BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

All BSA's decisions on complaints 1990-present

McCormack and Television New Zealand Ltd - 2004-155

  • Joanne Morris (Chair)
  • Diane Musgrave
  • Tapu Misa
  • Paul France
  • Steve McCormack
TV One

Complaint under section 8(1)(a) of the Broadcasting Act 1989
State of the Nation
– live televised debate on race relations included panel and studio audience – comments by Derek Fox interpreted as stating that Don Brash (the Leader of the Opposition) has not read the Treaty of Waitangi – allegedly inaccurate

Standard 5 (accuracy) – comment misinterpreted – not upheld

This headnote does not form part of the decision.


[1] State of the Nation was broadcast on TV One at 8.35pm on 10 June 2004. The programme was a panel and studio audience discussion, broadcast live, in which the participants discussed race relations issues between Māori and Pākehā in New Zealand.

[2] During the course of the debate Derek Fox, one of the “experts and opinion shapers” on the panel, commented critically that an audience member felt qualified to offer an opinion on the Treaty of Waitangi despite admitting earlier in the programme that he had not read the document. Derek Fox went on to say:

And he’s entirely representative – he’s not alone – ah it’s people like Don Brash. Don Brash has not read any reputable work on the Treaty.

So how can we take the guy’s opinion seriously? And this chap’s opinion seriously, when he can’t be bothered to read the document?


[3] Steve McCormack complained to Television New Zealand Limited, the broadcaster, that Derek Fox’s remarks amounted to “comments along the lines of ‘Don Brash has not read the Treaty’”.

[4] The complainant stated that this was inaccurate and therefore breached Standard 5 of the Free-to-Air Television Code of Broadcasting Practice. He provided a quote from Don Brash’s electorate agent in support of this:

Dr Brash…is certainly familiar with both the English and Maori (translated) versions of the Treaty and also the ‘Littlewood Treaty’ version.

[5] Steve McCormack felt that the broadcaster had not taken reasonable steps to ensure that the information sources for the programme were reliable.

[6] The complainant also stated that because Derek Fox had been introduced as an “expert” panellist, he should have limited his comments to presenting facts about Māori broadcasting, rather than offering “opinions about Don Brash’s reading habits”. In this respect, the complainant felt that the broadcaster had “blurred fact with opinion”.


[7] Standard 5 and Guidelines 5a, 5d and 5e of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of this complaint:

Standard 5 Accuracy
News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

5a  Significant errors of fact should be corrected at the earliest opportunity.

5d  Factual reports on the one hand, and opinion, analysis and comment on the other, should be clearly distinguishable.

5e  Broadcasters must take all reasonable steps to ensure at all times that the information sources for news, current affairs and documentaries are reliable.

Broadcaster's Response to the Complainant

[8] In its response TVNZ focussed on the statement that “Don Brash has not read any reputable work on the Treaty”. It did not consider that Guideline 5d had been breached because:

The word “reputable” in this context was largely subjective, and in the context of a live television debate…Mr Fox’s unscripted remark was clearly not a factual report, but a “comment” within the meaning of the Guideline.

[9] The broadcaster stated that while pre-recorded features of the programme had been “independently verified” to ensure that they were accurate, it did not believe that this was possible “in relation to statements made by an invited audience during a live television programme”.

[10] Accordingly, TVNZ refused to uphold the complaint.

Referral to the Authority

[11] Dissatisfied with TVNZ’s decision, Steve McCormack referred the complaint to the Authority. He maintained that, taken as a whole, Derek Fox’s remarks had amounted to “comments along the lines of ‘Don Brash has not read the Treaty’”. The complainant felt this was an inaccurate statement in breach of Standard 5.

Broadcaster’s Response to the Authority

[12] In its response to the referral, TVNZ made the following points:

  • It could not be certain that Mr Fox’s remarks referred to Don Brash or to the audience member, and given that he was “ad-libbing a comment in a live situation he may himself not have been thinking clearly in terms of one or the other”.
  • It should be kept in mind that the comments were made in the context of a live studio discussion, and therefore they “may not be as coherent or reasoned as they would have been had they been in written form”.
  • Emphasis should be placed on the fact that “opinions given throughout this programme were reported accurately” by the broadcaster, regardless of whether viewers disagreed with those opinions.

Authority's Determination

[13] The members of the Authority have viewed a tape of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

[14] The essence of the complaint is that Derek Fox stated – allegedly inaccurately – that Dr Brash had not read the Treaty of Waitangi. However, after reviewing the item and a transcript of the words complained of, the Authority does not consider that they could reasonably be interpreted as a statement that Dr Brash had not read the Treaty.

[15] Mr Fox clearly stated that a certain audience member had not read the Treaty. There is no issue with that statement. He also stated that Dr Brash had not read any reputable work on the Treaty. Nor has issue been taken with that statement. But the Authority does not agree that Mr Fox made any statement to the effect that Dr Brash had not read the Treaty. While the written transcript of the words may carry some ambiguity, viewing the broadcast left no such impression that Mr Fox had made the statement alleged by the complainant.

[16] The Authority also notes that Derek Fox’s comments were made during a live broadcast and it agrees with TVNZ that such comments “may not be as coherent or reasoned as they would have been had they been in written form”.

[17] The Authority’s view is that the comments did not carry the meaning that the complainant objected to. For this reason the Authority declines to uphold the complaint.


For the above reasons the Authority does not uphold the complaint

Signed for and on behalf of the Authority


Joanne Morris
25 November 2004


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

  1. Steve McCormack’s formal complaint to Television New Zealand Ltd – 27 June 2004
  2. TVNZ’s decision on formal complaint – 8 July 2004
  3. Mr McCormack’s referral to the Authority – 22 August 2004
  4. TVNZ’s response to the referral – 15 September 2004