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 item on Morning Report and a summary bulletin that discussed complaints about Kāinga Ora tenants forcing people to leave their homes. Kāinga Ora complained it was not given an opportunity to comment on one of two situations discussed during the broadcast, which led to the item being unbalanced, and was unfair to the agency. Noting the issue, and numerous similar cases, had been discussed over a number of months in RNZ reporting, the Authority found it was not required in the interests of either balance or fairness for Kāinga Ora to be given a specific opportunity to comment in relation to that particular case. In any event, the Housing Minister’s response, which referred to Kāinga Ora treating complaints seriously and its updated processes for dealing with complaints, was adequate to address the issues raised.

Not Upheld: Balance, Fairness

The broadcast

[1]  An item on Morning Report and a brief summary bulletin of that item, broadcast on 1 December 2022, discussed issues with ‘unruly’ Kāinga Ora tenants. Two particular complaints to Kāinga Ora were focused on a Christchurch resident who spoke about having to sell her home to save her mental health, with the ‘last straw’ being a car exploding next door (referred to in this decision as the Christchurch Case); and a Coromandel resident who moved into a caravan due to music and dog noise to save her marriage (referred to in this decision as the Thames Case).

[2]  The Morning Report item was broadcast at 8.17am and was introduced:

Private property owners are leaving their first homes and moving into campervans to get away from unruly Kāinga Ora neighbours. A Christchurch woman says she sold up to preserve her mental health, while a Coromandel couple have rented out their home to save their marriage.

[3]  The item included the following comments:

Reporter:     A Christchurch retiree, who RNZ has agreed not to identify, says after enduring several years of noise and abuse, the straw that broke the camel's back was when her neighbour’s car went up in flames in the driveway. 

Christchurch Complainant:      You know, the car was exploding, the tyres were exploding, the flames up the bloody fence. It was 20 feet away from my bedroom window. I was expecting my window to end up being blown out. 

Reporter:     Soon after she decided to sell up. 

Christchurch Complainant:      You know, I shouldn't have been put in that position. I shouldn't have had to be in that situation. But for my own health and my own sanity, it was the better of the options. It was either stay there and just become a nervous wreck and wait for the next blimmin’ incident.

Reporter:     The woman bought a motorhome and is now living at a campground.

                     …

Reporter:     Housing Minister Megan Woods says it's unacceptable for neighbours to put up with these highly stressful situations and Kāinga Ora takes complaints very seriously. This is why it changed its policy earlier this year, so it could respond more swiftly and effectively to disruptive behaviour in the small number of cases where it occurs. 

Voiceover quoting Rt Hon Megan Woods:     However, in challenging situations, the process Kāinga Ora needs to follow does take time and often requires support from multiple agencies. I urge neighbours who are experiencing problems to continue to raise their concerns with Kāinga Ora as soon as possible so they respond as quickly as possible.

Reporter:     But that's little comfort to the Christchurch retiree. 

Christchurch Complainant:      I'm still upset. I'm angry, and I shouldn't have to put up with this rubbish. Nobody should. I should be able to enjoy my retirement, not have to put up with this garbage. No one's listening.

…

Reporter:     Kāinga Ora has received about six-and-a-half thousand complaints, but is yet to cancel any tenancies or evict a single tenant since it began to move more vigorously to enforce the law against unruly renters in February. It has, however, moved 113 households, although it admits about half of those are its tenants who have chosen to move away from other disruptive housing agency renters.

[4]  A related summary bulletin was broadcast at 8.33am the same day. It reported:

A Christchurch woman says the state housing agency Kāinga Ora's inaction over her unruly neighbours forced her to sell her house and live in a motorhome. The retiree says she endured several years of noise and abuse. She says after a car caught fire on the driveway next door, she'd finally had enough. The Housing Minister says Kāinga Ora has changed its policy to respond more swiftly to disruptive behaviour in the small number of severe cases.

