BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has not upheld an accuracy complaint about a statement by Newshub’s political editor, ‘the Government announced today it is going to be scrapping cultural reports [used in sentencing],’ following an item focused on the Prime Minister’s comments at Waitangi and on the Treaty Principles Bill. The complaint alleged it was misleading to say the reports had been ‘scrapped’ when the Government had actually announced it would remove legal aid funding for the reports. The Authority was not convinced the statement was inaccurate, given the practical effect of removing Legal Aid funding for cultural reports; and even if it were, the alleged inaccuracy was not material to the segment, and would not have impacted audience’s understanding of the broadcast as a whole.

Not Upheld: Accuracy

The broadcast

[1]  In a segment on Newshub Live at 6pm broadcast on 7 February 2024, Political Editor Jenna Lynch reported on the Prime Minister’s recent comments at Waitangi and on the proposed Treaty Principles Bill. Following Lynch’s pre-recorded item on this, there was a live cross between the newsreader and Lynch, the last part of which briefly covered another Government announcement:

Host:            And in some other news, Jenna, the Government’s back from Waitangi and announcing a crime crackdown.

Lynch:         Yeah, in a move aimed to talk about literally anything other than the Treaty Principles Bill, the Government announced today it is going to be scrapping cultural reports. Now, these section 27 reports are designed for judges to consider during sentencing, talks of friends and whānau, takes into consideration people’s cultural backgrounds – which often leads to reduced sentences. The Government says it’s born – a cottage industry has been born out of it. It’s spent 25 million dollars on them since 2017, so they’re scrapping them.

The complaint

[2]  Daniel Flanagan complained the broadcast breached the accuracy standard of the Code of Broadcasting Standards in New Zealand because Lynch said the Government was ‘scrapping’ section 27 reports, when they were not being scrapped – just legal aid could no longer be used to fund them.

[3]  In referring the complaint to this Authority, Flanagan also nominated the fairness standard as having been breached but did not make any submissions under the standard. The original complaint alleged ‘the reporter’s words were not fair.’ The fairness standard does not apply to these concerns; rather it protects the dignity and reputation of individuals and organisations taking part or referred to in a broadcast.¹ Our decision is therefore limited to considering the accuracy standard.

The broadcaster’s response

[4]  Warner Brothers Discovery (WBD) did not uphold Flanagan’s complaint under the accuracy standard, saying:

• ‘In the live cross, the Political Editor endeavoured to convey the substance of the day’s events with limited time and the pressure of it being a live broadcast situation. While [WBD] acknowledges the economy of language used in saying the cultural reports would be scrapped rather than its funding, we maintain it would not have affected the audience's understanding of the thrust of the changes being introduced by the Government. The funding being axed would almost certainly contribute to a significant reduction in the number of cultural reports produced.’
• ‘The digital article accompanying the footage on newshub.co.nz clarified that the Government's plan is to scrap taxpayer funding for cultural reports produced under section 27 of the Sentencing Act.’²

The standard

[5]  The purpose of the accuracy standard³ is to protect the public from being significantly misinformed.⁴ 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.

Our analysis

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

[7]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. Political speech and discussion of political policy and issues, as featured in this broadcast, carries high public interest value – meaning the harm caused must be correspondingly high to outweigh freedom of expression. We may only intervene and uphold a complaint where the resulting limit on the right to freedom of expression is reasonable and justified in a free and democratic society.⁵

[8]  Determination of a complaint under the accuracy standard occurs in two steps. The first step is to consider whether the program was materially inaccurate or misleading. The second step is to consider whether the broadcaster made reasonable efforts to ensure that the program was accurate and did not mislead.

[9]  The standard is concerned only with material inaccuracies. Technical or other points that are unlikely to significantly affect viewers’ understanding of the programme as a whole are not considered material.⁶

[10]  The statement complained about referred to a Government announcement that day, as part of its ‘law and order crackdown’, that the Legal Services Act 2011 would be amended to exclude section 27 reports from the legal aid scheme.⁷ Section 27 reports are still able to be used in sentencing proceedings but will no longer be funded by legal aid.⁸

[11]  We are not convinced it is inaccurate or misleading to describe the reports as ‘scrapped’. Given the withdrawal of legal aid funding, they will, in practice, cease to be available for many who cannot afford to pay for them.  

[12]  Even if it is accepted that Lynch overstated the legal position by claiming section 27 reports had been ‘scrapped’ by the Government, we do not consider this distinction was materially inaccurate or misleading, or that it would have significantly affected viewers’ understanding of the segment as a whole, considering:

• The broader five-minute segment focused predominantly on the Prime Minister’s comments at Waitangi, and his recent announcement on the proposed Treaty Principles Bill.
• Lynch’s comments about section 27 reports were in a brief, live update in the final minute, on a policy announcement made that day (in an attempt to ‘talk about literally anything other than the Treaty Principles Bill’) and were not the main subject of the reporting.
• Surrounding comments contextualised the statement, by reference to the Government’s ‘crackdown on crime,’ section 27 reports ‘often [leading] to reduced sentences’ and in particular the Government’s view a ‘cottage industry’ had been borne out of it, with $25 million spent on section 27 reports since 2017.
• It was reasonable to draw from that, that the Government was taking steps to reduce the volume of section 27 reports commissioned, and that taking away that level of government expenditure was likely to significantly impact the number of reports commissioned.⁹
• The online version of the article clarified that the Government was removing taxpayer funding for section 27 reports.

[13]  Having found the programme was not materially inaccurate or misleading, it is not necessary to determine whether or not the broadcaster made reasonable efforts to ensure the accuracy of the programme.

[14]  Accordingly, we have not found harm justifying regulatory intervention or restricting the right to freedom of expression, and we do not uphold the complaint.

For the above reasons, the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Susie Staley
Chair
22 April 2024    

Appendix

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

1  Daniel Flanagan’s original complaint – 07 February 2024

2  WBD’s response to the complaint – 07 March 2024

3  Flanagan’s referral to the Authority – 07 March 2024

4  WBD’s confirmation of no further comment – 11 March 2024

¹ See Judge and Radio New Zealand Ltd, Decision No. 2023-074 at [14] for a similar finding
² Jenna Lynch “Government confirms it’s scrapping taxpayer funding for cultural sentencing reports” Newshub (online ed, 7 February 2024) 
³ Standard 6, Code of Broadcasting Standards in New Zealand 
⁴ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand at page 16
⁵ Introduction, Code of Broadcasting Standards in New Zealand at page 4
⁶ Guideline 6.2
⁷ Beehive Press Release ‘Government law and order crackdown begins’ (7 February 2024)
⁸ Beehive Press Release ‘Section 27 reports returning to original purpose’ (6 March 2024)
⁹ New Zealand Law Society ‘Access to justice impacted by proposed repeal of sentencing report funding’ (8 February 2024)