Garrett and Radio New Zealand Ltd - 2013-048
- Peter Radich (Chair)
- Leigh Pearson
- Te Raumawhitu Kupenga
- Mary Anne Shanahan
- David Garrett
ProgrammeNine to Noon
BroadcasterRadio New Zealand Ltd
Channel/StationRadio New Zealand National
Complaint under section 8(1B)(b)(i)) of the Broadcasting Act 1989
Nine to Noon – contained a discussion about the 'three strikes' legislation – involved only participants who opposed the legislation – allegedly unbalanced, inaccurate, unfair and irresponsible – broadcaster upheld part of the accuracy complaint but declined to uphold remaining aspects of the complaint
Standard 4 (controversial issues) – item discussed a controversial issue of public importance – while presenter alluded to the existence of other points of view, this did not go far enough – broadcaster did not make reasonable efforts, or give reasonable opportunities, to present alternative viewpoints – upheld
Standard 5 (accuracy) – two aspects of the item were misleading in the absence of balancing or challenging comment – broadcaster did not make reasonable efforts to ensure item did not mislead – upheld
This headnote does not form part of the decision.
 An item on Nine to Noon contained a discussion about New Zealand’s ‘three strikes’ legislation, the Sentencing and Parole Reform Act 2010. The item was broadcast on 29 May 2013.
 David Garrett, former ACT MP and author of the ‘three strikes’ legislation, made a formal complaint to Radio New Zealand Ltd, the broadcaster, alleging the item was unbalanced because it omitted viewpoints in favour of the ‘three strikes’ law. In addition, he argued that the presenter and participants made statements that were inaccurate, misleading, unfair and irresponsible.
 RNZ upheld part of the complaint, finding that the presenter’s introductory statement there was “no possibility of parole” for offenders on their third strike (see paragraph ) was inaccurate because the legislation contained an exception where the sentence was found to be “manifestly unjust”. The broadcaster apologised to the complainant and said a clarification had been added to the description of the interview on its website.
 Mr Garrett appeared to accept the upheld aspect of his complaint, and referred the remaining aspects to this Authority.
 The focus of our determination therefore is whether the broadcast breached the controversial issues and accuracy standards, as set out in the Radio Code of Broadcasting Practice. These are the standards most relevant to the complaint. Mr Garrett also raised other standards which we have briefly addressed at paragraph  below.
 The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
Nature of the item and freedom of expression
 Nine to Noon is a news, current affairs and lifestyle programme. The item subject to complaint contained a discussion of the operation and perceived effectiveness of the ‘three strikes’ law today, three years after its enactment. It was introduced by the presenter as follows:
Twenty offenders are now on their second strike under the ‘three strikes’ legislation, but are they the serious criminals that the law was meant to target? Under the law, the next time they offend, they’ll receive the maximum prison penalty with no possibility of parole. The ‘three strikes’ law was introduced in 2012… amid strong opposition and claims it would clog up prisons and lead to offenders facing their third strike and having nothing to lose and committing an even worse crime.
 The presenter discussed the law with two participants – a Professor of Criminology who held views publicly opposing the ‘three strikes’ law, and the lawyer of an offender on his second strike.
 We recognise and accept RNZ’s argument that the item reviewed a contentious piece of legislation, and included political commentary which is one of the highest forms of speech requiring protection in our free and democratic society.
 This value must be weighed against the level of harm alleged to have been caused by the broadcast, in terms of the underlying objectives of the relevant broadcasting standards.1 Here, the complainant argued that the programme omitted viewpoints in favour of the ‘three strikes’ law, meaning listeners were unable to arrive at an informed and reasoned opinion of the law and its effectiveness.
Did the broadcaster provide sufficient balance?
 The balance standard (Standard 4) 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 balance standard exists to ensure that competing arguments are presented to enable a viewer to arrive at an informed and reasoned opinion.2
 A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The standard applies only to news, current affairs and factual programmes which discuss a controversial issue of public importance. The subject matter must be an issue “of public importance”, it must be “controversial”, and it must be “discussed”.3
 The primary issues for our determination are:
- Did the item discuss a controversial issue of public importance?
- Was the item unbalanced?
- Did the broadcaster make reasonable efforts or give reasonable opportunities to provide balance in the programme or in other programmes within the period of current interest?
Did the item discuss a controversial issue of public importance?
 The Authority has typically defined an issue of public importance as something that would have a “significant potential impact on, or be of concern to, members of the New Zealand public.4 A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.5
 The focus of the discussion, that is, the ‘three strikes’ legislation and its perceived effectiveness three years on, is something that would be of concern to members of the New Zealand public. The law generated considerable controversy at the time it was passed in 2010 and, as demonstrated by the broadcast and the complaint, it continues to attract strong conflicting opinions and debate. We are therefore satisfied that the item discussed a controversial issue of public importance to which the balance standard applied.
Was the item unbalanced?
 The next issue is whether the item contained sufficient balancing comment to enable listeners to reach an informed and reasoned opinion on the issue under discussion.
 Mr Garrett argued that the Professor, and to a lesser extent the lawyer, made inaccurate and misleading statements that went unchallenged by the presenter. In particular, he referred to the Professor’s comment the law had no deterrent effect, and statements comparing the ‘three strikes’ legislation in New Zealand and California. He also referred to the repeated reference to “schoolyard bully” to describe the lawyer’s client, and the alleged biased characterisation of his offending.
 As outlined at paragraph , the item was introduced by reference to the controversy surrounding the enactment of the ‘three strikes’ law, and by asking whether it was targeting “serious criminals” as intended. In this respect, we think listeners would have anticipated an informative discussion of the pros and cons of the legislation; the framing of the item in this manner created an expectation of a balanced debate. What followed, however, was a 20-minute discussion involving views that were highly critical of the law and its perceived effectiveness today. For example, it included the following comments:
- “There is no evidence whatsoever to suggest that it is having any deterrent effects, as far as I’m aware… all the evidence suggests it simply doesn’t work. I mean that was well known at the time, nothing new about that.” (Professor)
- “People don’t learn, because we know overseas people get repeated strikes… I am not sure clients are concerned with penal policy perhaps as much as we three are.” (lawyer)
- “I think that when you wrap it up in this magic, that you think there’s a magic bullet that’s going to solve everything, I think that’s fool’s gold”. (lawyer)
- “…but the fact that we treat a schoolyard bully in the same way when it comes to strikes could be a little unfair, and the essence of the unfairness is that you are not assessing the individual circumstances of the case. There is no judgement being applied, it is an arbitrary fixed rule.” (lawyer)
- “I just think that in its present guise it’s a little bit unfair and unjust, and unjust isn’t just about whether someone’s falsely convicted... part of justice is having a punishment that is commensurate with the crime”. (lawyer)
- “There is a fiscal consequence of locking people up for a long time…” (lawyer)
- “There was the premise… if this was brought in then when it came to the third crime [offenders] could well go to the extreme because they know what the consequences are, whether they really hurt somebody, whether they kill somebody, whether they steal somebody’s cell phone…” (presenter)
 The offender on his second strike and client of the lawyer was referred to throughout the discussion and was used as an example of the type of people targeted by the law, without balancing comment to challenge this. For example:
- “I think one of the fundamental cornerstones of western justice… is that punishment should be proportionate to the crime committed… now this particular case – this young man, obviously very unpleasant… a schoolyard bully and so on and so forth, but if he commits another one of these crimes… then he will face 14 years’ imprisonment for stealing things like skateboards and kicking someone in the shins… completely out of proportion to the usual sentencing process”. (Professor)
- “What we’re saying under this law is that the schoolyard bully who kicks someone in the shins and steals their skateboard is the more serious criminal, and that’s palpable nonsense”. (Professor)
- “I can’t help wondering whether it is going to take the conviction of someone like [name] … for this situation to resonate with people”. (presenter)
 The picture painted by these comments, which were not the only criticisms put forward in the discussion, was very negative. Given the participants’ strongly held views that the law operated in a way that was unjust and unfair and out of proportion to the crime committed, there was a clear requirement of the broadcaster to ensure the discussion was balanced.
 The Authority has said in previous decisions that balance need not be achieved by the “stopwatch”, meaning that the time given to each competing party or viewpoint does not have to be mathematically balanced.6 Significant points of view can be provided in a variety of ways in addition to alternative perspectives presented first-hand, including the use of “devil’s advocate” questioning,7 or by acknowledging the existence of other significant perspectives.8
 RNZ argued that the presenter took the position of “devil’s advocate” which it considered sufficient to indicate the existence of other significant viewpoints.
 We disagree. The presenter made two brief comments which injected minimal balance, as follows:
- “It is understandable, isn’t it, that people are concerned about repeat offenders and are seeking some way of stopping this happening?”
- “From the victim’s perspective, I think it needs to be said, that there may be many people who have been attacked in any of these various forms… who take comfort from this legislation, when it was passed, took comfort and hope from it, and that’s perhaps something that we haven’t canvassed yet.”
 The presenter also read out a text which said, “You do the crime then you do the time… it’s that simple, and having been on the receiving end… ‘three strikes’ makes a truck-load of sense and works for me and my family.” The presenter commented, “There will be some very strong views on this.” It was noted that the Justice Minster was invited to take part in the discussion but was unavailable, and the presenter read her brief statement which said, “The legislation is working well and as intended. The Government has no plans to change it.”
 These comments were, in our view, insufficient to provide balance on the topic under discussion, especially considering the broadcast involved two people who strongly opposed the law. In addition, the presenter appeared to largely adopt the position of the interviewees without any real challenge.
 Accordingly, we find that the programme did not include sufficient balance on the issue under discussion.
Did the broadcaster make reasonable efforts or give reasonable opportunities to provide balance in the programme or in other programmes within the period of current interest?
 Having found that the item contained a discussion of a controversial issue of public importance and that the item did not contain sufficient balance to ensure listeners were properly informed, the next question is whether RNZ made reasonable efforts to provide balance in the programme or in other programmes within the period of current interest.
 Mr Garrett argued that RNZ should have sought his input as the author of the legislation, or comment from “some other person who could talk sensibly about it”.
 RNZ said it invited the Justice Minister to take part in the discussion, and stated, “it is regrettable the minister currently responsible for this legislation chose not to partake in the programme, but rather forwarded a written statement, which was referred to in the interview…” The broadcaster said it was “difficult to obtain another government spokesperson to speak to this government legislation”.
 We asked RNZ for further information, including what, if any, efforts were made to obtain comment from another government spokesperson. RNZ responded, “when the Minister declined to participate the programme took the decision that as only the Minister would have been able to give the government’s perspective there was no one else to go to”. RNZ concluded that the two participants were sufficient.
 We also asked RNZ if any other programmes around the time of the broadcast canvassed the issue, and were advised that, “There have not been any further developments in the ‘three strikes’ issue since the May 29 story so there has been no more coverage that we are aware of.”
 Overall, we are not satisfied with the adequacy of RNZ’s efforts. As the Justice Minister was not available and provided only a very brief statement, there was an obligation on the broadcaster to either seek comment from another source, or to ensure balance was provided by the presenter. For the reasons expressed above, we do not think the presenter fulfilled this role adequately. There was no need to seek the government’s perspective exclusively. There were plenty of people from whom the broadcaster could have sought comment, most obviously, it could have approached the ACT party (which introduced the legislation), or alternatively, a representative from the Sensible Sentencing Trust – and in fact both ACT and the Sensible Sentencing Trust publicise their views on their websites, so those views were available for inclusion in the broadcast, even if not directly from a spokesperson.9
 Accordingly, we find that the broadcaster did not make reasonable efforts or give reasonable opportunities to provide balance in the programme. Nor do we have any evidence that balance was provided in other programmes within the period of current interest.
 As noted above, we accept the discussion contained high value speech. However, we disagree with RNZ’s argument that upholding the complaint would have a “chilling effect on both individuals’ and broadcasters’ rights to free speech which would be totally disproportionate to any detrimental effect that the comments may have had”. The requirement to include alternative viewpoints enhances, rather than hinders, free speech values. The programme’s failure to provide listeners with a significant perspective critical to their understanding of the issues meant they were unable to arrive at an informed and reasoned opinion on the ‘three strikes’ legislation and its effectiveness.
 Accordingly, we uphold the Standard 4 complaint.
Was the broadcast inaccurate or misleading?
 The accuracy standard (Standard 5) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead. The objective of this standard is to protect audiences from receiving misinformation and thereby being misled.10
 Mr Garrett argued that the following aspects of the broadcast were inaccurate and misleading:
- The Professor’s statement that ACT was in favour of “hyperinflation” when it came to imprisonment.
- The lawyer’s statement the law was not a “magic bullet” (Mr Garrett mistakenly attributed the comment to the Professor).
- The Professor’s statement that crime levels were decreasing in New Zealand at the time the law was passed.
- The Professor’s statement that evidence suggested the law was not a successful deterrent.
- Statements made by the Professor and the presenter regarding the similarity between the ‘three strikes’ legislation in New Zealand and California.
- Statements made by the presenter and participants about the nature of offences committed by the lawyer’s client, and the failure to refer to the “savagery” of his first strike offence.
- The use of the offender’s first name, which Mr Garrett considered portrayed him as a “hapless boy fallen foul of draconian law” when in fact he was a “violent thug” with many convictions.
 RNZ argued that these statements amounted to the presenter’s and the participants’ commentary and opinions and were therefore exempt from the requirement to be factually accurate, in accordance with guideline 5a. Guideline 5a states that the standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion.
 We accept that most of these statements were opinion and would have been interpreted this way by listeners, and we consider that the complainant’s concerns about the one-sided nature of their opinions have been adequately addressed under the balance standard. However, there are two aspects of the broadcast identified by the complaint which we find were misleading.
 The first was the comparisons made in the item between the ‘three strikes’ legislation in New Zealand and California. The item contained the following statements:
- “It brings the criminal justice system into disrepute. As has happened in overseas countries where they have had similar laws – the famous case in California where someone got 25 years for stealing a slice of pizza, of course it was his third strike offence…” (Professor)
- “In California they brought this kind of ‘three strikes’ legislation in, in 1994. Last year they started to back away from it, didn’t they? What does that tell you?” (presenter)
- “One of the things they found in California also was that these life sentences were disproportionately doled out in their case to black defendants. You know, that it was entirely unfair and a very blunt instrument, and that’s a concern, we know the makeup of the prison population in New Zealand.” (presenter)
- “Yes of course, so when you start examining the effects of these magical solutions to crime in some detail and put them under the microscope, you begin to see that the magic is flawed indeed and has very undesirable consequences.” (Professor)
 Mr Garrett asserted that New Zealand’s ‘three strikes’ law had little in common with the ‘three strikes’ law in California, and he outlined some of the major differences between the laws. He said that California had revised its law to make it more like New Zealand’s ‘three strikes’ law, and had not started to “back away”, as stated in the broadcast.
 We consider that comparing the legislation in this manner, without any countering views, and in particular, the presenter’s unequivocal statement that California had started to “back away” from the legislation, would have misled listeners as to the nature of New Zealand’s ‘three strikes’ law and any comparison with California.
 The second aspect of the item which we find misleading was the way the lawyer’s client was portrayed and used an example of the type of criminals targeted by the law. Mr Garrett argued that the item failed to refer to the “savagery” of his offending, and said listeners were misled as to the nature of this offender and the offences he committed. He noted that the man’s first strike offence consisted of two separate incidents involving two different victims, one of whom was robbed and rendered unconscious with his teeth kicked out.
 The item contained the following comments:
- “One of those charged with aggravated robbery was [name]… He got his second strike for taking a skateboard, hat and cigarette lighter from his victim, and in another case kicking a person in the leg and stealing that person’s hat and cell-phone. He was sentenced to two years in prison…” (presenter)
- “His lawyer… says that while his client was a repeat offender, he is not a huge danger to society.” (presenter)
- “If [name] commits another of these crimes… then he will face 14 years’ imprisonment… for stealing things like skateboards and kicking someone in the shins.” (Professor)
- “Can I just make the point… it is not trivial to the sons and daughters of us who have got their nose bloodied and their skateboard stolen, because it is pretty offensive when it happens…” (lawyer)
 In addition, the presenter and participants used the term “schoolyard bully” as an indirect, and at times direct, reference to the offender (see paragraph ).
 These comments were misleading because they misrepresented this offender and minimised the seriousness of his offending. The repeated references to the theft of a skateboard, hat and cigarette lighter, and the failure to acknowledge the violent nature of the crimes, created the impression for listeners that the legislation operated in a way that was unfair and unjust by targeting the wrong people.
 In determining whether the broadcaster made reasonable efforts to ensure the programme did not mislead, we consider that any misleading impression created would likely have been remedied by the inclusion of another perspective or balancing comment. Listeners would then have been given a full picture and been in a position to form their own views, so they would not have been misled.
 We therefore find that the broadcaster did not fulfil its obligations in this respect, and we uphold the complaint as a breach of Standard 5.
Conclusion on balance and accuracy
 We have found that the broadcast did not contain sufficient balancing comment to enable listeners to arrive at an informed and reasoned opinion about the ‘three strikes’ law and whether it was operating as intended. The programme omitted any alternative voice to counteract the one-sided statements made by the panellists, and the presenter failed to adequately challenge those statements. Compounding this, the panellists also made statements which created a misleading impression in the absence of any balancing comment. We are satisfied that the potential harm caused in terms of the underlying objectives of Standards 4 and 5 (see paragraphs  and ) outweighed the broadcaster’s right to freedom of expression and to present the programme in the way it wanted, and that upholding the complaint is reasonable and justifiable in all the circumstances.
Did the broadcast breach the other standards raised in the complaint?
 Mr Garrett also raised the fairness and responsible programming standards. In summary, these standards were not breached because:
- The fairness standard only applies to individuals and organisations taking part or referred to in broadcasts, and the complainant did not specify who he considered was treated unfairly (Standard 6).
- The content and complaint do not raise any issues of responsible programming as envisaged by that standard, and the complainant’s concerns are better addressed under the controversial issues and accuracy standards (Standard 8).
 Accordingly, we decline to uphold the complaint that these standards were breached.
For the above reasons the Authority upholds the complaint that the broadcast by Radio New Zealand Ltd of an item on Nine to Noon on 29 May 2013 breached Standards 4 and 5 of the Radio Code of Broadcasting Practice.
 Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.
 Mr Garrett submitted that RNZ should broadcast a statement at the start of Nine to Noon and publish it on its website. He suggested wording for the statement. As RNZ is a Crown entity, he considered that ordering costs to the Crown was “pointless”.
 RNZ argued that it would be an unjustifiable limit on freedom of expression to order a broadcast statement, but agreed it would be appropriate to publish a statement on its website alongside the audio of the interview which was still available online.
Authority’s decision on orders
 We have considered the submissions on orders, and reached the view that in all the circumstances publication of our decision is sufficient to alert the public to the breach, and to correct any misleading impression created. However we agree that RNZ’s website should contain either a statement or a link to this decision, alongside the audio for as long as it is available online.
 Costs to the Crown are in essence a fine, designed to mark a serious departure from broadcasting standards – regardless of the nature of the broadcaster. An order of this type also sends a message to other broadcasters. Nevertheless we do not think costs to the Crown are warranted here, having regard to previous cases, and to RNZ’s offer to draw attention to the decision on its website alongside the broadcast.
Signed for and on behalf of the Authority
19 November 2013
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 David Garrett’s formal complaint emails – 30 and 31 May 2013
2 RNZ’s response to the complaint – 24 June 2013
3 Mr Garrett’s referral to the Authority – 4 July 2013
4 RNZ’s response to the Authority – 29 July 2013
5 RNZ’s responses to Authority’s requests for further information – 3 and 19 September 2013
6 Mr Garrett’s submissions on provisional decision and orders – 9 October 2013
7 RNZ’s submissions on provisional decision and orders – 16 October 2013
1See sections 5 and 14 of the New Zealand Bill of Rights Act 1990.
2Commerce Commission and TVWorks Ltd, Decision No. 2008-014
3For further discussion of these concepts see Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Television (Broadcasting Standards Authority, June 2010) and Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Radio (Broadcasting Standards Authority, June 2009).
4Powell and CanWest TVWorks Ltd, Decision No. 2005-125
5See, for example, Dewe and TVWorks Ltd, Decision No. 2008-076.
6See, for example, New Zealand Defence Force and Television New Zealand Ltd, Decision No. 2010-121, and New Zealand Food and Grocery Council Incorporated and TVWorks Ltd, Decision No. 2007-126.
7See, for example, Boyce and Radio New Zealand Ltd, Decision No. 2011-163, Signer and Bailey and Radio New Zealand Ltd, Decision No. 2011-111, and Brooking and Television New Zealand Ltd, Decision No. 2009-012.
8See, for example, Butler et al and Television New Zealand Ltd, Decision No. 2009-063
10Bush and Television New Zealand Ltd, Decision No. 2010-036