BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has not upheld a complaint that a statement on RNZ National that the new Government ‘plans to repeal Smokefree legislation to fund tax cuts’ breached the accuracy and balance standards. The Authority found the accuracy standard was not breached noting other content within the broadcast and interviews with National Party members before the programme meant audience members were unlikely to be misled.  The balance standard did not apply.

Not Upheld: Accuracy, Balance

The broadcast

[1]  The 28 November 2023 episode of Morning Report on RNZ National featured an interview with the President of the New Zealand College of Public Health Medicine, Sir Collin Tukuitonga on the impacts of the Government’s policy to repeal amendments to the Smokefree Environments and Regulated Products Act 1990. The interview was introduced by the host, Ingrid Hipkiss as follows:

6.44am: Well the College of Public Health Medicine is adding its voice to the condemnation of the new Government’s controversial plans to repeal Smokefree legislation to fund tax cuts.

[2]  The interview then contained more than five-and-a-half minutes of discussion on the impacts of the proposed changes.

[3]  The half hour news bulletins, both before and after the interview, also contained similar statements:

6.32am: Well coming up before 7 here on Morning Report, we speak to the College of Public Health Medicine which is appalled by the new Government’s controversial plan to repeal Smokefree legislation to fund tax cuts.

7.33am: The President of the College of Public Health Medicine says the Government’s decision to repeal Smokefree legislation to fund tax cuts is almost an Orwellian dystopia completely bereft of good reason.

The complaint

[4]  Phillip Hart complained that the broadcast breached the accuracy and balance standards of the Code of Broadcasting Standards in New Zealand on the basis the claim that the proposed repeal of the Smokefree legislation was intended to ‘fund tax cuts’ was inaccurate. They added:

• ‘The clear implication of the phrasing used by RNZ was that the reason for the changes to the Smoke Free legislation was to fund tax cuts.’ ‘This claim was repeated a number of other times within the Morning Report programme on 28 November 2023.’
• ‘While Ms Willis admitted that the funds raised will contribute to general tax revenue (as do many other policies), she did not admit that the reason for the Smoke Free changes was to fund tax cuts. This is a clear and important difference.’
• ‘The statement was presented as fact even though it had been refuted by [Rt Hon Nicola Willis] and [Prime Minister Christopher Luxon] in previous days with multiple other reasons given for the proposed repeal.’
• ‘National's tax reforms were announced in August 2023, with no mention of any changes to the Smokefree legislation’… ‘As part of the post October election coalition talks Willis told TV3 that New ‘Zealand First and Act were "insistent" the Smokefree legislation be reversed’ and ‘We've agreed to that in these coalition agreements’. ‘Therefore the tax adjustments were announced independently of the changes to Smokefree laws.’
• ‘While it is true that taxes raised from tobacco go into the Government’s Consolidated Fund, most other tax revenue goes into the Consolidated Fund too. To categorically state that the changes to the Smokefree legislation are to expressly fund the tax cuts, as the RNZ host claimed multiple times on 28 November 2023, is incorrect and untrue.’

The broadcaster’s response

[5]  RNZ did not uphold the complaint, stating that Willis had confirmed on Newshub several days earlier that the ‘Smokefree laws were being scrapped to fund tax cuts.’¹

[6]  RNZ stated that in the previous interview with Newshub, Willis was questioned on how National intended to fund the tax cuts it had campaigned on. Later in the interview, and ‘unprompted’, Willis ‘brought the conversation back to some of the ways she intends to raise the amount of money needed’, stating:

Coming back to those extra sources of revenue and other savings areas, that will help us fund the tax reduction, we have to remember that the changes to the Smokefree legislation had a significant impact on the government books with about a billion dollars there...

[7]  ‘The Newshub interview conveyed Willis’s position that savings made through this legislative change will bolster Crown revenue and help fund the tax cuts’… ‘It is entirely open to RNZ to report what Willis has said in public, even if she has not spoken directly to RNZ.’

The standards

[8]  We have focussed our analysis below on the accuracy standard. While the complainant has also raised the balance standard² in their initial complaint, the purpose of the balance standard is to ensure competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.³ The complainant has not identified an issue in respect of which competing viewpoints were missing in the broadcast. Rather, the complaint concerns a factual matter (the Government’s rationale for changes to Smokefree legislation) and the broadcast’s allegedly inaccurate depiction of that rationale. We have therefore focussed our analysis on the accuracy of the relevant statement.

[9]  The purpose of the accuracy standard⁴ is to protect the public from being significantly misinformed.⁵ It states broadcasters should make reasonable efforts to ensure news, current affairs or factual content is accurate in relation to all material points of fact, and does not mislead. Where a material error of fact has occurred, broadcasters should correct it within a reasonable period after they have been put on notice.

