Complaint under section 8(1)(a) of the Broadcasting Act 1989
Sunday – item reported ongoing dissension at the Berakah Retreat among some members as to action which had been taken about a former member who had abused children – former member had been dismissed from Retreat and parents did not press charges – complainant responsible for oversight of Retreat – allegedly unbalanced, inaccurate and unfair
Standard 6 (fairness) – suggestion that Trust acted largely to protect its own reputation – use of Ku Klux Klan imagery – use of secret recording of meeting and imagery used – accumulation of matters – majority decision that it was unfair – upheld
Standard 4 (balance) – issue essentially one of fairness – balance subsumed under fairness – not upheld
Standard 5 (accuracy) – omission of full reasons for dismissal of dissident members not misleading given item’s focus – other omissions dealt with as fairness issues – not upheld
This headnote does not form part of the decision.
 An item on Sunday investigated the handling by the Berakah Retreat of an incident which occurred some nine years previously when a member had been caught sexually molesting children. The member had been dismissed from the community. The parents did not press charges. The former member later abused two other children. Two members of the community had accused the Mahurangi Christian Community Trust, which is responsible for the oversight of the Berekah Retreat, of being irresponsible when keeping the first incident “in house” and as a result of the ongoing conflict between them and the rest of the Trust, they had now been asked to leave.
 The item was broadcast on TV One at 7.30pm on 26 September 2004 and included interviews with the Chair of the Trust, the two disaffected members, the daughter of one of the disaffected members who had reported the incident of molestation to the police, and the molester.
 The Chair of the Mahurangi Christian Community Trust (Ian Morrison) complained to Television New Zealand Ltd, the broadcaster, that the broadcast breached the standards relating to balance, accuracy and fairness.
 In regard to the balance aspect, the Trust complained that the item was biased and “heavily slanted toward presenting the viewpoint of the two disaffected ladies”. The imbalance was evident, the Trust wrote, in view of the greater time given to the women and the sympathetic manner of questions to them, when compared to the aggressive questions put to the Trust. The approach, it continued, indicated that the producers of the item had predetermined the issue.
 Noting that the item included a brief reference to the mediation undertaken by the Baptist Union between the Trust and the women, the Trust argued the Baptist Union should have been interviewed. That had been suggested to Sunday, it added, during the preparation of the programme. It wrote:
When viewed objectively, what occurred as a result of the incident at the retreat over nine years ago was that the trustees made a decision in good faith not to report the man to the Police. That was because the parents of the children involved had urged us not to. Instead we set in place an arrangement we intended would make him accountable to us in future after having been dismissed from the retreat. It is easy enough to characterise that, nine years later, as ‘protecting a paedophile’ and ‘protecting a sexual predator’ to guard our reputation, as your programme did. But that amounts to shallow and unbalanced journalism. TVNZ did not even attempt to put our perspective or to present the sensible alternative view that even if our decision was wrong it was made after careful deliberation and was influenced particularly by the parents’ wishes.
 Turning to accuracy, the Trust said that there was a “clear inference” that the women were being asked to leave because they were “troublesome whistleblowers”. However, Sunday knew that the real reason for the request was their unilateral actions and their refusal to be accountable to the Trust. Failure to mention those matters, the Trust stated, resulted in an item which was “totally misleading”.
 A concern that the Retreat was portrayed as “cultish” was the basis for the complaint that the item was unfair. Nothing, it wrote, “could be further from the truth”. Explaining that a characteristic of a cult was total control of members’ lives, the Trust said its members had the liberty to act as they saw fit. However, the “cultish” image had been promoted by scenes of burning crosses which were reminiscent of the Ku Klux Klan.
 Furthermore, the Trust wrote, the item was unfair when it used material secretly recorded by one of the women at the Special General Meeting of the Trust which decided to remove the two women from membership.
 It was also unfair to portray the Trustees as “merciless prosecutors of two innocent women”, when the item failed to report the support that the Trust had from the Christian Ministers Association and the local community.
 The complaint concluded:
In conclusion we believe a grave injustice has been done to Berakah Retreat, and to its trustees. The Sunday programme was a poor example of the kind of modern journalism that is more concerned with a “good story” than with portraying the truth.
We do not ask that a balancing programme be made to convey our side of the argument, because we do not believe that using the media is the right way to deal with conflict situations among Christians.
 TVNZ assessed the complaint under the standards nominated by the complainant in the Free-to-Air Television Code of Broadcasting Practice. They read:
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.
