BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

On 18 March 2017, RNZ reported on allegations made by the Board of Trustees at Salisbury School, a Nelson school for girls with complex learning needs, that the Ministry of Education (Ministry) had actively discouraged parents from enrolling children at the school so that it could be closed. On 31 March and 6 April 2017, RNZ broadcast a series of items about an alleged lack of funding, resources and support for Northland teachers struggling to cope with violent and disruptive children. The Authority upheld aspects of a complaint from the Ministry that RNZ’s coverage of these issues was unfair and unbalanced. While the Authority acknowledged the high public interest in these stories, and the important role of broadcast media in holding our government entities to account, it found that it was equally important in this case to ensure listeners were fully informed about the issues reported on, and this included being made aware of the Ministry’s views in response. This required the broadcaster to ensure that the Ministry was provided with a fair and reasonable opportunity to comment on the items, prior to broadcast.

Upheld: Balance, Fairness. No Order. 

Introduction

[1]  On 18 March 2017, RNZ reported on allegations made by the Board of Trustees (BOT) at Salisbury School, a Nelson school for girls with complex learning needs, that the Ministry of Education (Ministry) had actively discouraged parents from enrolling children at the school so that it could be closed. Items were broadcast at midday, 1pm, 3pm, 7pm and 9pm on RNZ National, and featured comment from a parent, who described his experience of attempting to enrol his child at the school, the BOT and the BOT Chair. The broadcasts at 7pm and 9pm included comments from the Ministry in response, while the broadcasts at 1pm and 3pm did not.

[2]  On Friday 31 March 2017, RNZ broadcast 13 items about an alleged lack of funding, resources and support for Northland teachers struggling to cope with violent and disruptive children. Items were broadcast from 6am throughout the day until 6pm on RNZ National, featuring comments from the Tai Tokerau Principals’ Association (TTPA) President and principals at various primary schools in the Northland area. 

[3]  An item on 6 April 2017 also reported on this issue, featuring comments from the TTPA President, principals and families who felt they did not receive adequate funding or support for their children. At the end of this item, the presenter pointed listeners to a statement from the Ministry in response, which was published on RNZ’s website. The statement was not broadcast or summarised in the item.

[4]  The Ministry complained that RNZ’s coverage of the Salisbury School and Northland schools issues was unfair and lacked balance, and that the Ministry was not given a fair opportunity to respond to the allegations made. The issues raised in the Ministry’s complaint are whether the broadcasts breached the balance and fairness standards as set out in the Radio Code of Broadcasting Practice.

[5]  The items were broadcast on RNZ National on 18 March 2017, 31 March 2017, and 6 April 2017. The members of the Authority have listened to recordings of the broadcasts complained about and have read the correspondence listed in the Appendix.

The standards

[6]  The Ministry has complained that the broadcasts described above at paragraphs [1] to [3] were in breach of Standard 8 – Balance and Standard 11 – Fairness. We have set out our decision on each series of broadcasts, and our reasoning, in turn below, but here outline the key elements of each standard and how they apply. We note that we have assessed each series of broadcasts together and considered their effect as a whole on listeners.

[7]  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.

[8]  A key consideration under Standard 8 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.¹

[9]  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 individuals or organisations 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]  It is a fundamental principle of the fairness standard that if a person or organisation referred to or portrayed in a broadcast might be adversely affected, that person or organisation should usually be given a fair and reasonable opportunity to comment for the programme, before the broadcast. What is fair and reasonable will depend on the circumstances.²

Overview of findings and freedom of expression

[11]  The items that are the subject of this complaint were broadcast by RNZ as news bulletins and short items within news and current affairs programmes. As such, many of the items were relatively brief, providing short snippets of interviews and statements from various parties about the issues raised. As we have noted above at paragraph [6], in assessing these broadcasts, we have considered the cumulative effect of the broadcasts throughout the day, rather than focusing narrowly on each individual broadcast.

[12]  The primary purpose of these items was to inform New Zealanders about important and controversial developments within the education sector. While not in-depth, these items scrutinised issues of importance in New Zealand’s educational system and, at times, reported on allegations that were critical of the actions of a significant government department, the Ministry of Education, as well as other organisations within the sector.

[13]  The Ministry’s position is that, as the government department responsible for the provision of funding and education services, it was the primary subject of these items and was therefore negatively impacted by the allegations. The Ministry has submitted that, in the interests of balance and fairness, it should have been given a fair and reasonable opportunity to respond to the claims made and for its position to be reflected in the reporting.

[14]  The Ministry’s complaint raises the important issue of what is the appropriate balance between the right to freedom of expression – the right of broadcasters to impart ideas and information, and the public’s right to receive that information – and the obligation to ensure broadcasts are balanced and fair to those who may be the subject of the broadcast.

[15]  In an open and democratic society such as ours, broadcasts which scrutinise or which are critical of the actions of government entities are a vital component of freedom of expression. The broadcast media has a significant role to play in keeping the public informed, and holding our government bodies to account. In complaints of this kind and in previous similar decisions, we have stressed the importance of finding the proper balance between the public interest in ensuring that news items and similar programmes are fair and balanced, and the public interest in allowing free criticism of those who govern.³

[16]  The broadcasts subject to this complaint had high value and carried a high level of public interest. The items reported on allegations that raised questions about whether the Ministry was working effectively, transparently and in accordance with proper process. We accept that this complaint has been raised by a large government department, familiar and experienced in dealing with media and with resources available for this purpose. Such government entities should expect to be subject to scrutiny and have the resources to provide comment if required.

[17]  In this case, however, we do not consider that the items provided New Zealanders with a sufficiently balanced or fair account of the issues raised. We have found that, while there was public interest in the items reported, there was also a high level of public interest in hearing the Ministry’s response to the allegations, and the Ministry was not given a fair or reasonable opportunity to provide this. In order to effectively hold government entities to account, listeners need to be fully informed and aware of both sides of the story. In this case, and as a result of not adequately informing listeners of the Ministry’s view, we consider there was a risk that New Zealanders may be ill-informed about matters of public importance, relating to the education services available for vulnerable children, and may have unfairly undermined New Zealanders’ trust and confidence in the Ministry and its services.

