Cross and Wicksteed and Television New Zealand Ltd - 2004-138
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Colin Cross
- Greg Wicksteed
ProgrammeState of the Nation
BroadcasterTelevision New Zealand Ltd
Complaints under section 8(1)(a) of the Broadcasting Act 1989
State of the Nation – televised debate on race relations included expert panel and studio audience – allegedly unbalanced and partial
Standard 4 (balance) – reasonable efforts made to canvass a range of views from both sides in context – impartial – not upheld
Standard 5 (accuracy) – no inaccuracies – not upheld
This headnote does not form part of the decision.
 State of the Nation was broadcast on TV One at 8.35pm on 10 June 2004. The two-hour programme was a live panel and studio audience discussion, in which the participants discussed race issues between Māori and Pakeha in New Zealand society. The programme was hosted by Anita McNaught, and co-hosted by Robert Rakete and Kerre Woodham.
 Colin Cross complained to Television New Zealand Ltd, the broadcaster, that the programme was unbalanced and partial. In his opinion, the hosts had failed to facilitate the debate to present a range of views, and “seemed incapable of providing a neutral stance”. Mr Cross highlighted the following points as examples:
- The first half hour set the tone for the programme where the so-called debate was set aside for some revisionist re-education to ensure how viewers were expected to think.
- An expert panel was included to further direct thought and remind ordinary New Zealanders that their views were less relevant. This panel included Derek Fox a well known activist and politician, breaching the claims made in the programme’s promo.
- The Māori ordinary citizens were totally non representative as all who spoke were directly involved in treaty grievances or part of a tribal Māori group ignoring the fact that most Māori have no active tribal affiliation.
- Anita McNaught showed no capacity to manage a debate showing her personal bias on numerous occasions.
 Mr Cross concluded that TVNZ owed the viewers a formal apology and an “acknowledgement of bias and inability to facilitate a fair objective debate”.
 Greg Wicksteed complained that the broadcast was unbalanced. He stated that the programme “purported to exclude radicals but did not exclude Māori radicals”, and in his view the host “was not impartial in handling the debate”. Mr Wicksteed said that the co-hosts “acted as politically correct cheerleaders for the Māori grievance industry”.
 Mr Wicksteed contended that the panel and audience spoke for a total of 46 minutes. A list of participants, their standing and the time they spoke for was provided by Mr Wicksteed. Referring to his analysis of the programme, he asserted that:
52% of this time was given over to Māori racialists and their fellow travellers. 33% of the time was taken up by people expressing neutral platitudes. Only 15% of the speaking time was allowed for the kind of mainstream New Zealander who might have agreed with Don Brash’s Orewa speech.
 The programme, Mr Wicksteed concluded, “sought to persuade us that the Māori view is the correct view”.
 In view of the matters raised by Mr Cross, TVNZ assessed the complaint under Standards 4 and 5 of the Free-to-Air Television Code of Broadcasting Practice. TVNZ assessed Mr Wicksteed’s complaint under Standard 4, as nominated by the complainant. The standards and relevant guidelines provide:
Standard 4 BalanceIn 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.
4a Programmes which deal with political matters, current affairs, and questions of a controversial nature, must show balance and impartiality.
4b No set formula can be advanced for the allocation of time to interested parties on controversial public issues. Broadcasters should aim to present all significant sides in as fair a way as possible, it being acknowledged that this can be done only by judging each case on its merits.
Standard 5 AccuracyNews, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.
Broadcaster's Response to the Complainants
 TVNZ declined to uphold the complaints. It advised that the basis for the programme was to “provide an opportunity for everyday New Zealanders to air their views on race issues between Māori and Pakeha”.
 TVNZ stated that a Māori researcher and a Pakeha researcher ensured that there were equal numbers of Māori and Pakeha participants both in the audience and on the panel. The Taranaki community was canvassed for its views, and the audience participants then selected on the basis of the views expressed “in order to represent a wide cross-section of opinion”. While some invitees declined to appear on the programme, TVNZ maintained that “the audience was representative of all views”.
 In response to Mr Cross, TVNZ advised that the pre-recorded video inserts used in the programme had been “independently verified by a number of advisors”. TVNZ concluded that Standard 5 had not been breached as no inaccuracies had been cited.
