Hayward and Television New Zealand Ltd - 2016-040B (19 October 2016)
- Peter Radich (Chair)
- Leigh Pearson
- Te Raumawhitu Kupenga
- Paula Rose
- Dr Bronwyn Hayward
BroadcasterTelevision New Zealand Ltd
[This summary does not form part of the decision.]
A Seven Sharp item discussed the reasons that outgoing New Plymouth Mayor Andrew Judd was not seeking re-election. These included that Mr Judd had suffered abuse and become ‘deeply unpopular’ because of his campaign to increase Māori representation on the New Plymouth District Council, in particular by proposing that a Māori ward be established on the Council. The Authority did not uphold a complaint that the presenter’s editorial comments following the item were unbalanced, inaccurate and unfair. In making its decision, the Authority acknowledged the influential position of the presenters, but found that alternative views were conveyed during the item and in subsequent items during the period of current interest. The presenters’ comments were their opinion and analysis of the issues discussed, rather than statements of fact, so they were not subject to the accuracy standard. The item was not unfair to Mr Judd, as any criticism of his views or actions was in relation to his public, elected role, in which he could reasonably be expected to be subject to scrutiny. Mr Judd was presented positively throughout the item and the presenters’ disagreement with his position did not result in him being treated unfairly.
Not Upheld: Balance, Accuracy, Fairness
 A Seven Sharp item discussed the reasons that outgoing New Plymouth Mayor Andrew Judd was not seeking re-election. These included that Mr Judd had suffered abuse and become ‘deeply unpopular’ because of his campaign to increase Māori representation on the New Plymouth District Council (the Council), in particular by proposing that a Māori ward be established on the Council.
 Dr Bronwyn Hayward1 complained that the presenter’s editorial comments following the item were unbalanced, inaccurate and unfair to Mr Judd, in particular because they dismissed Mr Judd’s position that better Māori representation was needed on local councils.
 The issue is whether the broadcast breached the balance, accuracy and fairness standards as set out in the Free-to-Air Television Code of Broadcasting Practice.
 The item was broadcast on TV ONE on 5 May 2016. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
 The Seven Sharp item was introduced by presenter Toni Street as follows:
It’s the reason why Mayor Andrew Judd is stepping down that will shock you. It’s to do with racism, abuse and trying to do what Judd thinks is right even if it’s deeply unpopular...
 The item began with Mr Judd reading out what people have said to him over the time of his Mayoralty, including:
- ‘Māori don’t need any special treatment they just need to be more like us.’
- ‘If I’d have known you supported all this Māori stuff I would never have voted for you.’
- ‘Enjoy your one term as our mayor fella.’
 Mr Judd also stated he was removed as the patron of a club and uninvited from community events.
 The reporter explained, ‘Andrew Judd is a Pākehā who gets abused by other Pākehā for liking Māori.’ Mr Judd said he was abused in the community and that was when he decided to ‘hide’ his family and not take them to public events.
 A member of the New Plymouth public was then interviewed, saying, ‘when you have the Mayor being spat on, who is a Pākehā, by Pākehā, it’s pretty awful’. The reporter and Mr Judd then confirmed this story, saying:
Reporter: [Name] is right – Andrew Judd was spat on by a woman in the supermarket, right in front of his kids.
Mr Judd: Firstly I was shocked, and [my kids] were looking at me a little bit fearful, so we left.
 Mr Judd and the reporter then had the following exchange:
Mr Judd: My name is Andrew Judd and I am a recovering racist...
Reporter: He says he was a racist when he became Mayor three years ago.
Mr Judd: I spent most of my life deflecting. I said I wasn’t a racist – ‘gosh, we’ve got a Treaty, we’re paying them out. What’s wrong with them? They are the ones with the problem. They don’t get over it. They don’t want to improve themselves.’ I’m sick of it, they’re all in jail. Never ever did I say, ‘have I bothered to learn anything in the Māori world?’ I’d grab a haka as if I owned it. I didn’t even understand it, couldn’t even say it properly...
 The reporter explained how Mr Judd’s role in a Treaty settlement regarding Council land had in turn affected his mayoralty:
It got [Mr Judd] thinking about how Māori weren’t represented on his Council. He suggested a Māori member on Standing Committees; the Council voted against this. Then he suggested a Māori Ward (that’s one Māori seat on the 14-member Council), that was passed but many Councillors didn’t attend the vote. Now a large part – a large, vocal part – were outraged at the thought of Māori getting onto the New Plymouth District Council. So Grey Power forced a petition, which forced a referendum, and 83% of New Plymouth voters voted ‘No’ to any Māori at the Council table. Now this result mirrors similar votes all around New Zealand. The push for Māori representation made Andrew Judd deeply unpopular.