[18]  We have therefore upheld aspects of the Ministry’s complaint, finding that the broadcasts on 31 March 2017 and 6 April 2017 were unbalanced, and that the Ministry was treated unfairly in relation to all three series of broadcasts. Our reasons for this decision are set out in full below. 

18 March 2017 – Salisbury School

The broadcasts

[19]  During the Midday Report, RNZ reported on allegations made by the BOT at Salisbury School that the Ministry was actively discouraging parents from enrolling their children at the school, so that it had greater reason to close it. The reporter said that the Minister for Education, Hekia Parata, had revealed a new proposal to close the school in 2016, after a previous attempt had been ruled unlawful by the High Court in 2012. The report included comment from a parent who said that, when asked about the school, a Ministry employee had told him it would be closing and so his child could not go. As a result, he said that his child’s enrolment was delayed by a year.

[20]  During the 1pm RNZ News bulletin, the BOT Chair commented on the experience of the family, saying:

That has to have come from somewhere and if it has come from the Minister’s office, or the senior people in the Ministry itself, then what that shows is that they have unlawfully determined in advance of the supposedly open consultation process what the outcome is going to be. That’s a very serious matter.

[21]  A similar report was also broadcast during the 3pm RNZ News bulletin.

[22]  At 7pm, RNZ reported that the Ministry said it was ‘incorrect to suggest it has directed staff to discourage parents from enrolling their children at Salisbury School’. The reporter referred to comment from a Ministry spokesperson, who said that the Ministry’s Intensive Wraparound Service (IWS) had been referring students to the school and that the school was still accepting enrolments. ⁴

[23]  This response from the Ministry was repeated during the 9pm news bulletin.

[24]  RNZ also published an online article on its website about this issue, which featured comment from a Ministry spokesperson who said it was incorrect to suggest it directed staff to discourage parents from enrolling their children at Salisbury School.

Did the broadcasts discuss a controversial issue of public importance, and if so, were they adequately balanced?

The parties’ submissions

[25]  In relation to balance (Standard 8), the Ministry submitted that:

• It became aware of the broadcast items only late in the afternoon on 18 March 2017. It then contacted RNZ and asked why no balancing comment had been sought and provided a comment to be included in subsequent broadcasts.
• Several people were interviewed and gave their opinion on the allegations against the Ministry, meaning the issue was ‘discussed’, for the purposes of the balance standard. Audiences would therefore have expected to hear the Ministry’s position on the claims made against it

[26]  In response to the Ministry’s submissions on the balance standard, RNZ submitted:

• It did not agree that the broadcasts discussed a controversial issue of public importance, as each of the items were short news bulletins which did not ‘discuss’ the issue raised.
• The Ministry’s attitude towards Salisbury School was well known, and the Ministry had ample opportunity in the past, across all media, to put forward its point of view.

Our analysis

[27]  In order for the balance standard to apply, the subject matter of the broadcast must be an issue of ‘public importance’, it must be ‘controversial’ and it must be ‘discussed’.⁶ We must therefore first consider whether the 18 March 2017 broadcasts regarding Salisbury School amounted to a discussion of a controversial issue of public importance.

[28]  In our view, allegations that the Ministry was actively discouraging parents from enrolling children in Salisbury School was a controversial issue that would have been of concern to the New Zealand public. The items, which commented on the allegedly inappropriate actions of a government department, had high public interest. Further, as the only residential school in New Zealand catering for female students with complex learning needs, and given the Ministry’s attempts in the High Court to close the School, the future of Salisbury School had topical currency and was the subject of ongoing public debate.

[29]  The next question is whether this issue was ‘discussed’.

[30]  We have previously found that news items that simply report information about what may be controversial issues, for example, where there has been a newsworthy development, are not discussions which require balancing perspectives.⁷

[31]  However, in this case, we are satisfied that the issue was discussed for the purposes of the standard. The allegation that the Ministry was actively discouraging parents from enrolling children at the School was ‘discussed’ through interviews with a parent affected, and through comment from the School’s BOT and Board Chair.

[32]  We acknowledge that the majority of the items were relatively brief news reports and bulletins. However, through the comments and interview excerpts, the items offered multiple perspectives on the issue (albeit all providing comment from the same position). These items reported on new and contentious allegations about the Ministry and its treatment of families looking to enrol children at Salisbury School. In this context, we consider the items went beyond reporting on a newsworthy development and amounted to a ‘discussion’ of a controversial issue, meaning the requirement to make reasonable efforts to present significant views on the issue was triggered.

[33]  Having listened to the items broadcast, and taking an objective view, we consider that listeners would have expected to hear the Ministry’s response to the allegations,⁸ particularly to the comments made by the BOT Chair, who said that a direction to discourage parents ‘…has to have come from somewhere and if it has come from the Minister’s office, or the senior people in the Ministry itself, then what that shows is that they have unlawfully determined in advance of the supposedly open consultation process what the outcome is…’

[34]  While the Ministry’s views in relation to the closure of the School may have already been known to the New Zealand public (given media coverage and scrutiny of the High Court proceedings), the allegations reported in these broadcasts, that the Ministry was actively discouraging parents from enrolling children, was an issue not previously reported in connection with the School. We therefore consider it was unlikely that RNZ audiences would have been aware of the Ministry’s response on this particular matter from alternative sources.

[35]  Prior to the 7pm news bulletin, no comment was provided from the Ministry explaining its view of the allegations, for example, whether it agreed, or if there was further contextual information that it could provide listeners. A significant point of view – that of the Ministry – was therefore omitted from the items until the 7pm news bulletin.