 In reference to Mr Cross’s contention that the inclusion of Derek Fox breached the “claims made in the programme’s promo”, TVNZ noted that the panel used in the programme comprised “experts and opinion shapers” to “bring clarity and correct points of fact”. TVNZ considered that Standard 4 was not contravened by Mr Fox’s participation on the panel.
 As to Mr Cross’s view that the programme failed to present a range of viewpoints, TVNZ said efforts were made to provide balance on the issues, but it was “impossible” to present every view “on what is clearly a sensitive subject”. TVNZ found no breach of Standard 4.
 In response to Mr Wicksteed, TVNZ advised that the three presenters had been “carefully chosen with fairness and balance in mind”, adding that two of the hosts had “changed sides” during the broadcast to demonstrate that they were not biased towards a particular viewpoint.
 TVNZ responded to Mr Wicksteed’s contention that the programme sought to persuade viewers that “the Māori view is the correct view”. It argued that it was “clearly impossible” for any programme to represent every personal view on such a sensitive subject, and that the programme “did its best” to be balanced and impartial. It acknowledged that opinion regarding whether this was achieved was “undoubtedly entirely subjective”.
 TVNZ also referred to the “live” nature of the broadcast, stating that the programme’s content is “largely dictated” by the views of those audience members prepared to speak. While all participants were encouraged to voice their opinions, no-one could be compelled to do so. At times therefore, TVNZ advised, the presenters were required to encourage opposing views and put a contrary argument in order to stimulate a wider discussion.
 TVNZ said that it was not possible to put a “stopwatch” on each speaker, nor was it able to edit speakers’ comments, as might be possible with recorded programmes. TVNZ considered that “everyone present appeared to be given an equal opportunity to present their views”, and that the presenters “clearly did their best to achieve a proper balance”. TVNZ concluded that although the views of those supporting the Treaty of Waitangi and the grievances of Māori occupied more time than those who held the opposing viewpoint, Standard 4 was not breached.
Referrals to the Authority
 Mr Cross, dissatisfied with TVNZ’s response, made the following points:
- The researchers, referred to by TVNZ, had reflected bias “through such a skewed selection of Māori participants”, as they did not represent a cross section of “ordinary” Māori.
- The “experts and opinion shapers” who participated in the programme contradicted the promos “which claimed no politicians or activists would be involved”.
- The “public feedback on the programme agreed the programme was wildly unbalanced”, contrary to TVNZ’s view.
- The host “shut down” the remarks of the law professor who mentioned the legal status of the Treaty of Waitangi, despite the purpose of the expert panel.
 In conclusion, Mr Cross said “any façade at presenting a balanced view seemed to desert this programme early on”.
 Referring to TVNZ’s assertion that the programme “did its best” to be balanced and impartial, but “ultimately opinion about this is undoubtedly entirely subjective”, Mr Wicksteed queried how a programme could be judged against Standard 4 if balance was “entirely subjective”.
 Mr Wicksteed referred to instances in the programme where, he claimed, the presenters had not acted in a neutral manner. He said that all three presenters were “broadly in favour of either entrenching or enhancing the role of the Treaty in New Zealand life”, and that this was reflected in the way the presenters allowed participants to speak, or interjected against views that they did not support.
 Further, Mr Wicksteed suggested that the “pro-Treaty bias” of the programme was a possible reason why members of the audience “who were antagonistic to the constitutional claims of the Treaty of Waitangi” had not involved themselves in the debate.
Broadcaster’s Responses to the Authority
 In response to the referral from Mr Cross, TVNZ submitted that the Authority should not consider the material Mr Cross had referred to the Authority that was not included in his original complaint to TVNZ. Further, it noted that as Mr Cross had not explained why he was dissatisfied with TVNZ’s decision, it had no further comment to make.
 As for Mr Wicksteed’s referral, TVNZ stated that he had misunderstood its comments as to the nature of “entirely subjective”. When it used the phrase it was referring to the race relations debate, and not to the context of balance as a broadcasting standard.
 TVNZ disputed the complainants’ view that the programme was unbalanced. It stressed the live nature of the broadcast and the “inherent difficulties and risks” which that entailed. Citing the relevance of guideline 4b to live broadcasts, TVNZ contended that the programme aimed to “present all significant sides in as fair a way as possible”. TVNZ continued:
The time breakdown supplied by Mr Wicksteed, however, is an “after the event” calculation – not something that can be tallied during a live and fast moving discussion. As noted in our letter to Mr Wicksteed, it is not possible to run a stop watch across a live programme involving a large number of participants. Among factors involved in judging this case “on its merits” is the fact that the broadcast was live – which removes any possibility of going back and recording it again.