The complaint

[5]  Kāinga Ora complained that the broadcast (the item and related bulletin(s)) breached the balance and fairness standards of the Code of Broadcasting Standards in New Zealand for the following key reasons:

• ‘Kāinga Ora was never given the opportunity to provide balancing comment on the alleged case in Christchurch, which was the predominant feature of the story.’
• Comment was invited, and given for the other case featured in the item (the Thames Case): ‘we had received a series of complaints over a 10-month period in 2018/19 but that our records showed there had been no complaints received in relation to the property in the past three years’.
• However, ‘During the course of [a phone] conversation, [the reporter] mentioned that he had been contacted about another similar situation but he said he had no privacy waiver in relation to that case and he gave no indication that he planned to use it as part of his story.’
• Details of the Christchurch Case were only learned by Kāinga Ora as the story aired. Kāinga Ora then contacted RNZ and asked them to pull the story, as comment had not been provided. The reporter later invited comment, but did not provide any details regarding the property due to the absence of a privacy waiver as mentioned above. On this basis comment could not be given by Kāinga Ora.
• Regarding the 22 December 2022 article cited in RNZ’s response (for which Kāinga Ora gave detailed comment), Kāinga Ora noted there was a privacy waiver in that case which enabled it to give a meaningful response.

The broadcaster’s response

[6]  Radio New Zealand Ltd (RNZ) did not uphold Kāinga Ora’s complaint, saying:

• ‘Even if Kāinga Ora was constrained from commenting on a specific instance of someone driven out of their home by their neighbours’ behaviour, there was still considerable scope for a thoughtful, empathetic response to the plight of these tenants. But the agency chose not to offer one.’
• ‘Given the similarity of the plight of both tenants quoted in the story, there were no particularly new circumstances that were not put to Kāinga Ora for comment before the item was published.’
• ‘RNZ notes that Kāinga Ora has participated in a further story with a similar theme published on December 22¹ and appears to have had no problem responding to inquiries related to that story.’
• ‘RNZ is confident that the broadcast of the first story would not have left the audience with an unfairly negative impression of Kāinga Ora.’

Scope of our decision

[7]  In the original complaint, Kāinga Ora specified its complaint related to:

…a news item broadcast on Radio NZ at 8.17am on Thursday 1 December in which the reporter, Robin Martin, referred to two cases where people had moved out of their homes and into caravans, allegedly because of disruptive behaviour by neighbouring Kāinga Ora tenants.

A brief of the story was also aired in Radio NZ’s news bulletins at 7.28am and 8.33am. This complaint also relates to the stories on these cases that were published on RNZ’s website.

[8]  With respect to the online articles, these are outside the Authority’s jurisdiction to determine, as we are limited to considering the radio broadcast content (although they are nevertheless relevant to our deliberations, as part of the wider coverage provided by RNZ on the issue.)

[9]  The broadcaster provided us with copies of the 8.17am and 8.33am segments, however it advised it could not locate a third broadcast at 7.28am.

[10]  We have therefore determined the complaint in relation to the main item at 8.17am and the summary bulletin broadcast at 8.33am on 1 December 2022.

The standards

[11]  The balance standard² states that when controversial issues of public importance are discussed in news, current affairs or factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant viewpoints either in the same broadcast or in other broadcasts within the period of current interest, unless the audience can reasonably be expected to be aware of significant viewpoints from other media coverage. It ensures competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.³

[12]  The fairness standard⁴ states broadcasters should deal fairly with any individual or organisation taking part or referred to in a broadcast. It protects the dignity and reputation of those featured in programmes,⁵ ensuring they are dealt with justly and fairly and protected from unwarranted damage.

[13]  A consideration of what is fair depends on the nature of the programme and the context, including whether the audience would have been left with an unfairly negative impression of the person or organisation referred to, whether they were given a reasonable opportunity to comment, and the public significance of the broadcast.⁶

Our analysis

[14]  We have listened to the two broadcast items and read the correspondence listed in the Appendix.

[15]  As a starting point, we considered the important 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 when the resulting limit on the right to freedom of expression is demonstrably reasonable and justified in a free and democratic society.⁷

[16]  Looking first at the value of the broadcast, we consider the story carried high public interest. It continued a series of reporting by RNZ investigating alleged inaction by a high-profile government agency, Kāinga Ora, concerning complaints about behaviour that was affecting the wellbeing and property of New Zealanders.

[17]  Overall we have not found harm under either the balance or fairness standards that outweighed this value and public interest, or warrants our intervention. It was a legitimate issue to investigate and report on (and we note the reporter had been working on this story since October 2022), following up on the impact and effectiveness of changes to the complaints process introduced in February 2022, especially since no evictions had occurred despite 6,500 or so complaints.

[18]  Accordingly we have not upheld any part of the complaint. We explain our reasons below.

Balance

[19]  The core of the complaint under this standard is that Kāinga Ora was not given an opportunity to comment specifically regarding the Christchurch Case.