[36]  RNZ has submitted that it did not consider the broadcasts included discussion of a controversial issue which required balancing views, and this was why the Ministry was not contacted prior to the broadcasts. However, when it was contacted by the Ministry, it included the following balancing comments:

• 7pm news bulletin: ‘Ministry spokeswoman, [name], says the Wraparound Service has still been referring students to the school and the school is still accepting enrolments.’
• 9pm news bulletin: ‘The Ministry of Education has denied it directed staff to discourage parents from enrolling students at Salisbury School.’
• 9pm news bulletin: ‘The Ministry says its Intensive Wraparound Service has still been referring students to the School and the School is still accepting enrolments.’

[37]  These comments, provided on the same day, ‘within the period of current interest’, pointed listeners to the existence of other viewpoints, and clarified the Ministry’s position that it was not discouraging parents and was in fact still referring students to the School. Taking into account the purpose of the standard, which is to ensure New Zealanders are well-informed and able to arrive at an informed and reasoned opinion on important issues, and also taking into account the public interest in this story, we do not consider the threshold was met to find a breach of the standard in this particular case.

[38]  The fact that the points raised by the Ministry were aired later in the day, however, indicates that a balancing comment should have been sought by RNZ on this story. The obligation, as required by the standard, is on the broadcaster to make reasonable efforts, or give reasonable opportunities, to present significant viewpoints on the issue discussed. If the Ministry’s statements had not been aired, there was a risk that a breach of the standard may have occurred here.

Was the Ministry treated unfairly?

The parties’ submissions

[39]  The Ministry submitted that it was treated unfairly as a result of these broadcasts, saying:

• It was not adequately informed about the allegations and audiences would have been left with an unduly negative impression of the Ministry following the broadcasts.
• The broadcasts implied that the Ministry employed a deliberate or purposeful strategy to discourage parents from enrolling children at Salisbury School. In a statement provided to RNZ, the Ministry made it clear that there was no such strategy orchestrated by, or communicated from, senior Ministry staff.
• By the time it was made aware of the broadcasts, the Ministry simply had to provide a comment as quickly as possible and could not respond to each individual allegation. An unfair onus was placed on the Ministry to provide comment, rather than on RNZ to seek it.

[40]  RNZ submitted:

• It stood by the statements made during the 18 March 2017 broadcasts (ie, that the Ministry was actively discouraging parents from enrolling students at Salisbury School), and requiring immediate response from the Ministry on this matter would represent an unjustifiable limit on the right to freedom of expression (of those participating in the broadcasts to comment on the issue).
• These broadcasts reported incontestable facts of what had occurred. While listeners may view the Ministry in an unfavourable light as a result, this was not an issue of fairness but of reporting the ‘truth’.
• Citizens had a fundamental right to criticise government action or inaction. The Ministry is a large and powerful organ of government and should rightly expect to receive criticism, even trenchant criticism, from time to time. However, it could not expect to demand an automatic right of reply to every adverse comment made.

[41]  RNZ provided affidavits from participants to verify the truth of what was said during the broadcasts. In response, the Ministry provided declarations which disputed the claims outlined in RNZ’s affidavits.

Our analysis

[42]  The fairness standard requires broadcasters to deal fairly with any person or organisation taking part or referred to in any broadcast.⁹ The Ministry was clearly referred to in these broadcasts, so the key issue is whether the broadcasts had the potential to adversely affect the Ministry, and therefore whether it was given a sufficient opportunity to comment.

[43]  RNZ has submitted that because these broadcasts reported on allegations representing the ‘truth of the matter’, it was not unfair that the Ministry was not given an opportunity to comment. We note in response to these submissions that the fairness standard is about following a fair process and giving those who may be the subject of adverse comments a reasonable opportunity to respond. Whether or not adverse statements are true is not the focus of the standard, which is about ensuring that those who might be negatively affected by the broadcast are given the opportunity to have their say.

[44]  These broadcasts reflected negatively on the Ministry, strongly implying staff were directed to, and/or did, discourage parents from enrolling children at Salisbury School before it was officially closed. This created an impression for listeners that the Ministry, by attempting to close the school without following an open or transparent process, was acting unlawfully or unethically, contrary to the interests of the education sector.

[45]  We have carefully considered whether, as a large government department, the Ministry could expect this level of criticism, and whether the broadcaster’s actions in failing to seek the Ministry’s comments in response, resulted in the Ministry being treated unfairly. It is well-established that the threshold for finding unfairness to a public figure or organisation familiar with dealing with media is higher, compared with an ordinary person with little or no media experience.¹⁰

[46]  However, given that the Ministry might be adversely affected in this case (regardless of whether or not the allegations made were true), in our view RNZ was required, in the interests of fairness, to provide the Ministry with a fair and reasonable opportunity to respond.

[47]  The Ministry submits that it was not contacted by RNZ prior to the first broadcast at midday, and its comment was only included after the Ministry itself contacted RNZ. We do not consider this amounted to a fair and reasonable opportunity. As we have said in a previous case, ‘The obligation to treat participants fairly and offer a reasonable opportunity for comment is the broadcaster’s to satisfy, not the participant’s.’¹¹

[48]  We therefore uphold this aspect of the Ministry’s complaint under the fairness standard. In doing so, we are satisfied that this will not unreasonably restrict the broadcaster’s right to freedom of expression. We are not suggesting these items, or the allegations that were made against the Ministry, should not have been broadcast, as they held high value in terms of the right to freedom of expression and were in the public interest.

[49]  However, we consider it was also in the public interest for New Zealanders to be provided with, and understand, the Ministry’s response to the allegations. The Ministry was not given a fair opportunity in this case to communicate its position to New Zealanders. As a result, our view is that the Ministry was treated unfairly.

[50]  We note finally that, while we have found in our decision on this particular complaint that fairness required that the Ministry’s views on the issue ought to have been sought, it may not always be the case in items relating to government bodies. What is fair in each case will depend on the particular circumstances. Contextual factors, such as the nature of the items, the urgency of the situation and the issues discussed, will always be a key factor in determining whether comments in response should be sought and broadcast.

