BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

A ONE News item reported on a protest organised by the Sensible Sentencing Trust, which carried a petition in the name of a deceased child, demanding changes to the rules around plea bargaining. The reporter stated, ‘the protestors chose disgraced ex-MP David Garrett to deliver that message to MPs... Garrett resigned from Parliament six years ago for stealing the identity of a dead infant...’ The Authority did not uphold Mr Garrett’s complaint that this statement was misleading, as it implied the incident being referred to occurred six years ago, as well as being unbalanced and unfair to him. The Authority found the comment was not misleading, but emphasised that Mr Garrett’s resignation occurred six years ago, which was correct. The Authority acknowledged that individuals ought to be entitled to move on with their lives without past indiscretions remaining the subject of media attention, but found that the reference to Mr Garrett’s history was an inevitable consequence of his decision to participate in a material way in this particular public protest. As Mr Garrett’s involvement in the protest was not the focus of the item, his view or other balancing material was not required.

Not Upheld: Accuracy, Fairness, Balance

Introduction

[1]  An item on ONE News reported on a protest march to Parliament, organised by the Sensible Sentencing Trust (the Trust), which carried a petition in the name of deceased three-year-old Moko Rangitoheriri demanding changes to the rules around plea bargaining. During the item the reporter stated:

...but the protestors chose disgraced ex-MP David Garrett to deliver that message to MPs... Garrett resigned from Parliament six years ago for stealing the identity of a dead infant to get a passport.

[2]  David Garrett complained that the reporter’s comments were misleading, unbalanced and unfair to him as ‘[his] disgrace of six years ago has once again been plastered across the screen’. He argued the comments implied that the incident in question had occurred six years ago (rather than 27 years before that), and his view on his involvement in the protest was not sought or presented.

[3]  The issue is whether the item breached the accuracy, fairness and balance standards of the Free-to-Air Television Code of Broadcasting Practice.

[4]  The item was broadcast during the 6pm news on TV ONE, on 15 September 2016. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Background

[5]  In August 2015 a three-year-old child Moko Rangitoheriri died as a result of the abuse he had suffered at the hands of his caregivers. Subsequently, his caregivers were charged with his murder but those charges were resolved by the caregivers pleading guilty to the lesser charge of manslaughter. They were sentenced to imprisonment with the penalty having been assessed on the basis of the manslaughter convictions. This outcome resulted in widespread concern about the process and about the adequacy of the penalties which the caregivers were given.

[6]  The Sensible Sentencing Trust is a charitable trust, one of the principal functions of which is political lobbying directed at enhancing law and order and the protection of society through heavier custodial sentences.¹ The Trust took up an advocacy position in relation to what it considered were the inadequate penal outcomes in the case of Moko. The Trust, which has a high profile in public life, organised for there to be a protest march to Parliament on 15 September 2016. The marchers carried placards and they carried a petition to present to Parliament seeking, among other things, heavier penalties in cases such as the Moko case. For dramatic effect the Trust put its petition into a child’s coffin and this coffin was carried by the marchers to be presented to Parliament.

[7]  The Trust naturally sought publicity and, naturally, publicity was attracted to the march and the petition. The march became the subject of news coverage by print and broadcasting media including a reporter and camera person for ONE News.

[8]  David Garrett, the complainant, is a lawyer and a former Member of Parliament. He entered Parliament as a list MP for ACT New Zealand in 2008 and was that Party’s spokesman on law and order. On 23 September 2010 Mr Garrett resigned from Parliament in very unusual circumstances. It turned out that some 27 years previously, in 1984, Mr Garrett had allegedly fraudulently obtained a passport in the name of a dead infant. It appears that he did this by a method made known in a novel, The Day of the Jackal. It also appears that the passport was never used. Mr Garrett faced a criminal charge in relation to the passport but was discharged without conviction. However the revelation of this matter and the inconsistency of Mr Garrett’s political position in relation to law and order with what he himself had done affected his career and his health.

