BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

J R Morris declared a conflict of interest and did not take part in the Authority's consideration or determination of this complaint.

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Summary

The removal of a Western Samoan woman from New Zealand by the Immigration

Service was dealt with in an item on 20/20 broadcast between 8.30–9.30pm on 18

April. The broadcast reported that the woman's brothers and sisters and her two

young sons were allowed to remain in New Zealand as they had been born here.

The Immigration Service complained to TV3 Network Services Ltd that the

programme was unbalanced as reasonable efforts had not been made to obtain or

present the Service's point of view. Furthermore, the Service alleged that the

broadcast contained a number of factual inaccuracies and was deceptive as the

circumstances of the woman's arrest had been portrayed through the use of an

inaccurate reconstruction.

Arguing that the Immigration Service had been advised of the forthcoming programme

but had refused to comment on the particular case, TV3 declined to uphold the

complaint. It maintained that it had reported the events as the family and its Member

of Parliament remembered them.

Dissatisfied with TV3's decision, the Immigration Service referred the complaint to

the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority upheld the complaint that the broadcaster did not

make reasonable efforts to obtain the Immigration Service's view on a number of the

issues raised. Some aspects of the complaint alleging factual inaccuracy were also

upheld. The Authority ordered TV3 to broadcast a summary of the decision.

Decision

The members of the Authority have viewed the programme complained about and

have read the lengthy correspondence (summarised in the Appendix). The broadcaster

sought a hearing at which evidence would be heard to resolve the factual disputes.

The Service acknowledged the differences between TV3 and itself but maintained that

the only factual conflict involved the number, and instigator, of the telephone calls

between TV3 and itself. In view of the comprehensiveness of the submissions on the

balance issue which was at the core of this complaint, the Authority has followed its

usual practice and determined the complaint without a formal hearing.

Because she is married to an adviser to the Immigration Service, Authority member

Ms J R Morris has not taken part in the Authority's consideration or determination

of this complaint.

The Programme

Focussing on the removal of a Samoan woman from South Auckland to Western

Samoa, an item on 20/20 on 18 April entitled "Torn Apart" was critical of a number of

aspects of the Immigration Service's practice on this occasion and its policy. The

item stressed that the woman, Mrs Vaieli Sulusulumaivasa, was being deported

although her brothers and sisters were allowed to remain in New Zealand, as they

were born here.

It was also reported that Mrs Sulusulumaivasa was being "torn apart" from her two

young children (aged 6 and 7 years) who were also allowed to remain. The item

interviewed Mrs Sulusulumaivasa in Western Samoa where, it was suggested she had

few close family and yearned desperately for the opportunity to be allowed to return

to New Zealand to be reunited with her family and children.

The Complaint to the Broadcaster

The Immigration Service complained to TV3 that the broadcast breached the

requirements for balance contained in both s.4(1)(d) of the Broadcasting Act 1989 and

standard G6 of the Television Code of Broadcasting Practice. Section 4(1)(d) requires

that reasonable opportunities be given or that reasonable efforts are made to present

significant points of view when controversial issues are discussed. Standard G6

requires balance, fairness and impartiality.

These standards were breached, the Service maintained, as TV3's letter to the Service

asking three specific questions:

... make it clear that TV3 had no genuine intention of presenting any alternative

view to that which was carefully constructed in the final emotive script.

The item, it continued, was based on the accounts given by Mrs Sulusulumaivasa, her

family and Mr Philip Field MP and gave "a completely one-sided view of the issues".

The Service also complained that the broadcast breached the requirement for factual

accuracy in standard G1 of the Code on the following nine points.

(1) The reconstruction of the execution of the removal warrant was inaccurate when

it showed a police officer running to a house, opening some sliding doors and

apprehending a woman hiding under a table. Explaining that standard procedure

(which was followed on this occasion) involved an initial request to enter a

home, the Service observed:

It is irresponsible of TV3 to create a wrong factual impression that could

lead to unwarranted fears being created in the immigrant community.

It also claimed that the inaccurate reconstruction was a breach of standard G7

which requires broadcasters to avoid the use of any deceptive programme

practice.

(2) The second inaccuracy was the statement that "every other member" of Mrs

Sulusulumaivasa's family were New Zealanders when she had an eleven year-old

child who was born and had remained in Western Samoa.

(3) It was incorrect to state that Mrs Sulusulumaivasa had been removed from her

children "against her will" as the Service had earlier advised her that it was

willing to pay for the children's airfares to Samoa. However, "she chose to

leave them in New Zealand".

(4) In view of the immigration policy which promoted the reunification of families,

it was wrong to state that that policy provided for the separation of children

from their overstaying parents.

(5) Another factual inaccuracy occurred when the programme reported that Mrs

Sulusulumaivasa had signed her own removal warrant. In 1989, she had signed a

statement prepared after an interview with an immigration officer but at no time,

the Service stated, had she signed a removal warrant.

(6) Mrs Sulusulumaivasa had had the impact of the warrant explained to her by legal

counsel and by the Service and the item had been inaccurate when it reported

that no one had made any attempt to explain it to her.

(7) The comment from Mr Field MP that the points system used by the

Immigration Service discriminated against Pacific Islanders was inaccurate as it

gave the points system an undeserved emphasis in the case of Western Samoan

immigrants.

(8) Despite having explained the difference to TV3, the Service complained that it

incorrectly, and inaccurately, used the emotive term "deportation" rather than

the legally correct word "removal".

(9) Finally, the item's allegation that the Service breached seven clauses of the UN

Convention on the Rights of the Child had not identified the clauses allegedly

contravened and adopted a "simplistic" approach to Article 9 of the Convention.

The Service suggested that the appropriate way of resolving the complaint was the

publication of a statement, which it would approve before broadcast, in a forthcoming

20/20 programme outlining the full facts of the matter.

The Standards Allegedly Breached

The Service nominated the following broadcasting standards in its complaint and TV3

assessed the complaint under them. Section 4(1)(d) of the Broadcasting Act requires

broadcasters to comply with:

(d) 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 current period of interest.

The following standards in the Television Code of Broadcasting Practice require

broadcasters:

G1  To be truthful and accurate on points of fact.

G6  To show balance, impartiality and fairness in dealing with political

matters, current affairs and all questions of a controversial nature.

G7  To avoid the use of any deceptive programme practice which takes

advantage of the confidence viewers have in the integrity of broadcasting.

The Broadcaster's Response

In its response to the complaint that it had not made reasonable efforts or had not

given the Service a reasonable opportunity to comment, TV3 emphasised its letter to

the Service, seeking information, sent before the broadcast and the Service's reply

which included the following statement:

Our policy is to maintain the confidentiality of an applicant's personal details.

These details are supplied by an applicant to the Immigration Service solely for

the purpose of assessing an application and will not be discussed.

Referring to some additional telephone calls between the Service and itself, TV3 said

that the Service had reiterated the "will not be discussed" approach. In dismissing the

aspect of the complaint under s.4(1)(d), TV3 observed:

There is a contradiction in refusing to give details and then complaining that

those details are missing.

In view of the Service's attitude, it continued, it had been required to make use of

other sources which had included a number of people and sources in addition to the

Sulusulumaivasa family and Mr Field MP.