Complainants’ Final Comment
 Mr Cross said he was dissatisfied with all TVNZ’s correspondence on this matter. He accepted TVNZ’s point that “numerical balance was equal”, but considered that TVNZ had partially acknowledged that the Māori participants were not representative, as it had admitted that a number of people approached had declined to participate in the programme.
 Mr Cross also noted that TVNZ had failed to deal with his point regarding the differences between the promos for the programme and the programme itself.
 In his final submission Mr Wicksteed requested that Joanne Morris (Chair) and Tapu Misa “not participate in the determination of this complaint”, because of Ms Morris’ position as a Member of the Waitangi Tribunal, and Ms Misa’s “partisan column for the New Zealand Herald”. Mr Wicksteed said his complaint should be determined by “people who can be expected to hold the mainstream view or no view at all”.
 In response to TVNZ’s submission, Mr Wicksteed maintained that a “stopwatch” approach was not required for a live and balanced broadcast. He also claimed that a programme attempting to show all significant sides of an issue, in a fair manner, would have ensured that the presenters were “unbiased or of a different bias to each other”. However, claimed Mr Wicksteed, in this case the three presenters “by their demeanour, tone, and reputation, held the liberal consensus line regarding the Treaty of Waitangi and its role in New Zealand society”.
 Mr Wicksteed argued further that participants who expressed pro-Treaty views “were given far more encouragement than those who did not”. He concluded that the unbalanced programme resulted from the biased presenters, and “not because of the unpredictability of live television”.
Broadcaster’s Response to Mr Wicksteed’s Final Comment
 In response to Mr Wicksteed’s submission, TVNZ advised that it did not object to Ms Morris or Ms Misa participating in the determination of these complaints.
 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 complaints without a formal hearing.
 TVNZ claimed that Mr Cross had raised new issues in his referral to the Authority, not referred to in his original complaint. The Authority disagrees. The Broadcasting Act enables a complainant, on receipt of the broadcaster’s response to a formal complaint, to refer the complaint to the Authority and “to seek an investigation and review of the broadcaster’s action or decision, as the case may be” (s.7(3)). The Authority regards its statutory role, when determining the referral of a complaint, to investigate and review the broadcaster’s decision.
 The original formal complaint sets the broad boundaries of the issues which may be taken into account by the Authority. However, the Authority does not consider that a complainant is confined to the submissions advanced in the original complaint, because most complainants debate aspects of the broadcaster’s response, and may elaborate on points made initially.
 In the Authority’s view, Mr Cross’s referral did not raise any additional issues not referred to in his original complaint. While his referral responded to points made by the broadcaster, the Authority finds that those matters are not excluded on the basis that they are “new” issues. Accordingly, the Authority concludes that Mr Cross’s referral does not expand the scope of his original formal complaint in a way that is outside the Authority’s statutory role.
 Mr Wicksteed in his final comment requested that Ms Morris and Ms Misa not participate in the determination of his complaint, because of what he considered a potential conflict of interest. The members of the Authority consider such issues prior to the determination of all complaints. In this case, the Authority determines that no such conflict exists. It finds Mr Wicksteed’s concerns unjustified.
Standard 4 (Balance)
 Standard 4 requires broadcasters to maintain 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.
 In the Authority’s view, a number of issues were discussed as contemplated by the standard. The debate was an attempt to promote a discussion between Māori and Pakeha on race-related issues, and included debate about the Treaty of Waitangi and its place in society, the seabed and foreshore, Māori “special” citizenship rights and Treaty claims and settlements.
 Overall, the Authority considers a balance of perspectives was aired. A wide range of issues was discussed in the context of a live studio debate. The programme involved equal numbers of Māori and Pakeha. A wide cross-section of opinion was presented by both the audience and the panel of “experts and opinion shapers”, who also provided background information and clarified points of fact. The programme also included historical and factual information recounted by the presenters and by way of on-screen graphics, which provided context to the issues being discussed. In addition, viewers were invited to participate by taking part in polling throughout the programme and offering their views for broadcast on the programme.