[9]  In recent years Mr Garrett has again taken up a public position as a proponent of law and order and heavy sentences particularly for those persons convicted of crimes of violence.

The programme

[10]  It was against that background that Mr Garrett, towards the end of the march, was holding the coffin containing the petition and preparing to deliver it to Parliament. The broadcaster’s reporter and camera person were present at this point towards the end of the march. Some petitioners and others spoke to the reporter. Then there was some milling about when Mr Garrett was still holding the coffin. Mr Garrett could be heard making a comment to the effect that perhaps he was not the right person to be holding the child’s coffin. In the item he can be seen handing the coffin to another person. He subsequently delivered a public speech on the issues, some of which was included in the item. In the broadcast, as part of ONE News the reporter stated:

...but the protestors chose disgraced ex-MP David Garrett to deliver that message to MPs... Garrett resigned from Parliament six years ago for stealing the identity of a dead infant to get a passport.

The complaint

[11]  Mr Garrett has complained that the comments of the reporter were misleading, unbalanced and unfair to him. He considered that the events of six years ago should not have been revived. He complained that the comments of the reporter implied that the incident in question had occurred six years ago, rather than 27 years before that. He also complained that his view on his involvement in the protest was not sought or presented.

The broadcaster’s response

[12]  TVNZ maintained that the item did not breach broadcasting standards. It argued the reporter made straightforward, factual statements about Mr Garrett that carried no implication that the alleged identity theft occurred while Mr Garrett was an MP. TVNZ considered that, as the incident was well known, it was reasonable to expect viewers to be aware of Mr Garrett’s history. In this context, and given the item’s focus on the Trust’s protest about plea bargaining, TVNZ submitted that balancing material or comment from Mr Garrett was not required.

Was the broadcast inaccurate or misleading?

[13]  We deal first with the complaint that the broadcast was inaccurate or misleading on the basis that it implied that the event in relation to the passport had taken place nearly six years earlier. The accuracy standard (Standard 9) 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 being significantly misinformed.

[14]  In our view it is obvious that the reporter did not intend to say that the so-called theft of the identity of a dead infant had happened six years ago. It is well known that it happened a very long time ago but that its consequences came to bear six years previously. While there may be some ambiguity in what was said we understood the words as placing emphasis on the resignation having taken place six years earlier. We acknowledge that news broadcasts need to use succinct language and that abbreviation can cause uncertainties but this is the price we pay for having to receive news in short easily absorbed clips.

[15]  Accordingly we do not uphold the accuracy complaint.

Was any individual or organisation taking part or referred to in the broadcast treated unfairly?

[16]  The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.²

[17]  We do not see any merit in Mr Garrett’s complaint that as a matter of fairness he ought to have been given an opportunity to explain his involvement in the protest before the comment about his involvement was broadcast. Mr Garrett chose to put himself in this public position and we do not think it is realistic to expect reporters to obtain comments from protest participants before making comments of the kind that were made about him.

[18]  We have thought very carefully about Mr Garrett’s complaint that his history was unfairly and unnecessarily revived by the reporter when she referred to his resignation from Parliament and the reasons for it.

[19]  There usually comes a point when, in fairness, a person’s past should be left in the past, and where that person should be allowed to get on with his or her life without having their life hurt by the revival of past events. The time between a damaging event and the bringing down of the curtain of peace and privacy will vary from case to case. There may be some situations where the curtain will never fall, but there may be others where it falls relatively soon after the adverse event. There will be many factors which will influence the time required. The nature of the offence or event, the subsequent conduct and the position which the person seeking privacy takes, will all be important factors.