6c Programme makers should not obtain information or gather pictures through misrepresentation or deception, except as required in the public interest when the material cannot be obtained by other means.
 TVNZ contended that the complaint disclosed a misunderstanding of the item’s purpose. It argued that there was no public interest in an internal dispute about unilateral action. However, there was a clear public interest in the information the two disaffected women members were able to provide about a serious case of sexual abuse of children under the trust’s roof and that the perpetrator had gone on to offend again – causing further misery and psychological harm to two other young girls.
 It was the sexual abuse aspect, TVNZ continued, which was of concern and about which it had an obligation to report. It added:
While the [complaints] committee accepts that the two women may have offended the trust in other ways, it seems not credible that the attempts to oust them were not in part because of their active interest in making public what they believed was a serious dereliction of duty by the trust at the time when “PJ” was caught in the act of abusing children.
 TVNZ did not accept that the item was unbalanced. As for the time given to each side, TVNZ explained first that the women featured more prominently as they were telling the story and, secondly, balance was not achieved by the stopwatch. Balance had been achieved by giving both parties adequate opportunities to present their points of view. While accepting that the questions to Mr Morrison contained serious allegations, TVNZ did not accept that they were put in an intimidating fashion. It also stated that the actions of the Trust at the time were now questioned by the mother of the children who had been molested, and by the person who had done the molesting.
 TVNZ said that the item contained no inaccuracies. The women’s activities, it noted, might not have been the only reason why the Trust sought to remove them, but it was part of the reason and the only part which was relevant to the item.
 As for fairness, TVNZ pointed out that one of the women, not the reporter, had used the word “cult” and that it was her genuinely held opinion. The burning of the papers at the foot of the cross was, as the item noted, a suggestion made by the Baptist mediators and there was no suggestion of a comparison with the Ku Klux Klan.
 In response to the complaint about the use of information secretly recorded, TVNZ said that Guideline 6c allowed the use of such information in the public interest. The matter was clearly of considerable public interest and, internally, TVNZ had followed its inhouse rules which required the express permission of its Editor-in-Chief before the information was included in the broadcast.
 In declining to uphold the complaint, TVNZ concluded:
It was the [complaints] committee’s overall impression that the item left viewers with the impression that a group of well-intentioned people had failed to realise or acknowledge that their lack of action over the original serious case of sexual misconduct had, years later, resulted in terrible consequences for two other innocent children. Both sides of this argument were presented in a balanced and fair manner.
 Dissatisfied with TVNZ’s decision, Mr Morrison on behalf of the Trust referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
 Particular concern was expressed at TVNZ’s comment that the mother of the abused children would have “pressed charges” but the Trust took the initiative to keep the matter quiet. The referral included a letter from the mother of the children who said, among other matters, that:
 The mother’s letter also spoke of the support the family had received from people both within and outside the community. The matter, she noted, had been discussed with the local police officer who had advised that it was unlikely that the offender would be charged even if the parents pressed charges, given the relatively minor nature of the offence and the fact that the perpetrator was a first offender. The police also noted that he was to undergo a programme of rehabilitation under the Trust’s auspices, but this was not said to be a factor for the success or otherwise of any action.
 The mother also advised that because of the “extreme pressure” imposed on them by the two disaffected members, they had later left the community. She added:
We would have liked to have remained in the community (with [PJ] gone) but this was not possible due to the extreme efforts of these ladies to turn people against us and resist peaceful reconciliation.
I felt at this time the Trust Board were very much acting in the interests of the ladies.
 TVNZ’s response included a letter it had received from the children’s mother (before the broadcast) and a letter written to the police by Mr Morrison in 1999 apparently in response to newspaper coverage of the former member’s later offending. The mother’s letter sought privacy for her children, adding:
Having said that, we have no particular interest in protecting the interests of the person who assaulted our children. We understood at the time, the police were informed of his activities and steps taken to protect others from his behaviour. As parents we were not prepared to put our children through the rigours of a court hearing when less than 35% of cases result in a successful prosecution. The Mahurangi Christian Community Trust requested that we allow them to handle the matter of holding the perpetrator accountable and they would be responsible for his ongoing rehabilitation. We were devastated to learn that some years later he had re-offended.
 In his letter to the police in 1999, Mr Morrison said that the parents, in 1995, had chosen not to press charges. He said that the earlier activities were not minor and had involved abuse for up to a period of three months. He also noted that the local police had been notified at the time but, in the interests of the children, it had been decided not to press charges. He also expressed pleasure that, for the sake of other children and the man, he was now before the Court.