Our analysis

[10]  We have listened to the broadcast and read the correspondence listed in the Appendix.

[11]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is demonstrably justified in a free and democratic society.⁶

Accuracy

[12] Determination of a complaint under the accuracy standard occurs in two steps. The first step is to consider whether the programme was inaccurate or misleading. The second step is to consider whether reasonable efforts were made by the broadcaster to ensure that the programme was accurate and did not mislead.

[13]  The complainant’s concern is that the broadcast misled the audience to believe the reason for repealing the Smokefree legislation was to fund tax cuts.

[14]  We appreciate the complainant’s concerns and agree the way the statement was framed had the potential to mislead, acknowledging the Government’s public statements do not support a conclusion that the changes to Smokefree legislation were simply to support tax cuts. However, we do not uphold the complaint under accuracy for the following reasons:

• Firstly, the broadcast did acknowledge other reasons for the repeal including:
  
  (a)  The Smokefree legislation is ‘unworkable’: It stated, ‘Christopher Luxon says his coalition government is committed to reducing tobacco use through education and encouraging smokers to start vaping, but says the goal to achieve Smokefree in 2025 is not workable.’ The host also advised that Luxon had stated the repeal was because the legislation was ‘not workable in terms of limiting the retailers’.
  (b)  Coalition partners had ‘pushed it through’: It reflected the influence of coalition partners in the decision noting: ‘the coalition partners who have pushed this through, saying that it was going to cause a black market that [caused] ram raids etcetera, and would target those limited number of retailers who could sell cigarettes.’
• Secondly, the standard is not concerned with technical or other points unlikely to significantly affect the audience’s understanding of the content as a whole.⁷ In the segment with Sir Collin (which both the bulletins were in reference to), the focus was the health impact of repealing the Smokefree legislation. The line about how the increased revenue (generated by the proposed changes) was to be used, would not have significantly impacted the audience’s understanding of this segment.
• Thirdly, RNZ audiences were provided the opportunity to hear Luxon’s and Willis’s reasoning behind the repeals, therefore limiting the likelihood of the audience being misled. Luxon was interviewed on RNZ the day before this broadcast and an interview with Willis aired on RNZ less than an hour before the broadcast.⁸ In his interview, Luxon advised the audience that the reason for the repeals was because the goal of New Zealand being smoke free by 2025 was unachievable, and the proposed measures by Labour would result in increased crime. Similarly, in the interview with Willis, she stated: ‘What we have agreed to do in our coalition agreement is we have said the proposal in future to restrict the number of shops that sell tobacco to just six hundred is not one that we are going to proceed with. Nor are we going to proceed with the policy to reduce dramatically the amount of nicotine in cigarettes, and that’s because of concerns those two things could not only lead to a massive black-market – heaven for the gangs – but also ram-raids and retail crime on the remaining stores. So, absolutely we still want to see lower numbers of people smoking, but we don’t think that the outgoing government’s policy was the best way to achieve that.’

[15]  We consider that overall, with reference to the factors listed above, audiences were provided with sufficient information to make up their own minds on the reasoning behind the repeals, and were therefore unlikely to be misled. In these circumstances, we have not identified any harm justifying regulatory intervention (and a corresponding restriction on the broadcaster’s right to freedom of expression).

[16]  We do however remind broadcasters of the importance of ensuring that when summarising upcoming news items that in doing so they then do not become misleading.

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

Signed for and on behalf of the Authority

Susie Staley
Chair
8 April 2024    

Appendix

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

1  Phillip Hart’s formal complaint – 28 November 2023

2  RNZ’s response to the complaint – 15 December 2023

3  Hart’s referral to the Authority – 31 December 2023

4  RNZ’s further comment – 14 February 2024

5  Hart’s further comments – 21 February 2024

¹ Mark Quinlivan “Nicola Willis admits scrapping smokefree laws will help fund tax cuts in Newshub Nation interview” Newshub (online ed, 25 November 2023)
² Standard 5, Code of Broadcasting Standards in New Zealand
³ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand at page 14
⁴ Standard 6, Code of Broadcasting Standards in New Zealand 
⁵ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand at page 16
⁶ Introduction, Code of Broadcasting Standards in New Zealand at page 4
⁷ Guideline 6.3
⁸ “Smokefree legislation would have driven ciarette black market – Christopher Luxon” RNZ (online ed, 27 November 2023); “Willis: Govt books worse than expected for mini-budget” RNZ (online ed, 28 November 2023)