[20]  It is desirable in society that those who have done wrong should, where possible, be allowed to rehabilitate themselves and be seen as worthwhile members of society. In the case of an Australian lawyer who had offended and who sought nevertheless to have a future life as a lawyer, a very senior Australian Judge, Justice Michael Kirby, who was then the President of the Court of Appeal of New South Wales, said this:³

For cultural and historical reasons, redemption and forgiveness are important attributes of the shared morality of our society. In part, this is because of the teachings of religious leaders who have profoundly influenced our community’s perception of justice and fairness, reflected from earliest times in the courts: see, eg, St Matthews Gospel 18, 11ff; The Acts, 3, 19. In part, it derives from the self-interest which any community has to encourage the rehabilitation of those who lapse and to hold out to them the hope that, by diligent and honourable efforts over a period, their past may be forgiven and they may be restored to the good opinion of their family, friends, colleagues and society. The public’s interest also includes the economic interest which is involved in utilising, to the full, the skills of talented people that have undergone years of rigorous training but who, having misconducted themselves, have had to be removed for a time from positions of responsibility and trust.

[21]  Mr Garrett by his complaint considers that he is entitled to be seen as a person who has redeemed himself and who ought not to have had his position in relation to the protest discredited by his past having been revived.

[22]  In his complaint Mr Garrett states, and we are willing to accept, that he has made considerable efforts to redeem himself and that his fall from grace and excoriation by the media at that time and since have caused his health to suffer. In his complaint Mr Garrett also states, and we willingly accept, that the work he does for the Trust is pro bono work and that it is being done as part of a small legal practice.

[23]  As we have discussed earlier, there was the curious event which was recorded in the broadcast. It showed Mr Garrett with the coffin looking to pass it on to somebody else while saying, ‘Actually I’m the wrong person to be holding this’. That comment would appear to suggest that Mr Garrett saw the incongruity and danger in his holding a child’s coffin given his allegedly having taken the identity of a deceased child many years earlier. We think that the comment probably reflected the anxieties and mixed feelings that Mr Garrett was experiencing. He saw the danger that was going to come upon him as it did.

[24]  The question is whether Mr Garrett was entitled to protection from that danger and indeed to protection from himself. We have been driven to the conclusion that what happened to Mr Garrett was an almost inevitable consequence of the choices he made in participating in the protest and in particular in carrying a child’s coffin.

[25]  We therefore find, after careful consideration, that the revival by the broadcaster of Mr Garrett’s past was not unfair such that a breach of broadcasting standards occurred. We understand and sympathise with Mr Garrett’s desire that his indiscretion of 27 years earlier, uncovered six years ago, be not slapped in his face. Some, benevolent in the media, may have given him that indulgence. However, those who seek to have past indiscretions shrouded in the mists of time should not venture into areas where the storms of public controversy may blast those mists away.

[26]  For these reasons, we do not uphold the fairness complaint.

Did the item discuss a controversial issue of public importance which required the presentation of alternative viewpoints?

[27]  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 standard exists to ensure that competing arguments about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.

[28]  A controversial 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. A controversial issue is one that has topical currency and excites conflicting opinion, or about which there has been ongoing public debate.⁴

[29]  We do not consider the reference to Mr Garrett’s involvement in the protest and his history amounted to a discussion of a controversial issue of public importance which triggered the application of this standard.

[30]  While the background to Mr Garrett’s resignation from Parliament may have been considered controversial, this was not the focus of the item. The item was a straightforward news report about the Trust’s protest on the use of plea bargaining in murder cases. In this context, the reporter’s reference to Mr Garrett was an aside to the main issue discussed. The broadcaster was therefore not obliged to seek Mr Garrett’s view, or present alternative perspectives, on his involvement in the protest.

[31]  For these reasons, we do not uphold the balance complaint.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
10 February 2017

Appendix

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

1      David Garrett’s formal complaint – 19 September 2016
2      TVNZ’s response to the complaint – 19 October 2016
3      Mr Garrett’s referral to the Authority – 3 November 2016
4      TVNZ’s response to the Authority – 7 December 2016

¹  http://sst.org.nz/

²  Commerce Commission and TVWorks Ltd, Decision No. 2008-014

³  Law Society of NSW v Foreman 34 NSWLR 408; 419

⁴ Commentary: Balance standard, Broadcasting Standards in New Zealand Codebook at page 18.