 On behalf of the Trust, Mr Morrison explained that the letter provided to the Authority by TVNZ from the parents of the molested children noted that the Trust had asked to deal with the issue of holding the perpetrator accountable. That request, he pointed out, followed the parents’ earlier decision that charges not be laid. Emphasising the part of the parents’ letter which said that the Trust did not take the initiative to keep the matter quiet, Mr Morrison noted that the allegation in the Sunday item that the Trust had sought to cover things up was “both false and seriously misleading”.
 Mr Morrison acknowledged, with hindsight, that the Trust could have done more to prevent reoffending. Outlining the work that it had carried out, Mr Morrison enclosed a letter he had written to the Police some four months before he heard of the perpetrator’s second arrest expressing “deep concerns” about the perpetrator’s recent activities. TVNZ, he added, was aware of that letter. He continued:
The whole point of the program it would seem, without balance or in fairness to the Trust, was to indicate that we were cancelling [the membership of the two women] which would result in them selling their house to the Trust because we didn’t like them strongly advocating going to the Police. Further I told the TVNZ reporters in an earlier interview, off camera, that we had many reasons for their expulsion, none of which we would want to discuss on national TV, as we felt this would put down these ladies and that it wasn’t in our nature to do that. I would rather be made out as a big brute than belittle them before the nation.
 The members of the Authority have viewed a tape of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 In the item complained about, two women members of the Trust expressed their deep concern at what they considered to be the Trust’s lack of appropriate action some nine years previously when one member had been apprehended sexually molesting two girls. The item reported the women’s belief that the leaders of the Trust, at the time and subsequently, had followed a course designed to protect the Trust’s reputation. The women described the Trust as similar to a cult. Viewers were left with the impression that the incident was indeed “covered up” essentially to protect the Trust and, in doing so, the Trust had failed to act in a way which protected the wider community.
 Ian Morrison, the Trust chair, complained that the item was unbalanced, inaccurate and unfair.
 The complainant raised the following matters as examples of the way in which the item was unfair:
 A majority of the Authority concludes, given the cumulative effect of the matters explained below, that the item was unfair to the Trust.
 The complainant objected strongly to the description of the Trust by the dissident women as a “cult” and “cultish”. Moreover, it wrote, the images of burning with a cross in the background suggested the Ku Klux Klan. Explaining that a major characteristic of a cult was total control over members’ lives, the Trust said the description was inapplicable as the Trust allowed its members broad freedoms. TVNZ commented that the words “cult” and “cultish” had been used by an interviewee and the burning of the documents followed on from the Baptist Union’s suggestion, reported in the item, that it was appropriate to burn a list of grievances symbolically at the foot of a cross.
 A majority of the Authority finds that the repeated use of the image of the fire burning in front of the cross is one of the matters supporting its overall determination that the item was unfair to the complainant. It considers that the Trust should have been allowed to answer the allegation of being a cult. The reference to the cult was reinforced by the images of the fire and the cross; the images carried sinister overtones, and were used on a number of occasions before any reference to the Baptist Union’s involvement.
 As for the use of the secret recording, Guideline 6c of Standard 6 states that broadcasters should not obtain information through misrepresentation or deception except “in the public interest when the material cannot be obtained by other means”. In the present case, the complainant alleged that the covert audio recording of a meeting of the Trust was unfair. The Authority accepts that the audio recording of the meeting was obtained through deception, and is thus covered by Guideline 6c.
 TVNZ explained that information gathered secretly can only be used after the permission of the Editor in Chief had been sought and obtained and that permission was obtained on this occasion. That permission, the Authority points out, is an internal requirement and does not necessarily relate to the standard.
 The information secretly obtained revealed some of the attitudes of the Trust’s leadership to their actions in regard to the dismissal of the sexual molester. However, much of the information and attitudes apparent in the covert recording had already been covered during the interview with the Trust’s chair. Indeed, he gave similar answers to his secretly recorded comments. For that reason, the Authority concludes that the use of the covertly recorded material added little to the item, other than to imply a sinister cover-up. Further, a majority of the Authority considers that, as the covertly recorded material could be, and was, obtained openly, its use in the item was unfair, and a contributing factor to the decision that the item breached Standard 6.
