BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

[This summary does not form part of the decision.]

The Authority did not uphold a complaint that a segment on The Project that questioned whether a ‘stolen generation’ was being created in light of an investigative report into Oranga Tamariki’s uplifting of a child breached broadcasting standards. The Authority acknowledged the sensitive nature of the issue addressed but found the item, and specifically the host’s use of the term ‘stolen generation’ was unlikely to cause widespread undue offence or distress. The Authority also found the item was unlikely to mislead viewers regarding the situation considering the nature of the programme and the presentation of alternate viewpoints on the issue. Finally, the Authority found the broadcast did not result in any unfairness to Oranga Tamariki that justified the restriction of the broadcaster’s right to freedom of expression, as its perspective was clearly presented in the short item.

Not Upheld: Good Taste and Decency, Accuracy, Fairness

The broadcast

[1]  An item on The Project featured a discussion of a Newsroom investigation into an attempt by Oranga Tamariki to remove a child from their mother. The item began with host Jessie Mulligan asking the question: ‘Are we creating New Zealand’s own stolen generation of children?’¹ This statement was put in the context of what was described as ‘a decades long scandal in Australia in which children were ripped from their families’. Footage of children in Australia being taken by authorities is shown with the voiceover.

[2]  The broadcast featured extracts of comments by Oranga Tamariki CEO Grainne Moss, and an interview between the host Kanoa Lloyd and former Families Commissioner Christine Rankin. The item concluded with the hosts giving their own opinions on the situation, including Ms Lloyd saying she had spoken to experienced social workers who believe the system is broken and finally with the hosts asking viewers to provide their opinion.

[3]  The item was broadcast on 13 June 2019 on Three. As part of our consideration of this complaint, we have watched a recording of the broadcast and read the correspondence listed in the Appendix.

The complaint

[4]  Sharon Callaghan submitted the broadcast breached the good taste and decency, accuracy and fairness standards of the Free-to-Air Code of Broadcasting Practice for the following reasons:

• Drawing a comparison between the stolen generation and a baby being uplifted from its mother by Oranga Tamariki was ‘inflammatory, misguided’ and ‘far from the truth’.
• The Project did not accurately and fairly represent the difficult position Oranga Tamariki have been placed in with respect to trying to protect children in New Zealand.
• Ms Lloyd’s implication that social workers she had spoken to saw the uplift of the baby as ‘something akin to a shambles, was unhelpful.’
• The ‘general public’ do not understand ‘the realities of this issue.’ The original Newsroom investigation was ‘biased and misleading’.
• ‘If The Project was truly fair, they would do a show giving the other side of the story to OT's [Oranga Tamariki’s] extremely challenging role. They would give insights into the reality of the long term, inter-generational abuse that exists in NZ, that necessitates the existence of OT.’
• The Project should have questioned the ‘silence of key Iwi Leaders’ and approached them for comment.

The broadcaster’s response

[5]  MediaWorks responded that the broadcast did not breach broadcasting standards for the following reasons:

• The Broadcast dealt with subject matter that was likely to have been troubling to many viewers. However, it did not contain material likely to have caused widespread undue offence or distress.
• The terms ‘stolen generation’ or ‘taken generation’ were used in the original Newsroom reporting of the issue (cited in this programme).
• The aspects of the broadcast identified in the complaint were distinguishable as analysis, comment or opinion, to which the accuracy standard does not apply.
• The broadcast was accurate in material point of fact and did not mislead.
• The aspects of the broadcast complained about constituted analysis, comment or opinion to which the accuracy standard does not apply and the broadcast was accurate with regard to material points of fact.
• The report examined an issue that carried considerable public interest and of which close scrutiny was amply justified. Importantly, the broadcast included the perspective of Oranga Tamariki (including clips from an interview with the Agency’s CEO) and Ms Rankin provided a strident rebuttal of the criticism that had been levelled at the agency.
• The broadcast met the standard for fairness.

