BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has issued a split decision in relation to a Sunday item which reported on a ‘silicosis epidemic’ in Australia’s engineered stone workforce and raised questions about New Zealand’s response to the same concerns, suggesting New Zealand is failing to address its own ‘looming health crisis’. The complaint alleged the broadcast breached the accuracy and balance standards as it misled the audience to believe the industry in New Zealand had the same regulatory failings as Australia, and was unbalanced as it omitted other perspectives on the New Zealand situation (for example, from the industry). The Authority did not uphold the accuracy complaint, finding it was reasonable for TVNZ to rely on the selected interviewee as a local authoritative source and spokesperson on this issue. However, a majority of the Authority found the broadcaster did not provide any balancing perspectives within the programme, and there was only limited other coverage elsewhere prior to the broadcast, meaning viewers were not given sufficient viewpoints to form their own opinions about the issues discussed. The minority considered that while the broadcast may have lacked balance, the overall value of the broadcast in highlighting a serious health risk outweighed the potential harm.

Upheld (by Majority): Balance

Not Upheld: Accuracy

No Order

The broadcast

[1]  An episode of Sunday, broadcast on 16 April 2023, investigated concerns with development of silicosis – an irreversible chronic lung disease caused by inhaling silica dust – in tradespeople working in the engineered stone industry in Australia and New Zealand. The episode opened with host Miriama Kamo stating:

We’re a country of renovators, spending huge amounts on kitchens and bathrooms. But while we are getting something new and shiny, it seems the tradies are potentially being given a death sentence. Massively popular, engineered benchtops contain high levels of silica, and its dust, when inhaled, is toxic. Tonight Adele Ferguson investigates this product’s dangerous legacy in Australia, and we ask why New Zealand is failing to address this looming health crisis.

[2]  The programme then presented segments from a 60 Minutes Australia investigation into silicosis in Australia, looking: firstly at the health concerns and rates of silicosis among those who have worked in the Australian engineered stone industry, describing the rates of silicosis as an ‘epidemic’; secondly at an Israeli company (Caesarstone) which the programme concluded bore the greatest responsibility for putting high-silica-content products into the Australian market, when the company was aware of the risks; and thirdly, looking at concerns with Australia’s regulatory regime, with a stonemason suffering from terminal silicosis calling for a total ban on engineered stone, saying industry would always find a way around regulations, and Australia’s Minister for Work Health and Safety briefly commenting on failures in the regulatory system.

[3]  The final six minutes of the programme then transitioned to New Zealand, showing a pre-recorded interview between reporter Connor Whitten and Dr Alexandra Muthu, an occupational and environmental physician and spokesperson on silica for the Royal Australasian College of Physicians. It contained the following dialogue:

Kamo:             [Introducing interview] We're seeing the heavy price unsuspecting Australian tradies have paid for the boom in engineered stone benchtops. Its toxic dust has effectively been a death sentence. But what about here in New Zealand? Well, it’s worrying many experts. We have the same products, so will we face the same fallout here at home?

…

Whitten:         [To Muthu] How big a problem is this in New Zealand?

Muthu:            We're not sure of the extent of silica-related lung diseases in New Zealand workers. We estimate around about 1,000 workers have been exposed to the engineered stone silica dust, but only about one in nine of those have currently undergone assessment through the ACC process.

Whitten:         So what do we still need to know?

Muthu:            We need to find all of the workers and do health assessments on them and work out whether they have signs of silica-related disease at the time of the assessment. And then we also need to follow up with health surveillance. So we have an opportunity here to learn from the Australians. They're a step ahead of us. When we look at Queensland, around one in four had silica-related lung disease. We don't think that the New Zealand situation’s any different. So it’s likely we can have similar numbers in our New Zealand tradies.

…

Whitten:         So if we've known for five years that [engineered stone is] unsafe, have we done enough about that?

Muthu:            It's pretty clear, based on the number of people that have gone through the assessments through ACC, that we haven't got this right.

Whitten:         What are the first signs of silicosis when someone presents to a doctor?

Muthu:            People don't present with symptoms until very late. So when someone is being exposed to silica dust, it sits in the lung and it causes inflammation and scarring. It's not until later on in the disease until the scarring is very extensive, that somebody will have cough and breathlessness at rest. And at that point, the damage is extensive. It's irreversible. It's progressive.

Whitten:         What should we be doing about this in New Zealand?

Muthu:            We need a new approach in New Zealand. We are calling on the government to do a rapid audit of the response to silica dust exposure at work, because it's clear to us that the response that has happened has not reached the workers. And workers deserve more. They deserve to come home safe. Since we raised this with the government at the end of 2019, workers have continued to be exposed to silica dust. The damage has continued to occur. And frankly, that's embarrassing and not acceptable.

Whitten:         So should these products be banned?

Muthu:            A ban is something that should be considered. The highest silica content building products, we know that they can cause greater risk when they are fabricated. But it's important that this doesn't become political point scoring. It's not a tick box exercise to ban the products. It needs to be part of a suite of responses that actually focuses on the health and wellbeing of workers in Aotearoa.

Whitten:         Do we take this problem seriously enough in this country?