31 March 2017 – Northland schools

The broadcasts

[51]  Thirteen items throughout the day on Friday 31 March 2017 reported on the TTPA’s call for principals in Northland to consider suspending violent or disruptive children, when there was no funding available to support them. Corresponding online articles were also published on RNZ’s website.¹²

[52]  The first item, broadcast at 6am, reported on comments made by the President of the TTPA. The reporter described his comments as follows:

…schools are seeing more and more children damaged by trauma at home, or by methamphetamine or alcohol before birth. [The TTPA President] says such children cause havoc in class and without a minder or teacher aide, some pose a health and safety risk to teachers and other children.

[53]  At 6.09am, during a similar item on Morning Report, the reporter said that TTPA principals were saying that:

…schools are not being funded to give broken children what they need, whether it’s full-time teacher aide or psychological help. The head of [a Northland primary school] says teachers are desperate for support and end up taking violent children to the principal’s office.

[54]  The report then featured excerpts from an interview with this principal, who described the challenges faced by teachers at his school when dealing with disruptive children. He said that children would often be brought to his office to be supervised completing schoolwork, meaning he needed to complete his own work in the evening. He said this was ‘a common picture for a lot of principals’. Excerpts from this interview were also featured in other news bulletins throughout the day.

[55]  During the 7am news bulletin, the reporter said:

A Northland principal says social services are failing damaged children from problem families. [The TTPA President] says schools can’t get funding they need to deal with violent, disruptive children, and he says the Police and CYF [Child, Youth and Family] can’t keep track of the ones that aren’t attending any school.

[56]  The reporter said that the TTPA President’s view was that:

…unless there was a rapid improvement in services for damaged children, and better funding for teacher aides, he will be advising principals to start suspending the problem children, in the interests of health and safety.

[57]  An item on Morning Report at 7.09am featured excerpts from interviews with the TTPA President, and principals at three other primary schools in Northland, who described the behavioural issues of children at their schools and the challenges facing teachers. The reporter described the TTPA President’s comments that ‘95 percent of his time is now spent dealing with CYF, mental health services, and the Ministry of Education, trying to source help for broken children.’ One principal said that teacher aides were the solution, but that Ministry funding was only available for two hours of teacher aide per day, while another said that critical psychological services were also under-funded.

[58]  The issue was also reported on during news bulletins at 6.30am, 7.30am, 7.49am, 8am, 8.30am, 9am and 3pm.

[59]  At 5.23pm, an item on RNZ’s Checkpoint programme was introduced by the presenter as follows:

… Northland schools at breaking point – the extraordinary behaviour log of one violent child in one Northland school over a week. Where is the funding to support him and the school he is in?

… A Northland principal says New Zealand has a clear choice of investing in help for violent children in schools, or investing in more prisons ten years down the track. [The TTPA President] says teachers are at breaking point as they try to cope with growing numbers of damaged kids and he’s on the verge of advising them to start suspending these children to keep others safe.

… [The TTPA President] says these children have behavioural problems that not only disrupt classes but threaten the safety of their classmates and their teachers. They need full-time minders, he says, but on average they get funding for teacher aides for two hours a day, per child.

[60]  The item featured excerpts from an interview with the TTPA President, who summarised a behaviour log for one student at his school, over a two-week period. He said that the teacher aide for this child was shared with another student. The behaviour log included a number of examples of verbal and physical violence.

[61]  Finally, the story, featuring excerpts from an interview with the TTPA President, was reported in Checkpoint’s 6pm news bulletin.

Did the broadcasts discuss a controversial issue of public importance, and if so, were they adequately balanced?

The parties’ submissions

[62]  Under the balance standard, the Ministry submitted that:

• It has operational responsibility for the funding of teacher aides and learning support, and was not approached for comment on these stories until 4pm on 31 March 2017, when written comment was then provided (but not broadcast). An unfair onus was placed on the Ministry to provide balancing comment, rather than on RNZ to seek it.
• Listeners were entitled to hear whether the claims made were accurate and further context around Ministry funding, and, as a result, were left misinformed. If the Authority accepted that this was a government matter (as submitted by RNZ below), balance was still not achieved as Ministers were not approached for comment either.
• It was not contacted until 5pm regarding the 5.23pm Checkpoint item (during which time the item began to air), which featured an updated, fresh angle and new examples. This story and new information was not put to the Ministry for comment. 

[63]  RNZ submitted, in relation to balance, that: 

• It did not agree that the broadcasts discussed a controversial issue of public importance, as each of the items were short news items or short packages within the Morning Report or Checkpoint programmes. As such, the issue of Northland school funding was not ‘discussed’ at length, and the items were not intended to provide an in-depth analysis of educational funding.
• In these circumstances, whether any balancing comment provided by the Ministry was included in the broadcasts was an editorial decision, and it was open to the broadcaster to decide whether any comment in response was of a sufficiently newsworthy nature to justify inclusion.
• Even if the topic was a controversial issue, it was not clear what balancing comment could be provided. The items did not contain criticism of the Ministry – statements of criticism were directed at the government and level of funding provided to agencies, rather than the agencies involved in delivering services.

Our analysis

[64]  In our view, these broadcasts discussed a controversial issue of public importance for the purposes of the standard. The challenges faced by teachers in dealing with violent and disruptive children, and the alleged lack of funding, support and resources available to them, is an issue of concern to New Zealanders and one which attracts ongoing public debate.

[65]  This issue was reported on and discussed in a number of news items and bulletins throughout the day, with various interviewees, as well as lengthier items during the Morning Report and Checkpoint programmes. These reports provided the perspectives of the TTPA, and a number of Northland school principals, who considered there was not enough funding and support available to deal with children affected by trauma. The reports also featured specific comments on the amount of funding available, for example, funding only allowed for two hours of teacher aide per child, per day, and special education services were overloaded and under-resourced.

[66]  We consider that listeners would have expected to hear the perspective of the Ministry on this issue. The Ministry is responsible for delivering policies, resources and services for target student groups, including specialist support services, funding and other resources and special education services for children and young people with special learning and development needs.¹³ We consider that, in order to be properly informed of the issues, listeners would have benefitted from hearing from the Ministry on whether it was aware of the issues facing Northland schools, and what action it was taking in relation to the problem. As such, we think that audiences would have expected to be provided with the Ministry’s viewpoint on this story, and were left uninformed as a result.

