Frost and MediaWorks Radio Ltd - 2019-025 (23 August 2019)
- Judge Bill Hastings (Chair)
- Paula Rose
- Wendy Palmer
- Susie Staley
ProgrammeThe AM Show
BroadcasterMediaWorks TV Ltd
[This summary does not form part of the decision.]
The Authority has not upheld a complaint that comments made by Duncan Garner and Judith Collins on The AM Show breached the balance and law and order standards of the Radio Code of Broadcasting Practice. The Authority found that the comments identified did not amount to a discussion of a controversial issue of public importance, so the balance standard did not apply. The Authority also found that the broadcast did not breach the law and order standard as it did not contain any content which would have encouraged audiences to break the law.
Not Upheld: Balance, Law and Order
 A segment on The AM Show featured a discussion between Duncan Garner (presenter), Hon Kris Faafoi (Labour Party MP) and Judith Collins (National Party MP) about the aftermath of the 15 March attacks on two mosques in Christchurch. The discussion covered various aspects of the aftermath, including:
- the outpouring of grief and support in the Muslim and wider community
- ongoing financial support for the victims and their families
- Government agencies involved in the response
- the speed of the police response on 15 March
- the effectiveness of spy agencies
- the Royal Commission of Inquiry (the Inquiry).
 In response to a question from Mr Garner about the ‘need to ask hard questions’ about New Zealand spy agencies’ activities before the attacks, Ms Collins suggested that the Inquiry look beyond the spy agencies:
Let’s have a look at the spy agencies but let’s also look at the legislation that they work under . . . let’s look at that in the cold light of day and just come up and look for solution rather than blaming people.
Mr Garner directed a question about blame to Mr Faafoi, and said ‘if there is blame to have though . . . will this Government be brave enough to say, ok, this was done badly . . .’. Mr Faafoi agreed that ‘serious questions do need to be asked.’
 Ms Collins went on to say that Labour did not support the previous National government in ‘anything we had to do around those spy agencies.’ In an exchange, Ms Collins and Mr Garner said:
Collins: Last decade Labour did not support anything we had to do around those spy agencies. So I say this. Let’s not blame the spy agency, just let’s find out what happened and if we need to fix that legislation, National will support fixing legislation.
Garner: Are you saying Labour is – is partly responsible –
Collins: What I’m saying is don’t blame the agencies without knowing the facts and it’s very easy to blame them because they can’t fight back and say what they want to say in the media.
 Mr Garner in his closing comments acknowledged that Mr Faafoi was not given a chance to respond to this specific comment and said ‘Kris no doubt you want to fire off all sorts of missives, we’ll take it that you disagree…’
 This episode was broadcast at 8:30am on 29 March 2019 on Magic Talk. In considering this complaint, we have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
 Vicky Frost complained about comments made by Duncan Garner and Judith Collins when discussing spy agencies, saying that they implied Labour was to blame for the 15 March attacks. She recalled specific comments in the broadcast as follows:
Judith Collins commented ‘that Labour blocked any legislation relating to spy agencies in the 9 years they (National) were in power, and therefore [was] responsible for the attack (March 15).’ Duncan Garner then repeated, ‘so Labour are to blame.’
 In a later submission, the complainant described the comments again:
They were discussing the spy agency, in relation to the mosque shootings, and Duncan Garner clearly said ‘so Labour are to blame’ and Judith Collins said ‘yes’.
We have listened to the item complained about and do not consider that this is an accurate transcription of the broadcast. The words spoken in this aspect of the broadcast are set out above at paragraph . We note that Ms Collins did not say ‘yes’ to the question of whether Labour was partly responsible, rather she said that blame should not be put on the agencies without knowing the facts.
 Ms Frost submitted that the broadcast breached the balance and law and order standards of the Radio Code of Broadcasting Practice because the comments:
- were ‘irresponsible’ and a ‘potential threat to law and order’
- ‘showed great disrespect’ to victims and their families and were ‘disgusting and insensitive’
- had ‘the potential to stir up feelings of anger, and possibly violence, for listeners’.
She also commented that MediaWorks did not properly address her complaint in its response.
The broadcaster’s response
 MediaWorks responded that the broadcast did not breach the standards raised as:
- The actions of New Zealand spy agencies and Parliamentary undertakings in relation to these agencies were ‘legitimate, and indeed important, subjects for discussion’.
- The broadcast did not contain material that encouraged illegal or serious antisocial activity.