Muthu:            It's really difficult in New Zealand to look at what happened with asbestos and to see that we haven't learned from it. There was a very public understanding of the high risk to health, causing cancer and causing death from asbestos dust. Yet we just accept other dust in workplaces and we know that all dust is bad for your health and we know that all occupational lung diseases are preventable. And it seems crazy that we're back at the same place again and we haven't set up proper systems to support workers and to support workplaces to do the right thing.

Whitten:         How important is it that we get this right?

Muthu:            If we don't get this right, we're going to have another asbestos legacy. You know we've already got 10 to 15 years of exposure that went unchecked. So there are health harms that have been caused that we're only going to find out about in the coming years. And if we don't stop ongoing dust exposure to workers, we're going to keep reaping [these] terrible health outcomes for these young workers into the future. This is a line in the sand. We need to understand that this is a crisis and it's preventable.

The complaint

[4]  Andrew Crossland complained that the broadcast breached the accuracy and balance standards of the Code of Broadcasting Standards in New Zealand. The complainant made substantial submissions in both their initial complaint and in their referral to the Authority. We consider the key points of complaint can be summarised as follows:

Accuracy

Statements: ‘We ask why New Zealand is failing to address this looming health crisis’ and ‘We need a new approach in New Zealand’

• The statement ‘We ask why New Zealand is failing to address this looming health crisis’ in the introduction was ‘incorrect and misleading. New Zealand's mainstream fabricators have implemented wet processing, which is a method also used with asbestos and seeks to minimise dust exposure by workers in addition to the use of PPE. The implementation of wet processing has come at a considerable cost to the industry.’
• Dr Muthu made a similar statement, when she advised that ‘“we need a new approach in New Zealand” without the broadcast exploring the current approach in New Zealand and what changes have and are being made.’ 
• The report instead suggested the industry in New Zealand is failing to address the issue of exposure to silica dust, despite changes to the industry and efforts to safeguard workers including through:
  • investment by businesses in wet processing, automation, ventilation and PPE
  • a Massey University study being undertaken on behalf of WorkSafe regarding airborne silica in the workplace and how to improve workplace practices to mitigate its effects
  • the establishment of the New Zealand Engineered Stone Advisory Group in 2019, along with a voluntary accreditation scheme, and a best practice guideline for stone fabricators, and
  • auditing, assessment and education of the industry by WorkSafe.
• Responding to TVNZ’s sources relied on, outlining the outcome of WorkSafe audits which resulted in ‘improvement notices’ being issued to 90% of companies audited, Crossland argued these were for only minor, non-critical aspects of business.

Omission of other perspectives

• It was misleading ‘that after Kamo’s statement, the rest of the programme, with the exception of the limited section at the end where Connor Whitten interviews Dr Muthu, is focused on Australia. Despite this, the programme implies that New Zealand is the same as the cases and companies addressed in the Australian interviews’ and ‘suggested without evidential basis that workers in New Zealand are equally likely to be exposed in the same way that their Australian counterparts were’ and that the New Zealand regulators are similarly not prosecuting or dealing with poor practices in the industry.
• Unlike the Australian story, opinions were not sought from persons in New Zealand to comment from a legal, regulatory, research, industry, or health and safety point of view, misleading the audience as to the levels of risk in the industry in New Zealand, and omitting acknowledgement that ‘WorkSafe had been working with the industry and significant steps are being taken to address the issues with health and safety controls that are required to be implemented for safe manufacturing of engineered stone.’

Description of health impacts

• While the complainant accepted there were some non-compliant companies, it was ‘scaremongering’ to suggest:
  • New Zealand workers will be impacted in the same manner as their Australian counterparts
  • the exposure to silicosis will be at the same levels as asbestos exposure, and
  • workers are continuing to be exposed to airborne silica by fabricators.

Percentage of silica in engineered stone

• The broadcast’s statement that ‘unlike marble and granite, engineered stone contains more than 80% silica and the dust it produces is deadly’ was inaccurate as ‘granite can have up to 50% silica which is more than [the stone of some importers, who supply stone] which is 40% silica.’

Use of imagery

• ‘The imagery in the report also causes drama and is inaccurate as the dust clouds shown do not occur as depicted during the manufacturing process.’

Balance

• The story was about the Australian position (and briefly the Israeli position) and sought to connect New Zealand by way of one interview with Dr Muthu. It was unbalanced, as other New Zealand perspectives were omitted, including the perspectives of WorkSafe New Zealand; industry representatives; Massey University or any other entity undertaking monitoring; ACC; or stone fabricators.
• The Australian segment indicated there were significant issues with the regulator there. With the story then stating the situation was the same here in New Zealand, comment from our regulator, which is undertaking various action in the industry, should have been included for balance.
• The focus on bad practices without presenting best practice and how compliant businesses have made changes to avoid serious harm to workers, skewed the report towards the need for elimination of all fabricated stone.

The broadcaster’s response

[5]  TVNZ did not uphold the complaint for the following reasons:

Accuracy

Statements: “We ask why New Zealand is failing to address this looming health crisis” and “We need a new approach in New Zealand”

• TVNZ considered it was ‘reasonable to characterise silicosis from engineered stone as a “looming health crisis”. The lag time (up to 10 years) between exposure to silica dust and the manifestation of silicosis symptoms means there may be hundreds of people that have been exposed historically’ and there is a ‘reasonable likelihood that workers are continuing to be exposed to unsafe levels of silica dust, given the widespread non-compliance of current operators’.
• It is also reasonable to frame New Zealand's response to this health crisis as a failure. Widespread non-compliance with engineered stone safety guidelines and inadequate monitoring of people already at risk of silicosis from working with engineered stone indicate in no uncertain terms that New Zealand is not taking satisfactory steps to address the health risks associated with engineered stone.