The relevant standards

[6]  The good taste and decency standard (Standard 1) states that current norms of good taste and decency should be maintained, consistent with the context of the programme. The Authority will consider the standard in relation to any broadcast that portrays or discusses material in a way that is likely to cause widespread undue offence or distress.²

[7]  The accuracy standard (Standard 9) 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. The objective of this standard is to protect audiences from being significantly misinformed.³

[8]  The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in any broadcast. Its purpose is to protect the dignity and reputation of those featured in programmes.⁴

Our findings

[9]  The right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, is the starting point in our consideration of complaints. Equally important is our consideration of the level of actual or potential harm that may be caused by the broadcast. We may only interfere and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.

[10]  The potential harm caused on this occasion is undue damage to Oranga Tamariki’s reputation and ability to effectively operate as a result of the alleged inaccurate and unfair reporting by MediaWorks as well as the public being misinformed about the issues. However, it is an important role of journalists and the media in general to scrutinise and hold governing bodies and public organisations to account for their actions. The criticism and challenging of these institutions promotes free and frank public discourse and discussion, which is an important feature of the right to freedom of expression and our democratic society.

[11]  We have found on this occasion that the broadcast did not breach any of the standards raised and therefore any restriction on the broadcaster’s right to freedom of expression would be unjustified. We expand on our reasoning below.

Good taste and decency

[12]   Context is highly relevant to our assessment of whether the broadcast undermined widely-shared community standards.⁵ In our consideration of this complaint we found the following contextual factors to be relevant:

• The Project is an unclassified news and current affairs programme and has an adult target audience.
• There is an audience expectation that The Project will at times discuss controversial issues.
• The introduction of the item clearly indicated the nature of the story to follow.
• There was a high level of public interest in the subject matter.
• While the subject matter was controversial and sensitive, and the hosts’ treatment of that subject matter may have offended some people, the item did not feature any graphic images or language.
• The term ‘stolen generation’ was used by other media outlets to describe the situation.⁶
• The item was part of ongoing media coverage and public dialogue regarding the subject matter.

[13]  Where broadcasters take effective steps to inform their audiences of the nature of their programmes, and enable viewers to regulate their own and children’s viewing behaviour, they are less likely to breach this standard.⁷ We acknowledge the broadcast featured a sensitive subject matter and that comparisons to Australia’s ‘stolen generation’ may have affected some viewers. However, the item clearly signalled the subject matter during its introduction, allowing viewers to determine whether they wanted to watch the item.

[14]  Considering the contextual factors above, specifically the audience expectations, the item’s introduction and the lack of graphic content, we find the item did not reach a level of seriously violating community norms.  While some may have disagreed with the hosts’ approach, it was unlikely to cause widespread undue offence or distress or undermine widely shared community standards.⁸

[15]  Therefore we do not uphold the complaint under this standard.

Accuracy

[16]  Determination of a complaint under the accuracy standard occurs in two steps. The first step is to consider whether the programme was inaccurate or misleading. The second step is to consider whether reasonable efforts were made by the broadcaster to ensure that the programme was accurate and did not mislead.⁹ Being ‘misled’ is defined as being given ‘a wrong idea or impression of the facts.’¹⁰ Programmes may be misleading by omission.¹¹

[17]  The standard is concerned only with material inaccuracy. For example, technical or unimportant points unlikely to significantly affect the audience’s understanding of the programme as a whole are not material.¹² The standard only applies to news, current affairs and factual programming, which The Project is.¹³

[18]  The complainant submitted that the broadcast was misleading and did not accurately reflect the ‘realities’ of the difficult position Oranga Tamariki personnel often find themselves in when trying to protect children in New Zealand.  In particular, she pointed to the use of the term ‘stolen generation’ by the hosts (in relation to a baby being uplifted from its mother by Oranga Tamariki) and to Ms Lloyd’s implication that social workers she had spoken to saw the uplift of the baby as ‘something akin to a shambles’.

