BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Findings
Standard 4 (controversial issues – viewpoints) – item discussed a controversial issue of public importance – NZDF given adequate opportunity to respond to allegations and present the Army's perspective – broadcaster provided the necessary significant viewpoints on the topic within the period of current interest – not upheld

Standard 5 (accuracy) – comment, "A licence to kill?", was posed as a question not a statement of fact – reporter's use of term "investigation" and other statements complained about were not material – most of Mr McQuillan's statements were clearly framed as accusations and opinion – comment about driver being passed after running a red light a statement of fact, but related more to fairness – not upheld

Standard 6 (fairness) – NZDF given an adequate opportunity to respond – NZDF's viewpoint clearly conveyed by its representative – broadcaster dealt with complainant fairly – not upheld

This headnote does not form part of the decision.

Broadcast

[1]  An item on One News, broadcast on TV One at 6pm on 27 June 2010, focused on an investigation of alleged dangerous driving practices of the New Zealand Army.

[2]  In the opening teasers of the bulletin, the One News presenter asked the question, "A licence to kill?" She continued:

Dangerous and deadly driving practices in our army, an exclusive One News investigation uncovers serious allegations. We begin tonight with an exclusive One News investigation into allegations of unsafe and improper driving practices in the Defence Force. The Army has come under fire from a driving instructor who claims recruits are unlawfully passing their driving tests and he fears soldiers will die on the roads if nothing is done about it.

[3]  A map of New Zealand was shown onscreen entitled "Defence Driving Allegations" as the presenter continued saying "the allegations stem from the Linton Army Camp near Palmerston North".

[4]  The bulletin then crossed to a reporter live at Linton who said:

It all began here at New Zealand's biggest army camp. I've been working for the past three months to bring you this story, serious allegations at Linton Army Camp, here at the driver training wing. A Court of Inquiry, a high level investigation has been launched, but only after I started asking questions.

[5]  A pre-recorded item then screened in which the reporter stated:

Nobody knows driver safety like Greg McQuillan. He's been a qualified instructor for 20 years. More than a year and a half ago he was hired by Linton Army Camp to make soldiers safe behind the wheel.

[6]  Mr McQuillan was shown saying, "I don't want to send a young soldier out there believing that he's way up there in his driving skill when, in reality, he's down here and then goes and kills himself".

[7]  The reporter commented, "But he claims his expertise got a hostile reception", and Mr McQuillan explained that he had a sergeant threaten him because he did not like his teaching methods.

[8]  The reporter stated:

The military's UNIMOG crash record is grim: eight personnel dead in 16 years. In 2005, three soldiers were killed after their vehicle plunged down the Kawarau Gorge in Otago, the Coroner ruling driver inexperience a major factor. Now Mr McQuillan claims recruits are being given licences to drive heavy army vehicles even after making serious mistakes like a soldier who ran a stop sign, which should be an instant fail.

[9]  Mr McQuillan then stated that "you're going to kill somebody doing something like that and yet the testing officer still passed her".

[10]  The report continued with the reporter saying, "Mr McQuillan claims it's common for instructors to pass recruits they've never even seen tested". Mr McQuillan said, "It was when I refused to stamp off assessments that I had not done, and I've continued to refuse to do that. I'm not going to break the law, don't ask me to break the law".

[11]  Explaining who the next guest in the item was, the reporter stated, "So we took Greg McQuillan's concerns to Defence Force bosses". Colonel Paul van Den Broek was interviewed and said, "As a consequence of these concerns being raised through the media I have instigated a Court of Inquiry to determine the validity of those concerns and allegations".

[12]  Following this, the reporter stated, "The Defence Force stresses an earlier internal inquiry cleared the camp of any illegal practices". Colonel van Den Broek continued saying:

I actually have every confidence in our driver training programme and the measures that we have in place to ensure that the appropriate procedures and practices are being conducted. We also have independent audit by both the New Zealand Qualifications Authority and the New Zealand Transport Agency.

[13]  Returning to Mr McQuillan, the reporter provided some background to his dealings with the Defence Force saying that Mr McQuillan had been embroiled in an employment dispute with the Army over his allegations of workplace bullying by other instructors. Mr McQuillan was then shown saying, "I don't want anything out of the NZDF but to be honest, I want them to be accountable as I'm accountable."

