BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Joanne Morris, Chair of the Authority, declared a conflict of interest and did not participate in the Authority’s determination of the complaint.

Complaint under section 8(1)(a) of the Broadcasting Act 1989
One News – item about a report which disclosed internal fraud at the Immigration Service – allegedly unbalanced and misleading

Findings
Standard 4 (balance) – balance of perspectives aired – not upheld

Standard 5 (accuracy) – no inaccuracies – not misleading – not upheld

Standard 6 (fairness) – not part of original complaint – no jurisdiction to determine

This headnote does not form part of the decision.

Broadcast

[1] The lead item on One News broadcast on TV One at 6.00pm on 8 April 2004, concerned a report that reviewed the Immigration Service’s processes when dealing with investigations into allegations of internal corruption. The item included interviews with Andrew Lockhart from the Immigration Service, and the New Zealand First party leader (Hon Winston Peters MP).

Complaint

[2] Andrew Lockhart, General Manager of the New Zealand Immigration Service (NZIS), a division of the Department of Labour (DOL), complained to Television New Zealand Ltd, the broadcaster, that the item was “unbalanced and clearly misleading”.

[3] DOL argued that the impression given by the item was that the report in question was “brand new”, when in fact the report was 11 months old. Further, it was dissatisfied that the item failed to mention either that the report had been jointly commissioned by DOL and the State Services Commission, or the purpose of the report. DOL wrote:

KPMG was engaged to review internal investigation procedures to provide assurance to the DOL, NZIS and State Services Commission that the manner in which NZIS conducts its investigations into allegations of staff corruption is effective, and to identify improvements that could be made to both reduce corruption and enhance the reputation of NZIS.

The report was completed in May 2003 and NZIS has implemented most of the recommendations, or is in the process of finalising the implementation.

Standards

[4] TVNZ assessed the complaint under Standards 4 and 5 of the Free-to-Air Television Code of Broadcasting Practice which were nominated by the complainant. The standards and relevant guidelines provide:

Standard 4 Balance

In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Guideline 4a

Programmes which deal with political matters, current affairs, and questions of a controversial nature, must show balance and impartiality.

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Guideline 5b

Broadcasters should refrain from broadcasting material which is misleading or unnecessarily alarms viewers.

Guideline 5c

Broadcasters must ensure that the editorial independence and integrity of news and current affairs is maintained.

Broadcaster's Response to the Complainant

[5] TVNZ did not uphold the complaint. It said that the age of the report was “not of great significance” from a news point of view. What was important, TVNZ argued, was that “this was the first opportunity for the public to learn of the report and its findings.” This was new information as far as the public was concerned. Further, TVNZ said that the item was clear that the report covered the period between 2001 and 2003, and was “not dealing with the current situation in the department”. TVNZ noted that other media had also covered the report and considered it newsworthy.

[6] TVNZ responded to the complainant’s concern regarding the item’s failure to mention that NZIS had implemented the recommendations. TVNZ referred to Mr Lockhart’s comments in the item, “we’ve certainly taken the KPMG report and we’ve put in the recommendations from that.”

[7] TVNZ considered that DOL had implied that, as the report’s recommendations had been implemented, its contents were “no longer newsworthy”. TVNZ disagreed, arguing that a report which stated allegations of corruption among employees of a government department was a matter of public interest, “regardless of how long the report has been ‘under wraps’”.

[8] Contrary to DOL’s view, TVNZ contended that the purpose for commissioning the report was not relevant and therefore did not warrant inclusion in the item. TVNZ submitted that the relevant issues were the report’s conclusions and the Department’s response.

[9] In regard to Standard 4, TVNZ submitted that the item included the report’s key findings, balanced with Mr Lockhart’s “general observation” about the NZIS’ attitude to internal corruption, followed by more specific details from Mr Lockhart as to the actions subsequently taken. TVNZ said that comment from Winston Peters MP, “a well-known spokesperson on immigration issues”, added a further perspective together with the “parliamentary reporter’s informed assessment”. TVNZ found that Standard 4 was not breached.

[10] As to Standard 5, TVNZ maintained that the report’s key points were accurately outlined with the aid of on-screen graphics. It also maintained that the time-frame of the report was accurately reported, that the report had not “hitherto been made available to the public”, and that the reactions of both Mr Lockhart and Mr Peters had been accurately reported. TVNZ found that Standard 5 was not breached.