[20]  A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The standard applies only to ‘news, current affairs and factual programmes’ which discuss a controversial issue of public importance. The subject matter must be an issue ‘of public importance’, it must be ‘controversial’, and it must be ‘discussed’.⁸

[21]  The behaviour of Kāinga Ora tenants and the impact on communities has been an ongoing news story (and the focus of a series of RNZ articles by the same reporter⁹). It has elicited public responses from the Minister,¹⁰ including in this story, as well as from the opposition.¹¹ We consider this wider issue constitutes a controversial issue of public importance.

[22]  We do not however consider the Christchurch Case on its own – which is the focus of the complaint – meets the criteria for triggering the requirements under the balance standard.

[23]  The Authority has previously found isolated case studies or individual stories may not be controversial, even when they are presented as part of a wider controversial issue.¹² The Authority has also held that individual stories do not amount to a ‘discussion’ of a related controversial issue.¹³ The Christchurch Case was just one case study example (among numerous other similar cases) in the context of ongoing reporting on the topic. It was not required in the interests of balance to present Kāinga Ora’s response to that specific case, nor do we think that would have changed listeners’ understanding of the issue overall, or their ability to form a view on it.¹⁴

[24]  In any event, we note RNZ did include balancing comment from Housing Minister, Megan Woods which presented Kāinga Ora’s position, quoted above at [3] and [4]. Key points included that Kāinga Ora takes complaints very seriously; challenging situations do take time to resolve; and Kāinga Ora has changed its policy to respond more swiftly to disruptive behaviour in ‘the small number of severe cases’. This high-level response was sufficient in our view to address the issues raised, without needing direct comment from Kāinga Ora or comment specifically addressing the Christchurch Case.

[25]  Accordingly, we do not uphold this complaint under the balance standard.

Fairness

[26]  Kāinga Ora argues it was not treated fairly because:

• It was apparently unaware that the Christchurch Case was going to be discussed in the broadcast (claiming the reporter gave no indication that it would be, during a phone call).
• Kāinga Ora was not given any details of the Christchurch Case even when it was later asked for comment, due to the lack of a ‘privacy waiver’ (which appears to be a document Kāinga Ora requires broadcasters to get signed in order to comment).

[27]  Under the fairness standard, if an organisation referred to in a broadcast might be adversely affected, that organisation should usually be given a fair and reasonable opportunity to comment for the programme, before the broadcast.¹⁵

[28]  However, what is ‘fair and reasonable’ will depend on the circumstances in each case.¹⁶ For example, the threshold for finding unfairness is higher for an organisation familiar with dealing with the media, as opposed to an ordinary person with little or no media experience.¹⁷

[29]  Overall we did not find any unfairness to Kāinga Ora arising from this broadcast or the agency’s interactions with the reporter. The key factors supporting this view were:

• The broadcast carried high public interest and high value in terms of exercising freedom of expression, as it concerned government policy and how this was impacting neighbourhoods in (sometimes) extreme ways. It was legitimate to report on the perceived lack of any progress in addressing complaints about Kāinga Ora tenants, despite the updated complaints scheme introduced approximately 10 months before this item (February 2022).
• Whether or not Kāinga Ora was told by the reporter the Christchurch Case specifically would feature in the broadcast, it was clearly aware of the story, aware of the (very similar) Thames Case, and aware that the reporter ‘had been contacted about another similar situation but he said he had no privacy waiver in relation to that case’. It was also aware of, and in some instances gave comment for, other stories by the reporter covering similar issues and case examples.¹⁸
• In terms of the ‘nature of the organisation’ and the related threshold for finding unfairness, Kāinga Ora is a large government agency with significant media experience.
• It is not inherently unfair to use confidential sources. ‘Privacy waivers’ are not a requirement under the Code of Broadcasting Standards in New Zealand or the Broadcasting Act 1989 and therefore not determinative of what is a ‘fair and reasonable opportunity to comment’. The suggestion such sources should never be used would itself unreasonably restrict freedom of expression and broadcasters’ ability to gather information. The reporter maintains he judged the source to be credible.
• In any event, the reporter’s later request for comment included numerous details of the Christchurch Case (broad time period, examples of problems at the property including a car fire, issues the person had with getting a response from the agency, that she had sold her house, that she had resorted to living in a campervan) – even in the absence of a name or address. Therefore we do not agree Kāinga Ora was ‘never given any details’.
• The comments from the Housing Minister included in both the item and the bulletin gave a general response to both the Thames and Christchurch Cases which was sufficient in the circumstances to present Kāinga Ora’s position, even without direct comment from Kāinga Ora. The Minister highlighted that:
  • It is unacceptable for neighbours to put up with these highly stressful situations.
  • All complaints are taken very seriously by Kāinga Ora.
  • The policy for responding to them has been changed to allow complaints to be addressed more quickly and effectively.
  • There is a ‘small number of severe cases’.
  • In challenging situations, the process Kāinga Ora needs to follow does take time and often requires support from multiple agencies.
  • Neighbours who are experiencing problems are encouraged to continue to raise their concerns with Kāinga Ora as soon as possible so they can respond as quickly as possible.