[67]  We accept RNZ’s submission that, as the broadcaster, it has editorial discretion when assessing what, if any, statements are broadcast in response to its stories. However, a broadcast in its final form must also meet broadcasting standards, in that it must be balanced, accurate and fair to any participants, and individuals or organisations referred to during the broadcast. In this case, we consider further information, from the Ministry’s perspective, was necessary to ensure listeners were fully informed on the issue of funding for Northland schools. The omission of this viewpoint meant that vital contextual information was missing from the broadcasts.

[68]  While RNZ sought the Ministry’s comment on the stories, this was not done until 4pm on 31 March 2017 (the stories had been broadcast since 6am) and despite comment being provided to RNZ, this was not included in later programmes that day. We do not consider this amounts to making ‘reasonable efforts’ or giving ‘reasonable opportunities’ to provide significant views, as required by the balance standard.

[69]  We discuss the 6 April 2017 broadcast, which continued this story, below from paragraph [78]. However, we note that if RNZ had provided the Ministry’s view, whether in full or summarised, during that broadcast, this may have satisfied the requirement to provide significant views on the Northland schools issue within the period of current interest.

Was the Ministry treated unfairly?

The parties’ submissions

[70]  The Ministry submitted:

• As the broadcasts referred to schools and the provision of, and funding for, teacher aides, it was reasonable to assume listeners would link the stories to the Ministry and draw conclusions about the Ministry’s provision of funding and services as a result. The stories therefore impacted negatively on the Ministry’s reputation.
• The Ministry did not consider the broadcasts should not have been aired (recognising this would limit participants’ right to freedom of expression), but that it should have been given the right to respond, to provide listeners with context and an alternative viewpoint.

[71]  RNZ submitted:

• The Ministry was not named during the 31 March 2017 broadcasts.
• While comments were critical of teacher aide funding, this was not a direct criticism of the Ministry itself, but of the overall level of funding provided by the government to the education sector, comprised of a number of organisations, which the Ministry was not in a position to comment on.
• Therefore if RNZ were to seek comment from anyone in relation to these items, it would be the responsible ministers, rather than the agencies involved in delivering the services.

Our analysis

[72]  RNZ has submitted that the Ministry was not named during these broadcasts, and as such, could not be adversely affected. Identification, however, is not required under the fairness standard, which states that those ‘taking part or referred to in any broadcast’ should be treated fairly.¹⁴ We note that the TTPA President did explicitly name the Ministry during the 7.09am broadcast, in connection with his time spent contacting various services for support (referred to above at paragraph [57]).

[73]  In response to RNZ’s submissions that the Ministry was not directly criticised during these items, and any criticism instead reflected on the level of government funding provided for the education sector, we consider our reasoning above at paragraph [66] applies. These items commented at length about the lack of funding, resources and support, in the form of teacher aides and specialist counselling services, available to Northland schools dealing with disruptive and violent children. While the government is responsible for allocating funding to various organisations involved in the care and education of children, the Ministry is the organisation responsible for the practical provision and delivery of education and specialist services as a result of that funding. We therefore consider it was reasonable for the Ministry to hold the view that these broadcasts reflected negatively on it as an organisation, and that it should have been given a reasonable opportunity to respond to the adverse comments made.

[74]  We acknowledge that other organisations and services involved in the provision of specialist services for vulnerable children were also mentioned during these broadcasts, or may have been in listeners’ minds. However, we consider that the overall impression created by the items, taken together, was that the organisation responsible for the funding and provision of education services for children was accountable for the issues discussed. As such, we consider that the Ministry’s services, and whether they were working effectively, went to the heart of the allegations reported on.

[75]  We consider that, due to the number of items which reported on this issue and their frequency throughout the day, which also did not include the Ministry’s response or comment, listeners would have been left with a negative impression of the Ministry and its services to the public. These broadcasts focused on allegations that the Ministry was not providing adequate and effective services, which resulted in the Ministry being adversely affected through damage to its reputation. As the Ministry was unable to provide its point of view on an important issue affecting it, and which reflected negatively on it, this had the potential to impact New Zealanders’ trust and confidence in its services.

[76]  The Ministry was contacted at 4pm by RNZ on 31 March 2017 for comment, despite the story breaking at 6am. While the Ministry provided a brief statement, this was not featured or alluded to in any of the broadcasts. We therefore do not consider the Ministry was given a fair and reasonable opportunity to respond to adverse allegations made against it during these broadcasts.

[77]  While there is a high threshold for finding a breach of the fairness standard in relation to a public organisation (and particularly an organisation such as the Ministry, which can expect to be subject to criticism from time to time), on balance, we are satisfied that upholding this aspect of the Ministry’s complaint will not unreasonably restrict the broadcaster’s right to freedom of expression. These were important items and we are not suggesting they should not have been broadcast, only that further information, in the form of the Ministry’s response, was required to ensure listeners understood and were adequately informed about the issues discussed, and to mitigate any undue impact on the Ministry’s reputation.

6 April 2017 – Northland schools

The broadcasts

[78]  The Northland schools story was revisited on 6 April 2017 during RNZ’s Morning Report, along with an online article on RNZ’s website.¹⁵ The reporter explained that Northland principals were frustrated by the lack of support available for violent children, and principals said that the ‘funding squeeze’ was also hurting children with disabilities.

[79]  The item featured an interview with a Northland primary school principal, who described the difficulties facing children who were behind in their learning due to moving schools. The reporter said that the principal’s view was that these children needed support to settle them and help them catch up, and:

…his school is spending about 120,000 dollars a year from its dwindling operational budget to provide teacher aides and special programmes for them. He says he’s all but given up applying to the Ministry of Education for funding because the process is long, complex and usually unrewarding.

