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 about an interview with National Party Leader Christopher Luxon on Q+A with Jack Tame. The complaint alleged Tame was disrespectful and hostile to Luxon, and asked invasive personal questions, in breach of the fairness, balance and accuracy standards. The Authority did not consider Tame’s questions or comments went beyond a level of robust scrutiny or challenge that could reasonably be expected in an interview with the Leader of the Opposition on their party’s policies, particularly in the lead-up to a general election, and therefore the fairness standard was not breached. The complaints under balance and accuracy each concerned matters not addressed by the relevant standard.

Not Upheld: Fairness, Balance, Accuracy

The broadcast

[1]  A segment on Q+A with Jack Tame, broadcast on 11 June 2023, included an interview with National Party Leader, Christopher Luxon. The interview lasted approximately 30 minutes and discussed a range of policies and topics, including National’s proposal to overturn ‘the effective ban on gene editing’, climate change, capital gains tax, health issues, and working with Winston Peters.

[2]  Comments made by Tame in response to some of Luxon’s answers during the interview included:

• [In response to Luxon: No but I want to be really clear because - ] Be clear and please answer that question.
• That's wiffle waffle talk.
• It's a very simple question.
• OK so you’ve scrapped the biggest rapid transit project in New Zealand history. You want to let our biggest emitting sector, potentially set its own emissions pricing or hand in hand with government and you will restart oil and gas exploration. How can anyone take the National Party serious on climate?

[3]  The capital gains tax discussion included Tame questioning Luxon on how many properties he owned (seven) and if any other MP owned more properties than him (Luxon responded he had ‘no idea.’) Tame went on to make an approximate calculation, using Luxon’s estimates of the years in which he bought his investment properties and median house prices in Auckland in those years, of the capital gains Luxon would make if he sold the houses today (‘So theoretically we are looking at capital gains of probably, $1.5 million if you sold those houses today.’)

[4]  The discussion included the following excerpts:

Luxon:    You're talking about unrealised gains at the moment?

Tame:      But if you were to sell them, right, if you were to sell them today, you'd make, let's say, back of the envelope, $1.5 million. You pay $0 in tax. So how do I know that you are not just opposing a capital gains tax because that will mean you pay more tax?

Luxon:    No, that's not fair, what we're talking about -

Tame:      How do I know that?

Luxon:    Look, I mean, I'm involved in conversations on broad housing policy and the housing policies are linked between owning homes, renting, state houses and emergency housing, they're all interrelated issues, right.

Tame:      Back to the question though, how do I know that you're not just doing it for your own gain?

Luxon:    No, because the Treasury, because the government's own advisors said don't remove interest tax deductibility, don't extend bright line...

Tame:      It’s not what I’m asking you, I'm asking you about capital gains tax, what did they say about capital gains tax?

Luxon:    The capital gains tax, I'm telling you, we're not having a capital gains tax.

Tame:      No, no, I know, I'm very clear on that.

Luxon:    Because what we've got is a spending problem, not a tax problem and not a debt problem. We've got a debt problem and a tax problem because of our spending.

Tame:      You want to be the Prime Minister, you can answer these straight questions.

Luxon:    I’m giving you a straight answer.

Tame:      How do I know that you don't oppose a capital gains tax because you, you under a capital gains tax would have to pay more taxes.

Luxon:    I can tell you, because I've been very transparent upfront. I'm involved in broad housing policy conversations. I can tell you those things don't enter my mind about what happens for me personally.

Tame:      But we just have to take your word on it, right?

Luxon:    But if there's an issue, I would talk to the Cabinet Office. I would declare all that and if they tell me to do something different, I'd do something different.

                                        …

Tame:      That doesn't answer my question, though. What is to stop other people from just doing what Christopher Luxon, the economic expert did and pouring their money into unproductive houses?

Luxon:    I have a range of investments in what I do, with my interests, I make no apology for it. And I know you and I have had this conversation before -

Tame:      You're not giving me any examples of why people wouldn't just do what you're doing.

Luxon:    No but, no but, I think it’s a bit unfair because I'm a Kiwi kid who came from a pretty, you know, normal background. I worked hard.

Tame:      I'm not attacking you for your success, I'm not attacking you for your wealth.

Luxon:    No but you are kind of.

Tame:      No, no. I'm simply asking, why other the New Zealanders -  

Luxon:    What you’re saying is someone who’s successful can’t come into Parliament and actually make a contribution.