Omission of other perspectives

• ‘The Broadcast was dominated by the story from Australia because, as acknowledged by Dr Muthu, they're a step ahead of us. However, the experience in Australia can provide valuable insights for New Zealand.’ Referencing Dr Muthu’s statement ‘We don't think that the New Zealand situation's any different so it's likely we're going to have similar numbers in our New Zealand tradies’ TVNZ stated ‘Considering the failure of a significant proportion of stone fabricating businesses to “properly protect workers from toxic silica dust”¹, Dr Muthu's concerns appear well-founded.’
• ‘It is important to note that Dr Muthu is a credible expert whose commentary Sunday was entitled to rely on. Dr Muthu is an occupational and environmental physician and is the spokesperson on silica for the Royal Australasian College of Physicians. There were no grounds on which to justify Sunday harbouring any doubt about her expertise or the reliability of her commentary.’
• TVNZ did ‘not agree that it was necessary, given the focus of the Programme, to provide viewers information about what a compliant stonemason business should look like. Viewers would have understood that compliant businesses take comprehensive steps to mitigate the risks associated with silica dust.’ However, ‘the existence of compliant operators does not negate the existence of non-compliant operators, nor does it eliminate the possibility that there are a significant number of historic silicosis cases that are not being monitored.’
• ‘What is clear is that many operators working with engineered stone are not meeting the safety standards mandated by WorkSafe, and it is of considerable relevance to note here that WorkSafe itself has acknowledged this to be the case: "... WorkSafe has signalled to industry that its progress on managing risks hasn't been fast enough and will now be looking to take enforcement measures."²’

Description of health impacts

• TVNZ did ‘not agree that it is “scaremongering” to raise awareness of a serious health issue. Silicosis is clearly a very serious issue in Australia, and it is Dr Muthu's informed opinion that “we don't think that the New Zealand situation's any different”.’
• ‘The Programme did not suggest that exposure to silicosis will be at the same levels as asbestos exposure. Dr Muthu suggested that in view of New Zealand's experience with asbestos and its devastating health consequences, the response to the risks associated with engineered stone has been inadequate.’
• ‘Potentially, silicosis is a health issue affecting hundreds of New Zealanders and which could affect many more, if there are operators continuing to work with engineered stone in a non-compliant fashion, as WorkSafe's own audits suggest is the case.’

Use of imagery

• ‘The imagery in question is from an Australian firm… and was used to illustrate a workplace contaminated with silica dust. The Committee has no reason to doubt the authenticity of the images. In any case, the footage was a minor part of the programme overall. It was not material to viewer understanding of the Programme.’

Balance

• TVNZ agreed ‘the issue of the health risk presented by engineered stone to New Zealand workers amounts to a controversial issue of public importance, and therefore that the Balance Standard applies.’
• ‘It is an established principle of this Standard that programmes can portray an issue from a particular perspective as long as this is clearly signalled in the programme. [TVNZ] considers that the Programme's perspective was clearly signalled. Given its clear advocacy stance, and taking into account its Australian focus, we consider that it presented a reasonable range of viewpoints.’
• ‘The Programme's purpose was to draw attention to the risks associated with engineered stone and to convey the concerns of those who believe not enough is being done to mitigate these risks.’ ‘The story was not concerned with fabricators who comply with health and safety guidelines when working with engineered stone. It was concerned with those that do not comply with those guidelines … and the potential consequences for their staff. This focus was obvious and would have been inherently understood by viewers.’
• Within this context, it ‘was not required, in the interests of Balance, for viewers to be informed about how a compliant stone fabrication business should operate’ nor was WorkSafe’s perspective necessary, given it has accepted there is ongoing non-compliance in the industry.
• The programme ‘did not argue for engineered stone to be banned in New Zealand, but accurately reported that it is a measure some advocate, and which is one of a range of possible measures being considered [at] the Governmental level.³ Dr Muthu's view on this point was measured’ with her stating “A ban is something that should be considered, but only within a suite of other measures aimed at the health of workers.”’
• ‘There has been other reporting about the engineered stone issue.⁴ It was already an issue of noteworthy public interest to which Sunday added further context.’

The standards

[6]  The purpose of the accuracy standard⁵ is to protect the public from being significantly misinformed.⁶ It states broadcasters should make reasonable efforts to ensure news, current affairs or factual content is accurate in relation to all material points of fact, and does not mislead. Where a material error of fact has occurred, broadcasters should correct it within a reasonable period after they have been put on notice.

[7]  The balance standard⁷ 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 viewpoints either in the same broadcast or in other broadcasts within the period of current interest, unless the audience can reasonably be expected to be aware of significant viewpoints from other media coverage. It ensures competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.⁸

Our analysis

[8]  We have watched the broadcast and read the correspondence listed in the Appendix.

Freedom of expression and overview of outcome

[9]  The right to freedom of expression is our starting point when we consider any complaint that broadcasting standards have been breached.