 A majority found that the item was also unfair when it suggested that the incidents of sexual abuse had been “covered up” in order to protect the Trust’s reputation. In view of the item’s introduction, which categorically stated that the leaders of the Trust “demanded silence to protect their reputation”, the item gave the clear impression that the parents of the abused children had complied with the Trust’s wishes in this regard when both the Trust and the parents have made it clear that it was the parents who made the decision not to press charges.
 Prior to the broadcast of the item, the parents of the abused children wrote to TVNZ to express their concern that the item would disclose their children’s identity. In that letter, among other things, they said that they were not prepared to put their children through a court hearing at the time of the offences, adding:
The Mahurangi Christian Community Trust requested that we allow them to handle the matter of holding the perpetrator accountable and they would be responsible for his ongoing rehabilitation. We were devastated to learn that some years later he had re-offended.
 TVNZ relied on this letter as evidence that the Trust had attempted to handle the matter of the abuse itself, rather than involve outside agencies.
 The Trust provided the Authority with another letter from the children’s mother after the programme had been broadcast. That letter said TVNZ had “twisted” the earlier letter “to convey unintended meaning”. The children’s mother added that in telephone conversations with Sunday before the broadcast, she had made it clear that:
 The letter said that the parents had spoken to the local police at the time of the molestation and added that the Trust would have supported them if they had decided to press charges. The children’s mother wrote that they had then left the community but would have liked to remain. However, they could not do so in view of the attitude of the two dissident members.
 The Trust provided the Authority with a copy of a letter it had written to the police in February 1999. It outlined the events which occurred in 1995, including the point that the Warkworth police had been told of the events but the parents of the abused children had declined to allow them to be interviewed. It also noted that the Trust was concerned with the reports that it recently received that the former member was now doing voluntary work in three primary schools in the Waikato. The Trust gave notice of its concern and sought advice from the police on what it should do.
 The Authority notes that TVNZ was aware of the Trust’s letters to the police in 1999. It further notes that in the letter which the children’s mother had written to TVNZ before the programme was broadcast, she had stated:
As parents we were not prepared to put our children through the rigours of a court hearing when less than 35% of cases result in a successful prosecution.
 In light of the above evidence, a majority of the Authority accepts that the parents had made a decision not to press charges against the abuser – and the Trust had then taken steps to prevent a recurrence of such abuse. This contradicts the impression given in the broadcast that the Trust had, largely in the interests of its reputation, not taken any action other than to expel the member who had molested two children and had cajoled the children’s parents to comply with this course of action.
 The majority also notes that while the programme did refer to the fact that the parents had not wanted to press charges against the abuser at the time, the significance of this fact was minimised throughout the item. In view of the parents’ determination not to allow the police to interview their children, the majority notes that the Trust’s options were limited and, in particular, it would have been unable to ”press charges” even if it had wanted to.
 For the above reasons, a majority of the Authority concludes that the allegation of a “cover-up” of the abuse at the retreat, plus the omission of any reference to the steps for the member’s rehabilitation that the Trust put into place, were also matters contributing to its overall decision that the item was unfair to the Trust and in breach of Standard 6 of the Television Code.
 As for the item’s approaches to the parties, the Authority notes that the two dissident members were interviewed at greater length than Mr Morrison. Nevertheless, it considers that Mr Morrison had ample opportunity to respond to most of the points which were put to him. Further, the Authority finds that the styles of the interviews were not so different as to be unfair. The Authority considers that these matters were not relevant to its decision on the item’s unfairness.
 A minority of the Authority (Paul France) does not agree that the broadcast breached Standard 6. The minority notes that the core of the item described the deep divisions within the community which were driven, or exacerbated, by the incident of child abuse and, in particular, the action taken at the time by the community’s leaders.
 The minority considers that the item reasonably reflected all the important events as they appeared to have occurred. The item’s introduction advanced the dissenting members’ interpretation of the earlier events but, in the minority’s opinion, that was not an unreasonable stance at the time of the preparation of the item. The minority notes that the mother of the abused children subsequently wrote to stress emphatically that she and her husband were the driving force behind the decision not to prosecute. However, an earlier letter she had written to Sunday was less clear on that matter. At the very least, the minority believes, TVNZ was entitled to take the view that the community leaders had agreed with the decision not to prosecute, and taking into account all the information which had been gathered, to conclude that the leaders were concerned to ensure that the incident was kept out of the mainstream “secular” media.
 The minority considers that community leaders, despite the concern of the parents to protect their children from further trauma, should have displayed more social responsibility. For instance, there is no evidence of the leaders attempting to obtain a confession from the offender which would have avoided the need for a prosecution. In any event, the minority observes, the community leaders had ample opportunity within the item to present their position but, instead, took no responsibility for the subsequent events.
 In addition, as part of its decision not to uphold the Standard 6 (fairness) complaint, the minority does not agree that the reference to a “cult” was unfair as the claims were clearly made by the disaffected members and there was adequate rebuttal. Further, the minority does not accept that the use of the secret recording was unfair in that the material gathered provided strong evidence in support of two crucial aspects of the item:
 The requirement for balance in the Code of Broadcasting Practice applies to broadcasts which discuss controversial issues of public importance. In the view of the majority of the Authority, the item did not examine the wider issue of the responsibilities of organisations who discover that a member is a sexual offender. Rather, it examined the steps which had been taken on this particular occasion and questioned the motives for the action taken by the Trust. The item questioned whether the steps had been sufficient, largely in view of the fact that the former member had committed further sexual offences. The complainant contended that the Trust had not been given a reasonable opportunity to respond.
 Given the item’s focus, the majority considers that the complaint that alleged that the item was unbalanced dealt, in essence, with the same issues which were raised under fairness (Standard 6). In these circumstances, the majority subsumes the balance aspect of the complaint under its discussion of fairness. It therefore declines to uphold the balance aspect of the complaint.
 The minority (Paul France) concludes that the item raised an important matter of public interest. It asked, in matters of child abuse, when does the need for protection of victims (or protection of the good name of a community) outweigh the need for prosecution of the offender, thereby allowing the possibility of reoffending. While the minority found the item to be somewhat over-dramatised, it also considers that it presented all the important information and gave the Trust an adequate opportunity to respond to the claims that were made.
 TVNZ acknowledged that the item did not spell out in full the reasons why the two women were being evicted from the Trust. In light of this approach, the Authority considered whether the item breached the accuracy requirement by being either partial or misleading in suggesting that the ongoing debate about the previous incident of sexual offending was the sole focus for the Trust’s decision to evict the dissident women.
 Having examined the material, the Authority reaches the opinion that the item was not inaccurate. First, while Mr Morrison said that he had advised TVNZ before the interview that there were other reasons, he had been reluctant to advance them during the interview. Secondly, the item referred to the Baptist Union’s mediation, the Union’s conclusion and its suggestion for a resolution. Thirdly, while there may have been other reasons for the Trust’s decision to evict the two dissident members, the item’s focus was on the Trust’s actions following the apprehension of the sexual molester and the dissident members’ disapproval of these actions.
 Overall, while perhaps misleading to suggest that the women’s stance on the molestation issue was the sole reason for their proposed eviction, the Authority accepts that this was the issue on which the item focused and that in the circumstances outlined in para  the omission of the details of other reasons was not sufficiently inaccurate as to amount to breach of the standard. It declines to uphold the Standard 5 complaint.
 For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching its determinations to uphold the complaint and to impose an order. For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.
For the above reasons, a majority of the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on Sunday on 26 September 2004 breached Standard 6 of the Free-to-Air Television Code of Broadcasting Practice.
 Having upheld a complaint, the Authority may impose orders under ss.13 and 16 of the Broadcasting Act 1989. It invited submissions from the parties.
 TVNZ submitted that the publication of the decision was sufficient, observing that it was not the Authority’s usual practice to impose an order when its decision was not unanimous.
 The Trust reviewed the aspects on which the complaint had been upheld and contended that the broadcast of a statement summarising the decision was appropriate. It enclosed a draft statement which included an apology to the Trust. The Trust also sought legal costs in relation to the action taken against one of the two dissident members whose actions had been featured in the programme. It also sought costs for the parents of the children who were the victims of molestation and who had sought legal advice to ensure the privacy of their children. The Trust did not seek any costs for any legal advice it had taken in bringing the complaint.
 The Authority has considered the arguments advanced by the parties. It notes that its decision was a majority one and, as TVNZ pointed out, it only imposes an order when a decision is not unanimous if the circumstances of the complaint are exceptional. This is not the case in the present situation. The Authority considers that the publication of the decision is sufficient and, accordingly, it does not impose an order requiring a statement.
 As the legal costs sought do not concern any legal advice taken in bringing the complaint, the Authority does not make an order for costs.
Signed for and on behalf of the Authority
3 June 2005
The following correspondence was received and considered by the Authority when it determined this complaint: