwi with the port company were not reported although they had featured in the Te Atiawa claim heard by the Waitangi Tribunal;
  • The item did not acknowledge that Marlborough was one of the three areas with a unitary council. The territorial authority, and not a regional council, was responsible for environmental issues and resource management;
  • The item provided little information about both the foreshore claim itself and the number and size of marine farms in Marlborough, and the Maori claim that the Council had unreasonably declined marine farm applications from Maori;
  • When dealing with the suggestion that many purporting to be Maori were not of pure Maori blood, the item introduced an irrelevant red herring. While this issue could be explored in a separate item, Mr Mitchell argued that its inclusion in the item:

… from the perspective of the Maori claimants who have patiently taken their case on the foreshore and seabed through the proper and legitimate forums, the law courts, linking their case with questions about their mana and identity can only be seen as irrelevant and inflammatory reportage.

[11] Mr Mitchell concluded:

I felt very disappointed with this item, which seemed calculated to inflame rather than to inform. On an important issue for Maori and the country, I feel that the corporation failed to live up to its responsibility for fair, informed and quality reporting.

Complaint – Ewan Morris

[12] In his complaint, Mr Morris contended that the item was unbalanced and inaccurate. It was unbalanced, he wrote, as it displayed a “strong bias against Maori foreshore and seabed claims”. That approach, he added, was apparent from the outset when the presenter spoke about “the bully boys of Maoridom”. While at least three people spoke against the claims during the item, only one spoke in support, and it was not explained why TVNZ had been unsuccessful in obtaining views from other Maori. Mr Morris considered that the Mayor received the greatest amount of air time and, while Mr Mitchell advanced the Maori perspective, the Mayor was not subject to hostile questioning. Rather, Mr Morris said, the Mayor’s “highly contentious views” were unchallenged.

[13] Turning to the accuracy standard, Mr Morris described the report as “poorly-informed” and wrote:

The report in question missed a valuable opportunity to inform the New Zealand public about the legal and political issues involved, and to present in a balanced way views from different perspectives, so that New Zealanders could make up their own minds about an important and controversial matter of public interest.

[14] Noting that the presenter had to correct his initial statement that legislation to deal with the issue had already been enacted, Mr Morris maintained that the item was misleading as it suggested that Maori were trying to create new, race-based rights to the exclusion of other New Zealanders. The item failed to make clear exactly what the Court decision involved, he added.

[15] By creating a misleading impression, Mr Morris continued, the item was “unnecessarily alarmist”. Further, it was presented in an adversarial manner which could polarise views, for example, when the Mayor of Marlborough suggested that New Zealand could be on the path to racial riots. Mr Morris noted:

While I accept that this is a legitimate expression of a genuinely-held opinion, the Mayor’s comments were not questioned or challenged at all, in contrast to the treatment of Mr Mitchell’s opinions. In fact, the alarmist tone of the Mayor’s comments was reinforced by footage of ‘race’ riots in Britain which added nothing to the story but was clearly intended to promote alarm among viewers.

[16] In addition, Mr Morris considered that the reporter, under the guise of a balanced report, was clearly hostile to Maori foreshore and seabed claims.

[17] By way of conclusion, Mr Morris described the item which dealt with a “complex” issue, as a “grossly irresponsible piece of scare-mongering” journalism.

Standards

[18] In view of the issues raised by the complainants, TVNZ assessed the complaints under Standards 4, 5 and 10 of the Free-to-Air Television Code of Broadcasting Practice. The Standards and relevant Guidelines 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.

Guidelines

5b  Broadcasters should refrain from broadcasting material which is misleading or unnecessarily alarms viewers.

5e  Broadcasters must take all reasonable steps to ensure at all times that the information sources for news, current affairs and documentaries are reliable.

Standard 10 Violence

In the preparation and presentation of programmes, broadcasters are required to exercise care and discretion when dealing with the issue of violence.

Broadcaster’s Response to the Complainant – David Mitchell

[19] In its response to Mr Mitchell, TVNZ acknowledged that Mr Harrison might have been expressing his opinion, but it pointed out that he was the Mayor of Marlborough, the area in which the foreshore and seabed issue came to the fore. Further, as an elected official his views could not be dismissed as irrelevant. TVNZ also pointed out that footage complained about was accompanied by a voice over which made it clear that the Mayor had raised the possibility of race riots. Not reporting such comments from a prominent elected official, TVNZ contended, was contrary to the free flow of information referred to in the New Zealand Bill of Rights Act 1990.

[20] As for the aspect of the complaint about using the Mayoral Office for the interview, TVNZ explained that the office, and flag, and the wearing of the Mayoral chain was not unusual imagery for television and added weight to the speaker’s comments.

[21] As for the complaint about the use of the phrase “bully boys of Maoridom”, TVNZ pointed out that the words were clearly attributed to the Mayor, and were not editorial comment. As for the phrase “so the battle lines have been drawn”, TVNZ argued that it demonstrated the “entrenched positions” of the participants in a debate of local relevance.

[22] TVNZ then addressed points (ii) to (vi) in Mr Mitchell’s complaint:

  • TVNZ pointed out that Mr Bolt presented and distinguished his personal views as a part-Maori and his official views as CEO of the Port Company.
  • TVNZ acknowledged that the item did not deal with the grievances of the Marlborough Sounds Iwi, explaining that the matter was outside the ambit of the item, focusing on the “topical foreshore and seabed issue”. Time constraints, it noted, meant stories had to be confined to the essentials. It did not regard its omission as a breach of broadcasting standards.
  • As for the item’s failure to refer to the absence of a regional council, TVNZ said the item explained the council’s anxiety at the Court of Appeal decision and what it might mean to the council’s 22,000 ratepayers.
  • TVNZ said material about the number and size of marine farms and the fate of applications by Maori, while of interest to a lengthy article, was outside the ambit of a tightly focused television story.
  • TVNZ maintained that the inclusion of material dealing with the issue of Maori identity was not in breach of the standards. It was also an issue raised, it pointed out, in an article just published in “North and South”, and it wrote:

    It was the opinion of the [complaints] committee that this issue [who is a Maori] re-emerged in the wake of the fisheries settlements and has surfaced periodically since then. It was Sunday’s editorial judgment that it is an issue that looks certain to be reopened and re-examined in the context of the foreshore and seabed debate and in that context was appropriately placed in this item.

[23] In conclusion on the aspect of the complaint that the item was unbalanced, TVNZ argued that the item was balanced within itself and contributed to TVNZ’s overall balance of the issue, noting:

In the item itself, the Mayor voiced his opinion on the foreshore and seabed issue, while Mr John Mitchell representing the tribes who took the matter to Court, voiced a contrary view. Additional perspectives on the discussion came from the Chief Executive of Port Marlborough, Mr Sean Bolt (a part-Maori who expressed both his personal and official viewpoints) and Mr Graeme Coates whose organisation has Maori making up 35 per cent of its membership.

[24] In regard to the requirement for accuracy in Standard 5, TVNZ said that it had detected no errors other than the aspect of the introduction when it was stated that the Government had passed a “special law to ensure Crown ownership”. That error, it pointed out, had been corrected at the end of the item which was, in conformance with Guideline 5a, “the earliest opportunity” to do so.

[25] As the footage of the race riots was used in the context of the Mayor’s comment, TVNZ declined to uphold the Standard 10 complaint that it had been used gratuitously.

Broadcaster’s Response to the Complainant – Ewan Morris

[26] In its response to Mr Morris, TVNZ repeated a number of the points it had made to Mr Mitchell. These included:

  • the phrase “bully boys of Maoridom” was directly attributed to the Mayor of Marlborough; and
  • Mr Sean Bolt appeared twice in the programme giving both his personal view as a person of Maori ancestry, and his view as the representative of Port Marlborough.

[27] TVNZ then stated that the Mayor spoke strongly against the claim while Dr John Mitchell advanced the argument for it. Mr Bolt, it said, provided a further dimension and Mr Coates spoke for an organisation of Marine Farmers of which 35% of the membership was Maori. Moreover, TVNZ said, the issue had been dealt with elsewhere in the media, and:

The essential balance here was in identifying and demonstrating the polarised opinions of Mr Harrison and Dr Mitchell, while the other two interview subjects raised matters tangential to the main issue, but adding fresh elements and fresh viewpoints to an accumulating volume of material on this issue which has appeared in TVNZ programmes.

[28] As for Mr Morris’ stance that the Maori identity issue was “irrelevant”, TVNZ reiterated the points made to Mr Mitchell that it was an approach examined by other media. Moreover, it noted that Mr Bolt raised the question unprompted.

[29] TVNZ acknowledged the one factual error noted above. It denied that the item was otherwise inaccurate, unbalanced, misleading or alarmist. It also rejected the view that the item represented the personal opinions of the reporter, explaining that television items were the result of a team effort.

Referral to the Authority – David Mitchell

[30] In his referral, Mr Mitchell stated that his main complaint was the inclusion of a provocative and inflammatory film clip of a race riot in the English Midlands town of Oldham in May 2001. He argued that the clip, which showed protesters throwing Molotov cocktails at police officers, was gratuitously violent.

[31] After repeating his concern about the introduction, which stated that “battle lines had been drawn”, referred to the “bother boys of Maoridom” and included a mistake about the change to the law, Mr Mitchell focused on the clip. He added:

There was no explanation where or when the “race riot” occurred, what the issues were, or what the relevance of this particular “race riot” might have been in New Zealand.

[32] In addition to Standards 5 and 10 raised earlier, Mr Mitchell also considered that the broadcast breached Standard 2.

[33] Contending that the race riot shown in the clip was clearly a “very violent riot”, Mr Mitchell argued that its use in an item about a court case about the foreshore and seabed in New Zealand was “a gratuitous depiction of violence”. Mr Mitchell noted that TVNZ had justified the use of the clip in view of the Marlborough District Mayor’s comment that he was haunted by images of English race-riots as “he ponders the future of race relations in New Zealand”. Mr Mitchell observed:

It should be noted that Mr Harrison says only that he is “haunted” by race riots that occurred in Britain, while not specifying a particular riot or its relevance to the New Zealand situation. That particular comment does not seem to me to be justification for showing the clip.

[34] Mr Mitchell added that the Mayor’s claim should not have been accepted unquestioningly. He continued:

For example, in the Sunday programme, Mr Harrison spoke of a recent visit to Britain where he claimed he “saw the British people cowed into silence by legislation imposed on them and anybody who dared to speak out on issues, certain issues, they were intimidated into silence.” With the greatest respect, the comment is nonsense. There is no evidence that British people have been or would be “cowed into silence by legislation imposed on them”. There is no place on earth where people are less likely to be “cowed into silence by legislation imposed on them”, and the vigour of the debate over the British Government’s decision to join the war in Iraq is a reminder of British public debate and democracy in action.

[35] Race relations, wrote Mr Mitchell, was one of the most sensitive issues in New Zealand and a responsible broadcaster would have, first, emphasised that the Mayor’s comments were opinion not fact, and secondly, not used an “inflammatory film clip”.

[36] In response to TVNZ’s argument that the clip provided visual material to illustrate the Mayor’s comments, Mr Mitchell contended that the claims required balancing comments, not depictions of gratuitous violence. Mr Mitchell also argued that the comments, which appeared to be made by the Mayor and not the Council, could have been edited out as a “plain silly comment” or challenged, rather than compounded by the use of a violent film clip.

[37] Turning to what he regarded as other flaws in the broadcast, Mr Mitchell considered that the item had not dealt objectively with the background to the court case. It should, he said, have made clear that the port company had been in a long dispute with Maori about damage caused to parts of the Sounds by the fast ferries. He repeated his concern about the item not acknowledging the unitary nature of the Marlborough District Council, and raising the issue of who is a Maori. He concluded:

I felt very disappointed with the item, which seemed calculated to inflame rather than to inform. On an important issue for both Maori and Pakeha, I feel that the corporation failed in its responsibility for fair, informed and quality reporting, and that its use of the film of race riots breached the Code of Broadcasting Standards. I appreciate that some people will say that I am exaggerating the importance of this brief film clip, and making a mountain out of a molehill. I don’t believe so. The image portrayed in that film clip was extremely powerful and, in my submission, broadcasting it broke one of the code standards.

Referral to the Authority – Ewan Morris

[38] In his referral, Mr Morris expressed concern at his inability to obtain a tape of the item other than at substantial cost.

[39] He also expressed disappointment that TVNZ had not addressed his complaint that the use by the presenter of the words “bully boys of Maoridom” provided the “conceptual framework” for the entire programme. Such a phrase, he argued, required a balance, such as the legislation proposed “amounts to a confiscation of Maori rights”.

[40] Mr Morris asked why the item, in response to the Mayor’s assertion that many Maori shared the view, reported that it was unable to test the assertion. Clearly the reporter could not conduct an opinion poll, he wrote, but surely he could have talked to other tangata whenua. Rather, the programme spoke to Mr Sean Bolt, described as a “part Maori”, although no information was given about any tribal affiliation, or for whom Mr Bolt spoke.

[41] In response to TVNZ’s claim that the item achieved overall balance, which he described as “superficial”, Mr Morris continued to argue that the item presented three views against the Maori claims, and only one in support. They did not bring a fresh perspective, he argued. Further, he recalled that the views hostile to the Maori claim seemed to get more airtime. He also repeated a matter raised in his complaint which he considered had been ignored by TVNZ. He said that the reporter’s comments were less hostile to those in opposition to the Maori claims, than those in support of them. That view, he wrote, was shared by the writer of an article in “The Listener” dated 9 August 2003.

[42] As for the issue of Maori identity, Mr Morris accepted it was a relevant issue in the wider debates about the Treaty of Waitangi, but it was a complex question which deserved more thorough consideration than it received on the Sunday item. The discussion in that item, he suggested, came across as a “gratuitous attempt to suggest that Maori claims were invalid and to undermine the credibility of Mr Mitchell in particular”.

[43] Turning to TVNZ’s contention that the item had to be seen in the wider context of other media reports, Mr Morris pointed out that no specific examples were cited. Moreover, he argued, it was a “fatuous” argument which could be used to dismiss any complaint about fairness and accuracy to the media. In this case, he added, other media coverage he had read was “woefully ill-informed and biased” against Maori claims. He wrote:

My main objection to TVNZ’s line of argument on this point is that it seems to suggest that it is permissible for an individual report about an issue to be biased, so long as the issue is also being discussed in other programmes and other media. TVNZ’s argument also fails to take account of the nature of the programme in which the item was broadcast. ‘Sunday’ was much touted as TVNZ’s flagship current affairs programme. It is broadcast in prime time and had, until recently, a popular TV personality as its presenter. It therefore has much more authority, and has the capacity to influence many more people, than other programmes or other forms of media. I consider that it consequently carried an even greater responsibility to ensure that its reports are balanced, accurate, and informative.

[44] He summed up his balance complaint with two questions:

  • What is the relative weighting, in terms of numbers and time on screen, given to supporters and opponents of Maori foreshore and seabed claims?
  • What is the nature of the questions asked of Mr Harrison, compared to those asked of Mr Mitchell, and how are the views expressed by each man treated by the reporter?

[45] As for the inaccuracy aspect of his complaint, Mr Morris noted that he was not complaining about the presenter’s specific error, but that the error was “symptomatic of the ill-informed reporting that followed”. The item, he wrote, suggested that Maori were advocating the creation of new race-based rights, rather than reporting that the Court of Appeal allowed Maori to take claims to the Maori Land Court to establish customary title to the seabed, or in other words, it was about recognising rights that had never been extinguished. The footage of the race riots, he reiterated, was extreme and the Mayor’s alarmist views were not questioned in the way that those of Mr Mitchell were.

[46] In regard to the complaint that the item contained the reporter’s personal views, and TVNZ’s response that the item was the work of a team, Mr Morris referred to another item on which the same reporter dealt with a Treaty issue and argued that it too, was “ill-informed and strongly biased against Maori claims”. He considered that the reporter might not be aware of his own prejudices.

[47] In summary, Mr Morris argued that should the item have been put together by Maori and dealt with Pakeha as the item had dealt with Maori, it would have been judged to be “disgracefully one-sided”. He observed:

So was the report on the Sunday programme which is the subject of my complaint.

Broadcaster’s Responses to the Authority

[48] In regard to Mr Mitchell’s referral, TVNZ said that the item had not identified Oldham on the programme as the source of the race-riot footage. The scene, it wrote, was generic and had been used to illustrate ethnic clashes. TVNZ said that Mr Harrison was entitled to express his views and added:

In passing we note that in Britain such scenes were unthinkable up until a few months before they took place.

