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 concerning an interview on Breakfast. In a discussion concerning Prime Minister Christopher Luxon’s State of the Nation speech, the host stated to ACT Party Deputy Leader Brooke van Velden ‘You mentioned that, division was from the previous Government. I mean, come on, you look at the Treaty of Waitangi. You must be able to read the room in terms of how the nation is feeling towards that Bill by your party.’ The complainant considered the host’s implication that this division was caused by ACT’s Treaty Principles Bill was inaccurate, unbalanced and unfair. The Authority found that the question was comment, analysis or opinion to which the accuracy standard did not apply. The other standards either did not apply or were not breached.

Not Upheld: Accuracy, Balance, Fairness

The broadcast

[1]  During the 19 February 2024 broadcast of Breakfast, host Daniel Faitaua interviewed ACT Party deputy leader Brooke van Velden and Green Party MP Chlöe Swarbrick concerning Prime Minister Christopher Luxon’s State of the Nation speech. It was introduced as follows:

The state of the nation is fragile. Those are the words of Prime Minister Christopher Luxon as he addressed his crowd of supporters in the annual address yesterday. Luxon says the Government has a massive clean-up job to do, but Labour accused them of trying to make New Zealand a more divided place. Our political panel of ACT's Brooke van Velden and Green's Chlöe Swarbrick join me this morning.

[2]  The broadcast then included the following exchange between Faitaua and van Velden:

van Velden: Oh, look, I think, the state of New Zealand is fragile. I agree with the Prime Minister. And it's because, you know, we've been under Labour for the last few years and they've been proving, to get lots, lot, a lot less value, for spending a lot more money. But we've also been seeing, as Chlöe said, we've been seeing division. That's not caused by this Government. That's the previous Government. What we're wanting to do is turn things around. We can't change the past, but we can change the future. So let's look at how we can have more business confidence. Let's look at how we can have more kids turning up to school, getting educated - actually coming out with, a base of knowledge that will set them up for the future. How do we make sure that our streets are safer again? You know... [interrupted] 

Faitaua:       You mentioned that, division was from the previous Government. I mean, come on, you look at the Treaty of Waitangi. You must be able to read the room in terms of how the nation is feeling towards that Bill by your party. 

van Velden: I am reading the room. What I've been hearing, going up and down New Zealand and talking to people in the community is that they felt like there's been a lot of division forced on them by the Government, but they never had a say on it. And that's all that ACT has been wanting from the Treaty Principles Bill, is for people to actually have an open conversation about what does the future of Te Tiriti mean in a modern, multi-ethnic, liberal democracy? Is it one where everybody is equal, has the same rights and duties? Or when we say that people based on their ancestry have different rights? I know which one I hear a lot in the community, and that's saying I want my kid to be treated the same as any other kid in a classroom or any other kid when they go going for a job interview. I think that's really important that we should at least have the right to talk about it without being labelled bad names. That's what I hear a lot in the community. 

The complaint

[3]  Geoff Neal complained that the broadcast breached the accuracy, balance, and fairness standards of the Code of Broadcasting Standards in New Zealand for the following reasons:

• The host’s comment that New Zealand was divided because of ACT’s Treaty Principles Bill was ‘incorrect and showed significant political bias’ in favour of Labour-led Governments and against National-led Governments, and was unfair. This was supported by ‘an overwhelming body of evidence,’ including:
  • A Curia poll commissioned by the New Zealand Taxpayers’ Union which showed three New Zealanders support the Bill for every New Zealander that opposes it.¹
  • 77% of New Zealanders thought the country was becoming more divided in a September poll, under the Labour Government.² Another poll in December 2022 also showed New Zealand becoming more divided.³
  • A poll showed half of New Zealand believed race relations were getting worse in July 2023, under the Labour Government.⁴
  • There has been an improvement in a poll asking about the direction New Zealand is heading in since the election.⁵

The broadcaster’s response

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

Accuracy

• ‘The extent to which Brooke van Velden or ACT are “reading the room” in relation to New Zealanders' feelings on the ACT Party's proposed Treaty Principles Bill cannot reasonably be considered a “material point of fact”. While you have supplied some information relating to “race relations”, “division” and “country direction”, supporting your belief that Brooke van Velden and ACT are successfully “reading the room”, Daniel Faitaua is not incorrect as you claim; he simply asked a question based on his view of the situation, as is expected of journalists who interview politicians.’
• The requirement ‘for factual accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.'
• Further, Prime Minister Christopher Luxon has described the Treaty Principle Bill as ‘divisive and unhelpful’.⁶
• ‘It is fundamental for news journalists to conduct analysis and form opinions, and their roles often call upon them to provide commentary or lines of questioning based upon their views on any given matter. While we understand that you disagree with the premise of this particular question, the extent to which Brooke van Velden (or the ACT Party) are 'reading the room' is a highly subjective matter that cannot reasonably be determined by [TVNZ].’

Balance

• The complainant has not highlighted any particular view they believe was not included.
• Viewers would not expect further points of view to be included in a clearly defined discussion between two political leaders (Swarbrick and van Velden).
• In any case, they noted a previous finding by the Authority: ‘While the complainant is concerned the item was “biased,” we note the standard does not require news, current affairs, and factual programming to be presented impartially or without bias. Within the limits established by this standard, broadcasters are free to promote or challenge particular ideas, philosophies, or people.’⁷

Fairness

• van Velden is an experienced politician, has considerable experience in dealing with media and would have expected a robust interview where ACT’s policies are questioned.
• Public figures have a higher threshold for unfairness than someone unfamiliar with the media.⁸
• The line of questioning was reasonable, and the interview was not ‘abusive, nasty or personal’. ‘Brooke van Velden was given ample opportunity to comment on the issues put to her’.

The standards

[5]  The purpose of the accuracy standard⁹ is to protect the public from being significantly misinformed.¹⁰ It states broadcasters should make reasonable efforts to ensure news, current affairs or factual content is accurate in relation to all material points of fact and does not mislead. Where a material error of fact has occurred, broadcasters should correct it within a reasonable period after they have been put on notice.

[6]  The balance standard¹¹ ensures competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.¹² The standard only applies to news, current affairs, and factual programmes, which discuss a controversial issue of public importance.¹³

[7]  The fairness standard¹⁴ protects the dignity and reputation of those featured in programmes.¹⁵ It ensures individuals and organisations taking part or referred to in broadcasts are dealt with justly and fairly and protected from unwarranted damage.

Our analysis

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

[9]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is demonstrably justified in a free and democratic society.¹⁶

[10]  We consider the complainant’s concerns are best addressed under the accuracy standard. We deal with the other standards briefly at [17].

Accuracy

[11]  The requirement for factual accuracy does not apply to statements which are clearly distinguishable as analysis, comment, or opinion, rather than statements of fact. News and current affairs programmes may still contain – and can reasonably be expected to contain – opinion and analysis.¹⁷

[12]  The complainant is concerned with a question/prompt given by the host to van Velden: ‘You mentioned that division was from the previous government. I mean, come on, you look at the Treaty of Waitangi. You must be able to read the room in terms of how the nation is feeling towards that Bill by your party.’

[13]  When assessing whether statements are analysis, comment or opinion, the following factors may be relevant:¹⁸

• the language used
• the type of programme
• the role or reputation of the person speaking
• the subject matter
• whether the statement is attributed to someone
• whether evidence or proof is provided.

[14]  We consider the host’s question/prompt was in the nature of analysis, comment, or opinion, presented as an opportunity for van Velden to provide her response. The causes of division in New Zealand society, and which government may be responsible for said division, are subjective assessments which are not able to be definitively proved as in the nature of a fact.

[15]  It is a common interview technique for interviewers to take a position and challenge the interviewee from that position.¹⁹ The host’s phrase ‘You must be able to read the room’ was challenging van Velden to respond to his point, which she does in her comments that follow where she strongly disagrees with the notion that her party may be creating division through its Treaty Principles Bill.²⁰

[16]  Accordingly, the standard does not apply.

Remaining standards

[17]  We do not consider the remaining standards were breached for the following reasons:

• Balance: The complainant has alleged the balance standard was breached as the host’s comment ‘showed significant political bias’. The balance standard does not require news, current affairs, and factual programming to be presented impartially or without bias.²¹ Its purpose is to ensure competing viewpoints on significant issues are presented to enable viewers to arrive at their own informed and reasoned opinions.²² Where reasonable opportunities to present such viewpoints are given, any perspective or ‘bias’ of an interviewer will not result in a breach of this standard.²³ As noted above, van Velden was given the opportunity to respond to the host’s comment, which she did in detail.
• Fairness: It is well established that the threshold for finding a breach of the fairness standard in relation to public figures and politicians (who are familiar with dealing with the media), such as van Velden (a government minister and deputy leader of the ACT Party), is higher than for a layperson or someone unfamiliar with the media.²⁴ Politicians and public figures hold a position in society where robust questioning and scrutiny of their policy, roles, and behaviour is encouraged and expected. We do not consider the question posed by the host went beyond the level of robust scrutiny that could reasonably be expected in an interview with van Velden. In addition, van Velden was given the opportunity to present her views in response.

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority.

Susie Staley
Chair
22 May 2024    

Appendix

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

1  Geoff Neal's formal complaint to TVNZ - 20 February 2024

2  TVNZ's decision on the complaint - 13 March 2024

3  Neal's referral to the Authority - 15 March 2024

4  TVNZ’s confirmation of no further comment – 18 March 2024

¹ “Political Issues Poll October 2023” Curia (October 2023)
² “New Zealand becoming more or less divided” Essential Research (September 2023)
³ Julia Gabel and Chris Knox “Divided NZ? Exclusive poll reveals how divided we feel – and what we agree on” NZ Herald (2 December 2022)
⁴ Maiki Sherman “Poll: Country divided on race relations” 1News (21 July 2023)
⁵ “KPI: Country Direction (Right % - Wrong %)” KPI (accessed 3 May 2024)
⁶ “Luxon says position on Treaty bill clear, but doesn’t unequivocally rule it out” RNZ (online ed, 23 January 2024)
⁷ Right To Life Inc and Television New Zealand Ltd, Decision No. 2023-043 at [16]
⁸ Broadcasting Standards Authority |Te Mana Whanonga Kaipāho “Complaints that are unlikely to succeed”
⁹ Standard 6, Code of Broadcasting Standards in New Zealand 
¹⁰ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand, page 16
¹¹ Standard 5, Code of Broadcasting Standards in New Zealand
¹² Commentary, Standard 5, Code of Broadcasting Standards in New Zealand, page 14
¹³ Guideline 5.1
¹⁴ Standard 8, Code of Broadcasting Standards in New Zealand
¹⁵ Commentary, Standard 8, Code of Broadcasting Standards in New Zealand, page 20
¹⁶ Introduction, Code of Broadcasting Standards in New Zealand, page 4
¹⁷ Solanki and Discovery NZ Ltd, Decision No. 2023-063 at [21]
¹⁸ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand at page 16
¹⁹ For similar findings, see Jones and Radio New Zealand Ltd, Decision No. 2021-139 at [12] and Garrett and Radio New Zealand Ltd, Decision No. 2017-079 at [16]
²⁰ See similar examples: Solanki and Discovery NZ Ltd, Decision No. 2023-063 at [23]; Carran and Television New Zealand Ltd, Decision No. 2021-125 at [22]; Morton and Radio New Zealand Ltd, Decision No. 2020-150 at [23]
²¹ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand, page 14
²² Commentary, Standard 5, Code of Broadcasting Standards in New Zealand, page 14
²³ For a similar finding see: Carran and Television New Zealand Ltd, Decision No. 2021-125 at [18]
²⁴ See: Broadcasting Standards Authority | Te Mana Whanonga Kaipāho “Complaints that are unlikely to succeed”