 Mr Judd commented on the reaction he had received from his constituents, including ‘a man dressed in a Nazi uniform coming up to see me’. The reporter also said that ‘other Mayors avoided [Mr Judd] at local government meetings’.
 Mr Judd then stated he would not seek re-election because of the challenges and public backlash he had received as Mayor.
 The item concluded with Mr Judd saying, ‘We need to look after our indigenous people. If we can’t do that, how on earth are we going to grow and become this multicultural country we say we’re going to be?’
 After the item, presenter Mike Hosking commented:
Sad to say – I’d never personally attack him, obviously – but he’s completely out of touch with middle New Zealand. There’s nothing wrong with Māori representation on Councils because any Māori who wants to stand for a Council is more than welcome to do so. And you can sell your message and if you’re good enough, you’ll get voted on – simple as that.
 Presenter Toni Street and Mr Hosking then had the following exchange:
Ms Street: Well, clearly the big issue here was his message wasn’t sold before he was elected, and that was the big problem, wasn’t it.
Mr Hosking: If you want to push like representation, specific and artificial representation on Māori Councils, what you do is you go and say, ‘vote for me because this is what I stand for’.
Ms Street: Beforehand.
Mr Hosking: And if you get elected, then you got elected and you’ve got a mandate – simple as that.
 Mr Hosking also interviewed Mr Judd in a follow-up item, broadcast during Seven Sharp on 9 May 2016. The two discussed Mr Judd’s view that there needed to be better Māori representation on councils, why he took this position, and why he considered the options councils currently had for achieving better Māori representation were limited.
Was the item sufficiently balanced?
 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 viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.
The parties’ submissions
 Dr Hayward considered the item lacked balance because the presenters’ editorial comments following the item, given from the ‘platform of trusted anchors’, set the tone for how the viewer was to interpret and understand what went before. She considered in this case Mr Judd’s position was ‘simply dismissed by Hosking and that dismissal was reinforced by a nodding Street’.
 Dr Hayward also considered that the presenters’ editorial comment, in particular Mr Hosking’s use of the term ‘artificial representation’, was designed to ‘incite moral indignation’ in the minds of viewers.2
 TVNZ accepted that the issue of a Māori ward on local Councils was a controversial issue of public importance. It considered that significant viewpoints on this issue were broadcast within the period of current interest, including during a follow-up Seven Sharp item in which Mr Hosking interviewed Mr Judd, and in a subsequent ONE News item.3
 TVNZ refuted Dr Hayward’s argument that the comments made by Mr Hosking and Ms Street at the end of the item carried more weight than the perspectives of other people in the item, including the reporter.
 The item as a whole was primarily framed as a profile piece on Mr Judd, detailing from his perspective his experiences being on the Council and as Mayor, and his reasons for deciding not to seek re-election. That being said, we agree that the issue of a proposed Māori ward on the New Plymouth District Council, which in turn raised issues about representation in a democratic society, was a controversial issue of public importance which was discussed during the course of the item. While obviously a controversial issue in New Plymouth which ignited much debate, resulting in a referendum, this issue also caused public discussion around the country. The specific incident in New Plymouth did not solely relate to Mr Judd’s personal journey, but also raised broader issues around Māori representation on local councils generally (which the presenters commented on at the end of the item).
 We acknowledge Dr Hayward’s submissions, and agree that the presenters of a popular primetime television current affairs programme such as Seven Sharp are in an influential position. They have the capacity to both inform and shape public debate and opinion about important issues. We understand that in this case, the two presenters’ comments on the preceding item which discussed Māori representation in our democratic society, including Mr Hosking’s view set out in paragraph  above, were dismissive of a valid issue in New Zealand which deserves meaningful discussion.
 However, research undertaken by the Authority – which specifically included consideration of broadcasts featuring Mr Hosking – illustrates that audiences are capable of being discerning in how they receive and interpret comments made by broadcast presenters.4 While this does not afford presenters free reign to espouse opinions at the expense of presenting other perspectives on important issues, we consider many viewers could reasonably be expected to apply their own critical analysis to the content of the item and the presenters’ comments.
 Comment from the Seven Sharp presenters following pre-recorded items, in which they give their opinion on the issue or subject matter canvassed in those items, is a regular feature of the programme and one that would be familiar to the audience. While this does not remove the requirement for balance, the nature of the programme combined with the well-known outspoken and opinionated presenting style of Mr Hosking affects how viewers may interpret his comments, and the item in its entirety.