 The Authority accepts that it was impossible to represent every viewpoint on the issues raised. The Authority notes that balance cannot be measured solely by the amount of time accorded the various parties. This is just one measure by which balance can be assessed. Other appropriate measures are the quality, emphasis, and placement of contributions in the programme.
 The Authority notes the programme was a live studio debate, which canvassed a number of issues and featured a large number of participants. Regardless of their individual perspective, all participants were offered the same opportunity to present their views on the issues raised, and any failure to have one particular perspective advanced was not indicative of an unbalanced debate. Rather, it reflects the fact that participants favouring a certain viewpoint were more vocal and visible than the other. That said, the Authority considers reasonable efforts were made to present alternative points of view during the programme.
 The Authority considers that any perceived failure by the audience participants to present counterbalancing views was countered by the presenters who themselves offered alternative views, so as to encourage a wider discussion. Co-presenters Robert Rakete and Kerre Woodham presented a series of vignettes in which they adopted and argued for opposing views. These vignettes were clearly designed to convey to viewers that there existed a range of perspectives on race issues, and to explain, albeit in a simplistic manner, opposing perspectives. Both the home viewer poll and the discussion of home viewer questions further contributed to the overall balance.
 Mr Wicksteed provided a subjective analysis of the time given to individual participants, based upon which side of the debate he considered they represented. However, the Authority considers that no mathematical formula can be advanced in the interest of balance. It is the practical reality of broadcasting, particularly a live debate, that such programmes cannot be perfectly balanced. As noted above, the Authority recognised that the programme was not mathematically balanced in relation to time, but it is satisfied that adequate opportunity was given to the presentation of a variety of perspectives.
 The complainants contended that the presenters favoured the “pro-Treaty” side of the debate. In the Authority’s view, the presenters ensured that the participants’ views on the issues remained the focus, but this was not done in such a way as to give rise to imbalance or partiality. The Authority considers that there was nothing in the presenters’ behaviour, or questioning, which detracted from the opportunity provided to the studio participants to air their views regarding any of the issues raised in the programme. In the Authority’s view no bias was shown by any of the presenters, who adequately facilitated the debate and encouraged all participants – as well as home viewers – to contribute to the issues being discussed.
 The Authority finds the programme was balanced and impartial. It considers that reasonable efforts were made and reasonable opportunities given to participants to present all significant points of view on the issues being discussed. Accordingly, the Authority does not uphold the complaints that the programme breached Standard 4.
Standard 5 (Accuracy)
 Standard 5 requires broadcasters, in the preparation and presentation of news and current affairs programmes, to be truthful and accurate on points of fact.
 One matter that concerned Mr Cross was that the promotions for the programme allegedly noted that the programme was intended to be a discussion among ordinary New Zealanders, and that the inclusion of Derek Fox showed this to be incorrect as he was an “activist”.
 The Authority does not consider that a promotion for a scheduled programme is a “news, current affairs or other factual programme” to which the accuracy standard is intended to apply. It accordingly does not need to further consider this issue, and does not uphold this aspect of the complaint.
 The Authority notes that no facts in the programme itself were identified by Mr Cross as being incorrect. With no evidence of any inaccuracies, the Authority does not uphold this aspect of the complaint.
For the above reasons the Authority does not uphold the complaints.
Signed for and on behalf of the Authority
4 November 2004
The following correspondence was received and considered by the Authority when it determined these complaints:
- Colin Cross’s Formal Complaint to Television New Zealand Ltd – 19 June 2004
- TVNZ’s Response to the Formal Complaint – 8 July 2004
- Mr Cross’s Referral to the Broadcasting Standards Authority – 23 July 2004
- TVNZ’s Response to the Authority – 9 August 2004
- Mr Cross’s Final Comment – 17 August 2004
- Greg Wicksteed’s Formal Complaint to Television New Zealand Ltd – 23 June 2004
- TVNZ’s Response to the Formal Complaint – 8 July 2004
- Mr Wicksteed’s Referral to the Broadcasting Standards Authority – 16 July 2004
- TVNZ’s Response to the Authority – 30 July 2004
- Mr Wicksteed’s Final Comment – 5 August 2004
- TVNZ’s Response to the Final Comment – 9 August 2004