[10]  In Aotearoa New Zealand, principles of freedom of expression are enshrined in our constitutional law by the New Zealand Bill of Rights Act 1990, at section 14: ‘Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.’

[11]  However, the broadcasting standards system recognises the right to freedom of expression is not an absolute right. Our task is to weigh the value and public interest in the particular broadcast against the actual or potential harm that may be caused by that broadcast, either to individuals or to society generally. We may only intervene and uphold a complaint where the level of harm means that placing a limit on the right to freedom of expression is reasonable and justified.⁹

[12]  With this in mind, we first considered the value and public interest in this Sunday programme. The broadcast discussed silicosis, an irreversible chronic lung disease caused by breathing in too much crystalline silica dust. It can cause death, often to young men working in the engineered stone sector. As noted in the broadcast, due to the latency in symptoms, we are yet to understand or deal with the full repercussions of exposure for New Zealand stonemasons, and the lack of assessment of those workers who have previously been exposed to silica dust indicates many may be unaware of the risks. In these circumstances, we consider the broadcast carried high value and public interest.

[13]  The harm alleged by the complainant is that people might be: misled to believe the regulatory situation in New Zealand is the same as that in Australia; and misled as to the level of risk for those currently working in the industry through the omission of perspectives from the NZ industry, or any information on the changes the industry here has undertaken. The complainant maintained the broadcast had negatively impacted the industry’s reputation and ability to recruit and retain staff, even though businesses such as his have invested millions of dollars in wet processing and automatic processing to limit risk to employees.

[14]  Weighing these competing factors, we unanimously found no harm under the accuracy standard which outweighed the programme’s high value and we do not uphold that part of the complaint.

[15]  However, we were split in our views regarding whether the programme complied with the balance standard. A majority of the Authority (Susie Staley, Aroha Beck, and Tupe Solomon-Tanoa’i) found that despite its high value, the broadcast did reach the threshold justifying regulatory intervention due to a lack of sufficient balancing material – either within the programme, or elsewhere prior to this programme – which would have enabled the audience to arrive at an informed and reasoned opinion on the issues discussed. The balance complaint is therefore upheld by majority.

[16]  The minority (John Gillespie) found the broadcast did not reach the threshold justifying regulatory intervention, given the high public interest and value overall in raising awareness of a serious health risk, the importance of the right to freedom of expression, and the broadcaster’s editorial discretion in selecting interviewees. The minority would not uphold the balance complaint.

[17]  We explain our reasons for these findings below, starting with the areas on which we all agreed.

Accuracy

[18]  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.

[19]  The standard is concerned only with material inaccuracies. Technical or unimportant points that are unlikely to significantly affect viewers’ understanding of the programme as a whole are not considered material.¹⁰

[20]  Further, the requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment, or opinion, rather than statements of fact.¹¹ However, broadcasters should still make reasonable efforts to ensure analysis, comment or opinion is not materially misleading, with respect to any facts referred to.

[21]  Whether reasonable efforts were made to ensure accuracy includes consideration of the source of the material (such as whether it relies on an authoritative expert), whether there was some obvious reason to question the accuracy of the content before it was broadcast, and the extent to which the issue of accuracy was reasonably capable of being determined by the broadcaster.¹²

General comments – presentation of NZ segment and choice of interviewee

[22]  The programme was presented as an advocacy piece on the danger of developing silicosis for people working in the engineered stone industry in Australia. To contextualise this for local audiences, Dr Muthu was selected to provide an overview of the scale of the health impact from silica dust exposure in New Zealand, and her concerns people who have been exposed are not being assessed quickly enough. Regarding the complainant’s concerns about the inclusion of Dr Muthu, and statements made by her, we note Dr Muthu is a specialist occupational physician and the Royal Australasian College of Physicians spokesperson on silicosis. Within this role she raised concerns with the New Zealand Government in 2019. She is also the co-chair of the New Zealand Dust Diseases Taskforce – an advisory group to the Ministry of Health, ACC and WorkSafe – which worked with all three on a coordinated response to accelerated silicosis. In the circumstances, we consider it was reasonable (as far as the accuracy standard is concerned), for TVNZ to rely on Dr Muthu’s claims as an appropriate expert discussing the issue in a New Zealand context.

[23]  Turning to consider the accuracy of, and reasonable efforts to ensure accuracy in relation to, each of the aspects raised by the complainant:

Statements: “We ask why New Zealand is failing to address this looming health crisis” and “We need a new approach in New Zealand”

[24]  The complainant raised concerns both Kamo’s statement regarding the ‘failure to address the health crisis’ in her introduction and Dr Muthu’s statement that ‘we need a new approach in New Zealand’ ignore the fact a new approach has been implemented and significant changes are being made.

[25]  While we understand the complainant’s concerns, we consider both Kamo and Muthu were primarily referring to failures in addressing impending health concerns, rather than referring to a lack of industry changes.

[26]  Kamo’s introduction discussed the legacy of harm to health in Australia and asked why New Zealand was not addressing this looming health crisis. This was elaborated on by Muthu, who discussed the estimated extent of those workers who have been exposed to silica dust (1,000 workers) and the failures in New Zealand to assess and treat those workers (only one in nine have been assessed by ACC), when the Australian experience indicates it is likely one in four will be suffering from silica-related lung disease. In the circumstances, where New Zealand authorities have – in Dr Muthu’s opinion – not yet managed to find and assess all of the workers already exposed, we do not consider it inaccurate or misleading to state that New Zealand is failing to address a ‘looming health crisis’, or to suggest that we need a new approach.