Tame:      No, what I'm saying, what I'm saying is why shouldn't other New Zealanders who want to emulate your success follow the same incentives you did and pour money into unproductive assets, when you have said that productivity is the biggest problem facing this country.

Luxon:    Individuals make their own decisions around a mix of investments, around their own personal interests and their personal assets. That's what I have done. What I've been really clear with everyone from day one is I've been incredibly transparent about it all. If at any point in time the Cabinet Office came to me and said Chris, there's a conflict of interest, you need to take advice and I would take that advice. And do whatever they asked me to do. But the point is this is broad housing policy, we are not building houses. The Government has failed on every level.

Tame:      You haven't given me any answers on productivity which is what I've asked you about. But I want to ask you about something else.

The complaint

[5]  Carolyn Hoy complained the broadcast breached the balance, accuracy and fairness standards of the Code of Broadcasting Standards in New Zealand for the following key reasons:

• Jack Tame was discourteous and hostile to National Party Leader Christopher Luxon. Tame’s questioning was ‘unbalanced, unethical and unprofessional’ and the tone of his questioning potentially left some viewers to doubt Luxon’s honesty and integrity, which was harmful to his personal reputation.
• Tame’s ‘questioning stepped beyond acceptable boundaries’, referring in particular to the capital gains discussion and Tame’s questioning of how Luxon may benefit from the policy. Tame ‘persisted with this line of questioning when Mr Luxon had already stated he didn’t know the answers.’ Comments from Tame such as ‘How do I know you’re not opposing capital gains tax for your own benefit?’ and ‘I just have to take your word for it’ seemed personal on Tame’s part, and a later comment (‘how do I know you’re not just a rich man going into politics for yourself’) was ‘nasty and totally uncalled for.’
• Tame’s estimates of Luxon’s gains ‘could not possibly have been accurate’ without all the required information, such as costs.
• Tame persisted in his questioning on whether Luxon received a Tesla, then asked if his wife owned a Tesla and accepted the clean car discount: ‘she is not a politician, her name and personal business should not have been mentioned.’
• Luxon did not receive ‘courtesy and a fair chance to be heard.’ ‘As a viewer I expected an informative interview on National party policy, not the biased display by Jack Tame which could unfairly influence voters in the coming election, be hurtful to Mr Luxon's family and which did not offer any enlightenment on National party policy.’
• ‘There has to be a line drawn under what is acceptable when questioning public figures. Their private financial and family business should be out of bounds.’

The broadcaster’s response

[6]  TVNZ did not uphold the complaint for the following key reasons:

Balance

• Given the ‘narrow and clearly defined scope’ of the broadcast, being ‘an interview with Mr Luxon alone, as leader of the National Party, discussing issues relating to National Party policy and the performance of the Government, viewers would not reasonably have expected to have been presented with a range of alternative perspectives.’

Accuracy

• In response to the complainant’s concerns with the discussion on Luxon’s investment properties, TVNZ noted the discussion as theoretical ‘and this is made clear to viewers. The Presenter asks roughly how much would you have made? and Mr Luxon is able to answer I have no idea, I don't know I honestly don't know.’
• TVNZ considered the figures Tame provided as a 'rough' idea potential gains were ‘based on gains on median Auckland house values from the years Mr Luxon indicated his investment properties were purchased in. This is a reasonable way to approach the issue given that Mr Luxon admitted he wasn't sure of increased values.’

Fairness

• BSA guidance states the threshold for politicians and public figures is higher than for someone unfamiliar with media.
  
  Politicians and public figures hold a position in society where robust questioning and scrutiny of their policy, roles and behaviour is not just encouraged but expected. These people are often capable interviewees, experienced in handling aggressive questioning or other coverage that may be considered unfair for an ordinary person.
• TVNZ disagreed that Luxon was questioned aggressively, ‘and the discussion focussed solely on the New Zealand government, National Party policy, and Mr Luxon in his professional capacity as Leader of the National Party. Mr Luxon is confident in the programme, and he is familiar with the media. He handled the discussion adeptly and was able to put his position across.’
• ‘On some occasions Jack Tame had to press Christopher Luxon for answers to his questions, but the exchange was polite and Christopher Luxon is given space to respond to the issues. [TVNZ] also notes that both Jack Tame and Christopher Luxon talked over the other person on occasion, as often happens in live interviews.’
• ‘The sort of discussion shown in Q+A is permitted under broadcasting standards and is important speech, which is protected by the Bill of Rights Act 1990. It is important that political parties and their representatives can be questioned about policies, especially when their party is polling well, and it is election year. It is in the public interest for their Party's policies to be discussed, and in this case as Mr Luxon is running for Prime Minister it is important that the public is apprised of where he stands on the issues discussed.’