It then dealt with the nine specific factual inaccuracies.

(1) The reconstruction of the service of the removal warrant had been based on the

family's consistent account of its recollection of the event.

(2) As for the complaint that the statement that all other family members were in

New Zealand had omitted the reference to the eleven year-old daughter in

Samoa, TV3 pointed out that the separation with the daughter occurred some

time ago, that the Service had not mentioned her during the telephone calls and

that eleven members of her family, including her two sons, remained in New

Zealand.

(3) The "against her will" complaint was not upheld, TV3 said, as the presenter had

announced at the item's conclusion the Service's offer to pay the airfares for the

two children.

(4) TV3 said that the 20/20 item reported the facts as explained to them and that

any confusion about the reunification policy could have been cleared up by the

Service had it not persisted with its argument that it could not comment on

details of this case.

(5) & (6)

The same comment (under point 4) applied to the statement that Mrs

Sulusulumaivasa had signed the removal warrant and had not received advice as

that was what the family and Mr Field MP had consistently said had occurred.

(7) Mr Field was expressing his opinion about the racial bias in the policy which

used a points system.

(8) Quoting the Oxford Dictionary, TV3 argued that "deportation" was an

acceptable word in common usage to describe the Service's actions.

(9) TV3 dealt at length with the reasons for its allegation about the breaches of the

UN Convention on the Rights of the Child and quoted a legal expert opinion in

support.

In conclusion, TV3 returned to and repeated the Service's clearly stated intention not

to comment on individual cases – a comment made again during a telephone discussion

between the Service and itself – and declined to uphold the complaint.

Referral of the Complaint to the Broadcasting Standards Authority

When it referred the complaint to the Authority, the Immigration Service maintained

that TV3's reference to phone calls was in fact a reference to phone calls initiated by

the Service rather than TV3. Further, it pointed out the Service was required by the

Privacy Act not to disclose information about individuals. After asking why had TV3

not obtained Mrs Sulusulumaivasa's consent to the disclosure of the information

about her, the Service maintained:

We have been provided with no evidence to suggest that TV3 made any such

reasonable effort (to do so).

It then questioned whether TV3's efforts to obtain the Service's input were genuine,

noting that the initial three written questions focussed on specific points and that TV3

took the Service's response on the particulars to mean that it would not discuss the

issues generally. Indeed, it wrote:

The other level at which TV3's efforts to involve NZIS need to be looked at is

that of the ambit of the questions asked in their written request dated 11 April.

Given the thesis of the programme ("the heartless tearing of one woman from

her family contrary to all concepts of justice and fairness"), the opening

indication in that letter that the programme being prepared was about

"immigration" is less than candid. The three questions that then followed are

specific in nature and did not deal with all the issues raised by the programme.

It repeated the complaints about the specific factual inaccuracies raised in the initial

complaint but withdrew the complaint about the reference to the UN Convention on

the Rights of the Child. That matter, it said, was properly left for the Court of

Appeal where a forthcoming case would fully argue the issues.

The Broadcaster's Response to the Authority

When asked to comment on the Service's referral of the complaint to the Authority,

TV3 in its reply attached affidavits from reporter John Campbell and former

journalism lecturer Jenni McManus, a transcript of an interview given by the

Immigration Minister to RNZ on the morning after the evening of the broadcast of the

20/20 item, and a copy of a recent article from the magazine "North and South" which

referred in passing to Mrs Sulusulumaivasa and suggested that the Immigration Service

was "out of control".

TV3's letter began:

The complainant ("NZIS") makes two fundamental complaints:

(a) TV3 is guilty of 'not making reasonable efforts' to let the

department put its point of view.

(b) TV3 presented a documentary that was factually inaccurate,

unbalanced and unfair, i.e. a one sided story.

If NZIS was given reasonable opportunity to present its point of view then the

Tribunal ought not to consider the complaint further. If, on the other hand,

NZIS was not given "reasonable opportunity" to present its view, then the

Tribunal ought to go on and consider the second limb of the complaint.

If it is found that TV3 did not give NZIS a reasonable opportunity to present its

point of view (which is not conceded), it remains TV3's view that the

documentary was true. Any imbalance is caused as a result of the truth of the

facts not by any action on the part of TV3.

It also asked the Authority to convene a hearing to enable evidence to be given

to resolve the disputed facts.

Referring to the requirement in s.4(1)(d) for the broadcaster to make "reasonable"

efforts, TV3 pointed to the efforts described by the reporter in his affidavit and,

referring to the affidavit for Ms McManus, it argued that what was "reasonable"

would always be subjective. As an opportunity had been given and declined,

consequently:

That NZIS adopt an "ostrich policy" is not something they can blame TV3 for.

Moreover, it had been the Service's responsibility, not TV3's, to obtain Mrs

Sulusulumaivasa's consent for the disclosure of personal information. It added:

But in any event we doubt there is any difficulty in disclosing at least some (if

not all) information about the case in view of what occurred the following

morning. More is said on this issue later in our submission.

Referring to the correspondence and telephone calls between the Service and itself,

TV3 maintained that the Service was given reasonable opportunities to discuss the

issues. It then quoted at length from the Minister's comment made during the

interview on RNZ on the 19 April when he disclosed personal information about Mrs

Sulusulumaivasa. TV3 remarked:

Those are clearly facts relevant to this case which the Minister had no difficulty

in presenting to the public notwithstanding the supposed caveat on discussing

details about the Vaiele case. The Minister goes on, acknowledging that though

he will not go into detail he does in fact give some detail.

TV3 argued in addition that the impact of the Privacy Act provisions was more

apparent than real.

TV3 then referred to the nine specific alleged factual inaccuracies and while repeating

some of its earlier remarks, asked (in relation to point 1) just how did the execution of

the removal warrant occur; (2) why had the Service disclosed the existence of the child

in Western Samoa in its complaint – surely a breach of confidentiality: (3) deportation,

it maintained, had occurred against Mrs Sulusulumaivasa's will; and (9) it described as

"most interesting" the point that the complaint about an alleged inaccurate reference to

the UN Convention had been withdrawn.

TV3 concluded:

(a) TV3's documentary is factually correct.

(b) It was open for NZIS to speak publicly knowing that Vaiele was doing so.

(c) It was open for NZIS to obtain her approval to do so; she is contactable

through her family; in Samoa and through Mr Field.

(d) It was open for NZIS to disclose to TV3 in their response as much as the

Minister did the following morning.

The Complainant's Response to the Authority

The Immigration Service responded to the Authority on a number of the points raised

by TV3 and enclosed affidavits from Cathy Quinn, Communications Adviser on the

issue of telephone calls between the Service and TV3, and Harriet Tito, the

Immigration Officer who in October 1993 had been involved in the removal of Mrs

Sulusulumaivasa.

Dealing with the procedural points raised by TV3, the Service described as illogical the

assertion that the complaint had to be assessed in the sequence TV3 suggested. It

wrote:

Our complaints made under various statutory provisions can and must be

determined separately. While there may be overlaps in terms of the material

referred to under the various provisions it is possible for the programme to

breach more than one provision.

It opposed the suggestion for a hearing, arguing that the factual disputes which needed

to be resolved for the complaint to be determined could be settled on the papers.

Moreover, it maintained that the only relevant and unresolved factual issue was

whether or not TV3's reporter telephoned the Service after he had received a written

reply to his letter. The Service maintained that its Communications Adviser had

initiated that contact.

The Service persisted with its approach that TV3's request for information had been

governed by the Privacy Act and rejected TV3's stance that it was the Service's

responsibility to obtain consent to disclose personal information.

After all, Vaieli was no longer a client of NZIS and we were no longer in touch

with her. TV3 were in touch with her – in fact they interviewed her. They

clearly had the capacity to seek her consent to our talking about the details of

her case.

As for TV3's argument that what amounted to being "reasonable" was subjective, the

Service expressed incredulity and contended:

As the Authority knows, reasonableness is a matter determined by all the

circumstances of the matter in question by an objective assessment.

Referring to the point made by TV3 that the Minister disclosed some personal

information during the RNZ interview, the Service argued:

The Minister was only able to discuss those details because the programme had

already screened. He regarded the screening of the programme, and Vaieli's

involvement in it, as a clear implied authorisation of a public discussion of her

case, which allows exception (d) of Privacy Principle 11 to come into play. If

you like, it was a waiver of her rights to privacy in immigration-related matters.

It contrasted that occurrence with the situation in which it had been placed when

asked for information before any "implied authorisation of disclosure".

The Service also commented that should the Authority decide that TV3 had provided

the Service "reasonable opportunities" to comment (which it denied), that such

opportunities did not cover the full range of issues which the programme had

explored.

By way of final comment, the Service referred to TV3's comment about the UN

Convention aspect of the inaccuracy complaint and said it believed that the Courts,

not the Authority, were the appropriate forum to deal with the issue of interpretation.

Other Information obtained by the Authority

To assist it to determine the complaint (as explained in full in the Appendix under the

heading, Further Correspondence), the Authority obtained a report from the South

Auckland Police about the process followed when the removal warrant was executed

on Mrs Sulusulumaivasa on 21 October 1993.

Procedural Points

TV3 raised the point that should the Authority decide that the broadcaster made

reasonable efforts to let the Service put its point of view, then the Authority ought

not consider the complaint further. In response, the Immigration Service

acknowledged that some of the material referred to overlapped but maintained that the

complaint should be considered separately under each statutory head cited.

The Authority agrees that the Service correctly sets out the procedure it must follow.

While the Authority's practice on occasions is to subsume the material under what

appears to be the principal concern in the complaint when the standards and the

material overlap, it approaches all complaints initially by considering each aspect of

the complaint separately under each standard allegedly breached.

The complainant and the broadcaster disagreed as to who had the responsibility to

obtain Mrs Sulusulumaivasa's consent to allow the Immigration Service to release

personal details. The Authority does not accept that a rigid rule is applicable

although, as a general approach, it believes that the news media bears this

responsibility. This approach would apply particularly in situations such as the

current one when it is the news medium, or the individual, which has instigated or is

raising an investigative issue principally because it is critical of the organisation

holding the material. If it is within its power, the media should be responsible for

ensuring that the organisation is provided with every opportunity to provide the

balance which is obligatory under the statutory requirements. The Authority agreed

with the Service in this case when it argued that TV3 had been in touch with, and

interviewed Mrs Sulusulumaivasa, and clearly had had the opportunity to seek her

consent to require the Service to disclose details of her case.

The parties also disagreed on what amounts to a "reasonable" opportunity and effort

as required by s.4(1)(d) of the Broadcasting Act. On this matter the Authority is at

variance with both the submissions received. While it does not accept TV3's

argument that it will always be a "subjective" definition of what is reasonable, a

totally "objective" assessment as proposed by the Immigration Service is not always

attainable or indeed necessary. The Authority will take into account the surrounding

circumstances before deciding whether the journalist's effort can be considered

reasonable on a particular occasion.

The Authority also accepted the point made by the Immigration Service that, after the

programme had been broadcast and Mrs Sulusulumaivasa had talked about her

experiences with the Immigration Service, the Service (and the Minister) was entitled

to release certain personal information to correct inaccuracies in the broadcast.

Reasonable Efforts Aspect of the Complaint – s.4(1)(d)

In the Authority's opinion, the core of the Immigration Service's complaint was that

TV3 did not make reasonable efforts, or give reasonable opportunities, to allow the

Service to present its point of view about the issues raised. TV3 responded that its

fax on 11 April, which contained three questions, advised the Service of the issues to

be addressed in the item. Hiding behind the personal information curtain at the time,

TV3 continued, meant that the Service's complaint, that information was

unreasonably excluded, was without basis. It was, it added, "ostrich-like" behaviour

on the complainant's part.

The Service replied that the faxed three questions did not inform it of the item's

intended range and, while not being prepared to release personal details, it would have

made a spokesperson available to respond to the policy issues aired had it been

advised of the general policy points that the broadcast intended to make.

In view of the importance of TV3's fax to the complainant, the Authority decided to

record it in full. Addressed to the Immigration Service in South Auckland, it stated:

Dear Sir

We are preparing an item for a TV3 current affairs programme, 20/20 on

immigration. In the course of our research we have been dealing with Mr and

Mrs Sulusulumaivasa of 20 Norrie Smith Avenue in Flatbush. They are

concerned that their daughter Vaieli was deported against the wishes of the

family and her own New Zealand children.

In the interests of balance and fairness, we would like your comment on the

following questions:

1. Is it Immigration Department policy to separate parents and children

when a deportation order is served?

2. Under what immigration criteria was Vaeili Sulusulumaivasa deported?

3. In the case of Vaeili Sulusulumaivasa, why was the family not afforded an

opportunity to say goodbye to their daughter and mother at Auckland

International Airport on the night of her deportation, 22 October 1993?

As we are operating under deadlines, we would like your response to these

questions within the next 48 hours. If you wish to discuss the points we have

raised, we can be reached at Wellington (801 6333). Please call collect.

The Service's response, after pointing out that overstayers were removed – not

deported – wrote:

It is not immigration policy to separate parents and children when a removal

order is served. A removal order (know as removal warrant under the terms of

the old policy prior to November 1991) provides notification that the person

named in the order (or warrant) may either lodge an appeal against removal

(within 42 days in the case of a removal order, 21 days in the case of a removal

warrant) or is expected to make arrangements to leave the country.

...

2. Our policy is to maintain the confidentiality of an applicant's personal

details. These details are supplied by an applicant to the Immigration Service

solely for the purpose of assessing an application and will not be discussed.

3. As explained in 2 above, I can not make a comment on the details of this

individual case. Custodial arrangements relating to the execution of a removal

order are a police matter and access to family for the purposes of farewells etc

are dependent on available police resources at the time. The Immigration Service

advises families that it is not often possible to visit at the airport as the police

do not have the facilities or the staff to permit this.

If you require any clarification of the points raised in this letter, please do not

hesitate to contact me.

Having examined this aspect of the complaint, the Authority believed both parties

could be criticised. While a full or fuller list of questions might not have altered the

Service's decision not to discuss the specific case, it would have shown a more

genuine attempt on TV3's part to obtain an accurate account.

While TV3's questions focussed on some of the issues narrowly, the Authority

considered that the Service's response could be similarly described as generally rigid.