[14]  The reporter concluded the pre-recorded item by saying, "And whether the Defence Force does have to be held accountable will be known when the Court of Inquiry is completed".

[15]  Returning to the live cross, the presenter briefly questioned the reporter about the Court of Inquiry.

[16]  A follow-up item was broadcast on 27 July 2010 informing viewers that an investigation by the New Zealand Transport Agency (NZTA) had cleared the army of unsafe practices, but had found that the army had made some technical mistakes which were not serious.

[17]  The report stated that Mr McQuillan believed the investigation had not gone far enough because he had not been consulted. The reporter also said that the New Zealand Defence Force "says that a Transport Agency investigation has found none of the allegations made in an earlier TVNZ story have been found to have any basis".

Complaint

[18]  The New Zealand Defence Force (NZDF) made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the item was unbalanced, inaccurate and unfair.

[19]  NZDF considered the graphic and statement made at the beginning of the item, "Licence to Kill?", was unfair and inaccurate, as "nothing in the item suggested that any of the allegations had led to a subsequent death as a result of driver training practices" in the Army. It stated that the reporter had been made aware that there had been no serious driver training accidents in respect of army vehicles in the past two years.

[20]  The complainant contended that the presenter's statement, "Licence to Kill? Dangerous and deadly driving practices in our army", was inaccurate and unfair, as there was no substance to the claims such practices existed in the army.

[21]  The NZDF noted that the presenter had said, "An exclusive One News investigation uncovers serious allegations". It contended that the statement was inaccurate as "there appears to have been no substantive investigation by TVNZ" because the item only presented a "he said, she said story with only two interviews". It considered that this "compounded the lack of balance presented in the story". It also contended that the follow-up item broadcast on 27 July 2010 did not provide the NZDF's viewpoint properly and had not countered the unbalanced nature of the first item.

[22]  The NZDF argued that the reporter's comment, "I've been working for the past three months to bring you this story", was inaccurate because it had only been contacted "a few days before the story went to air" and the reporter had not taken up an offer to visit the army driver training wing.

[23]  The complainant contended that the reporter's statement, "A Court of Inquiry, a high level investigation has been launched, but only after I started asking questions" was inaccurate. It said that "an investigation into many of the complaints highlighted in the story had already been undertaken" and the item had failed to mention this despite being given a copy of the results of the investigation.

[24]  NZDF noted that Mr McQuillan was shown stating, "I don't want to send a young soldier out there believing that he's way up there in his driving skill when, in reality, he's down here and then goes and kills himself". It noted that the statement went unchallenged by the reporter and argued that it added to the lack of balance.

[25]  The complainant argued that Mr McQuillan had been allowed to make unsubstantiated allegations such as "a soldier who ran a stop sign which should be an instant fail" as well as saying "you're going to kill somebody doing something like that and yet the testing officer still passed her". It contended that there was no proof that any such incident occurred, but that Mr McQuillan had been allowed to comment on the alleged incident like it was fact without any challenge or balance being provided by the reporter. It considered allowing such allegations to be made without challenge was "grossly unfair" and contributed to viewers receiving an inaccurate and unbalanced story.

[26]  The complainant considered the use of crashed army UNIMOGs in the story caused unwarranted stress on family members, friends and army personnel who had lost loved ones in past accidents. It argued that it was inaccurate and unfair to include the images, as they were used to link Mr McQuillan's allegations to the cause of historical UNIMOG crashes as though they were somehow related.

[27]  The NZDF contended that, "Overall the viewer was not given an opportunity to hear the Army's perspective until two minutes and 45 seconds into the story (including the opening live shot) after each allegation had been allowed to run without balance". It argued that each allegation should have been balanced by a following response from the NZDF.

[28]  The complainant noted that it was not until the final quarter of the item that the reporter mentioned Mr McQuillan had been embroiled in an employment dispute and that it failed to mention that an independent inquiry did not find in his favour. It considered that, as a result, viewers were denied an opportunity to assess for themselves the possible motivations of TVNZ's source, and weigh it according to their judgment.

Standards

[29]  Standards 4, 5 and 6 and guidelines 4a and 5a of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of this complaint. These provide:

Standard 4 Controversial Issues – Viewpoints

When discussing controversial issues of public importance in news, current affairs or factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Guideline 4a

No set formula can be advanced for the allocation of time to interested parties on controversial issues of public importance. Significant viewpoints should be presented fairly in the context of the programme. This can only be done by judging each case on its merits.