Preliminary issues

Jurisdiction – scope of complaint

[7]  The complainant’s initial complaint to the broadcaster, as well as their referral to the Authority, raised concerns with a discussion on the clean‑car discount, and particularly reference to Luxon’s wife’s use of the discount. Upon reviewing the broadcast, we did not find any reference to the clean‑car discount or Luxon’s wife. We have also confirmed with TVNZ that no Q&A broadcast that month discussed this issue.

[8]  Under the Broadcasting Act 1989, a formal complaint about a breach of broadcasting standards must relate to a specific broadcast, and include sufficient details to reasonably enable identification of the broadcast.¹  The question for us is whether the complainant’s concerns were sufficient to constitute an additional formal complaint in respect of any other programme. If not, the additional complaint is outside our jurisdiction and we are unable to consider it now.²

[9]  Recognising broadcasters’ limited resources, and the time which can be involved in locating specific content, the complainant’s obligation to provide sufficient details ‘to reasonably enable identification of the broadcast’ will generally involve identifying the relevant time period within a window of no greater than three hours.³

[10]  In this instance, we do not consider the concerns relating to the clean‑car discount discussion constituted a separate formal complaint. This discussion did not occur on Q&A and, although we acknowledge the publicity of the discussion (which assisted with our identification of potential broadcasts),⁴ we consider further specificity was required in this instance:

• The broadcaster provided the complainant an opportunity to identify the relevant Q&A broadcast when no date was provided.
• The identified broadcast included the capital gains tax discussion, which was one of the subjects of the complaint.
• Even with hindsight, we remain unable to identify the relevant broadcast.

[11]  Accordingly, we find the broadcaster’s approach of responding to the initial complaint only in relation to the 11 June 2023 Q+A broadcast was appropriate, and similarly, our decision is limited to that specific broadcast.

Jurisdiction – additional standards

[12]  In the complaint referral, the complainant also nominated the privacy standard as being breached. The complainant alleged Tame’s questioning on the profitability of Luxon’s investments ‘breached Mr Luxon’s reasonable expectation of privacy regarding personal information’ and that Tame, ‘in questioning Mr Luxon about other politicians’ confidential financial status was intrusive to those politicians and Mr Luxon.’

[13]  The Authority can consider standards not raised in the original complaint where it can be reasonably implied into the wording of the initial complaint, and where it is reasonably necessary in order to properly consider the complaint.⁵ TVNZ objected to the Authority considering the privacy standard, submitting that it was not referenced in her original complaint.

[14]  Hoy’s original complaint to TVNZ raised concerns with Tame asking ‘invasive personal questions’ in relation to Luxon’s investment properties, as well as the property ownership of other politicians. We do not consider the wording of the original complaint could be reasonably interpreted as alleging Luxon or other politicians’ privacy was breached through a highly offensive disclosure of personal information (as the privacy standard deals with), and we consider these concerns are more directed at unfair treatment of Luxon (and other politicians). As we do not consider the privacy standard can be reasonably implied into the wording of the initial complaint, we are unable to consider the privacy standard on referral.

The standards

[15]  The fairness standard⁶ protects the dignity and reputation of those featured in programmes.⁷ It ensures individuals and organisations taking part or referred to in broadcasts are dealt with justly and fairly and protected from unwarranted damage.

[16]  We consider the fairness standard is most relevant to the complaint, and have therefore focused our determination on this standard. We briefly address the balance and accuracy standards at paragraph [24] below.

Our analysis

[17]  We have watched the broadcast and read the correspondence listed in the Appendix.

[18]  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 and the value and public interest in the broadcast, against any harm potentially caused by the broadcast. We may only intervene and uphold a complaint where the level of harm means that placing a limit on the right to freedom of expression is reasonable and justified.⁸

Fairness

[19]  Hoy’s concerns under the fairness standard relate to the host’s interview manner towards, and treatment of, Luxon during the interview.