Although the reply was correct and courteous, it also concentrated on the specific

issues raised, made a strong statement that details would "not be discussed" and did

not suggest the opportunity for a further discussion to arrive at a situation where

views could be exchanged in a forthright manner while complying at the same time of

course with the provisions in the Privacy Act. In view of the publicity already

surrounding this matter, it would have been naive of the Service to believe that the

programme would not be considerably more expansive and probably critical of its

performance.

The Authority's task was to decide whether TV3's request for information amounted

to making reasonable efforts to allow the Immigration Service an input on the policy

issues discussed in the item.

One particularly obvious example of imbalance occurred when the item showed Mrs

Sulusulumaivasa's efforts to telephone her family in New Zealand and recorded:

There is a mystery in all this. No one denies that somehow Vaieli signed her

own removal warrant. The question is why.

The Authority noted that TV3 appeared to have made no effort to put that question

to the Immigration Service but, seemingly, included the question in the item's

commentary for the sake of its impact rather than because of any obvious interest in

endeavouring to solve the "mystery".

Overall, the Authority concluded that TV3's efforts had not reached the level which

complied with the standard required by s.4(1)(d). In reaching this decision, the

Authority took into account that the Service's reply was requested by TV3 within 48

hours. While that might not be an unreasonable time in some circumstances and the

Authority accepts that substantial organisations should be able to respond promptly

as a rule, it does not permit the development of interaction where both parties have a

proper understanding of the other's point of view. It also makes a mockery of TV3's

later suggestion that the Service should have obtained Mrs Sulusulumaivasa's consent

to release personal information. In the circumstances, the Authority considered that

TV3 should have made a more strenuous effort to explain, and obtain the information

from the Service about, the issues canvassed in the item. On this occasion, the efforts

were not reasonable.

For the above reasons and for the reasons noted in the next section, the Authority

decided that the broadcast breached s.4(1)(d) of the Broadcasting Act 1989.

Alleged Factual Inaccuracies – standard G1

(1) The first point raised as a matter of factual inaccuracy under standard G1 –

reconstruction of the execution of the removal warrant – was also alleged to

breach the prohibition on the use of deceptive programme practices contained in

standard G7.

While understanding TV3's argument that the broadcast recorded these events as

the family remembered them, the Authority was not prepared to accept that this

reason was sufficient in itself to justify the use of the material and to maintain

that it was factually accurate. In addition, this matter, together with some of the

following matters raising issues of fact, was not covered in TV3's fax of 11

April. The Service was not aware that the broadcast would involve a

reconstruction and, accordingly, was unable to give advice on how the removal

had been carried out.

As the family's recollection differed from the Service's account, recorded by

way of affidavit, and the police files about the number of police officers

involved and how entry into the house was achieved, and as adequate effort was

not made by TV3 to check that information which was available from an official

source, the Authority concluded that the broadcast was inaccurate and

contravened standard G1.

However, the Authority was not prepared to conclude that the broadcast also

breached standard G7. Although inaccurate, the brief reconstruction was

stylised and did not contain such divergence from the event – as explained by the

officers involved – to justify a decision that it breached the standard prohibiting

deception to the extent that it took advantage of viewers' confidence in the

medium's integrity.

(2) The second factual point raised by the complainant alleged TV3 was inaccurate

to refer to "every other family member" in New Zealand. That comment

omitted the reference to the 11 year-old daughter in Western Samoa.

The Authority asked TV3 specifically when it became aware of the daughter and

was told that that happened when the Minister referred to her in his interview

on RNZ the morning after the broadcast. As TV3 claimed it had not known of

her at the time the item was broadcast and as the Service would not have referred

to her had it been asked because of its concern not to disclose personal

information, the Authority was required to accept that TV3 reported the events

as it understood them to be and, accordingly, did not in this instance breach

standard G1.

That TV3 was unaware, however, in the Authority's view was indicative of the

inadequate depth of the research undertaken before the item was broadcast and

relevant to the Authority's decision on balance which was addressed in the

preceding section of this decision.

(3) The Authority was not prepared to accept that the item was inaccurate when it

reported that Mrs Sulusulumaivasa had been removed "against her will". At its

conclusion, the item stated that the Service had offered to pay the children's

airfares to allow them to accompany their mother. Notwithstanding this

acceptance, the Authority accepted TV3's explanation that as Mrs

Sulusulumaivasa did not want to leave New Zealand, she had been removed

against her will. However, the "against her will" comment had been included in

the body of the item while the Service's offer was included in the presenter's

announcement at the item's conclusion. Thus, while not inaccurate, the

separation of the statements was another matter the Authority took into

account when assessing the item's overall balance.

Indeed, the Authority believed that the Service's offer should have been included

in the body of the item. Again, the failure to do so made a mockery of the

statements contained the reporter's affidavit which provided numerous

examples of his ability as a reporter to ensure that events which occurred near to

a deadline were, nevertheless, included in his report. Moreover, he swore in his

affidavit:

16 The point is, had the Immigration Service changed their mind and

wanted input they could have done so right uptil the very last moment.

The Authority did not consider the "tacking on" of comment after the

conclusion of the item to be adequate.

(4) As for the alleged inaccuracy that the broadcast stated that policy provided for

the separation of children from their overstaying parents, the Authority again

noted that the final announcement reported the Service's statement that it was

not policy to separate parents from their children. First, the authority did not

agree with the complaint that the broadcast had stated explicitly that separation

was the policy and, secondly, any impression to that effect was dealt with

adequately in the final comment. Accordingly, that aspect of the complaint was

not upheld.

(5) and (6)

On these two issues the Authority, after careful consideration, decided to

uphold the factual inaccuracy complaints when the item reported, incorrectly,

that Mrs Sulusulumaivasa had signed the removal warrant and that she had been

inadequately advised as to its effect. TV3 stated that it had reported accurately

the family's belief on both these issues. On the basis that the Service would

have been in a position to comment to some extent on these matters had Mrs

Sulusulumaivasa's permission been sought by the broadcaster, the Authority

concluded that TV3's research had not been sufficiently thorough and the

standard had been contravened.

(7) As for the complaint that Mr Field's comment about the points system was

inaccurate, the Authority decided that it was a matter of opinion – not fact – to

which standard G1 did not apply.

(8) Regarding the use of the term "deportation" as opposed to the term "removal" –

the correct term when applied to overstayers – the Authority noted that the

correct usage was stressed in the Service's initial reply to TV3's request for

information. The Authority also noted that although the correct usage was

identified in the back announcement and although the item had referred correctly

to a "removal warrant", the term "deportation" was frequently used in the body

of the programme. Because deportation is commonly understood to mean

removal of overstayers, as TV3 pointed out, and as "removal" was used on a

few occasions (including in the introduction), the Authority did not uphold this

aspect of the complaint.

Alleged Imbalance – standard G6

The Service maintained that standard G6 had been contravened in addition to s.4(1)(d)

of the Act. The Authority regards these two standards as containing overlapping

requirements and, in this instance, has subsumed the requirements of standard G6

under s.4(1)(d) of the Act.

Overview

As will be apparent, the Authority considered the item "Torn Apart" to be deficient

as a current affairs programme when assessed under the nominated broadcasting

standards. Nevertheless, the government department responsible for the events being

investigated must carry some of the responsibility.