[49] TVNZ also wrote:

TVNZ wishes to specifically deny that this item was “calculated to inflame rather than inform”. We consider that an unfair slur on the team of experienced journalists who assembled the item.

[50] In addition, it recorded:

We do not accept the implication that we should judge Mr Harrison’s comments as being “silly, unreasoned or unjustified”, and based on that subjective assessment decide they should not be made available to the public. Surely the news media has a role in publishing what elected representatives say, and it is for the public to decide whether they are “silly” or not?

We point out that Mr Harrison’s position was balanced in this item, point by point, by the comments from Mr John Mitchell, representing local Iwi.

[51] By way of summary, TVNZ stated:

Overall we consider that Mr Mitchell’s letter is one which expresses opinion about the way a story should be told. We respect Mr Mitchell’s views, especially as he is a former and respected newspaper editor – but do suggest that editorial decision-making varies from individual to individual, from media company to media company. Whereas Mr Mitchell seems to view this item as self-contained, we emphasise again that TVNZ regards it as part of on-going coverage of an evolving story on the seabed and foreshore issue. Stories are told on our news programmes almost every night of the week, the total adding up, we suggest, to coverage which reflects in a balanced and fair manner the wide diversity and divergence of views surrounding this issue. Standard 4 specifically recognises that balance can be achieved over “the period of current interest”.

[52] In its report on Mr Morris’ referral, TVNZ again denied that the programme reflected a racially biased stance to the story. TVNZ insisted that the item was “a simple head-to-head” clash of opinions between Dr John Mitchell and Mr Tom Harrison, and they had about equal time. TVNZ also asserted that there was no evidence to suggest that the approaches to the interviewees were confrontational on the one hand, and conciliatory on the other. Both men, TVNZ argued, were challenged about their views.

[53] TVNZ added that the interviews with the port’s Chief Executive and the Marine Farmers’ spokesperson were justified as they each had a stake in the outcome of the dispute. TVNZ concluded:

Finally we again stress that words “the bully-boys of Maoridom” were those of the Mayor and were presented as such. They were in his press release and in current circulation. We point out that in all branches of the news media it is common for a startling phrase to be used to draw viewers, listeners or readers into an exposition of a current issue. The Mayor’s comment was not so outrageous as to be indefensible because it referred to a well-known and widely recognised group of activists. Had the halls of Parliament been thronged by a “bunch of ignorant red-necks” viewers can be assured that that fact would have been acknowledged in the introduction. It might have achieved balance in Mr Morris’ mind, but sadly it didn’t happen.

Complainant’s Final Comment – David Mitchell

[54] In his final comment, Mr Mitchell expressed the view that nothing in TVNZ’s response undermined his contention that the inclusion of the clips from the Oldham riot was gratuitous and breached Standards 2, 5 and 10.

[55] By way of elaboration, Mr Mitchell stated that the action shown in the film clip was “the most violent response” possible; that it was misleading as there were no suggestions of race riots in New Zealand; and there was no evidence of care being shown by the broadcaster when selecting the film clip to be used.

[56] Mr Mitchell accepted that Mr Harrison’s views should be illustrated, but he persisted in his argument that the clip used did not meet the standards. He also maintained the other arguments raised earlier, and concluded:

As I stated at the beginning, I regret the time and trouble this complaint has caused and I apologise for inconvenience to members of the tribunal. However, I believe my complaint has demonstrated that inclusion of the race riot film clip in the Sunday items breached broadcasting standards. While the film clip may have been brief, the subject of race relations is one of the most important issues for New Zealanders, as demonstrated by the response to the Paul Holmes comments this week. The foreshore item was shown at prime time in a prestige current affairs programme. I believe use of the violent race riot film clip was wrong, and ask the tribunal to uphold my complaint.

Complainant’s Final Comment – Ewan Morris

[57] Mr Morris started by pointing out that he was not accusing the reporter of “racial” bias, but “political” bias against Maori foreshore and seabed claims. Moreover, in view of TVNZ’s insistence that the item was the result of a team effort, he did not maintain his contention that the programme reflected the reporter’s personal views. Nevertheless, he maintained that the item was more “an expression of comment and opinion than of balanced journalism”. The item, he continued, was another example of TVNZ’s “poor reporting of political issues involving Maori”.