Referral to the Authority

[11] DOL, in its referral to the Authority, also considered that the item had breached Standard 6 (fairness). Specifically, that the item “did not truly reflect the original event.”

[12] DOL stated that the item breached Guidelines 5b and 6a because it failed to represent that the report was 11 months old at the time of broadcast, and that it had commissioned the report as a “proactive ‘best practice’ response to allegations of fraud and corruption.” DOL further alleged that the broadcast breached Guideline 4a as it was “partial”, and conveyed the impression of “a Department in immediate crisis.” In addition, DOL argued that the broadcast breached Guideline 5c as the item was presented in such a way that it undermined the integrity of news and current affairs.

[13] DOL made the following comments in response to TVNZ’s submission:

• The report had always been publicly available, and had never been “under wraps.” It argued that the broadcast was not the first occasion for the public to consider the report and its findings. It argued that TVNZ’s failure to discover or broadcast “older” information did not provide it with an opportunity to “dress up” that information as “new” information.
• The item had “misrepresented the fact of a ‘new’ report”, and had focussed on the action taken by the department, and not the “historical situation in the department.”
• The alleged fraud and corruption cases had been supplied by the department to the report’s authors as part of the NZIS’ procedure analysis.
• The item suggested that reactive action was taken by the Department, when in fact the commissioning of the report was a proactive measure by the Department. It argued that it had undertaken the implementation of the recommendations itself and not, as suggested by the item, “only when the publication of the report was imminent."
• DOL acknowledged that the item was newsworthy, however it did not believe that the item was balanced, accurate or fair. Omissions included the age of the report, and its purpose when commissioned.
• DOL disagreed with TVNZ that the reasons for commissioning the report were not relevant. It maintained that the item should have referred to the “context for the report”, specifically that it had been commissioned as a “proactive measure to assure itself that it has best practice processes in place to deal with allegations of fraud and corruption.” The failure to do so, DOL contended, “clearly dramatised the true nature of the situation.” Consequently, it appeared that the “Department was reacting to a situation of rampant fraud and corruption rather than proactively managing and improving its processes.”
• DOL expressed its concern that TVNZ had dismissed the context of the report as irrelevant, without explaining the reasons for its finding. DOL contended that TVNZ had “undermined” the integrity of the complaints process. It also expressed its dissatisfaction with the manner in which TVNZ had addressed its complaint

[14] DOL concluded:

In short, the Department’s complaint is that the public and the Department are the victims of TVNZ’s desire on this occasion to create rather than report “breaking news”. While such “scoop” reporting provided titillating entertainment, it has in this case clearly resulted in the relevant event being reported in a misleading manner, it has failed to demonstrate balance and impartiality towards the Department and it has undermined the integrity of current affairs programmes in demonstrating a lack of respect for its viewers.

Broadcaster’s Response to the Authority

[15] TVNZ disputed DOL’s comments regarding the availability of the report, because it was only provided with the report after a request under the Official Information Act. It also contested DOL’s assertion that “the report has always been available to the public”. TVNZ said that the information broadcast was “new” to the public, having not been broadcast before.

[16] TVNZ also referred to a New Zealand Herald article which covered the report. The article said the report was “dated May 2003 but only released publicly this week”. TVNZ said that this newspaper article also indicated that “this was ‘fresh’ news.”

[17] In regard to the issue of balance, TVNZ stressed that the time given to Mr Lockhart to explain the NZIS’ position was the “single biggest element in the story.” TVNZ noted that Mr Lockhart’s comments totalled 25 seconds in comparison with Mr Peter’s 18 seconds.

[18] Regarding TVNZ not reporting that DOL had commissioned the report, TVNZ submitted that a news item could not include every detail, and that the relevant point was the findings of the report, not who had commissioned it.

Complainant’s Final Comment

[19] DOL maintained that it was “misleading” to present information as “new” to the public, in circumstances where the information is not “new”. In regards to the availability of the report, DOL said that the report was publicly available if requested and its access was not restricted or able to be withheld under the Official Information Act 1982. DOL advised that no request for the report had been made since it had been completed 11 months previous.

[20] On the issue of balance, DOL disagreed with TVNZ as to the level of detail to be included in the item. It argued that if it had known that TVNZ was intending to present the report as “breaking news”, it would “have ensured that this detail was included in its response.”