[30]  In these circumstances we do not consider listeners would have been left with an ‘unfairly negative’ impression of Kāinga Ora through the lack of specific comment on the Christchurch Case, which would have a marginal impact on the presentation of the issue as a whole, covered over several months. For the same reasons, the potential harm arising from the omission of comment on one particular example (out of numerous similar examples reported over a period) did not outweigh the public interest in the story or the right to freedom of expression.

[31]  We therefore do not uphold the complaint under the fairness standard.

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

Susie Staley
Chair
7 June 2023    

Appendix

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

1  Kāinga Ora's formal complaint to RNZ – 6 December 2022

2  RNZ's decision on the complaint – 20 January 2023

3  Kāinga Ora's referral to the Authority – 20 January 2023

4  Correspondence between the Authority and the parties regarding Kāinga Ora’s phone conversation with RNZ reporter – 2 March 2023

5  RNZ’s response to the referral – 23 March 2023

6  Kāinga Ora's final comments – 27 March 2023

7  RNZ's final comments – 29 March 2023

¹ Robin Martin “Unruly neighbours move after 'nightmarish' year, Kāinga Ora admits mistakes” RNZ (online ed, 22 December 2022)
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 8, Code of Broadcasting Standards in New Zealand
⁵ Commentary, Standard 8, Code of Broadcasting Standards in New Zealand at page 20
⁶ Guideline 8.1
⁷ Introduction, Code of Broadcasting Standards in New Zealand at page 4
⁸ Guideline 5.1
⁹ Robin Martin “New Plymouth family say unruly Kāinga Ora neighbours force mum to use hotels” RNZ (online ed, 22 October 2022); Robin Martin “Homeowner complains to Ombudsman over disruptive Kāinga Ora neighbours” RNZ (online ed, 9 November 2022); Robin Martin “No evictions of unruly tenants by Kāinga Ora after receiving more than 6000 complaints” RNZ (online ed, 23 November 2022)
¹⁰ Anneke Smith “Minister steps in to change Kāinga Ora complaints process for unruly tenants” RNZ (online ed, 3 February 2022); Russell Palmer “Kāinga Ora reconsidering evictions policy, minister says” RNZ (online ed, 23 November 2021)
¹¹ Lane Nichols “Kāinga Ora announces new measures to crack down on unruly state housing tenants” NZ Herald (online ed, 9 February 2022) see: “National's housing spokeswoman Nicola Willis said today's announcement was an ‘about turn’ after months of denials from Kāinga Ora about the impact its no-eviction policies on good law-abiding neighbours.”; Anneke Smith “Minister steps in to change Kāinga Ora complaints process for unruly tenants” RNZ (online ed, 3 February 2022)
¹² Derleth and Discovery NZ Ltd, Decision No. 2021-109 at [10]; Kean and Radio New Zealand Ltd, Decision No. 2020-097 at [14]
¹³ Caughey & Leyland and Television New Zealand Ltd, Decision No. 2018-009 at [24]-[26]; Right To Life Inc and Television New Zealand Ltd, Decision No. 2022-079 at [19]
¹⁴ Commentary: Standard 5, Code of Broadcasting Standards in New Zealand: ‘A key consideration is what an audience expects from a programme and whether they were likely to have been misinformed by the omission or treatment of a significant perspective (eg where a significant perspective is presented with limited coverage or in a manner which undermines its validity).’
¹⁵ Guideline 8.4
¹⁶ Guideline 8.1
¹⁷ As above
¹⁸ Robin Martin “New Plymouth family say unruly Kāinga Ora neighbours force mum to use hotels” RNZ (online ed, 22 October 2022); Robin Martin “Homeowner complains to Ombudsman over disruptive Kāinga Ora neighbours” RNZ (online ed, 9 November 2022); Robin Martin “No evictions of unruly tenants by Kāinga Ora after receiving more than 6000 complaints” RNZ (online ed, 23 November 2022)