Secret New Zealand – death of Norman Kirk – various theories explored – a conspiracy theory advanced linked death to trial of Dr Bill Sutch for spying – inaccurate details of trial – unfair
Standard 5 – speculation advanced – not fact – no uphold
Standard 6 – Dr Sutch not dealt with unfairly in context – no uphold
This headnote does not form part of the decision.
 Secret New Zealand presented three perspectives on the death in 1974 of former Prime Minister, Norman Kirk. The series examined events in New Zealand which were not adequately explained at the time . The episode complained about was broadcast on TV One at 8.00pm on 2 September 2002.
 Simon Boyce complained to Television New Zealand Ltd, the broadcaster, that the item was inaccurate and unfair. He contended that the item appeared to accept the conspiracy theory which related the death to the trial in 1975 of Dr William Sutch for spying for the Soviet Union. The information disclosed about the trial in Secret New Zealand, he said, was in conflict with information in an Assignment programme about the trial that had been broadcast in 2000.
 In response, TVNZ disagreed that the programme accepted the conspiracy theory. Rather, it said, the programme had examined three interpretations about the death of Mr Kirk, none of which was presented as absolutely accurate.
 Dissatisfied with TVNZ’s decision, Mr Boyce referred his complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons below, the Authority declines to uphold the complaint.
 The members of the Authority have viewed a video of the programme complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.
 Secret New Zealand is a series that looks at past events in New Zealand which were not necessarily completely explained at the time. The episode broadcast on TV One at 8.00pm on 2 September 2002 looked at three theories surrounding the death in 1974 of former Prime Minister, Norman Kirk. The theories were that the death was the result of a right-wing conspiracy, that it was an assassination carried out by the CIA, or that it was the result of ill health.
 Simon Boyce stated that the item seemed to accept the right-wing conspiracy theory. The conspiracy theory linked Mr Kirk’s death with the trial or Dr William Sutch for spying in 1975. The programme recorded that Dr Sutch had been one of Mr Kirk’s close, but secret advisers. The programme suggested that Dr Sutch was meeting with the Soviets with Mr Kirk’s knowledge. As that information was in conflict with an Assignment programme broadcast in 2000 which suggested that Dr Sutch was spying for the Soviet Union, Mr Boyce maintained that either the Secret New Zealand item or the Assignment programme was inaccurate. He included considerable material relating to events at the time. He also maintained that if the conspiracy theory was correct, then as a consequence, Dr Sutch would not have been a spy for the Soviet Union as alleged in the trial in 1975.
 In view of the matters raised in the complaint, TVNZ assessed it under Standards 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice. The Standards read:
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.
 TVNZ noted that the conspiracy theory was in conflict, as Mr Boyce alleged, with an Assignment programme broadcast in 2000 which had examined the events leading up to the trial of Dr Sutch. It continued:
But it seemed to the [complaints] committee that the meeting was portrayed in Secret New Zealand as simply part of one of three possible scenarios involving the death of Mr Kirk. All three scenarios were speculative, and members of the audience were invited to make up their own minds – or perhaps to remain open minded – about events preceding the death of the Prime Minister.
 TVNZ considered that the role of a documentary was "to entertain theories, and to examine rumours". It contended that, while certain facts remained the same, one broadcast could give a different interpretation to an event advanced in an earlier broadcast. In the programme complained about, one person interviewed advanced the conspiracy theory and, TVNZ said, the programme had not accepted that version as more correct than the other scenarios advanced.
 In regard to the accuracy requirement in Standard 5, TVNZ said it did not detect any inaccuracies. It wrote:
The programme was speculative – examining three theories, three ways of looking at the events which led to the death of Mr Kirk. The programme did not claim that any one of the three had precedence over the other two. The committee did not detect any facts that were provably inaccurate, and it was noted that the programme indicated throughout that it was not presenting any of the three scenarios as the unchallengeable truth.
 TVNZ also concluded that no person or organisation had been treated unfairly in the programme, and it declined to uphold the Standard 6 aspect of the complaint.
 On the basis that the accuracy standard was absolute, Mr Boyce said his referral related to the accuracy of the statement in the programme that Dr Sutch met a KGB agent in Karori. He acknowledged that the Authority in a previous decision (No 2000-149, 12 October 2000) had not found the statement to be inaccurate but in view of the request for absolute accuracy, the "decision must now be unsafe".
 Mr Boyce said that TVNZ’s response had dealt with theories of history, rather than the specific complaint. Moreover, it had said that the programme was speculative. However, Mr Boyce continued, the material included in Secret New Zealand supported material advanced by Dr Sutch’s defence committee at the time of the trial which not been given similar publicly earlier .
 TVNZ reiterated its explanation that the programme simply presented three perspectives on the death of Norman Kirk.
 Mr Boyce explained that his complaint did not focus on the death of Mr Kirk, but on the activities of Mr Kirk’s secret "think tank", and the relationship between Mr Kirk and Dr Sutch who was a member of the "think tank". Dr Sutch, Mr Boyce wrote, explicitly denied meeting Mr Razgovorov, a member of the KGB, although the item included a re-enactment of a meeting in Karori.
 Mr Boyce provided a range of information about Dr Sutch’s trial for spying, and the role of some SIS officers involved. He concluded:
I have tried to provide the context for the material used in the TVNZ programme, in relation to Sutch and the "think tank". Even today, academics have been reported as asking the Prime Minister to release SIS files that have never been archived in public institutions. … TVNZ continue to rake over these allegations, despite Sutch’s acquittal, and now link this to Kirk’s death in a way that trivializes both these events and legacies of the men concerned. Is it really ridiculous to expect accuracy in regard to the events of 1974–75?
 The episode of Secret New Zealand broadcast on 2 September presented three perspectives on the death, in 1974, of former Prime Minister, Norman Kirk. The theories advanced were that the death was the result of a right-wing conspiracy, that it was an assassination carried out by the CIA, or that it was the result of ill health. The Authority notes that the broadcast did not suggest one of the perspectives had more validity than either of the others.
 Mr Boyce claimed that the item seemed to accept the right-wing conspiracy scenario. That theory also referred to the trial of Dr William Sutch for spying in 1975. Mr Boyce contended that some of the information advanced about the trial in Secret New Zealand was in conflict with the information contained in an Assignment programme, which looked at the trial and events leading up to it, broadcast by TVNZ on 30 March 2000. Accordingly, he complained that the material advanced in Secret New Zealand was inaccurate.
 On the basis, first, of its finding that the broadcast did not suggest one of the three perspectives had any more validity than either of the others, and second, that each perspective dealt with speculation, the Authority does not accept that the broadcast breached the standards nominated. The item’s examination of the theories, in the Authority’s opinion, did not include a provable inaccuracy in regard to the matters raised by the complainant.
 The Authority notes that Mr Boyce complained about the Assignment programme broadcast in March 2000, and it is apparent that he has a close interest in regard to the trial, and acquittal, of Dr Sutch. The Authority is of the view that the present complaint arises from that intense interest. However, as the trial of Dr Sutch was a peripheral issue to the differing theories advanced about the death of Mr Kirk, the Authority questions whether there is a legitimate basis to this complaint.
 The Authority observes that to find a breach of broadcasting standards on this occasion would be to apply the Broadcasting Act 1989 in such a way as to limit freedom of expression in a manner which is not reasonable or demonstrably justifiable in a free and democratic society (s.5 of the New Zealand Bill of Rights Act 1990). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards and applies them in a manner which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.
For the above reasons, the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
17 December 2002
The following correspondence was received and considered by the Authority when it determined this complaint: