BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Authority did not uphold a complaint that a segment on Morning Report about the release of the Department of Corrections’ strategy ‘Hōkai Rangi’, aimed at reducing the proportion of Māori in prisons, breached the balance standard. The broadcast included a pre-recorded interview with Corrections Minister, Hon Kelvin Davis, followed by a discussion between host Susie Ferguson and guests Sir Kim Workman and Julia Whaipooti about the issues for Māori in the corrections system and whether the strategy would help to address these. The following morning, the National Party’s Corrections spokesperson David Bennett was interviewed on Morning Report about why the National Party was critical of the strategy. The complaint was that the interview with Sir Kim and Ms Whaipooti was unbalanced and one-sided. The Authority found that sufficient balance was achieved taking into account: the signalled approach of the discussion with these two individuals (which focused on the perspectives of people with expertise in justice reform and Māori experiences in the corrections system); the follow up interview with Mr Bennett who gave an alternative perspective; and significant media coverage of the issue within the period of current interest, which enabled the audience to arrive at an informed and reasoned opinion on the strategy.

Not Upheld: Balance

The broadcast

[1]  RNZ’s Morning Report programme of 19 August 2019 featured a segment about ‘Hōkai Rangi’, a five-year strategy announced by the Department of Corrections aimed at reducing the proportion of Māori in the corrections system.¹ Host Corin Dann reported on some of the key changes planned in the strategy, before a pre-recorded interview with Corrections Minister Hon Kelvin Davis about the rates of Māori incarceration and the rationale behind the strategy. This was followed by a discussion between host Susie Ferguson, ‘justice reform advocate’ Sir Kim Workman and Julia Whaipooti, a member of the Justice Advisory Group. The discussion focused on the merits of Hōkai Rangi and whether it would be successful.

[2]  The following morning on 20 August 2019, Morning Report reported that the National Party was critical of the strategy, and an interview was broadcast with the National Party’s Corrections spokesperson, MP David Bennett.

[3]  In considering this complaint, we have listened to a recording of the broadcast complained about as well as the follow-up item, and we have read the correspondence listed in the Appendix.

The complaint

[4]  David Garrett complained to RNZ that the broadcast, and in particular the discussion with Sir Kim and Ms Whaipooti, breached the balance standard of the Radio Code of Broadcasting Practice, saying:

• The segment discussed a controversial issue of public importance.
• Other broadcasters ‘recognised both the importance and controversial nature of the proposed new prison program’ and broadcast comment from a National Party MP to balance the views of Sir Kim.
• One of the country’s leading criminologists was ‘scathing of this “new” approach [Hōkai Rangi], noting that it has all been tried before with a notable lack of success’. Either his views or similar views should have been included in the broadcast.
• The broadcast featured interviews ‘with two persons who are strongly in favour of “therapeutic” approaches to penal policy, particularly with regard to Māori offenders’ and it gave no alternative points of view.
• A similar programme was launched in the 1990s and it was a ‘complete disaster’ that failed to reduce Māori offending rates. This was not mentioned in the broadcast.
• Numerous questions (listed by Mr Garrett) regarding this earlier programme and its effectiveness should have been asked during the broadcast to better inform listeners.

The broadcaster’s response

[5]  RNZ responded that the broadcast did not breach the balance standard for the following reasons:

• Not all views need be aired at once for balance to be achieved. 
• The Department of Corrections’ announcement was embargoed until the morning of 19 August 2019 (the day of the broadcast), which ‘presented difficulties in approaching a number of people for comment immediately on the topic as they may well have not seen the report.’ 
• ‘In any event, the National Party’s spokesperson on Corrections, Mr David Bennett, was interviewed the next day and he provided a number of critical comments in relation to the proposed strategy’.

The relevant standard

[6]  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. Ultimately, the objective is to ensure broadcasters enable their audiences to arrive at an informed and reasoned opinion in relation to controversial issues (which is important to the operation of an open and democratic society).²

Our analysis

Freedom of expression and public interest

[7]  The right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, is the starting point in our consideration of complaints. Our task is to first consider the value and level of public interest in the broadcast complained about, recognising the importance of the right to freedom of expression. We then have to weigh that value against the level of actual or potential harm that may be caused by the broadcast, having regard to the issues raised in the complaint. We may only interfere and uphold a complaint where limiting the right to freedom of expression is reasonable and justified.

[8]  Looking first at the value of the broadcast complained about, the members of the Authority all agreed that this item carried high value and legitimate public interest. Issues surrounding the Justice system and the experience of Māori within the system are of public importance. The media plays a vital role in encouraging open and informed discourse about such issues. This means that in order for us to interfere and find a breach of broadcasting standards, we would need to find a correspondingly high level of actual or potential harm was caused by the broadcast.

[9]  The harm alleged in this case is that the broadcaster did not enable the audience to reach an informed view on the new Corrections strategy as it omitted other significant countering perspectives on the topic being discussed. We assessed this alleged harm against the requirements of the balance standard.