 With this in mind, we do not consider that the presenters’ views resulted in an unbalanced examination of the issue of Māori representation on local councils. Overall, taking into account the nature of this item as a profile piece, we find that adequate balance was provided on the issue.
 The item’s focus on Mr Judd and his position – that better Māori representation was needed on local councils – ensured that this perspective was presented at some length. Over the course of an item of nearly five minutes’ duration, which was largely presented from his perspective, Mr Judd was able to clearly and comprehensively articulate why a Māori ward was important for local councils and how he had formed that view.
 Balancing viewpoints to those expressed by Mr Hosking were also presented during subsequent broadcasts in the period of current interest, including by his co-presenter Ms Street. At the end of the follow-up Seven Sharp item, broadcast four days after the original item on 9 May 2016, Ms Street appeared to give the view that it is important to discuss the issue of Māori seats on local councils and this should be the same as at national government level. This provided some balance to Mr Hosking’s view that ‘there is nothing wrong with Māori representation on Councils’.
 Alternative views to those of Mr Hosking were also presented in the subsequent ONE News item broadcast on 14 May 2016. The reporter outlined various agreements and co-management arrangements between iwi and local councils as evidence that ‘change is happening’. The co-chair of the Waikato River Authority and the chairwoman of Te Kotahitangi o Te Ati Awa were also interviewed, who supported partnership between iwi and local councils. One of the interviewees stated that he thought ‘partnership is real’ and that it was ‘coming and you cannot stop it’.
 Consideration of issues relating to Māori representation and quota seats is highly important in New Zealand. Discussion and debate about the various perspectives on these issues is a valued aspect of freedom of expression and in the public interest. While viewers may not agree with all perspectives given by broadcast presenters, this is not sufficient reason to limit their right to freedom of expression, or the right of audiences to receive such opinions and ideas.
 Therefore we do not uphold the complaint under Standard 8.
Was the broadcast inaccurate or misleading?
 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.
The parties’ submissions
 Dr Hayward argued ‘the tone and tenor of the piece pitched a mythical “Middle New Zealand” against Māori and New Zealanders concerned for issues of racial justice and fair institutional representation of minorities in a way that was... misleading’.
 Dr Hayward considered it was ‘simply untrue’ that standing for elections can enable someone to be elected if their mandate is appealing. Dr Hayward stated, ‘The very point of institutional racism is that there are many barriers that make it difficult for minorities to get elected in First Past the Post electoral systems at the local level’.
 Dr Hayward also considered it was ‘untrue’ for the presenters to try to argue that Mr Judd should have campaigned on a platform of anti-racism prior to being elected. She argued that the entire point of Mr Judd’s argument was that in becoming Mayor ‘his simple grasp on what seemed blindingly obvious to him was challenged once he learned more about local history’.
 In response, TVNZ noted that Dr Hayward had not alleged that any material point of fact in the item was inaccurate. It also noted that the accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion. It considered that Mr Hosking’s comments were opinions which he was entitled to express under the Bill of Rights Act 1990 (even if his view was not considered to be correct by some people). It said that Seven Sharp is known for its ‘opinionated angle and non-traditional approach to news and current affairs’, and viewers would have taken Mr Hosking’s comment as opinion rather than as statements of fact.
 Guideline 9a to the standard states that the requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.
 We consider that the presenters’ comments regarding representation and Mr Judd’s views, and action, in support of establishing a Māori ward were clearly their own opinion and analysis of the issues and were therefore not subject to the accuracy standard. Speculating about why people get elected to local councils, or what Mr Judd should have done during his mayoralty campaign, does not amount to statements of fact that can be readily proven as accurate or not.5
 As the Authority has recognised in previous decisions,6 and our focus group testing demonstrates,7 viewers are aware of the presenters’ tendency to frequently give their opinion during Seven Sharp. Specifically in relation to Mr Hosking, participants in focus group testing on the accuracy standard remarked that, for example, ‘[Mr Hosking] was just saying what he thought’, Mr Hosking is ‘a known opinionator’ and his comments are ‘just what he thinks. You don’t have to listen to him’.8 We are satisfied that viewers would have interpreted the presenters’ comments as their personal views on the matters discussed, rather than factual statements.
 While Dr Hayward may have a different perspective to the presenters’ views on representation, the right to freedom of expression allows individuals to express their opinion, even if it is unpopular or incorrect.9
 We also note, as an aside, that in the follow-up Seven Sharp item, which we have found above provided balance to this item, Mr Judd clearly explained why ‘plain old democracy’ does not necessary result in minorities being elected. He observed that local councils still have a First Past the Post electoral system which can make it more difficult to gain diverse representation than in the Mixed Member Proportional system.