- Ms Collins' criticism of the Labour Party in relation to spy agency funding, and the remark by Mr Garner that was the subject of this complaint, was ‘a brief aside to a wider discussion of security considerations in the wake of the Christchurch mosque shootings.’
- In relation to that security issue, the broadcast contained a range of viewpoints.
- It is reasonable to expect that viewers would have been aware of the significant perspectives that exist in relation to the issue, given the volume of media coverage it has enjoyed.
 The balance standard (Standard 8) states that when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.
 The intent behind the law and order standard (Standard 5) is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity.1 This standard does not stop broadcasters from discussing or depicting criminal behaviour or other law-breaking, nor does it prevent genuine criticism – even provocative criticism – of laws or their enforcement by the courts and police.2
 This broadcast was part of ongoing media coverage and discussion in the days and weeks following the attacks on two mosques on 15 March 2019. Research shows that adult audiences are particularly attentive to media coverage of tragedy,3 and we acknowledge that, at the time of this broadcast, the New Zealand audience were likely to have been sensitive regarding discussions of the attacks and any allegedly contributing causes.
 With respect to the complaint, we have identified that the complainant may have misheard the comments complained about. While the complainant has identified a specific discussion in the broadcast, there does seem to be a misunderstanding about what was actually said. We have recorded what was actually said by Mr Garner in paragraph  above.
 Against that background, when we consider a complaint that broadcasting standards have been breached, we first weigh the important right to freedom of expression, and the value of the programme, against the harm alleged to have been caused. We may only interfere and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.
 When we consider a balance complaint, the first question is whether the broadcast amounted to a ‘discussion’ of a ‘controversial issue of public importance’ in a ‘news, current affairs or factual programme’.4 An issue of public importance is something that would have a significant potential impact on, or be of concern to, members of the New Zealand public.5 A controversial issue will be one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.6
 The AM Show is a news, current affairs or factual programme. This particular segment was a general discussion about Government actions and responsibilities in the wake of the mosque attacks. The complainant has complained about the allegation that Labour contributed to the mosque attacks by blocking National’s previous attempts to change legislation. While the complainant did not accurately quote what was said in the broadcast, the complainant identified the aspect of the broadcast set out above at paragraph . We have therefore considered whether this aspect of the broadcast breached the standards identified.
 The Authority considers that Ms Collins’ allegation that more could have been done by Labour to support National’s work concerning spy agencies was not of itself a controversial issue of public importance as it related to matters which occurred some time ago. We also do not consider that the brief comments on this topic amounted to a ‘discussion’ for the purposes of this standard.
 The specific comments complained about were unsubstantiated assertions within a wider, more general discussion regarding the Government’s response to the attacks and the focus of the Inquiry. It was not an in-depth debate or exploration of Labour’s previous position regarding the powers of spy agencies. In the context of the broadcast (a conversation with opposing political party members) the comment was more akin to political point-scoring than a detailed conversation or debate about a controversial issue of public importance.7
 As the comments complained of do not amount to a discussion of a controversial issue of public importance, the balance standard does not apply. The Authority therefore does not uphold the complaint under the balance standard.
Law and order
 The complainant was concerned that blaming Labour for the mosque attacks posed a ‘potential threat to law and order’. However, on review of the broadcast, the Authority considers that there was no content in the broadcast which actively encouraged audiences to break the law or otherwise promoted serious antisocial or illegal behaviour.8
 Mr Garner and Ms Collins’ comments amounted to a serious, even provocative critique of the current Government (and of the Labour Party when they were in opposition); but such criticism is not what the law and order standard is intended to prevent.9
 The Authority therefore does not uphold the complaint under the law and order standard.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
Judge Bill Hastings
23 August 2019
The correspondence listed below was received and considered by the Authority:
1 Vicky Frost’s formal complaint – 29 March 2019
2 MediaWorks’ response to the complaint – 26 April 2019
3 Ms Frost’s referral to the Authority – 03 May 2019
4 MediaWorks’ further comments – 20 May 2019
5 Ms Frost’s further comments – 22 May 2019
1 Commentary: Law and Order, Broadcasting Standards in New Zealand Codebook, page 15
2 As above
3 See: <https://dartcenter.org/content/trauma-coverage-impact-on-public>
4 Guideline 8a
5 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
6 As above
7 See the definition of ‘discussion’ at <https://www.lexico.com/en/definition/discussion>
8 Guideline 5a
9 Commentary: Law and Order, Broadcasting Standards in New Zealand Codebook, page 15