Balance

[10]  A number of criteria must be satisfied before the requirement under the balance standard 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

[11]  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

[12]  There is no question that Morning Report is a news and current affairs programme. We also consider the introduction of the Hōkai Rangi strategy, and the wider issue of overrepresentation of Māori in the corrections system which that strategy sets out to address, are controversial issues of public importance for the purposes of the balance standard.

[13]  The question for us then in this case was whether the broadcaster made reasonable efforts, or gave reasonable opportunities, to present significant viewpoints on the issue discussed, either within the Morning Report broadcast on 19 August 2019, or within the period of current interest for this issue. We concluded that the broadcaster did this sufficiently to satisfy the requirements of the balance standard.

[14]  Looking first at the broadcast complained about, we note it featured comment from the Minister of Corrections, Hon Kelvin Davis, who framed the rationale behind the strategy, its goal and its key components. This was followed by a discussion between Sir Kim and Ms Whaipooti, both of whom have expertise in the areas of transformational justice and Māori experiences within the corrections system. It was this section of the broadcast in particular that Mr Garrett was concerned with.

[15]  It was signalled in the broadcast that this particular discussion led by Ms Ferguson would focus on the perspectives of people who are in favour of significant reform and change, and who have knowledge and expertise in this area. Both guests were introduced as being involved in justice reform with Sir Kim being referred to as a ‘justice reform advocate’, and Ms Whaipooti as a ‘member of the Justice Advisory Group’.

[16]  While we recognise that both guests were largely in favour of reform, both Sir Kim and Ms Whaipooti were hesitant about aspects of Hōkai Rangi, noting that its success would be determined by its implementation and also discussing the need for a cultural change and increase in cultural expertise within the Corrections system.

[17]  In this context, we found Ms Ferguson’s questioning was sufficient to challenge whether Hōkai Rangi is radical enough to address issues surrounding Māori experiences in the corrections system, as well as to acknowledge an alternative perspective. For example, she put to the guests:

• ‘Is this [Hōkai Rangi] brave enough?’
• ‘Is it [Hōkai Rangi] radical and is it doable?’
• Is this [Hōkai Rangi] something that should be supported across society, across politics, because I guess there will be a lot of people in the National Party that this may not sit comfortably with?’

[18]  The balance standard does not require that every possible view on a controversial issue be explored within one item. The standard clearly allows for balance to be achieved over time ‘within the period of current interest’. The standard also clearly recognises that balance is not achieved by a ‘stopwatch’; in other words, alternative perspectives do not have to be given equal broadcast time to satisfy the requirements of the standard.

[19]  RNZ broadcast an interview with the National Party’s Corrections spokesperson, Mr Bennett, the following day on Morning Report. While Mr Garrett was not satisfied with the shorter length of this piece compared to the discussion on 19 August 2019, Mr Bennett made numerous comments that were critical of the strategy, giving a different point of view from both Sir Kim and Ms Whaipooti for listeners to consider. For example, Mr Bennett said:

• ‘I don’t think it’s [Hōkai Rangi] going to work…’
• ‘They’re talking about trying to reduce it [Māori prison population] by 3500 in the next five years but they haven’t put the resources in there to actually do that if that’s what they’re intending to do.’
• ‘It [Hōkai Rangi] really focusses just on prisoners’ day to day management and care and doesn’t really focus on getting them back into the community and jobs.’

[20]  This interview and RNZ’s further reporting of the issue were also available and easily accessible on its online news pages, along with significant coverage by other news outlets.⁶ There was a high level of public interest and media discourse relating to Hōkai Rangi upon its release and what effect, if any, it might have on the rate of Māori in the corrections system. A wide range of perspectives was available to the public and it was not necessary, in the interests of balance, for RNZ to interview the individual(s) Mr Garrett considered ought to be interviewed, or to ask the specific questions he wanted to be asked in the 19 August 2019 broadcast. The manner in which balance is achieved is an editorial decision for the broadcaster, so long as the requirements of the balance standard are met.

[21]  In these circumstances we find the broadcaster provided adequate balance on the issue and did not prevent the audience from being able to arrive at an informed and reasoned opinion.

[22]  Therefore 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

Judge Bill Hastings

Chair

4 February 2020

Appendix

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

1  David Garrett’s formal complaint – 22 August 2019

2  RNZ’s response to the complaint – 19 September 2019

3  Mr Garrett’s referral to the Authority – 26 September 2019

4  RNZ’s confirmation of no further comment – 10 October 2019

¹ Hokai Rangi – Ara Poutama Aotearoa Strategy 2019-2024 (Department of Corrections, August 2019)
² Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
³ Guideline 8a
⁴ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁵ As above
⁶ For example, ‘New Māori prison strategy revealed, pressure now on Corrections’ (RNZ, 19 August 2019), ‘Hōkai Rangi: 'We have to try and do things differently' - Jacinda Ardern (RNZ, 20 August 2020), ‘Common Sense needed in Corrections approach’ (Scoop, 19 August 2019), ‘Corrections' new strategy to break cycle of Māori imprisonment and reoffending’ (Stuff, 19 August 2019), ‘New Corrections plan for Māori “repeat of failed policies"’ (Scoop, 19 August 2019)