 For these reasons, we do not uphold the complaint under Standard 9.
Was any individual or organisation taking part or referred to in the broadcast treated unfairly?
 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.10
The parties’ submissions
 Dr Hayward submitted that it was unfair for the presenters to argue that Mr Judd should have campaigned on a platform of anti-racism prior to being elected. Dr Hayward also argued that ‘the tone and tenor of the piece pitched a mythical “Middle New Zealand” against Māori and New Zealanders concerned for issues of racial justice and fair institutional representation of minorities in a way that was... unfair for the Mayor’.
 TVNZ argued that the item made it clear that Mr Judd changed his opinion on Māori and a Māori ward in his time as Mayor, not when he was running for Mayor. It reiterated its view that the presenters’ comments would be understood by viewers to be their opinion. TVNZ maintained that the item was very sympathetic to Mr Judd and his change in perspective, and portrayed the behaviour he had been subjected to as unacceptable.
 TVNZ also considered that the presenters’ commentary on, and criticism of, Mr Judd’s position on a Māori ward related to his professional capacity as New Plymouth Mayor and was not personally abusive. TVNZ reiterated that the presenters’ right to express their opinions was protected by the Bill of Rights Act, even if those views were incorrect or unpopular.
 TVNZ also considered that Mr Judd was given the opportunity put his position across and was able to do so in a professional and composed manner. It therefore found he was given a fair and reasonable opportunity to discuss the issues which had arisen for him as a result of his support for a Māori ward on the Council.
 The Authority has consistently recognised that there is a higher threshold for finding unfairness to public figures – especially elected officials – as they can reasonably expect to be subject to public scrutiny.11 We acknowledge that some of the presenters’ comments could be seen to be dismissive and somewhat critical of Mr Judd’s position regarding Māori representation and the fact he did not campaign on this platform. However, these comments related to Mr Judd’s professional, elected role as Mayor, rather than being personally abusive or amounting to an attack on Mr Judd.
 In particular, it was clear that Mr Hosking took a different view to Mr Judd on the issue of Māori representation on local councils, as demonstrated by his comment, ‘There’s nothing wrong with Māori representation on Councils’ and his suggestion that Mr Judd was pushing for ‘specific and artificial representation’. Mr Hosking was entitled to express his disagreement with Mr Judd’s point of view, and we are satisfied that he did not do so in an unduly critical or unfair manner.
 Overall, we do not consider that the item portrayed Mr Judd in a negative light or otherwise represented him, or his views, unfairly. The item was presented as a profile piece and from Mr Judd’s perspective. It was sympathetic to Mr Judd’s personal journey and his stance on Māori representation. He was offered ample opportunity to comment and to put forward his point of view over the course of the item, which was nearly five minutes in length.
 Accordingly we do not uphold the complaint under Standard 11.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
19 October 2016
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Dr Bronwyn Hayward’s formal complaint – 1 June 2016
2 TVNZ’s response to the complaint – 29 June 2016
3 Dr Hayward’s referral to the Authority – 8 July 2016
4 TVNZ’s response to the Authority – 4 August 2016
5 Dr Hayward’s further comments – 26 September 2016
1 Dr Hayward is an Associate Professor and the Head of the Department of Politics and International Relations at the University of Canterbury.
2 Dr Hayward’s complaint referred to RNZ’s Mediawatch segment about the broadcast, which noted that the item was strikingly similar to an earlier decision of the Authority, Ngati Pukenga Iwi and Television New Zealand Ltd, Decision No. 2003-109, which found comments by Paul Holmes were ‘framed in a way calculated to incite moral indignation’.
3 Broadcast on 9 May and 14 May 2016 respectively, on TV ONE.
4 Litmus Testing 2015 (Accuracy) Broadcasting Standards Authority, June 2015 (discussed further at paragraph )
5 See Guidance: Accuracy – Distinguishing Fact and Analysis, Comment or Opinion (Broadcasting Standards in New Zealand Codebook, page 62).
6 See, for example, Aranyi and Others and Television New Zealand Ltd, Decision No. 2015-036; Carter and Television New Zealand Ltd, Decision No. 2015-070; and Dempsey and 3 Others and Television New Zealand Ltd, Decision No. 2014-047
7 Litmus Testing 2015 (Accuracy) Broadcasting Standards Authority, June 2015
8 As above, at pages 22 to 24.
9 See, for example, Dempsey and 3 Others and Television New Zealand Ltd, Decision No. 2014-047 at 
10 Commerce Commission and TVWorks Ltd, Decision No. 2008-014
11 For example, see Jenkinson and Johnson and TVWorks Ltd, Decision No. 2014-006