[58] With regard to balance, Mr Morris pointed out that three speakers opposed the Maori claims, while there was only one in support. While he accepted that Mr Harrison and Mr Mitchell were given roughly equal time to put their views, that did not take into account the time given to the other two who opposed the claim. He also repeated his contention that Dr Mitchell was challenged by the interviewer, whereas Mr Harrison was not so challenged.

[59] As he was unable to locate the newspaper article which he had believed had been plagiarised by TVNZ, he withdrew that contention, adding:

I hope that this will not obscure the points I was trying to make in my letter of 21 August, which were that the question of Maori identity is a complex and sensitive one deserving of more sophisticated treatment than it received on the ‘Sunday’ programme, and that the commentary on Maori identity seemed to be intended to undermine the credibility of Maori claims and claimants.

[60] In conclusion, Mr Morris pointed to the difficulties faced by a complainant when, unlike the broadcaster, he did not have access to a tape of the programme being complained about. He described the situation as an “inequality”,

Authority’s Determination

Item’s Focus

[61] The Authority’s first task was to decide precisely what was the topic addressed by the item broadcast on Sunday on 6 July. It concluded that, among other matters touched upon, the central focus was the reaction of the Mayor of the Marlborough District to the Court of Appeal’s ruling that eight Iwi were entitled to apply to the Māori Land Court and seek to establish customary rights to the foreshore and the seabed. The Authority noted that central to the Mayor’s concern about the ruling was the fact that the case had been brought by claimants to the Marlborough Sounds. The Sounds are part of the territory administered by the Marlborough District Council.

[62] The Authority considered that the Mayor’s reaction could be described as strong and, moreover, he could be seen as being dismissive of any response which could be labelled “politically correct”. He was also at times interviewed in the Mayoral office which, as TVNZ remarked, added weight to his views. While the foreshore and seabed issue was the matter which precipitated the comments from the Mayor, the Authority notes that the item provided minimal explanation from the Mayor as to what was at stake or why the matter had arisen in Marlborough. As noted in the item’s introduction, the focus was on the Mayor’s response and possible implications, and the reaction of some others to the ruling. The Authority notes that although some of Dr John Mitchell’s contribution provided some background, viewers were given little information by the other participants about the explicit issue itself. The item reported that Dr Mitchell of Ngati Tama had taken the case to the Court of Appeal on behalf of the Iwi.

[63] The Authority believes that it is important to record the item’s principal focus – the Mayor’s reaction – to ensure that its consideration of the standards matters raised by the complainants are assessed with the item’s theme in mind.

Race Riots Clip

[64] The Mayor contended that deteriorating race relations was one of the probable outcomes from the decision and, in view of his vision that the future of race relations in New Zealand could result in racial violence similar to what happened in England, the Authority does not regard TVNZ’s use of footage from English race riots as a breach of the violence standard. The Authority considers that the footage was used with sufficient care and discretion in the circumstances and clearly illustrated the British experience to which the mayor alluded. On the other hand, whether the Mayor’s contention about deteriorating race relations was responded to adequately will be addressed under the balance standard. The Authority will also take into account the impact of the clips under the balance requirement. Because of the dramatic qualities of the race riot clips, the Authority believes that balancing material must also have a strong impact.

Balance

[65] In view of the item’s focus on the Mayor’s controversial views about potential violence and, as the item noted, his description on another occasion of the Māori activists as the “bully boys of Māoridom”, the Authority has examined the item carefully to assess the elements of balance. While acknowledging that the Mayor’s comments were somewhat strong at times, the Authority considers that most of his views reflect an element of New Zealand society and required balance.

[66] Dr John Mitchell of Ngati Tama was interviewed to provide some contrast and balance to the views advanced by the Mayor. However, most of what he said addressed different topics to the views advanced by the Mayor. As noted, the Mayor dwelt on race relations, and their deterioration, while Dr Mitchell spoke about the claims for the foreshore and seabed and the reasons for them. The Authority considers that the Mayor’s comments about deteriorating race relations were not balanced by Dr Mitchell’s contributions.

[67] Mr Sean Bolt, chief executive of Port Marlborough, was interviewed both in view of his work and as a “part” Māori. Mr Bolt expressed concern about the future of harbour developments in view of the decision. These comments were not balanced.