[19]  The requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.¹⁴ In this case:

• The broadcast included Mr Mulligan twice posing the question as to whether (but not asserting that) New Zealand’s own stolen generation of children was being created. Such questions are clearly not statements of fact for the purposes of this standard.
• In the programme introduction, it was acknowledged that there have been ‘suggestions’ that things (similar to what occurred in Australia) were occurring in New Zealand. The programme then included detailed analysis and commentary from the hosts and guests about the challenges of the situation and role of Oranga Tamariki.
• With regard to Ms Lloyd’s comments, we consider these are also properly seen as analysis, comment or opinion.  She commented regarding what experienced social workers she had spoken to ‘think’ and noted that they were ‘disappointed’.  She also said ‘I believe (emphasis added) that that family is doing everything to put that child first.  I think you should watch it and judge for yourself.’ These are not factual statements.

[20]  Finally, we note that the broadcast featured analysis and comment from multiple parties in a way that did not force a specific perspective or definitively assign blame to Oranga Tamariki, instead noting the nuanced and ongoing nature of the issue.  For example:

• In her interview, Ms Rankin expressed concern that the uplift example was being used to ‘[create] a story about race when it’s actually a story about the protection of children’ and noted that Oranga Tamariki ‘look at every other possibility’ before uplifting a child.
• Comments included from the Oranga Tamariki CEO made it clear that children are only uplifted from their families on the basis of evidence and ‘with the approval of the Courts’.

[21]  For these reasons, we find the broadcast was unlikely to mislead the audience with respect to Oranga Tamariki or the attempted uplift of the child discussed in the programme.

[22]  Therefore we do not uphold the complaint under the accuracy standard.

Fairness

[23]  Turning now to the fairness standard, a consideration of what is fair will depend on the nature of the programme (eg, news and current affairs, factual, dramatic, comedic or satirical). Context should also be considered, including the public interest in the broadcast.¹⁵

[24]  In this case, the broadcast that is the subject of this complaint involved a government department, Oranga Tamariki, being criticised for taking certain children into state care. As discussed above, it is important for the media to hold public bodies to account in the interests of free and informed public discourse.

[25]  The segment and the hosts encouraged discourse in line with the nature of The Project as a current affairs programme that will at times discuss and debate controversial issues. We also note the high level of public interest in the subject matter. The broadcast had the potential to cause harm to the reputation of Oranga Tamariki through its coverage and analysis of Newsroom’s investigative report. However, we find the potential for any undue harm was mitigated through the broadcast of comment made by the Oranga Tamariki CEO about the report, the interview with Ms Rankin who advocated strongly for Oranga Tamariki and the hosts’ willingness to engage in discussion and debate about the issues raised. Accordingly, as its position was reflected in the relatively short item, we do not consider that Oranga Tamariki were treated unfairly in this broadcast.

[26]  Finally, we do not consider questioning whether a ‘stolen generation’ was being created or the item as a whole went beyond the level of robust scrutiny and political analysis that could reasonably be expected in a news or current affairs segment relating to the performance of a public body, or that this resulted in Oranga Tamariki being treated or portrayed unfairly. We are satisfied that any potential harm caused to Oranga Tamariki in this respect did not outweigh the importance of the right to freedom of expression.

[27]  Therefore we do not uphold the complaint under this standard.

 
For the above reasons the Authority does not uphold the complaints.

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair
18 November 2019

Appendix

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

1                 Sharon Callaghan’s formal complaint – 14 June 2019

2                 MediaWorks’ response to the complaint – 12 July 2019

3                 Ms Callaghan’s referral to the Authority – 25 July 2019

4                 MediaWorks’ confirmation of no further comment – 5 August 2019

¹ The Stolen Generation refers to Aboriginal and Torres Strait Islander people who, when they were children, were taken away from their families and communities as the result of past government policies between 1910 - 1970. (Australian Institute of Aboriginal and Torres Strait Islander Studies < https://aiatsis.gov.au/research/finding-your-family/before-you-start/stolen-generations>)
² Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
³ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
⁴ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
⁵ Guideline 1a
⁶ See, for example: Yes, we are the Stolen Generations (Stuff, 13 June 2019); NZ's own stolen generation (RNZ, 12 June 2019)
⁷ Guideline 1b
⁸ Commentary: Good Taste and Decency Broadcasting Standards in New Zealand Codebook, page 12
⁹ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
¹⁰ As above      
¹¹ As above
¹² Guideline 9b
¹³ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
¹⁴ Guideline 9a
¹⁵ Guideline 11a