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 about questions asked of a New Zealander stranded in India following the Government’s suspension of travel. The complaint alleged the questions breached the law and order standard as they suggested numerous ways the interviewee could avoid the travel ban and illegally return home. The Authority found the questions did not actively encourage illegal activity nor actively undermine law and order, and there was a high public interest in the broadcast.  

Not Upheld: Law and Order

The broadcast

[1]  On 9 April 2021, The AM Show, broadcast on Three, reported on the Government’s suspension of all travel from India due to take effect from 11 April. Duncan Garner interviewed a New Zealander ‘stranded’ in India about their experience. The item concluded with the following:

Interviewee:     I don't know when I'm coming back…to New Zealand that's where my home is. But I'm totally lost.

Mr Garner:       Can you come [home] another way? Is there another route you could take? Is there any other way that you could make it here and make it home?

Interviewee:     No, not at all. Unless Australia allows me…But I don't think Australia would let me in.

Mr Garner        I wonder if you could get into Australia before it starts.

Interviewee:    No, because Australia has its own restrictions…and I'm not an Australian citizen.

Mr Garner:      What about America? Is there a way through America, South America somewhere? I'm trying to give you some options. You know, like the travel agent, ‘House of Travel, good morning,’ you know.

Interviewee:    I haven’t heard about it, like I said, it came as a shock. Duncan, I had my booking done…all they asked was, before I leave India, I need to get tested…and when I get there [to NZ], I have to do the quarantine…

The complaint

[2]  Rob Harris complained that Mr Garner’s questions to the interviewee breached the law and order standard as he ‘suggested numerous ways the interviewee could circumvent the regs and get home’:

• ‘It is one thing to explore what the interviewee has done to get home but to trot out 3 or 4 ways that she could dupe our health authorities is deserving of the strongest condemnation.’
• ‘As all propositions put to [the interviewee] involved breaking the law, I am at a loss to understand how breaking the law on a travel matter is any different to interviewing a mobster and putting forward ideas about money laundering.’
• The interviewee’s answers (ie, answering negatively to the suggestions) were ‘irrelevant’ and ‘it is fatuous to assume that [the interviewee] would do anything other than reply “no” as any other answer would lead to self-incrimination.’

The broadcaster’s response

[3]  Discovery did not uphold the complaint:

…the Broadcast did not promote or condone any illegal activity.  Mr Garner posed questions about the travel ban that had been imposed asking the interviewee if she thought there was any way around the travel ban…the interviewee's answers to the question served to demonstrate the effectiveness of the ban…the Standard's purpose is "to prevent broadcasts that encourage audiences to break the law, or otherwise promote criminal or serious antisocial activity" and we are satisfied that was not the intention of the presenter in this Broadcast, rather he was testing government policy.

The standard

[4]  The law and order standard¹ states broadcasters should observe standards consistent with the maintenance of law and order, taking into account the context of the programme and the wider context of the broadcast. It is concerned with broadcasts that actively undermine, or promote disrespect for, the law or legal processes. The law and order standard does not stop broadcasters from discussing or depicting criminal behaviour or other law-breaking, even if they do not explicitly condemn that behaviour.²

[5]  The level of public interest in a programme will be a significant factor for consideration.³

Our analysis

[6]  In considering this complaint the members of the Authority have watched a recording of the broadcast and reviewed the correspondence listed in the Appendix.

[7]  We have also considered the right to freedom of expression, including the broadcaster’s right to impart ideas, information and opinions, and the public’s right to receive those. This is the starting point in our consideration of any complaint that broadcast standards have been breached. Our task is to weigh the value of, and public interest in, the broadcast complained about, against the level of actual or potential harm that may have been caused by the broadcast, with reference to the objectives of the standard described above. We may only intervene and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.

[8]  In this case, we have not found actual or potential harm of the nature described in the complaint which outweighed the public interest in the broadcast, or justified limiting freedom of expression.

[9]  The complainant was concerned Mr Garner’s questions would encourage travellers to ‘circumvent the regs’ and find a way to get home in spite of the travel ban. Context is crucial in assessing the programme’s likely practical effect. In this case we note:⁴

• The AM Show is an unclassified news and current affairs programme.
• Mr Garner was, as submitted by the broadcaster, testing the boundaries of the travel ban. His questions were consistent with an exploration of what was possible within the framework of the law.
• There is a high level of public interest in New Zealanders’ ability to get home during COVID-19 travel restrictions, especially as rules and border restrictions are frequently changing.
• Mr Garner was posing questions to the interviewee about which many members of the public may have been wondering themselves.
• Mr Garner’s tone was light-hearted, and there was no overt promotion of illegal activity.

[10]  Taking into account the above factors and the high public interest in the subject matter, we find Mr Garner’s questions did not actively undermine law and order or encourage illegal activity. We therefore do 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

Susie Staley
Acting Chair
24 August 2021

Appendix

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

1  Rob Harris’s complaint to Discovery – 9 April 2021

2  Discovery to Mr Harris requesting confirmation of standards – 28 April 2021

3  Mr Harris to Discovery requesting update – 25 May 2021

4  Discovery’s decision on the complaint – 25 May 2021

5  Mr Harris’s referral to the Authority – 3 June 2021

6  Discovery’s final comments – 3 June 2021

7  Mr Harris’s final comments – 10 June 2021

8  Discovery’s confirmation of no further comments – 9 July 2021

¹ Standard 5 of the Free-to-Air Television Code of Broadcasting Practice
² Commentary: Law and Order, Broadcasting Standards in New Zealand Codebook, page 15
³ As above
⁴ As above