[80]  The reporter went on to describe two situations where principals and families felt that Ministry funding did not go far enough to support children with learning difficulties, and the item featured excerpts from interviews with two principals and the parents of one of the children involved. The reporter ended the item by saying:

The TTPA principals say that almost every school in the north has a similar tale to tell and the problem is that there’s simply not enough funding available to help the growing numbers of disturbed children and those with learning and physical disabilities.

[81]  A RNZ newsreader then said:

Well, we took the children’s stories outlined in that report to the Ministry, we asked for an interview, they declined, but they have provided a lengthy statement, you can read in full on our website.¹⁶

Did the broadcasts discuss a controversial issue of public importance, and if so, were they adequately balanced?

The parties’ submissions

[82]  In relation to the balance standard, the Ministry submitted:

• RNZ contacted the Ministry for comment on this story on 4 April 2017, and the Ministry provided a statement in response. On the afternoon prior to the item, RNZ requested an interview with a Ministry spokesperson, however this was not possible.
• The comment provided by the Ministry, which it did not expect to be read in full but did expect to be summarised, was not used during the broadcast and the presenter instead referred listeners to RNZ’s website to read the statement.
• The broadcast referred to a ‘funding squeeze’ and ‘dwindling operations grant’, and the Ministry was identified. The Ministry submitted that, in fact, funding for learning support in Northland increased in 2017 and overall operations grant funding increased for schools with the most at-risk students.
• In order to be properly informed about this issue, listeners were entitled to understand what support was provided, whether the Ministry was discussing the issue and whether inaccurate information had been provided to families (all addressed in the online statement).
• The RNZ website was not a reasonable substitute to present significant points of view ‘either in the same programme or in other programmes within the period of current interest’, as it was a different platform with a different audience.

[83]  In response to the Ministry’s submissions on balance, RNZ submitted that:

• The item was a short package within Morning Report. The overall controversial issue, adequate funding of schools in New Zealand, was therefore not ‘discussed’ in this programme.
• If the balance standard was to apply, the written statement provided by the Ministry was published on RNZ’s website, which alerted listeners that other significant viewpoints on the matter existed.

Our analysis

[84]  This item continued the story of the funding challenges facing Northland schools. The item referred to parents and teachers ‘all but giving up’ on the Ministry for funding, as the process was long, complex and ‘usually unrewarding’. We consider this item discussed a controversial issue of public importance. We also consider audiences would have expected to hear the Ministry’s perspective on the issue, and as required by the standard, this needed to be presented either within this programme or in other programmes within the period of current interest.

[85]  The key issue is whether the presenter’s comment, pointing listeners to the Ministry’s statement on RNZ’s website, was sufficient to provide balance in this item. The Authority has said in previous decisions that balance may be achieved by acknowledging the existence of other significant perspectives, depending on the nature of the item (for example, if it is transparently presented from a particular perspective).¹⁷

[86]  It could be argued that, in the interests of time, and to ensure private information about individuals was not disclosed, and the Ministry’s lengthy statement was not summarised incorrectly, it was sufficient that the programme acknowledged the existence of another view and pointed audiences to where this could be found. We acknowledge the practical issues facing the broadcaster in this instance, and that RNZ approached the Ministry for an interview prior to this broadcast, but this invitation was declined.

[87]  However, we do not consider RNZ’s actions went far enough in the circumstances, to ‘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 Authority has previously found that brief references alluding to opposing views were not sufficient to provide balance when overshadowed by the remainder of the item.¹⁸ In this case, while the broadcast acknowledged the existence of other viewpoints (ie, by pointing to the Ministry’s statement online), it did not in any way convey or summarise that viewpoint – that the Ministry disagreed – to listeners.¹⁹

[88]  This broadcast was a continuation of the stories reported on 31 March 2017, which also did not include the Ministry’s comment. We acknowledge that the issue was reported on in other news sources, with the Ministry’s comment included,²⁰ and we note that surrounding media may have generally addressed the issue of funding for teacher aides or children with special needs. However, this was not an ongoing issue reported elsewhere over a long period, in which listeners could reasonably be expected to be aware of differing viewpoints (and in this sense it is distinguishable from the way in which climate change, abortion, or euthanasia could be categorised as ongoing issues). We do not think that the broadcaster can reasonably rely on other broadcasters or media outlets covering the story or seeking comment from the Ministry, or reasonably expect that listeners will take the time and effort to seek other views out.

[89]  Given the number of items broadcast on RNZ that reported on this issue, we consider that the inclusion of a brief summary of the Ministry’s views would not unreasonably limit RNZ’s right to freedom of expression. In our view it was important for listeners to be made aware of the Ministry’s views on this story. We therefore uphold the Ministry’s complaint in relation to balance.

Was the Ministry treated unfairly?

The parties’ submissions

[90]  The Ministry submitted:

• Audiences would have been left with an unduly negative impression of the Ministry as a result of this broadcast.
• Referring listeners to RNZ’s website did not rectify the breach of the fairness standard.

[91]  RNZ submitted:

• An invitation for a Ministry spokesperson to appear on the programme was ‘rebuffed’. The written comment prepared by the Ministry was unsuitable for broadcast, and so it was made available on RNZ’s website.
• If the items prepared for broadcast required further input to achieve balance or fairness, the Ministry would have been approached prior to broadcast for comment. However, RNZ exercised editorial judgement, finding that because the criticisms were not directly aimed at the Ministry but were more general in nature, those requirements were not triggered.

Our analysis

[92]  As set out above under the parties’ submissions in relation to balance, RNZ contacted the Ministry on 4 April 2017 seeking its comment on this item, and the fact that a statement had been provided was referred to during the broadcast and the full statement published on RNZ’s website.

[93]  We consider this item reflected negatively on the Ministry. The reporter referred to the principal’s view that the process of applying to the Ministry for funding was ‘long’, ‘complex’ and ‘unrewarding’, again impacting negatively on listeners’ impression of the Ministry and implying that it was not providing adequate services to the public. This item therefore adversely affected the Ministry and, as a result, the broadcaster was required to seek its comments in response.