On the broadcaster's part, the item was unbalanced because of an insufficiently

thorough investigation and insufficient effort to put the most significant issues before

the Immigration Service. The overly emotive tone of the item only served to augment

the imbalance.

On the Immigration Service's behalf, there is evidence of at best a cautious response

towards the broadcaster and, at worst, a minimal effort to cooperate.

The Authority is of the view that the opportunity to investigate the Immigration

Service's policy and practice remains open. Should it be undertaken, the Service must

be given such opportunity as would allow viewers to judge whether or not it is as

inhumane as the TV3 item broadcast on 18 April suggested.

For the reasons given above, the Authority upholds the complaint that the

broadcast by TV3 Network Services Ltd of an item on 20/20 on 18 April 1994

breached s.4(1)(d) of the Broadcasting Act 1989 and, in addition, aspects

breached the requirement in standard G1 of the Television Code of

Broadcasting Practice.

The Authority declined to uphold the complaint under standard G7 of the same

Code.

Having upheld a complaint, the Authority may make an order under s.13(1) of the

Broadcasting Act 1989. Although it has been critical of aspects of both the

broadcaster's and the Immigration Service's performance, the Authority when

considering whether or not an order was appropriate focussed on the overall effect of

the broadcast. Broadcasters are required by the standards to present a balanced, fair

and impartial programme in which the facts have been presented accurately. TV3

failed to meet those standards on this occasion and, in failing to comply, did so in a

way which involved a number of significant deficiencies. Consequently, the

Authority decided that an order was appropriate.

The Authority believes that TV3, having decided to make the item, should have raised

the issue of seeking Mrs Sulusulumaivasa's consent to allow the Immigration Service

to release her personal details to TV3 or, if it decided not to seek that consent, that

considerably more investigation and research should have been carried out and material

provided which would have enabled viewers to decide for themselves whether or not

the Service's actions and policy were humane.

Order

Pursuant to s.13(1) of the Broadcasting Act 1989, the Authority orders TV3

Network Services Ltd to broadcast a brief summary of this decision, approved by

the Authority, about the item on 20/20 on 18 April 1994. The statement shall

be broadcast during a 20/20 programme within one month of the date of this

decision.

By way of observation the Authority notes that while it accepts there is a valid use of

back announcements where, for example, important information or crucial

developments have come to the programme maker's attention after the main body of

an item has been completed for screening, it considers that the back announcement

was misused on this occasion. It believes that all the information it contained could

and should have been in the body of the item.

Signed for and on behalf of the Authority

Iain Gallaway
Chairperson
17 November 1994

Appendix

New Zealand Immigration Service's Complaint to TV3 Network Services

Limited - 28 April 1994

The General Manager (Chris Hampton) of the New Zealand Immigration Service

complained to TV3 Network Services Ltd about an item broadcast on 20/20 on

Monday 18 April which discussed the removal from New Zealand of Vaieli

Sulusulumaivasa. The Service maintained that a suitable resolution of its complaint

would be a broadcast which corrected the factual errors contained in the 18 April item,

as provided for in standard G21 of the Television Code of Broadcasting Practice.

The complaint alleged breaches of s.4(1)(d) of the Broadcasting Act and standards G1,

G6 and G7 of the Code. The complaint included a letter to the Service dated 11 April

1994 in which TV3 had advised its intention to broadcast the item and sought some

specific information, and the Service's response (dated 13 April). The reply had dealt

with some general issues and had advised that the Service's records about individual

applicants were confidential.

With regard to the requirements in s.4(1)(d), the complaint maintained that TV3 had

not given the Minister of Immigration or the Immigration Service a reasonable

opportunity to present their point of view. Arguing that the broadcast presented

minimal facts and then only those provided by Mrs Sulusulumaivasa's supporters,

the complaint recorded:

Even if TV3 were unwilling to seek meaningful comment from an official source

you might have reasonably been expected to have sought some other expert

comment on the issues involved. These are numerous well respected

immigration lawyers and consultants that could have provided informed general

comment on some of the matters touched on by the programme. There is no

evidence that you sought any such comment.

Observing that standard G1 required truth and accuracy, the Service listed nine points:

(I) The item carried an inaccurate reconstruction of the situation in which Mrs

Sulusulumaivasa had been served with the removal order.

(ii) As Mrs Sulusulumaivasa had an 11 year old child in Western Samoa, the

broadcast inaccurately stated that "every other member" of her family were

New Zealanders.

(iii) After discussion with the Service, Mrs Sulusulumaivasa decided to leave her

children in New Zealand and she was not, as the programme recorded, removed

from them "against her will".

(iv) Immigration policy promotes the reunification of families, not their separation

as the broadcast implied.

(v) Mrs Sulusulumaivasa did not sign her removal warrant in July 1990 or October

1993 as the programme stated. Such signatures are used as an acknowledgment

of service. She had only signed a statement prepared after an interview in

December 1989.

(vi) Contrary to the item's statement that nobody attempted to explain the removal

warrant to Mrs Sulusulumaivasa, the Service said that she had been legally

represented when the judge made the removal order in Court and that the Service

had made numerous attempts to encourage her to leave voluntarily.

(vii) The points system had been given an undeserved emphasis by Mrs

Sulusulumaivasa's Member of Parliament (Mr Philip Field) as it omitted

reference to the Family/Partnership and Humanitarian categories.

(viii) Despite being advised of the significant difference between the terms

"deportation" and "removal", TV3 had persisted in using the inaccurate and

emotive term "deportation".

(ix) By reporting that the Service "quite explicitly breached 7 clauses" of the UN

Convention on the Rights of the Child, the item adopted a simplistic approach

to its provisions.

As for the standard G6 complaint, the Service said the details were included under

s.4(1)(d) and standard G1 above.

Standard G7 requires the avoidance of any deceptive programme practice which, the

Service argued, was contravened by the use of a reconstruction which was not

reasonably similar to the way the events originally occurred.

TV3's Response to the Formal Complaint - 18 May 1994

When TV3 advised the Immigration Service of the Complaints Committee's decision,

it referred first to the complaint under s.4(1)(d) and pointed to its letter of 11 April as

indicative of its determination to get the Service's point of view. The Service, it

added, had responded, both in writing and by phone that the applicant's details would

"not be discussed". Declining to uphold the s.4(1)(d) complaint, TV3 wrote:

There is a contradiction in refusing to give details and then complaining that

those details are missing.

Contrary to the allegation that the broadcast was based on the comments from the

Sulusulumaivasa family and Mr Field, TV3 said it was prepared on this occasion to

acknowledge some of its other sources which included both relevant written material

and speaking to some people involved in the area. It added:

These were not the only people/sources 20/20 consulted. Some were 'off the

record' and cannot be named. But given the refusal by the Immigration Service

to 'comment on details of the individual case', 20/20 in fact went to a great deal

of trouble in researching the story.

Dealing with some of the alleged factual inaccuracies, TV3 said the item had not been

presented as a total portrayal of the situation but had included the family's consistent

description of events. As for the 11 year-old child in Samoa, TV3 said that the child

was with the father's family and that Mrs Sulusulumaivasa had separated from the

child's father some time ago. Moreover, TV3 commented, the Service had declined to

advise the criteria under which Vaieli Sulusulumaivasa had been deported as the details

were regarded as personal.

TV3 did not accept the complaint that the item did not point out that the Service

made an offer to return her children with her - pointing out that this very point was

made in an announcement at the end of the item.

TV3 maintained that the right of appeal had not been exercised as the family was not

fully aware of what was occurring. It observed:

20/20 reported the facts as we understood them. Had the Department

commented on 'details of this individual case', any confusion could easily have

been cleared.

As for possible inconsistencies about the treatment of the removal warrant, TV3

argued that because the Service declined to comment on individual cases, there had

been no opportunity for clarification. Both Mr Field and the Sulusulumaivasa family

were insistent that Vaieli Sulusulumaivasa had signed her own removal warrant.

TV3 referred to the Oxford Dictionary definition of "deport" to justify its use of the

term. It also maintained that the Immigration Service breached the UN Convention on

the Rights of the Child, referring to a recent court case and the legal commentary it had

evoked.

By way of conclusion, TV3 again referred to its written request to the Service for

comment and the Service's refusal to comment on individual cases. Declining to

uphold the complaint, TV3 recorded:

The story was about Vaieli Sulusulumaivasa, a woman who one day in 1993 had

seen her two sons off to school and was enjoying a quiet cup of coffee when,

accompanied by four police officers, the Immigration Department came calling.

36 hours later, Vaieli Sulusulumaivasa was in Samoa. Despite entreaties from

her family and from Philip Field, she had not been allowed to see her boys to

say goodbye.

20/20 offered the Immigration Department a chance to comment on the Vaieli

Sulusulumaivasa case. This was done both on the phone and in writing. The

Immigration Department repeatedly declined.

The programme was dealing with the implementation of immigration policy

which is the role of the Department. If the Department felt that it was unable to

comment 'on the record', it could have - if only in the interests of accuracy -

briefed 20/20 'off the record' about the Sulusulumaivasa case.

The Immigration Service's Complaint to the Broadcasting Standards Authority

- 15 June 1994

Dissatisfied with TV3's response, the Service referred the complaint to the

Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

Expanding on the complaint under s.4(1)(d), the Service maintained that neither

"reasonable" efforts were made nor "reasonable" opportunities given to present a

significant point of view. It denied any record of telephone calls initiated by TV3 but

acknowledged two phone conversations to TV3 made by the Service.

It then referred to the Privacy Act - specifically Privacy Principle 11 - of which it said

TV3 would be aware as it prohibits the Service from talking about individual cases.

The Service continued:

In view of the circumstances (particularly the existence of the Privacy Act and

the generally known policy of NZIS) what efforts was it "reasonable" for TV3

to take? If one considers that TV3 were in direct contact with Mrs

Sulusulumaivasa herself and that she was prepared to talk on nationwide TV

about her personal circumstances and if one considers that the Privacy Act

makes specific provision for individuals to consent to the disclosure of

information (Principle 11(c)) one is left to wonder why it is unreasonable to

think that TV3 might have simply asked Mrs Sulusulumaivasa to authorise

NZIS to talk about her case to TV3.

The Service also questioned whether TV3's attempts to seek its input were genuine.

It referred to its response to the questions posed by TV3 and expressed the opinion

that the contents of a promo broadcast shortly after the reply was sent suggested that

TV3 had already adopted a certain theme regardless of the Service's reply. The

Service added:

I would like to inform the Authority that while NZIS respects the clear

boundaries placed on us by the Privacy Act we regularly provide spokespersons

to journalists to discuss the content of individual cases so that the general legal

and policy framework are not misunderstood. We were not invited to do so in

this case.

TV3 make much in their response of the phrase "will not be discussed" in our

fax. It is absolutely clear from the wording of that fax that this phrase relates

only to "an applicant's personal details". It is not indicative of any closed door

policy regarding the discussion of immigration matters with the media.

The Service then considered in detail TV3's letter of 11 April in which it had sought

information. Arguing that the three specific questions it contained did not deal with

the issues raised by the programme, the Service believed that the first two questions

were, respectively, rhetorical and surprising, had an "expert in immigration law" been

consulted as had been claimed.

Dealing with the factual inaccuracies 1 - 9 raised in the initial complaint, the Service

insisted that, despite TV3's argument, the reconstruction of the Police action

portrayed remained inaccurate. It described TV3's approach in dismissing as not

counting the comment about the 11 year-old daughter because she was with the

father's family as "that approach speaks for itself".

The Service questioned why had the programme stated that she had been removed

from her children "against her will" when TV3 broadcast the correct facts after the

item concluded.

The Service repeated the complaints about the inaccuracies listed above as points 4 - 8

and observed:

NZIS repeats its view that taken as a whole all these inaccuracies show up a

programme that was more notable for its lack of research and emotion than for

its accuracy.

As for the point about the UN Convention on the Rights of the Child, the Service said

the matter was one for the Court of Appeal - not for the Broadcasting Standards

Authority.

The Service maintained the complaints under standards G6 and G7 and concluded:

NZIS repeats its view that it is a deceptive programme practice to dramatise an

event to the extent that the basic components of the original event are

completely ignored. The significance of this is increased by the fact that

deceptive portrayal of this type of situation could lead to unwarranted fears

being created in the immigrant community. As well, the integrity of the NZ

Police and the NZIS is called into question.

TV3's Response to the Authority - 26 July 1994

After seeking and obtaining further time to comply with the Authority's request for a

comment, TV3 forwarded the Authority an extensive reply. In a second letter, TV3

enclosed affidavits in support of its decision from reporter John Campbell and "The

Independent" business editor Jenni McManus. Also attached was a copy of a recent

article in North and South on the Immigration Service and the transcript of an

interview with the Minister of Immigration broadcast by Radio New Zealand on the

morning after the broadcast of the 20/20 item.

TV3 began:

The complainant (NZIS) makes two fundamental complaints:

(a) TV3 is guilty of 'not making reasonable efforts' to let the department put

its point of view.

(b) TV3 presented a documentary that was factually inaccurate, unbalanced

and unfair, ie a one sided story.

If NZIS was given reasonable opportunity to present its point of view

then the Tribunal ought not consider the complaint further. If, on the

other hand, NZIS was not given "reasonable opportunity" to present its

view, then the Tribunal ought to go on and consider the second limb of the

complaint.

If it is found that TV3 did not give NZIS a reasonable opportunity to

present its point of view (which is not conceded), it remains TV3's view

that the documentary was true. Any imbalance is caused as a result of the

facts not by any action on the part of TV3.

Because of the disputed facts, TV3 continued, a hearing was sought to enable

witnesses to be seen and heard.

TV3 then addressed the issue of reasonableness in order to advance its point of view

that "reasonable" efforts had been made to obtain relevant points of view. Referring

to the affidavits from Mr Campbell and Ms McManus, TV3 said that what is

"reasonable" was always subjective and, in this case, must be assessed in a current

affairs environment. It stated:

Once the opportunity to comment has been given and declined that is the end of

the matter. It is not incumbent on the broadcaster to continue to press for other

avenues for comment particularly where the story is about a particular issue as

in this case. It is for the commentator to offer to comment but on limited

ground. For instance, it was open to NZIS to say "Well we cannot comment on

this specific case but what we can say is that it is the policy of NZIS that ...".

That at least would have left it open for TV3 to take the matter further but there

was no invitation to that effect and it cannot be TV3's fault that that offer was

not made. This was the method adopted by the Minister of Immigration the

day after the programme was broadcast.

That NZIS adopt an "ostrich policy" is not something they can blame TV3 for.

It is not the journalists responsibility to do that which is NZIS's responsibility

namely to get approval for disclosure if they consider, in the circumstances,

they still many not comment. It was open for NZIS to obtain her approval to

do so in this case. She was contactable through her family, Mr Field MP and

(directly) in Samoa. But in any event we doubt there is any difficulty in

disclosing at least some (if not all) information about the case in view of what

occurred the following morning. More is said on this issue later in our

submission.

Dealing with the particular circumstances of the broadcast complained about, TV3

argued that the Service had the following opportunities.

(a) To disclose at least as much as the Minister did the following morning;

probably more.

(b) When telephoned it was open for NZIS to say "look we are not able to

comment on the particular facts relating to that particular case but we can

say in general terms ..." or "look we are unable to comment publicly

because that would be a breach of the Privacy of Information Act but we

are happy to speak to you off the record as long as you do not publish

anything ..."

(c) Both the above apply equally in relation to the letter which clearly left it

open for NZIS to themselves offer on record information generally about

Vaiele or to follow up any response with that or an off the record

discussion.

(d) NZIS regularly provide spokespersons. They acknowledge this is their

complaint.

TV3 pointed out that the Privacy Act 1993 did not apply to it. It continued:

TV3 may publish anything it likes and no sanction exists under that Act for any

such publication. Using the Privacy Act analysis to justify the allegation that

TV3 acted unreasonably does not emerge as the basis of the original complaint.

It is too late to raise this basis of complaint now.

Transcribing part of the interview broadcast on RNZ with the Minister of

Immigration, TV3 argued that the Minister had been prepared to talk about facts of

the particular case - although not beyond a certain limit.

Furthermore, TV3 said, the Minister did not maintain during the RNZ interview that

it was the news service's responsibility to obtain authority for the Immigration

Service to divulge its side of the story. During the interview, the Minister was

prepared to give some facts although not in great detail. Summarising the interview

with the Minister, TV3 asked:

TV3 would have liked nothing more than to have, like Kim Hill [of RNZ],

interviewed NZIS about the specific case of Vaiele - that is what the programme

was about not the general legal and policy framework. The Minister clearly

answered some factual matters about the case. If it was good enough for the

Minister why not NZIS?

TV3 then considered the nine specific allegations of factual inaccuracy.

(i) With regard to the reconstruction of the service of the removal order, TV3

pointed out that the events portrayed were witnessed by some members of the

Sulusulumaivasa family. If the Service produced evidence which alleged that the

reconstruction was inaccurate, it reserved the right to call evidence to confirm

the portrayal as correct.

(ii) TV3 was unaware that Vaieli Sulusulumaivasa had another child in Samoa and

described as "staggering" the Service's claim for a confidentiality umbrella but

then to disclose the information about the earlier child. TV3 added:

Every other member of Vaiele's family are New Zealanders: her 7 brothers

and sisters, her parents, her two children. In particular her two children

have been brought up in New Zealand, have New Zealand education, New

Zealand friends and New Zealand family.

Under the custodial arrangements existing between Vaiele and the natural

father of the estranged child that child has been brought up in Samoa.

That child has a Samoan education, Samoan friends and Samoan family. It

is not uncommon, even in New Zealand, for one parent to rear a child of a

union and for the non-custodial parent to have another "family".

...

Accordingly, in the context of the family that the documentary refers to

the statement is correct. Without resiling from that, even if literally not

accurate (adopting NZIS's view), it does not justify a correction in view

of the overall accuracy of the programme.

(iii) As Mrs Sulusulumaivasa was arrested and deported, TV3 maintained that she

had been removed from her children "against her will".

(iv) As for the Service's complaint that the item suggested that separation of

children from their over-staying parents was policy, TV3 denied that the

programme contained such an implication:

It advanced the notion that this deportation is in breach of the UN

Convention on the Rights of the Child. That notion was supported by

Professor Elkind (whom TV3 would wish to call to give evidence) and a

member of UNICEF.

Including a lengthy extract from the Minister's RNZ interview, TV3 added:

The fact that NZIS may not be on the ground they suggest they are on is

confirmed by:

(a) Withdrawing any allegations about the roles of the convention in our

immigration policy; and

(b) The Minister of Immigration's statements the very next morning

when interviewed by Kim Hill.

(v) With regard to the broadcast statement that Mrs Sulusulumaivasa signed her

own removal warrant, TV3 said that it reported what the family honestly, if

mistakenly, believed. Moreover, it added, the document she did sign was

instrumental in her deportation as the Minister acknowledged during the RNZ

interview.

(vi) TV3 maintained that no one explained the removal warrant to Mrs

Sulusulumaivasa on 2 October 1993 and that events in 1989 were irrelevant.

(vii) The Member of Parliament (Mr Field) expressed his personal opinion that the

immigration laws discriminated against Pacific Islanders. Moreover, TV3 noted,

the writer in a recent North and South article on the Immigration Service

described the Service as being both "racist" and "arrogant".

(viii) The term "deportation" - not "removal" - was favoured by New Zealanders and,

furthermore, the media were not bound by the Service's language preference.

(ix) It was "most interesting" TV3 observed, that the allegation that the item was

factually inaccurate by alleging a breach of the UN Convention on the Rights of

the Child had been withdrawn.

Regarding the alleged breach of standards G6, TV3 stated:

(a) TV3's documentary is factually correct.

(b) It was open for NZIS to speak publicly knowing that Vaiele was doing so.

(c) It was open for NZIS to obtain her approval to do so; she is contactable

through her family in Samoa and through Mr Field.

(d) It was open for NZIS to disclose to TV3 in their response as much as the

Minister did the following morning.

As for the claim that standard G7 had been contravened, TV3 reported:

The validity or otherwise of this allegation depends entirely upon whether the

Tribunal believes Vaiele's family's account of events (as portrayed by TV3) or

NZIS's account - although that account has not been given yet. In the

circumstances, TV3 is not obliged to respond to any complaint which alleges

something is not true without stating what the truth is alleged to be.

In its concluding comment, TV3 remarked:

The Tribunal must not lose sight of the fact that this complaint is made after

NZIS had suffered a sustained period of bad publicity. To TV3's knowledge,

NZIS has not complained to any other member of the media.

Immigration Service's Final Comment - 4 August 1994

When asked to respond briefly to TV3, the Service's reply included affidavits from

Ms C A Quinn, Communications Adviser, and Ms H N Tito, Immigration Office of

Auckland who was involved in Mrs Sulusulumaivasa's removal. The affidavit noted

that Mrs Sulusulumaivasa was found under the kitchen table when the removal order

was enforced at 9.15am on 21 October 1994 by Ms Tito while accompanied by two

police officers..

By way of introduction, the Service disagreed with TV3's suggestion about how the

Authority should deal with the complaint, arguing that the complaint should be

determined separately under each statutory heading. The Service also opposed TV3's

suggestion for a hearing, maintaining that most disputed issues of fact could be

resolved on the papers and that the Authority would be able to decide the significant

aspects of the complaint. The Service added that the one significant disputed fact

remaining seemed to be whether or not TV3's reporter telephoned the Service on

receipt of its written response. The Service maintained that it - not TV3 - had

initiated the telephone contact.

The Service began its discussion of the issues with the following statement:

We believe that the issue raised by this aspect of our complaint is one of

considerable general importance, raising as it does the questions about the

responsibility of broadcasters when seeking to deal with personal information

about individuals and their relationship with government agencies.

At the heart of this issue is the point we made under item 4 on page 2 of our

complaint: That is the question of what is reasonable in terms of opportunity

to comment when a programme relating to an individual's relationships with a

government agency is being prepared?

We say that in this particular situation we were bound by the Privacy Act not

to comment on facts relating to the individual, Vaieli Sulusulumaivasa. We say

further that TV3 must be taken to know about the provisions of that Act and

the restrictions they place on agencies like ours. The story is TV3's - not ours.

TV3 wishes to broadcast it, presumably for both commercial and public interest

reasons. If TV3 genuinely expects us to comment then surely it can be

reasonably expected to make appropriate arrangements with the individual in

question to authorise our comment?

TV3, it added, had been in touch with Vaieli and therefore had the responsibility to get

her approval for disclosure. The Service continued:

We also reject, with incredulity, the claim that "what is reasonable will always

be subjective". TV3 clearly are poorly advised if that is their approach to

reasonableness - it is tantamount to saying that the producer or the reporter are

best placed to decide.

As the Authority knows, reasonableness is a matter determined by all the

circumstances of the matter in question by an objective assessment.

The Service acknowledged that while TV3 might be in a large part exempt from the

Privacy Act, it could not ignore that most of the organisations with which it dealt

were bound by it.

As for the aspect of TV3's response which argued that because the Minister disclosed

certain details about Mrs Sulusulumaivasa, it should have done so, the Service argued:

The Minister was only able to discuss those details because the programme had

already screened. He regarded the screening of the programme, and Vaieli's

involvement in it, as a clear implied authorisation of a public discussion of her

case, which allows exception (d) of Privacy Principle 11 to come into play. If

you like, it was a waiver of her rights to privacy in immigration-related matters.

When we were asked to comment there was no such implied authorisation of

disclosure, and so we were hamstrung. The extent of TV3's appreciation of the

Privacy Act requirements is evident from their belief on p.3 of their response

that NZIS could speak to them "off the record" about the individual case. The

Act makes no such distinctions - disclosure is disclosure whether "on" or "off"

the record.

With regard to TV3's reference to the Privacy Commissioner's opinion, the Service

said it had discussed the matter with him and that he would write to the Authority

clarifying what he had said.

On the point about having an opportunity to comment, the Service referred back to

TV3's letter of 11 April and commented:

Essentially, the questions we were asked to comment on covered only a small

proportion of the issues actually dealt with by the programme. So, even if the

letter did provide a "reasonable opportunity" on those issues (which we

dispute) it failed to even alert us to a number of issues that the programme

subsequently dealt with (eg the allegation that she signed her own removal

warrant, whether she was given any explanation about removal, the impact of

New Zealand's ratification of the UN Convention on the Rights of the Child,

where Vaieli's rights of appeal lay, whether NZ's immigration laws and policies

discriminate against Pacific Islanders.)

Clearly in respect of those matters just itemised no reasonable efforts were made

at all to seek our comments. How can NZIS be expected to anticipate what the

journalist might say about a particular case. We had no earlier indications that

there were any difficulties with the removal process.

The Service commented briefly on three factual points describing the mistake about

signing the removal warrant as "shoddy journalism", resenting TV3's implication of

arrogance in trying to ensure accuracy about the current use of the terms

"deportation" and "removal", and pointing out that the Courts - not the Broadcasting

Standards Authority - was the appropriate forum in which to discuss and interpret

the UN Convention.

The Service concluded:

TV3's closing comment about NZIS suffering a "sustained period of bad

publicity" is ostensibly irrelevant to the Authority's consideration of this

complaint.

Similarly irrelevant is the North and South article appended to the Campbell

affidavit. The Authority should ignore its contents entirely - it comes from the

same journalistic school as the 20/20 programme itself.

Finally, Ms McManus' affidavit adds little to the debate because it begs the

essential question -what amounts to being asked to comment? Before one can

comment meaningfully one must know what the programme is going to deal

with.

Further Correspondence

Following its preliminary assessment of the complaint, the Authority obtained the

following information. From TV3, it received the script of the promo for the item and

the script and tape of the "back announcement" broadcast at the conclusion of the

item which had not been suppled previously. The announcement at the end of the

broadcast reported that the Immigration Service, while refusing to comment on

individual cases, said that Vaeili Sulusulumaivasa had been "removed", not

"deported", that she had not been taken from her children as the Service had offered to

pay their airfares to Samoa, and that it was not departmental policy to separate

children from parents.

In its accompanying letter, TV3 said that it had only become aware of Mrs

Sulusulumaivasa's daughter, who was living in Western Samoa, through the comments

from the Minister of Immigration during his interview on RNZ on the morning after

the broadcast.

The Authority advised TV3 and the Service that it was checking the circumstances of

the service of the removal warrant on 21 October 1993 with the South Auckland

Police. TV3 responded:

... it would be appropriate for the other witnesses of the removal to express

their view. Is the Authority proposing to take their statements as well?

The report received from the Police was signed by the constable who, with another

Police Office and an Immigration Officer, had executed the removal warrant on the 21

October. She wrote:

We arrived at the address at approximately 9.15am, and all three of us

approached the sliding door at the front of the address. The door was opened

by a Samoan lady. The Immigration Officer introduced herself and asked if

Vaieli lived there. We were told that she did not. We then asked permission to

enter the house and it was granted.

Upon stepping inside the door, myself and my partner noticed someone ducking

down behind the wall to the kitchen on our right hand side. (There was a wall

with a large square removed to pass food through). My partner went to the

kitchen and found a Samoan lady hiding under the table.

The woman under the table was identified by the Immigration Officer as Vaieli

Sulusulumaivasa who was given 15 minutes to collect her things and then taken to the

Otahuhu Police Station.

As TV3 had quoted the Privacy Commissioner in support of its argument and the

Service had questioned the accuracy of TV3's recollection of the Commissioner's

advice, the Authority sought the Privacy Commissioner's comments. In his reply

dated 21 August 1994, he began:

I was surprised to learn that I had been quoted. TV3's solicitor did not inform

me that it was intended to use an informal discussion with me of some issues

under the Act in this way.

The point on which he was quoted, he continued, would be relevant only when

exercising his discretion whether or not to investigate a formal complaint. Explaining

that he had advised TV3's solicitors that he could not give rulings on matters which

could later be the subject of a formal complaint, he wrote:

I have not examined the complaint and do not wish to have any submission or

view recorded by me in relation to your adjudication on this complaint.

Copies of the above written material obtained by the Authority was made available to

both TV3 and the Immigration Service.