[21] DOL also challenged TVNZ’s claim that the item had presented the report’s findings as the public’s primary interest in the item. In DOL’s view, the findings were not “presented as the primary aspect” in the item. It concluded, “nor, to the limited extent that those findings were mentioned, were they presented in a fair, balanced and accurate manner.”

Authority's Determination

[22] The members of the Authority have viewed a tape of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority has also read a transcript of the item. The Authority determines the complaint without a formal hearing.

Standard 4 (Balance)

[23] Standard 4 requires broadcasters to maintain standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

[24] The existence of a report which highlighted the incidence of allegations of corruption and fraud within the Immigration Service constituted a controversial issue of public importance to which Standard 4 applies. The report, which was not previously known to the public, reviewed internal investigation procedures into allegations of staff corruption. The item focused on certain aspects of the report and examined the Department’s accountability and response to the report.

[25] Overall, the Authority considers that reasonable efforts were made to present significant points of view on the issues raised. The item included the views of Andrew Lockhart, General Manager of the NZIS, who discussed broadly the Department’s view to internal corruption, advising it took “allegations like internal corruption very seriously” and that it investigated all such allegations. Mr Lockhart then detailed specific actions taken in response to the report. Winston Peters, leader of New Zealand First and spokesperson on immigration issues, expressed his concern about details in the report and criticised the Department. The item also included commentary from the news reporter and on-screen graphics which highlighted the report’s details.

[26] The Authority does not agree that the item was unbalanced. The Authority notes that the item clearly stated that the report had been prepared by external consultants, KPMG. Mr Lockhart from the Department was given a reasonable opportunity to respond. He explained that the Department had implemented key recommendations from the report, by putting in place a “fraud policy”, “internal investigation guidelines”, and had “strengthened” all their procedures. The Authority considers that it was made clear that the Department had reacted to a report from external consultants with positive changes.

[27] Accordingly, the Authority does not uphold the complaint that the programme breached Standard 4.

Standard 5 (Accuracy)

[28] Standard 5 requires broadcasters, in the preparation and presentation of news and current affairs programmes, to be truthful and accurate on points of fact. The Authority notes that no facts were specified by the complainant as being incorrect. With no evidence of any inaccuracies, the Authority does not uphold this aspect.

[29] DOL complained that the item’s failure to mention the age of the report and the nature and purpose of the report was misleading. The Authority disagrees. The item explicitly referred to the fact that the report covered the period “between 2001 and 2003”. The Authority does not accept that the item was misleading about the report’s age, or that it was deceptive, as contended by DOL, in presenting the information as “new”. Irrespective of whether the report had been completed 11 months before, and was publicly available, the Authority accepts TVNZ’s view that the report was “new” information, as far as the public was concerned, because the report’s existence and findings had not been previously publicised.

[30] The Authority acknowledges that including the information that the report had been proactively commissioned by the Department to ensure that it had in place best practice fraud investigation processes, might have cast the Department in a more favourable light. It concludes, however, that the inclusion of this information would not have materially changed the focus of the item. The Authority notes that the existence of a report which detailed allegations of corruption and fraud within a public sector organisation was a matter of public interest, and it was appropriate for the item to focus on the details in the report and the Department’s response to its recommendations. For this reason, the Authority does not consider that the omission of this information made the item misleading.

[31] In addition, the complainant referred to the “integrity of broadcasting” (Guideline 5c) which it considered to have been breached. In the Authority’s opinion, the item did not depart from the required standards of editorial independence and integrity. Consequently, the Authority finds that Standard 5 was not contravened.

Standard 6 (Fairness)

[32] The Authority notes that Standard 6 was raised by the complainant in its referral to the Authority. The Authority’s task in the Broadcasting Act is to review the broadcaster’s decision. On this occasion, the complainant did not raise the standard of fairness, either explicitly or implicitly, in its complaint to the broadcaster. The Authority is unable to accept DOL’s complaint that the broadcast was unfair as it did not raise this standard when it made its original complaint. Accordingly, it has no jurisdiction to determine the fairness complaint.

For the above reasons, the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Tapu Misa
Member
4 November 2004

Appendix

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

1. Department of Labour’s Formal Complaint to Television New Zealand Ltd – 13 April 2004
2. TVNZ’s Response to the Formal Complaint – 6 May 2004
3. DOL’s Referral to the Broadcasting Standards Authority – 3 June 2004
4. TVNZ’s Response to the Authority – 24 June 2004
5. DOL’s Final Comment – 16 August 2004