[94]  For the reasons set out above under the balance standard, however, we do not consider the brief reference to the Ministry’s statement amounted to a ‘comment for the programme’, as set out in Guideline 11d. The Ministry was clearly referred to in the item so we disagree the criticisms were not aimed at the Ministry (see paragraph [73]). While the Ministry was given ample opportunity to comment (two days), its statement was not read or summarised during the broadcast itself, which in our view does not meet the requirements of the standard.

[95]  In order for the Ministry to be treated fairly, there were two steps required – it was necessary for the Ministry to be given a fair and reasonable opportunity to comment for the programme in relation to the adverse statements, and then for any comment given to be fairly presented in the programme(s), rather than simply referred to and set out in full on a different platform.²¹

[96]  In our view, it would not have been unreasonable for RNZ, once it received the Ministry’s lengthy statement, to briefly summarise the relevant points from the statement in the broadcast. Alternatively, there was time in the two days between requesting comment and the broadcast of the item, for RNZ to go back to the Ministry and ask them to identify what it considered to be the key points to include, following which editorial discretion could be applied in determining how those should be presented. Once a brief overview of the Ministry’s views had been presented, RNZ could then point to the full statement available online.

[97]  In these circumstances we uphold the fairness complaint in relation to the 6 April 2017 broadcast.

For the above reasons the Authority upholds the complaint that the broadcast by Radio New Zealand Ltd of items on 18 March 2017 breached Standard 11, and items on 31 March 2017 and 6 April 2017 breached Standards 8 and 11, of the Radio Code of Broadcasting Practice.

[98]  Having upheld aspects of the Ministry’s complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

Submissions on the provisional decision

[99]  The Ministry had no further comments to make on the Authority’s provisional decision.

[100]  RNZ submitted:

• It was disappointed the Authority did not co-opt a Member with recent editorial decision-making experience to assist with the Authority’s determination.
• In its decision the Authority referred to ‘unwarranted harm’, yet the complainant did not identify, quantify or assess what harm, if any, was caused as a result of the broadcasts.
• The Authority also did not document what constituted ‘unwarranted harm’, or identify or assess the harm it considered was caused to the complainant.
• The TTPA President not only identified the Ministry, but other government agencies. Therefore the Ministry was not singled out for criticism and no complaint was received from the other named agencies.
• The criticism in these broadcasts was directed at the level of funding for education services, not the distribution of funding (emphasis RNZ’s). The government alone was responsible for the level of funding, as demonstrated by the Minister’s announcement in May 2017 of an increase in the level of funding to support students. No complaints were received from the Minister of Education, Minister of Health or Minister for Social Development on these broadcasts.
• RNZ provided online coverage of the issue, which it submitted was contrary to the Authority’s finding that this was not an ongoing issue reported elsewhere over a long period. RNZ invited the Authority to reconsider its wording of this statement.
  Authority’s response to submissions on the provisional decision

[101]  We do not consider that RNZ’s submissions alter our findings overall, however we wish to note our response to some of the points raised by RNZ.

[102]  At paragraph [9] of the decision we have endeavoured to provide readers with a summary of the key elements of the fairness standard. The strict wording of the standard is set out at the beginning of the paragraph. As such, the phrase ‘unwarranted harm’ conveys the idea that broadcasts should not cause ‘unfair harm’ to individuals or organisations. It is not a strict test that is required to be demonstrated to find a breach of the standard.

[103]  Importantly, we go on at paragraph [10] to outline the principle under the standard that if a party is likely to be adversely affected, they should usually be given a fair and reasonable opportunity to comment for the programme, which we have found did not occur here and which was therefore ‘unwarranted’ or ‘unfair’, in that the Ministry did not have the chance to respond or defend its reputation.

[104]  Where we considered it was necessary, we have amended the provisional decision to take into account RNZ’s comments, particularly to clarify the nature of the potential harm caused to the Ministry as a result of these broadcasts. Whether or not other named agencies or ministers lodged complaints about the broadcasts is irrelevant to our determination of the complaint before us and our assessment of how the Ministry was treated.

Submissions on orders

[105]  The Ministry submitted that:

• RNZ should broadcast the Authority’s findings and the reasons why the standards were breached. This would help to mitigate or balance the initial imbalance and unfairness and provide confidence in the broadcasting standards system.
• As a major New Zealand broadcaster, RNZ had considerable power and influence and needed to take its responsibilities seriously. The Ministry expected to be held publicly accountable for errors or mistakes, and it expected the same from RNZ.

[106]  RNZ submitted:

• It was taking the Authority’s decision on this complaint very seriously and the publication of the decision would have ‘considerable repercussions internally’.
• This was a complex decision involving a series of complaints, not all of which were upheld, about 19 items which were broadcast at different times during the day and week.
• The decision was made by three Authority Members rather than the usual four.
• In these circumstances, publication of the decision was a sufficient penalty.

Authority’s decision on orders

[107]  When the Authority upholds a complaint, whether in whole or in part, we may make orders, including directing the broadcaster to broadcast and/or publish a statement, and/or pay costs to the Crown.

[108]  In determining whether orders are warranted, the factors to take into consideration are:²²

• the seriousness of the breach, and the number of upheld aspects of the complaint
• the degree of harm caused to any individual, or to the audience generally
• the objectives of the upheld standard(s)
• the attitude and actions of the broadcaster in relation to the complaint (eg, whether the broadcaster upheld the complaint and/or took mitigating steps; or whether the broadcaster disputed the standards breach and/or aggravated any harm caused)
• whether the decision will sufficiently remedy the breach and give guidance to broadcasters, or whether something more is needed to achieve a meaningful remedy or to send a signal to broadcasters
• past decisions and/or orders in similar cases.

[109]  We have taken these factors into account in making our decision on orders, and outline our views on these below.

[110]  While we have upheld all but one aspect of this complaint under the balance and fairness standards – finding that, in the circumstances, RNZ fell short of its obligation to present significant points of view and provide the Ministry with a fair and reasonable opportunity to comment – we consider the conduct overall sits at the medium end of the spectrum. RNZ did ultimately include the Ministry’s comment on the issues raised by the broadcasts, albeit in an ad hoc manner and, in some cases, too late to mitigate the imbalance and/or negative impression created.