[27]  We do not consider including further detail regarding industry changes would have materially impacted audiences’ understanding – from a health-related perspective – that there is likely to be a large number of New Zealand workers who are yet to be identified and assessed, a quarter of whom are likely to be suffering from an incurable disease (based on Australian data).

[28]  While we acknowledge the complainant’s advice that he has invested substantially in ensuring his own business is up to code, it is evident this is not the case across the board. In so far as Dr Muthu’s statement that ‘we need a new approach in New Zealand’ could be said to relate to her statement that workers have continued to be exposed to silica dust since concern was raised with the government in 2019, as noted by the complainant in their submissions, almost one-fifth – 17% – of stone fabricators inspected in the last three years were issued ‘Prohibition Notices’ requiring business activity to be stopped, where ‘the risk gap is extreme or substantial, the risk is imminent or there may be serious risk to the health and safety of a person due to failure to comply with the Health and Safety at Work Act 2015 or regulations’.¹³

[29]  We therefore do not consider there to be any material inaccuracy in Dr Muthu’s statement ‘we need a new approach’ (which in any event was clearly her opinion which, as noted at [20], is not subject to the standard), or her statement that workers have continued to be exposed to silica dust since concern was raised with the government in 2019.

Omission of other perspectives was misleading

[30]  The complainant raised concerns the portrayal of the situation in New Zealand relied solely on the interview with Dr Muthu, and other perspectives were omitted.

[31]  The selection of opinions and interviewees to feature on a programme is a matter of editorial discretion.¹⁴ However, reasonable efforts must always be taken to avoid misleading the public with respect to matters of fact, on which opinions are based.

[32]  As we have already said, we consider Dr Muthu was an appropriate choice of interviewee noting she has been at the forefront of campaigning for better outcomes for the industry. We consider the complainant’s concerns about other perspectives omitted from the broadcast are better dealt with under the balance standard.

‘Scaremongering’ in describing health impact

[33]  The complainant considered it was inaccurate and ‘scaremongering’ to suggest: New Zealand workers will be impacted in the same manner as their Australian counterparts; the exposure to silicosis will be at the same levels as asbestos exposure; and that workers are continuing to be exposed to airborne silica by fabricators.

[34]  Viewing the programme as a whole, we do not consider these aspects were materially inaccurate or misleading:

• New Zealand workers will be impacted in the same manner as their Australian counterparts. Dr Muthu stated in the interview, ‘We don't think that the New Zealand situation’s any different, so it's likely we will have similar numbers in our New Zealand tradies.’ We consider it would have been clear to viewers this was Dr Muthu’s professional opinion, as someone with a particular interest and advocacy involvement in this area of workplace health and safety in relation to dust disease.
• The exposure to silicosis will be at the same levels as asbestos exposure. Dr Muthu’s statement, ‘If we don't get this right, we're going to have another asbestos legacy’ was her analysis and professional opinion on the situation, to which she is entitled and which is not subject to the accuracy standard. We do not consider it was misleading, in the context of raising awareness of a potentially very serious, ongoing health risk. Nor do we consider the programme was suggesting the ‘numbers’ of those affected would be the same as those affected by asbestos exposure.
• Workers are continuing to be exposed to airborne silica by fabricators. The complainant’s concern regarding Dr Muthu’s statement that workers have continued to be exposed has been addressed above.

Percentage of silica in engineered stone

[35]  Crossland alleged the statement in the programme, ‘unlike marble and granite, engineered stone contains more than 80% silica and the dust it produces is deadly’ was inaccurate as, according to the complainant, ‘Granite can have up to 50% silica which is more than [some stone of some importers, who supply stone] which is 40% silica’.

[36]  We consider this aspect of the broadcast was materially accurate, noting the figure of ‘more than 80%’ matches figures used by those in the industry, including WorkSafe.¹⁵ We acknowledge some fabricators and suppliers of engineered stone in New Zealand have, in the months since this broadcast went to air, made changes to only work with low-silica engineered stone (with a silica content of less than 40%),¹⁶ however this does not invalidate the figures relied on at the time of the broadcast.

Misleading imagery

[37]  The imagery of dust was used as a visual background to the story, which concerned dust-related disease. We do not consider the imagery used to be a ‘material point of fact’ for the purposes of the accuracy standard or that it would have misled viewers.

Conclusion on accuracy

[38]  For the above reasons, we are unanimous in our view that no harm was caused under the accuracy standard that outweighs the public interest or value in the programme, or justifies restricting freedom of expression. We therefore do not uphold this part of the complaint.

Balance

[39]  The complainant argued the broadcast was unbalanced as it implied the Australian response to silica dust and Australia’s failure to regulate appropriately was the same as what had occurred in New Zealand, and failed to include any interviews with people in the industry, or with the New Zealand regulators, to allow the audience to understand the response that has occurred here.

[40]  The balance standard requires broadcasters to make reasonable efforts, or give reasonable opportunities to present significant points of view when ‘controversial issues of public importance’ are discussed in news and current affairs programmes, unless the audience can reasonably be expected to be aware of significant perspectives from other coverage.