[20]  As noted by the broadcaster, it is well established the threshold for finding a breach of the fairness standard in relation to public figures and politicians is higher than for a layperson or someone unfamiliar with the media.⁹ Public figures and politicians hold a position in society where robust questioning and scrutiny of their policy, roles and behaviour is encouraged and expected. They are frequently capable interviewees, experienced in handling aggressive or inflammatory questioning or other coverage that may be considered unfair for an ordinary person.¹⁰ For these reasons, we have consistently not upheld complaints about fairness to politicians when being interviewed about matters in their professional capacity.¹¹

[21]  In this case, we appreciate the complainant found Tame’s manner to be disrespectful to Luxon. We agree Tame’s questioning was tough and direct. However, Luxon is an experienced media spokesperson, and by nature of his role as the Leader of the Opposition (at the time), is expected to front the media on his party’s policies, particularly in an election year. We do not consider Tame’s questions or comments went beyond a level of robust scrutiny or challenge that could reasonably be expected in an interview with the Leader of the Opposition, in the lead-up to a general election, on such issues. 

[22]  In addition, we consider Luxon was given reasonable opportunity to respond to the questions posed, and the audience would not have been left with an unduly negative impression of him as a result of the interview.

[23]  Accordingly, we do not consider the broadcast resulted in unfairness to Luxon.

Remaining standards

[24]  The balance and accuracy standards either do not apply or were not breached:

• Balance¹²: This standard requires reasonable efforts to be made to reflect significant perspectives when ‘controversial issues of public importance’ are discussed in news and current affairs programmes.¹³ The complainant’s concerns under the standard appear founded on Tame having been biased in his interviewing. The standard does not require news, current affairs and factual programming to be presented impartially or without bias.¹⁴ It is directed at ensuring competing viewpoints about significant issues are available. It is not a breach of standards for interviewers to take a position in an interview and challenge the interviewee from that position (a common interview technique).¹⁵
• Accuracy¹⁶: The accuracy standard 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. The accuracy complaint relates to Tame’s estimates of Luxon’s gains. Estimates are not statements of fact to which the accuracy standard may apply.¹⁷

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Susie Staley,
Chair
13 December 2023 

 
Appendix

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

1  Caroline Hoy’s formal complaint to TVNZ – 2 July 2023

2  TVNZ’s decision on complaint – 1 August 2023

3  Hoy’s referral to the Authority – 19 and 23 August 2023

4  TVNZ’s response to referral – 28 August 2023

5  Hoy confirming no final comments – 27 September 2023

6  TVNZ confirming clean-car discount not discussed on Q&A – 13 October 2023

7  Hoy’s concerns with limiting jurisdiction – 16 October 2023

8  Hoy’s further comments – 17 October 2023

9  Hoy’s final comments – 28 October 2023

¹ Broadcasting Act 1989, s 6(1)(a); see also Broadcasting Standards Authority | Te Mana Whanonga Kaipāho “Complaints”
² Broadcasting Act 1989, s 8(1B)
³ Broadcasting Standards Authority | Te Mana Whanonga Kaipāho “Complaints”
⁴ See for example Jenna Lynch “National leader Christopher Luxon appears to have claimed Clean Car Discount on new Tesla” Newshub (online ed, 20 June 2023); “Luxon won't confirm if Clean Car Discount used for wife's Tesla” 1 News (online ed, 21 June 2023); and
⁵ Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [62]
⁶ Standard 8, Code of Broadcasting Standards in New Zealand
⁷ Commentary, Standard 8, Code of Broadcasting Standards in New Zealand at page 20
⁸ Introduction, Code of Broadcasting Standards in New Zealand at page 4
⁹ Guideline 8.1
¹⁰ See: Broadcasting Standards Authority “Complaints that are unlikely to succeed” (see “Fairness applied to politicians/public figures”)
¹¹ See Broadcasting Standards Authority “Complaints that are unlikely to succeed” (see “Fairness applied to politicians/public figures”); See also: Frewen and Television New Zealand Ltd, Decision No. 2020-146B; Bowkett and Discovery NZ Ltd, Decision No. 2020-103; Cowie and Radio New Zealand Ltd, Decision No. 2020-133; Downes, Penning, Maltby, Massie & Tang and NZME Radio Ltd, Decision No. 2020-123; and Marra and Mediaworks Radio, Decision No. 2019-023
¹² Standard 5, Code of Broadcasting Standards in New Zealand
¹³ Standard 8, Code of Broadcasting Standards in New Zealand
¹⁴ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand at page 15
¹⁵ See for example: Jones and Radio New Zealand Ltd, Decision No. 2021-139 at [12]; and Garrett and Radio New Zealand Ltd, Decision No. 2017-079 at [16]
¹⁶ Standard 6, Code of Broadcasting Standards in New Zealand
¹⁷ Guideline 6.1