[111]  As a result of RNZ’s conduct, the broadcasts caused harm both to the Ministry, by impacting its reputation and potentially reducing public trust and confidence in it, and more importantly to the public generally, which was left ill-informed about the Ministry’s position on issues for which there was a high level of public interest.

[112]  We have assessed whether any action is needed to remedy the harm caused. Given that the Ministry’s response was ultimately circulated (to a degree), we consider that publication of the decision is sufficient to draw awareness to the Ministry’s response and to mitigate the negative impression created by the broadcasts.

[113]  We have also considered how we ought to respond to RNZ’s conduct in this case, namely the breach of standards. RNZ’s submissions indicate that it does not accept the breach of standards in this case, stating that it did not consider it was required to seek a response from the Ministry, as it believed the topic of the broadcasts (which it has argued related to the level of government funding provided), was an issue for the Minister and/or the Government.

[114]  However, it has also stated that publication of the decision would have ‘considerable repercussions internally’ and that staff, ‘from the Editor-in-Chief and Head of News down to each reporter, take these reputational issues to heart’. To this extent, publication of the decision may result in RNZ making some changes in its approach to obtaining and reporting comments from government departments in the future. Given this, we consider that the publication of the decision, with no further orders, is the appropriate response to the breach of standards.

[115]  We also find that publication of the decision, along with an accompanying press release, will provide general guidance to RNZ and to the wider industry on our views and, in particular, the application of the fairness and balance standards to broadcasts of this kind.

Signed for and on behalf of the Authority

Peter Radich
Chair
18 April 2018  

Appendix

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

1      Ministry of Education’s formal complaints – 5 and 11 April 2017
2      RNZ’s response to the complaints – 21 August 2017²³
3      The Ministry’s referral to the Authority – 18 September 2017
4      RNZ’s response to the Authority – 30 November 2017
5      The Ministry’s further comments – 21 December 2017
6      RNZ’s further comments – 13 February 2017
7      The Ministry’s final comments – 20 February 2017
8      RNZ’s final comments – 5 March 2017
9      The Ministry’s submissions on the provisional decision and orders – 21 March 2018
10    RNZ’s submissions on the provisional decision and orders – 22 March 2018
11    The Ministry’s further comments – 29 March 2018
12    RNZ’s confirmation of no further comment – 29 March 2018

¹ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18

² Guideline 11d 

³ For example, Ministry of Social Development and Peterson and TVWorks Ltd, Decision No. 2011-072, at [148]

⁴ The Ministry’s IWS is for the small number of students who have behaviour, social and/or learning needs that are highly complex and challenging (and may have associated intellectual difficulty) and require support at school, at home and in the community (see: https://www.education.govt.nz/school/student-support/special-education/intensive-wraparound-service-iws/). Students needed to be accepted into the IWS before they were eligible to enrol at Salisbury School.

⁵ Education Ministry accused of blocking enrolments to Nelson's Salisbury School before closure confirmed (RNZ, 9.36pm on 18 March 2017)

⁶ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18

⁷ For example, Right to Life and Radio New Zealand Ltd, Decision No. 2017-020 at [21]

⁸ See paragraph [8], and Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18

⁹ Standard 11 – Fairness, Broadcasting Standards in New Zealand Codebook, page 31

¹⁰ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21

¹¹ South Taranaki District Council and MediaWorks TV Ltd, Decision No. 2014-149, at [73]

¹² See: Northland principal struggles to deal with disruptive children (RNZ, 6.09am); Principals threaten suspension over behavioural funding (RNZ, 7.09am); Cash-strapped schools may suspend violent children (RNZ, 5.02pm); Invest in violent children or invest in new prisons - principal (RNZ, 5.23pm)

¹³ http://www.education.govt.nz/ministry-of-education/our-role-and-our-people/what-we-do/

¹⁴ See, for example: Ranfurly Village Hospital Limited and MediaWorks TV Ltd, Decision No. 2014-034 at [60] and Dr Z and Television New Zealand Ltd, Decision No. 2012-074 at [26]

¹⁵ Call for more support for disabled or violent kids (RNZ, 9.40am on 6 April 2017)

¹⁶ The Ministry’s statement is available on RNZ’s website here: Principals say funding failing disabled students (RNZ, 8.23am on 6 April 2017)

¹⁷ Eg, Garrett and Radio New Zealand Ltd, Decision No. 2013-048 at [21], citing Butler et al and Television New Zealand Ltd, Decision No. 2009-063

¹⁸ For example, Right to Life NZ Inc and Television New Zealand Ltd, Decision No. 2015-023 at [27]

¹⁹ See, for example, Atkins and Television New Zealand Ltd, Decision No. 2016-056, concerning an episode of Fair Go. In order to ensure the complainant’s views were provided, the presenter summarised the complainant’s press release in response and pointed to the release in full on the company’s website.

²⁰ See, for example: Northland primary schools threaten to permanently suspend kids causing chaos (NZ Herald, 31 March 2017); Northland schools face suspending high needs kids (NZ Herald, 1 April 2017); System failing Northland children with behavioural issues, principals say (Stuff.co.nz, 4 April 2017)

²¹ For example, in a previous decision, Atkins and Television New Zealand Ltd, cited above, the Authority found that the complainant was given ample opportunity to present his comments in response to allegations made against him. The presenters of the programme sufficiently summarised his arguments by reading extracts from a press release prepared in advance, and then in addition also directed viewers to the complainant’s website if they wished to read the release in full.

²² Guide to the BSA Complaints Process for Television and Radio Programmes, Broadcasting Standards in New Zealand Codebook, page 58

²³ This followed an earlier Interlocutory Decision of the Authority, directing the Ministry’s complaints back to RNZ to consider and address as formal broadcasting standards complaints. See Ministry of Education and Radio New Zealand Ltd, Decision No. ID2017-040