[41]  We all agree the health risks caused by exposure to silica dust, and related calls for changes to industry, amount to a controversial issue of public importance. Therefore, the balance standard applies.

[42]  In assessing whether a reasonable range of perspectives has been presented for the purposes of this standard, the following factors are considered:¹⁷

• the programme’s introduction and the way the programme was presented (ie did it purport to be a balanced examination of an issue, or was it clearly signalled as approaching the topic from a particular perspective?)
• the type of programme
• the nature of the issue and of the discussion
• whether the programme acknowledged the existence of other views
• what the audience would have expected from the programme
• whether the audience could reasonably be expected to be aware of other views, including in other media sources
• the platform on which the programme was broadcast.

Majority view – balance (Susie Staley, Aroha Beck and Tupe Solomon-Tanoa’i)

[43]  We the majority have applied the above factors and reached the view that in this case, the broadcast did not sufficiently present significant perspectives on the issues discussed. This meant the audience may not have been able to arrive at an informed and reasoned opinion.¹⁸ This lack of balance was not, in our view, outweighed by the public interest in the broadcast or by the broadcaster’s right to freedom of expression. Rather, the public interest would have been better served, and the audience better informed, by broadening the range of perspectives included.

Balance within the programme

[44]  The dominant impression created by the broadcast, in our view, was that significant regulatory and industry failings in Australia had led to serious harm and consideration of a product ban – and that the situation was the same in New Zealand.

[45]  This impression was created by the introduction to the programme which stated, ‘we ask why New Zealand is failing to address this looming health crisis’, followed by the Australian segment which focused heavily on regulatory failures occurring there and concluding with the perspective of an Australian stonemason that a total ban on engineered stone was required, before turning to New Zealand with the segue including comments from the host, and cut-in clips from the later interview with Dr Muthu:

Kamo:             Well, these products have, of course, been in New Zealand for years. Next, we look at why that's a massive cause for concern.

Muthu:            We don't think that the New Zealand situation's any different. This is a crisis and it's preventable.

Kamo:             So is our approach any better?

Muthu:            We haven't got this right and frankly, that's embarrassing.

[46]  During the subsequent full interview, while focused more on the potential health outcomes (as we have said under accuracy), Dr Muthu’s perspective largely reinforced this impression, with key takeaways including ‘it’s pretty clear we haven’t got this right’, ‘workers have continued to be exposed to silica’, and ‘we need a new approach in New Zealand’.

[47]  The right to freedom of expression and editorial discretion allow the broadcaster to present pieces from a strong advocacy perspective – in this case legitimately raising awareness of the health harms to those in the industry. Guideline 5.4 suggests that departure from strict compliance with the requirements of Standard 5 is permissible when a programme is signalled as approaching an issue from a particular perspective.¹⁹

[48]  However, this does not absolve TVNZ of the need to make reasonable efforts to achieve balance.²⁰ The programme did not, in our view, contain any acknowledgement at all of alternative perspectives in the NZ context, leaving us none-the-wiser as to any industry or regulatory response that has occurred here or is in progress.

[49]  The programme's purpose as it was introduced, was to ask ‘why New Zealand is failing to address this looming health crisis’. It went on to present one perspective on the story – a lack of coordinated response to the latent harm to those who have worked in the industry.

[50]  In their submissions the broadcaster and the complainant disputed the efficacy of the steps taken in New Zealand to address the harm from silica dust in the engineered stone industry. It is not the Authority’s role to decide whether the steps taken have been adequate, however, no perspective was included in the broadcast about any industry or regulatory actions to date, or other perspectives on whether a ban is necessary, meaning audiences were not able to come to an informed opinion on these points. The overwhelming impression remained that nothing is being done, and that banning these products should be seriously considered.

[51]  The balance standard does not require equal time to be given to competing views (balance is not achieved by a stopwatch), but it does require broadcasters to give a fair voice to alternative viewpoints, taking into account the nature of the issue and the coverage of that issue.

[52]  This was not a brief news report with associated time constraints, but a pre-recorded and edited, long-form investigative piece occupying two-thirds (40 minutes) of this Sunday episode. The standard states that the requirement to present significant points of view is likely to be increased where an issue is the focus of a serious, investigative or in-depth report.²¹

[53]  Having set the programme up in the introduction and before the New Zealand segment to state inadequate actions were being taken in New Zealand, we consider there was sufficient time, and a need in the interests of balance and serving the public interest, for the broadcaster to address these statements and their implications in some form.

[54]  That perspective did not necessarily need to come directly from an industry or regulatory representative in the broadcast as argued by the complainant; even a relatively brief statement from either the host, the reporter, or Dr Muthu on what the New Zealand industry and regulatory situation was (aside from the latency issue that Dr Muthu focused on) would have assisted in creating a more balanced picture of the current New Zealand situation in viewers’ minds.