Standard 5 Accuracy

Broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming:

• is accurate in relation to all material points of fact; and/or
• does not mislead.

Guideline 5a

The accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion.

Standard 6 Fairness

Broadcasters should deal fairly with any person or organisation taking part or referred to.

Broadcaster's Response to the Complainant

[30]  With respect to Standard 4 (controversial issues - viewpoints), TVNZ agreed with the NZDF that the issue of army driving safety was a controversial issue of public importance to which the standard applied.

[31]  The broadcaster stated that, when considering the issue of balance, it was necessary to look at the item as a whole, and that it would have been "no service to viewers to run a series of claims and counterclaims one after the other" without any context, as suggested by the NZDF.

[32]  TVNZ said that the item "repeatedly stated quite clearly that Mr McQuillan was making claims and allegations" and that the army had investigated some of the issues Mr McQuillan raised. It pointed out that the reporter had said, "The Defence Force stresses an earlier internal inquiry cleared the camp of any illegal practices".

[33]  The broadcaster argued that the item had sought and presented the NZDF's perspective by interviewing Colonel van Den Broek. It said that he had been provided with the opportunity to respond to the claims made by Mr McQuillan and had done so articulately.

[34]  TVNZ pointed out that on 27 July 2010, One News ran a follow-up item reporting on the results of the NZTA inquiry which clearly stated that the Army had been cleared of any wrongdoing.

[35]  The broadcaster contended that Mr McQuillan's comments were his opinion and, as such, was permitted under the standard. It argued that Mr McQuillan's perspective was balanced by Colonel van Den Broek's perspective of the driver training programme which was included in the item.

[36]  TVNZ considered that the appropriate viewpoints were sought and presented both in the initial item and within the period of current interest. It therefore declined to uphold the complaint that Standard 4 had been breached.

[37]  Turning to Standard 5 (accuracy), the broadcaster argued that the graphic and news presenter's comment "Licence to Kill?" was not presented as a statement of fact, but posed a question to establish the framework for the upcoming item. It therefore declined to uphold this aspect of the accuracy complaint.

[38]  With respect to the reporter's investigation, TVNZ said that it was satisfied that the reporter conducted sufficient research to warrant the use of the term "investigation" and argued that viewers would not have been misled by its use of the term.

[39]  The broadcaster stated that its reporter had found out about Mr McQuillan's concerns via a third party and that it had taken several months for him to convince Mr McQuillan to do an interview for broadcast. Dealing with the NZDF's contention that the reporter had turned down an invitation to visit the driver training wing, TVNZ said that the reporter told it that he had not declined the invitation and had tried to initiate a visit, but had been told by Army media relations staff that he should wait until the Court of Inquiry results were released.

[40]  TVNZ contended that Mr McQuillan's comments were not presented as statements of fact to viewers, but rather "all of his comments were clearly presented as claims and allegations".

[41]  With respect to Mr McQuillan's statement, "I don't want to send a young soldier out there believing that he's way up there in his driving skill when, in reality, he's down here and then goes and kills himself", the broadcaster argued that the comment was clearly opinion which was permitted under the standard and that viewers would have understood it as such.

[42]  TVNZ noted that the reporter had stated, "Mr McQuillan claims it's common for instructors to pass recruits they've never even seen tested", and that this remark had been followed by comment from Colonel van Den Broek about a Court of Inquiry being set up to investigate the allegations. Further, it noted that the reporter had said "The Defence Force stresses an earlier internal inquiry cleared the camp of any illegal practices".

[43]  The broadcaster concluded that the item had not misled viewers and that no material points of fact were omitted from the item.

[44]  Turning to the NZDF's concerns about imagery, TVNZ argued that the use of footage relating to previous accidents in military vehicles was relevant to the item, provided context for viewers and was an established journalistic practice. It said the 2005 Kawarau Gorge accident was mentioned because the Coroner ruled that driver inexperience was a major factor. It contended that the use of the imagery was not misleading.

[45]  The broadcaster declined to uphold the complaint that Standard 5 had been breached.