[68] As a “part” Māori, Mr Bolt did not support the seabed and foreshore claims and, following his remark that he was one eighth Māori, the item also dealt with the issue of “who is a Māori”. The item recorded that Dr John Mitchell was part English and the Mayor had a part- Māori grand-child. The Authority questions the relevance of this issue to the Mayor’s view on deteriorating race relations. Nevertheless, Dr John Mitchell pointed out that the proportion of Māori a person claimed did not really matter, adding that his actions dealt with grievances for which redress was sought.

[69] Although the discussion about “Who is a Maori?” was inconclusive, a range of views was advanced and the Authority finds that the item’s treatment of this issue did not contravene the requirement for balance.

[70] Dr Mitchell kept returning to what he regarded as the central issue – the seabed and foreshore claim. He said:

In the case of water, this is an area where there were customary fishing reefs which belonged to the tribe of families of that tribe who lived in a particular locality and now suddenly they can’t go anywhere near them because there’s a great raft of marine farms over the top. That’s the grievance.

[71] Mr Coates of the New Zealand Marine Farming Association was interviewed and spoke of the importance of the aquaculture industry and its uncertain future in view of the Court of Appeal decision. That was another point of view to which no other speaker responded and, accordingly, was not dealt with in a balanced way.

[72] The Authority notes that Dr Mitchell’s comments on the seabed and foreshore claims were not followed-up in the item. Rather, it reverted to the Mayor’s views, and the item concluded with him saying:

We’ve got to go forward as one people and what I’m seeing in this particular claim is a division going right through the middle. It has far-reaching consequences for the future of this nation – for my children and my grandchildren. That’s why I’m speaking up now. I am concerned that what this claim, if it is granted, what it does to the future of this country.

[73] By way of summary, the Authority repeats that the Mayor was expressing his real fears about the outcome if the claims were successful. Dr Mitchell was attempting to explain the claims. The Mayor, the Authority observes, called for rational debate, but the item did not debate the issues raised. In view of the cross-purposes which were evident in much of the discussion, the Authority finds that balance was not provided on the issues of the possible deterioration in race relations, the negative effects of the claims on harbour development and aquaculture; or the seabed and foreshore issue.

[74] The Authority also acknowledges that another aspect which contributed to the item’s imbalance was apparent when the presenter did not pursue aggressively a number of issues with the Mayor, when in contrast, he was more direct in his questions to Dr Mitchell. Furthermore, the Authority notes that aspects of the Court of Appeal decision were questioned by three of the four people interviewed, which in itself added to the overall imbalance, or lack of clarity, in the item. For example, when the item dealt with the seabed and foreshore matter – the subject of the Court of Appeal decision – there was a marked contrast between Dr Mitchell’s philosophical approach and the Mayor’s personal responses and neither was challenged, as required by the requirement in standard 4, to respond to the other person’s reaction.

Accuracy

[75] The complainants also raised a number of points which were alleged to be specific inaccuracies. The Authority does not uphold any of these points:

  • It considers that the item explained that the Marlborough District Council owned Port
    Marlborough Ltd.
  • It was not necessary to outline the unitary nature of the Marlborough District Council.

[76] The Authority also rejects as a breach of accuracy the aspects regarding:

  •  
    • Iwi grievances against the Port Company;
    • The extent of marine farming; and
    • The specific grievances held by the eight Iwi in their case in the Court of Appeal.

[77] While the Authority considers that such information would have provided relevant background and put into context the comments made by Mr Harrison, Mr Bolt and Mr Coates, it has taken that issue into account in its consideration of the requirement for balance.

Conclusion

[78] The Authority points out that the item showed the Mayor of the Marlborough District outlining his sincere concerns that the Court of Appeal’s foreshore and seabed decision would result in the deterioration of race relations in New Zealand. His dire predictions were challenged neither by the other participants nor by the presenter. Further, there was no debate about the fears expressed that the decision would also impact negatively on harbour development and aquaculture. Dr Mitchell of Ngati Tama focused on the foreshore and seabed claim in his answers and there was no comment on these views. As a consequence, the Authority concludes, the item breached the requirement in Standard 4 for balance.

[79] In the Authority’s view, the contentions voiced by the Mayor, that successful claims would lead to deteriorating race relations and ultimately to race riots were balanced neither by the presentation of an opposing view nor by a critical examination by the reporter. It considers that the film clips added weight to the Mayor’s claims, which the broadcaster was then required to examine in an impartial, objective and responsible way, particularly given their inflammatory tone. In the Authority’s opinion, the failure to do so resulted in an item weighted significantly in favour of the Mayor’s views, which were supported by Mr Bolt and Mr Coates, and against the Maori claimants to the Marlborough foreshore and seabed, represented by Dr Mitchell.

[80] The social objective of regulating broadcasting standards is to guard against broadcasters behaving unfairly, offensively, or otherwise excessively. It is the clear intention of the Broadcasting Act to limit freedom of expression. Section 5 of the New Zealand Bill of Rights Act provides that the right to freedom of expression may be limited by “such reasonable limits which are prescribed by law as can be demonstrably justified in a free and democratic society”. The limits prescribed in the Broadcasting Act, given effect in the Codes of Broadcasting Practice, are of such a nature. For the reasons given in this decision, the Authority considers its application of Standard 4 of the Television Code on this occasion is consistent with the New Zealand Bill of Rights Act. In coming to this conclusion, the Authority has taken into account all the circumstances of these complaints.

 

For the above reasons, the Authority upholds the complaints that the broadcast by Television New Zealand Ltd of an item on Sunday on 6 July 2003 breached Standard 4 of the Free-to-Air Television Code of Broadcasting Practice.

[81] Having upheld the complaints, the Authority may make orders under ss.13 and 16 of the Broadcasting Act 1989. It invited submissions from the parties.

[82] On the basis that it had been found wanting only in respect of Standard 4, TVNZ submitted that no penalty should be imposed. Moreover, it argued that the item on Sunday was an early attempt by the television media to cover the seabed and foreshore issue in a current affairs context.

[83] Mr Morris contended that the Authority had concluded that a clear breach on a serious matter had occurred and suggested the broadcast of a statement summarising the Authority’s decision, and an order for the payment by TVNZ of costs of $5000.

[84] Mr Mitchell also sought an order requiring the broadcast of a statement summarising the decision which, he argued, should include an apology to anyone affected by the breach. Like Mr Morris, he did not seek compensation for expenses, but sought a request to TVNZ to take corrective action by way of staff training.

[85] The Authority has considered the submissions and considers that the publication of a statement summarising its findings is the appropriate order. It therefore imposes the following order.

Order

Pursuant to section 13(1)(a) of the Broadcasting Act 1989, the Authority ordersTelevision New Zealand Ltd to broadcast a statement, within one month from the date of this decision, explaining why the complaints were upheld. The statement shall be approved by the Authority and broadcast on a day and at atime approved by the Authority.

The Authority draws the broadcaster’s attention to the requirements of section13(1)(b) of the Act for the broadcaster to give notice to the Authority and the complainants as to the manner in which the above order has been complied with.

Signed for and on behalf of the Authority

 

Tapu Misa
Member
1 April 2004

Appendix I

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

1.     David Mitchell’s Complaint to Television New Zealand Ltd – 9 July 2003

2.    TVNZ’s Response to the Formal Complaint – 13 August 2003

3.    Mr Mitchell’s First Referral to the Broadcasting Standards Authority –
       4 September 2003

4.    Mr Mitchell’s Second Referral to the Broadcasting Standards Authority
       – 6 September 2003

5.    TVNZ’s Response to the Authority – 18 September 2003

6.    Mr Mitchell’s Final Comment – 2 October 2003

7.    Mr Mitchell’s Submission on Penalty – 14 March 2004

    8.    TVNZ’s Submission on Penalty – 16 March 2004

     

    Appendix II

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

    1.     Ewan Morris’s Complaint to Television New Zealand Ltd – 29 July 2003

    2.    TVNZ’s Response to the Formal Complaint – 14 August 2003

    3.    Mr Morris’s Referral to the Broadcasting Standards Authority – 21 August 2003

    4.    TVNZ’s Response to the Authority – 17 September 2003

    5.    Mr Morris’s Final Comment – 8 October 2003

    6.    TVNZ’s Submission on Penalty – 16 March 2004

    7.    Mr Morris’s Submission on Penalty – 18 March 2004