Balance over time

[55]  The standard recognises the requirement to present significant points of view is likely to be reduced – or in some cases even negated – where the audience could reasonably be expected to be aware of other views expressed in other coverage, including coverage by other broadcasters or media.²² The standard also allows for balance to be achieved over time, within the period of current interest.²³ We have therefore considered whether relevant balancing perspectives may reasonably be presented or available through other programmes or coverage

[56]  The broadcaster in its submissions referenced four online articles from other media outlets on silicosis from engineered stone over the two-month period surrounding the broadcast (two published before the broadcast, and two after).²⁴

[57]  We have found a further six articles from this period and another 10 articles in the four months following this period.²⁵

[58]  Of the five articles we were able to find dated before the broadcast, only two contained industry perspectives, and all five were online articles from other media outlets, on a different platform and likely to have a different audience to Sunday.

[59]  TVNZ has confirmed it has not covered the issue of silicosis in any of its other programmes during the period of interest (at least since 2019 when concerns around silicosis were first raised).

[60]   Having concluded that TVNZ’s omission to include significant perspectives on industry changes could have prevented audiences from arriving at an informed and reasoned opinion, we do not agree with the Minority view that the surrounding coverage of this story amounted to a reasonable range of other perspectives being presented, or was sufficient for the broadcaster to conclude viewers ‘could reasonably be expected to be aware of significant viewpoints from other media coverage’ at the time of this Sunday item. Viewers were likely to rely on this broadcast to be a balanced, considered report, particularly as it was a long-form, hard-hitting, investigative piece.

[61]  As we have previously recognised, the ‘concept of “balance over time” and “ongoing period of current interest” applied in relation to certain issues should not, in our view, automatically absolve a broadcaster from the requirement to make reasonable efforts to achieve balance.’²⁶ We do not consider a broadcaster’s obligation should be negated by the possibility that other perspectives on the issue may be presented at some point in the future – especially where the broadcaster itself has not offered any other coverage on the topic.  

[62]  For these reasons, we the majority concluded the potential harm caused by not making reasonable efforts to include major perspectives in this investigative piece undermined the public interest in the story. It is a reasonable restriction on the broadcaster’s right to freedom of expression to require reasonable efforts to convey significant perspectives on this issue, to ensure viewers were sufficiently informed to reach their own opinions.

[63]  We therefore uphold the balance complaint.

Minority view – balance (John Gillespie)

[64]  This programme was an advocacy piece on the dangers to health from exposure to silica dust, which many in the audience (including stonemasons in the industry) may not have been aware of. The New Zealand portion of the broadcast was clearly focused on the health aspect of silica dust exposure and an anticipated looming health crisis (based on knowledge gained from Australia’s experience), and concern New Zealand is failing to identify and assess those workers who have already been exposed.

[65]  In these circumstances, I do not consider the inclusion of perspectives on the New Zealand industry and regulatory situation would have materially improved audiences’ wider understanding of the above concerns, particularly when it is questionable whether New Zealand has taken sufficient action to address the risks. Many stakeholders have continued to call for further regulation in New Zealand since the broadcast, and it is accepted that a portion of the industry is still non-compliant with existing regulation.²⁷

[66]  Regarding the complainant’s concern that the broadcast skewed the report to favour banning the substance in New Zealand, I note that when asked whether she considered a ban should be required here, Dr Muthu was measured in her response, stating that while a ban should be ‘considered’, what was needed was a suite of responses for those who had already suffered exposure to silica dust.

[67]  Lastly, the balance standard allows for balance to be achieved over time. It does not require every possible view on complex issues be contained within one item.²⁸ The topic of silicosis from engineered stone, and related changes in the industry, has in my view been a well-discussed issue over the period of interest,²⁹ including after this broadcast. Since the broadcast, more changes have occurred in the industry, including mainstream suppliers stating they will only work with accredited fabricators, and will only supply low-silica products, resulting in further media coverage outlining the steps that are being considered and taken by some. Viewers of Sunday could reasonably be expected to have a growing level of awareness of significant alternative viewpoints and of changes to the industry, as well as an appreciation that stone fabrication, like most industries, has both compliant and non-compliant businesses.³⁰

[68]  Accordingly, I would not uphold the complaint under the balance standard. The alleged lack of balance did not result in harm overall that outweighs the public interest, or that justifies restricting the right to freedom of expression or the broadcaster’s right to take a strong advocacy stance in this piece.

For the above reasons, a majority of the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of Sunday on 16 April 2023 breached Standard 5 (Balance) of the Code of Broadcasting Standards in New Zealand.

[69]  Having upheld the complaint, we may make orders under s 13 and s 16 of the Broadcasting Act 1989. We do not intend to do so on this occasion. Taking into account that the decision was not unanimous, we consider that the publication of the decision is sufficient in all the circumstances.