[46]  Looking at Standard 6 (fairness), TVNZ contended that the NZDF was provided with a full right of reply and that the reporter had provided a full summary of Mr McQuillan's claims in an email to the NZDF five days prior to the broadcast. It argued that this was a sufficient timeframe for the complainant to make a considered response.

[47]  Referring to the NZDF's argument that the item was unfair because it had inaccurately portrayed events, TVNZ pointed out that Colonel van Den Broek had acknowledged that a Court of Inquiry was launched in response to "concerns being raised in the media". It argued that the NZDF was provided with ample opportunity to respond to the allegations contained in the 27 June item both in the email from the reporter prior to the broadcast and by Colonel van Den Broek's appearance in the item.

[48]  The broadcaster also noted that the follow-up item broadcast on 27 July included statements that an investigation by the NZTA had cleared the army of unsafe practices and had not found any basis for the allegations.

[49]  TVNZ declined to uphold the complaint that the NZDF had been treated unfairly.

Referral to the Authority

[50]  Dissatisfied with the broadcaster's response, the NZDF referred its complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[51]  The complainant maintained that the item did not provide viewers with adequate information to make a fair, balanced and accurate judgment on the workings of the driving training within the New Zealand Army. It reiterated its argument that the item had breached Standards 4, 5 and 6.

Authority's Determination

[52]  The members of the Authority have viewed a recording of the broadcast complained about and the follow-up item broadcast on 27 July 2010, and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Standard 4 (controversial issues – viewpoints)

[53]  Standard 4 states that when controversial issues of public importance are discussed in news, current affairs or factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

[54]  A controversial issue of public importance has typically been defined by the Authority as something that would have a significant potential impact on, or be of concern to, members of the New Zealand public (e.g. Powell and CanWest TVWorks Ltd¹).

[55]  We consider that the topic featured in the item - allegations of unsafe and improper driving practices in the Defence Force - constituted a discussion of a controversial issue of public importance to which Standard 4 applied.

[56]  The NZDF contended that, "Overall the viewer was not given an opportunity to hear the Army's perspective until two minutes and 45 seconds into the story (including the opening live shot) after each allegation had been allowed to run without balance".

[57]  The Authority has said in previous decisions (e.g. NZFGC and TVWorks²) that balance is not achieved by the "stopwatch", meaning that the time given to each competing party or viewpoint does not have to be mathematically balanced. When considering the issue of balance, it is necessary to look at the item as a whole. The question for the Authority is whether the NZDF's perspective on the controversial issue was advanced in the item fairly, such that viewers would have been able to arrive at an informed view. We conclude that it was.

[58]  In our view, the NZDF's representative was given ample opportunity to convey the Army's perspective on the allegations and the adequacy of its driver training program in general. Further balance was provided during the period of current interest with the follow-up item broadcast on 27 July, which included statements that an investigation by the NZTA had cleared the Army of unsafe practices and had not found any basis for the allegations made by Mr McQuillan.

[59]  We therefore conclude that TVNZ made reasonable efforts and gave reasonable opportunities to present significant points of view on the controversial issue of public importance within the period of current interest. Accordingly, we decline to uphold the complaint that Standard 4 was breached.

Standard 5 (accuracy)

[60]  Standard 5 states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead.

[61]  We will deal with each of the complainant's accuracy concerns in turn.

"Licence to Kill?"

[62]  NZDF considered the graphic ("Licence to Kill?") and presenter's comment ("A licence to kill?") made at the beginning of the item were unfair and inaccurate, as "nothing in the item suggested that any of the allegations had led to a subsequent death as a result of driver training practices" in the Army.

[63]  In our view, the graphic and comment were clearly posed as hyperbolic questions, rather than statement of facts to which the accuracy standard applies. Therefore we decline to uphold this aspect of the Standard 5 complaint.

"An exclusive One News investigation uncovers serious allegations"

[64]  The NZDF contended that the reference to an "investigation" was inaccurate as "there appears to have been no substantive investigation by TVNZ". We consider that, broadly speaking, TVNZ's reporter did undertake an investigation into the claims being made by Mr McQuillan. In any event, we find that the statement did not constitute a material point of fact to which the standard applies, and we therefore decline to uphold this aspect of the accuracy complaint.

"... I've been working for the past three months to bring you this story ..."