Signed for and on behalf of the Authority

Susie Staley
Chair
20 November 2023

Appendix

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

1  Andrew Crossland’s formal complaint to TVNZ – 15 May 2023

2  TVNZ’s response to the complaint – 9 June 2023

3  Crossland’s referral to the Authority – 19 June 2023

4  Crossland’s submissions on TVNZ decision – 28 July 2023

5  TVNZ’s further comments – 18 August 2023

6  Crossland’s final comments – 4 October 2023

7  TVNZ's comment on selection of interviewees - 5 October 2023

8  TVNZ confirming no further comment – 13 October 2023

9  TVNZ’s confirming no other coverage during period of interest – 16 October 2023

¹ Amanda Cropp “Engineered stone bench top makers shun a safety scheme to stop workers inhaling silica deadly dust” Stuff (22 February 2023)
² Amanda Cropp “Building industry and unions call for urgent action over deadly dust from engineered stone because of silicosis risk for workers” Stuff (18 April 2023)
³ Amanda Cropp “Building industry and unions call for urgent action over deadly dust from engineered stone because of silicosis risk for workers” Stuff (18 April 2023)
⁴ Amanda Cropp “Engineered stone bench top makers shun a safety scheme to stop workers inhaling silica deadly dust” Stuff (22 February 2023); Amanda Cropp “Over 90% of engineered stone businesses put bench top workers at risk of fatal lung disease” Stuff (1 March 2023); “CTU urges ban on engineered stone products over silicosis risk” RNZ (18 April 2023); Amanda Cropp “Building industry and unions call for urgent action over deadly dust from engineered stone because of silicosis risk for workers” Stuff (18 April 2023)
⁵ Standard 6, Code of Broadcasting Standards in New Zealand
⁶ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand at page 16
⁷ Standard 5, Code of Broadcasting Standards in New Zealand
⁸ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand at page 14
⁹ Freedom of Expression: Broadcasting Standards in New Zealand Codebook, page 6
¹⁰ Guideline 6.2
¹¹ Guideline 6.1
¹² Guideline 6.3
¹³ “Enforcement: Regulatory Function Policy” WorkSafe (August 2017) at page 13
¹⁴ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand at page 16
¹⁵ WorkSafe “Engineered stone and exposure to respirable crystalline silica” (25 August 2020): AGB “AGB supply partner moves to replace its engineered stone with a low silica alternative” (accessed 12 September 2023)
¹⁶ AGB “AGB supply partner moves to replace its engineered stone with a low silica alternative” (accessed 12 September 2023); Jonah Franke-Bowell “Benchtop maker’s high-silica stone ban thought to be an NZ first” The Post (online ed, 24 July 2023)
¹⁷ Guideline 5.4
¹⁸ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand at page 14
¹⁹ Insurance Council of New Zealand and MediaWorks TV Ltd, Decision No. 2014-146 at [16] – [17]
²⁰ Insurance Council of New Zealand and MediaWorks TV Ltd, Decision No. 2014-146 at [16] – [17]
²¹ Guideline 5.4
²² Guideline 5.4
²³ Guideline 5.2
²⁴ Amanda Cropp “Over 90% of engineered stone businesses put bench top workers at risk of fatal lung disease” Stuff (1 March 2023); Amanda Cropp “Engineered stone bench top makers shun a safety scheme to stop workers inhaling silica deadly dust” Stuff (22 February 2023); “CTU urges ban on engineered stone products over silicosis risk” RNZ (18 April 2023); Amanda Cropp “Building industry and unions call for urgent action over deadly dust from engineered stone because of silicosis risk for workers” Stuff (18 April 2023)
²⁵ Including: Bridie Witton “Silicosis: All options open to keen people safe from deadly dust from stone bench tops” Stuff (21 February 2023); Paul Osbourne and Dominic Giannini “Australian ministers asked to fast-track ban on silica products” Stuff (28 February 2023); Alexia Russell “Silicosis: How engineered stone is killing tradies” Newsroom (14 March 2023); Seni Iasona “Calls for Government to do more about hidden hazard in popular building product” Newshub (18 April 2023); Bridie Witten “Death by dust: New Zealand may be on the cusp of a silicosis epidemic” Stuff (22 April 2023)
²⁶ Right to Life New Zealand Inc and Television New Zealand Ltd, Decision No. 2015-023 at [37]
²⁷ “CTU urges ban on engineered stone products over silicosis risk” RNZ (18 April 2023); Amanda Cropp “Engineered stone bench top makers shun a safety scheme to stop workers inhaling silica deadly dust” Stuff (22 February 2023); “Media Statement: Engineered Stone” Construction Health and Safety NZ (24 August 2023); Amanda Cropp “Building industry and unions call for urgent action over deadly dust from engineered stone because of silicosis risk for workers” Stuff (18 April 2023); Vincent So “The reasons lung-health experts want engineered stone banned” The Post (online ed, 29 August 2023); Amanda Cropp “Over 90% of engineered stone businesses put bench top workers at risk of fatal lung disease” Stuff (1 March 2023)
²⁸ Guideline 5.2
²⁹ Bridie Witton “Silicosis: All options open to keen people safe from deadly dust from stone bench tops” Stuff (21 February 2023); Alexia Russell “Silicosis: How engineered stone is killing tradies” Newsroom (14 March 2023)
³⁰ “Product updates: NZ Panels Group moves to replace its engineered stone with low silica alternative” Prime Panels (20 April 2023); Nicholas Jones “Silicosis lung disease: AGB Stone commits to lower-silica engineered stone” The Herald (online ed, 24 July 2023); Jonah Franke-Bowell “Benchtop maker’s high-silica stone ban thought to be an NZ first” The Post (online ed, 24 July 2023); “High-Silica stone banned by only national fabricator” Industrial Safety News (24 July 2023); Nicholas Jones “Silicosis lung disease: Engineered stone dust at benchtop worksites revealed in WorkSafe photos” The Herald (online ed, 8 July 2023); Kaitlin Aldridge “100 warnings issued to Kiwi benchtop makers working with potentially deadly silica dust” 1 News (20 October 2019)