[65]  The NZDF argued that the reporter's comment, "I've been working for the past three months to bring you this story", was inaccurate because it had only been contacted "a few days before the story went to air".

[66]  Again, we consider this statement did not constitute a material point of fact to which the standard applies, and we therefore decline to uphold this aspect of the accuracy complaint.

"A Court of Inquiry, a high level investigation has been launched, but only after I started asking questions"

[67]  The complainant argued that the statement was inaccurate because "an investigation into many of the complaints highlighted in the story had already been undertaken", but the item had failed to mention this.

[68]  We note that, during the item, Colonel Paul van Den Broek said, "As a consequence of these concerns being raised through the media I have instigated a Court of Inquiry to determine the validity of those concerns and allegations".

[69]  In our view, the reporter's comment was a general statement to reflect the fact that a Court of Inquiry had been launched by the NZDF, which was correct. Accordingly, we decline to uphold this aspect of the Standard 5 complaint.

Mr McQuillan's statements

[70]  The complainant argued that Mr McQuillan had been allowed to make unsubstantiated allegations and that they constituted inaccuracies because the reporter did not challenge him on them.

[71]  We note that Standard 5 only applies to material points of fact and that guideline 5a states that the accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion.

[72]  In our view, all but one of Mr McQuillan's statements were clearly presented in the item as allegations and personal opinion. We note that the reporter used the words "claims", "allegations" and "concerns" when referring to Mr McQuillan's accusations and we are satisfied that viewers would not have interpreted his comments as statements of fact, but as his opinion and interpretation of events.

[73]  The one statement Mr McQuillan made that could be seen as constituting a statement of fact related to his comment about a driver passing the driving test after going through a red light during training. However, we consider that, due to its anecdotal nature, this point is more appropriately dealt with under the fairness standard.

[74]  Having reached the conclusion that all but one of Mr McQuillan's statements were presented as allegations and were clearly distinguishable as personal opinion, we therefore decline to uphold the complaint that the item breached Standard 5.

Standard 6 (fairness)

[75]  The fairness standard requires broadcasters to deal fairly with any person or organisation taking part or referred to in a programme.

[76]  The NZDF considered that allowing Mr McQuillan to make the allegations that he did without challenge was "grossly unfair" and contributed to viewers receiving an inaccurate and unbalanced story.

[77]  We note that, during the item, the reporter told viewers that, "The Defence Force stresses an earlier internal inquiry cleared the camp of any illegal practices", and that Colonel van Den Broek stated:

I actually have every confidence in our driver training programme and the measures that we have in place to ensure that the appropriate procedures and practices are being conducted. We also have independent audit by both the New Zealand Qualifications Authority and the New Zealand Transport Agency.

[78]  We also note that the reporter mentioned the fact that Mr McQuillan had been embroiled in an employment dispute with the Army.

[79]  As outlined in paragraph [58] above, we consider that the NZDF's representative was given ample opportunity to convey the Army's perspective on Mr McQuillan's allegations and the adequacy of its driver training program in general. Further, as stated in paragraph [72] above, all but one of Mr McQuillan's statements were clearly presented as allegations and personal opinion to viewers.

[80]  With respect to Mr McQuillan's statement about a recruit being passed after going through a red light, we consider that the Army's response adequately dealt with the issue by making it clear to viewers that an earlier internal inquiry had cleared Linton Army Camp of any illegal practices in its driver training.

[81]  With respect to the NZDF's contention that the footage of crashed army UNIMOGs in the story breached standards of fairness, we consider that the use of such library footage is a legitimate editorial technique and that it was relevant in the context of the item. Accordingly, we conclude that the NZDF was dealt with fairly by TVNZ.

[82]  Turning to the complainant's concerns about the stress the images of the crashed army UNIMOGs would have caused family and friends of those involved, we note that the fairness standard only applies to people who take part or are referred to in an item.

[83]  In these circumstances, we decline to uphold the complaint that the item breached Standard 6.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Leigh Pearson
Member
23 December 2010

Appendix

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

1.          New Zealand Defence Force's formal complaint – 22 July 2010

2.         TVNZ's response to the formal complaint – 20 August 2010

3.         NZDF's referral to the Authority – 16 September 2010

4.         TVNZ's response to the Authority – 10 November 2010

¹Decision No. 2005-125

²Decision No. 2007-126