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 from the New Zealand Defence Force (NZDF) about an interview with Nicky Hager discussing the results of an Australian enquiry into its Defence Force and the implications for the NZDF. The Authority noted the high public interest in the broadcast and found that as it was clearly coming from Mr Hager’s perspective and other news bulletins signalled other views, the balance standard was not breached. The broadcast was not unfair to the NZDF. It is a government agency that can reasonably expect public scrutiny. In addition, comment from the Defence Minister was sought and included in later news bulletins.

Not Upheld: Balance, Fairness

The broadcast

[1]  An interview with Nicky Hager was broadcast on RNZ National during its Midday Report following the public release of the Brereton Report, an Australian military enquiry which found 39 Afghan civilians were killed by Australian troops.

[2]  The item began, ‘The Defence Force says no New Zealand personnel are of interest in a military enquiry that has rocked Australia…’ Mr Hager, described as ‘co-author of Hit and Run, the book that led to the Operation Burnham enquiry in this country’ was asked to provide his ‘initial response’ to this report:

I think that the Defence Force is…making true comments…which is that, no, the New Zealand forces weren't operating with the Australian forces when they did this… [but] anyone working in the field, including me, has heard a series of similarly ugly rumours of sort of guilty secrets inside our SAS, just like they lasted for so long inside the Australian SAS just as guilty secrets. And they sit there waiting to be… investigated in New Zealand as well. Unfortunately…we're going to have to face sooner or later something like Australia is doing…

...it's absolutely clear what our military, our Government needs to do. Just like Australia. If you've got guilty secrets like this festering away, you have to open it up. There needs to be a kind of a reconciliation and investigation phase, just like Australia has done. The New Zealand military should be ordered to do it for itself and actually to do the work itself like the Australian one has.

Complaint background and jurisdiction

[3]  The NZDF initially contacted RNZ’s Head of News about the broadcast on 25 November 2020, stating it was ‘writing to make a complaint’ and outlining its concerns about the broadcast. It alleged RNZ ‘did not fulfil its editorial responsibility to provide impartial and balanced news as required by [the Radio New Zealand] Charter’. The Head of News responded to the email with reference to the Charter.

[4]  The NZDF then referred the complaint to the Authority for its consideration and determination. This raised an interlocutory question of whether the initial email to RNZ amounted to a formal complaint under the Broadcasting Act 1989, which could then be referred to the Authority for consideration.

[5]  We considered the correspondence and submissions from parties, and found:

• Although the initial complaint referred to the RNZ Charter rather than the standards in the Radio Code of Broadcasting Practice, the concerns raised reasonably implied issues under one or more broadcasting standards and otherwise contained sufficient detail to constitute a formal complaint.
• Therefore best practice would have been for RNZ (on receipt of the initial complaint) to go back to the complainant advising of the option to have the complaint considered under the Radio Code and clarifying (if necessary) the broadcasting standards the complainant believed had been breached.

[6]  The NZDF were then asked to confirm the Radio Code standards addressed in its original complaint and RNZ were asked to consider and respond to the complaint within 20 working days of receiving that confirmation. In addition to RNZ’s initial handling of the complaint (as outlined at paragraph⁵), RNZ provided its decision under the Radio Code (which is the subject of this decision) after the timeframe required. We encourage RNZ to review its procedures in this regard.

The complaint

[7]  The NZDF noted ‘in the course of the interview Mr Hager on several occasions refers to what he alleges is similar behaviour by New Zealand Defence Force personnel in Afghanistan. He describes this as “guilty secrets within the NZDF” which “sit there festering, waiting to be investigated”. He is asked directly if he thinks NZDF personnel acted in a similar way and replies “yes I think so”.’

[8]  It alleged, ‘at no point in the interview is Mr Hager challenged by the presenter to substantiate his claims, or to provide details or evidence. In fact the presenter’s question “what does the Government need to do?” suggests that RNZ accepts as fact what Mr Hager is alleging.’

[9]  The NZDF disagreed that the main thrust of the interview was whether New Zealand should conduct a wider inquiry into the conduct of the NZDF (similar to the Australian inquiry) as ‘the cue material was entirely focussed on the actions of the Australian forces, as was the clip that followed of an Afghan journalist. The presenter’s focus in the opening part of the interview was the question of whether “NZDF personnel behaved in the same way” only later, following Mr Hagar’s stating that the answer to that question was ‘yes’, is the question of a similar inquiry raised’. The NZDF provided detail under each of the standards raised:

Fairness

• ‘In the interests of fairness…RNZ should have sought comment from the NZDF…it is clearly unfair to broadcast serious allegations about an organisation and not give that organisation the opportunity to respond’.
• The comments from the Minister of Defence did not sufficiently mitigate the unfairness to the NZDF, who ‘cannot compel a Minister to appear on air and does not have a say in a Minister’s media policy…it is for Ministers to decide how they wish to respond to media inquiries’.
• ‘RNZ asserts that it would not be logical to ask the government agency in question whether the government should [begin an inquiry into that agency]. It is the NZDF’s view that seeking information from a person or organisation when a story concerns them is a basic journalistic process…there have been a number of times RNZ have sought comment from the NZDF on similar matters’.
• ‘…it should be remembered that when these allegations are made, they are about individuals and their conduct, not just about a nameless, faceless, agency’.

Balance

• The inquiry into Operation Burnham (prompted by Hit and Run) ‘concluded that the conduct of New Zealand personnel “…throughout Operation Burnham was professional…” and that “…all actions by TF81 (NZ Special Forces) personnel during the operation complied with the applicable rules of engagement and International Humanitarian Law.”’ The NZDF was surprised this was not put to Mr Hager as a counter to his more general claims.
• ‘…we feel the interview was so one-sided it demanded a balancing view, and particularly one from the NZDF, either immediately or during the later coverage’.
• ‘There has been no credible evidence presented in any forum to support any allegation that members of the NZDF acted in a way similar to members of the ADF identified in the Brereton Report.’
• ‘By its very nature, an interview on RNZ as part of the Midday Report is purporting to be a balanced examination of an issue…a listener could reasonably have thought the views expressed by Mr Hager were substantiated and based upon more than his opinion’.
• ‘The absence of an NZDF response… allowed for Mr Hager’s unsubstantiated allegation to be presented unchallenged’.

The broadcaster’s response

[10]  RNZ did not uphold the NZDF’s complaint. It noted:

In the interview itself, Mr Hager was careful to distinguish Operation Burnham on the basis that it addressed only one incident in the NZ Special Forces’ (NZSF) operation in Afghanistan. He further acknowledged that the NZSF were not operating with the Australian Forces in question in the Australian inquiry. His comments related more generally to the NZSF’s activity over the time they were deployed in Afghanistan.  He was asked specifically if it was possibly that the NZSF had behaved in a similar way to the Australian Forces in question to which he replied in the positive; the interview then followed that path of inquiry.

It was his opinion, based on the extensive research which he had undertaken when co-authoring the book "Hit and Run" that there may be some substance to that suggestion of similar behaviour. That is an opinion which he is entitled to hold based on his prior knowledge and under section 14 of the New Zealand Bill of Rights Act 1990 is one which RNZ was entitled to communicate to its audience. RNZ notes that earlier in the day, in Morning Report, we conveyed an opposing view from Jon Stephenson the co-author of “Hit and Run”.

Our listeners and readers would have been aware of this and other points of view over the period of current interest in the findings of the Brereton Report and that is something which is allowed for under any consideration of “balance” in a news and current affairs story.

[11]  Under the standards raised, RNZ argued:

Fairness

• ‘…the story had been running for some 24 hours prior to Mr Hager's interview, and although being requested to, the Defence Minister had not responded to RNZ's request for comment or an interview’.
• ‘It would be illogical to ask the agency in question whether the government should launch an inquiry into that agency. Generally, government agencies do not have the ability to speak on behalf of their Ministers.’
• ‘…the Minister did make comment later in the day and those comments were included in the RNZ’s News bulletins at 4.00pm, 4.30pm, 5.00pm, 5.30pm and 10.00pm’.
• ‘The questions were asked of Mr Hager simply to establish if he had some opinion as to the grounds there might be for a wider ranging examination of New Zealand’s actions. There was no need for NZDF’s input in response to those opinions being expressed.’

Balance

• ‘…in the period of current interest for this topic it was covered in some 40 RNZ news bulletin stories, as well as being covered in our Morning Report, Midday Report and Checkpoint news and current affairs programmes’.
• ‘…the Minister was on notice, among other queries, that RNZ was seeking comment as to whether a similar inquiry would be conducted by the New Zealand government, and his comments were run in a number of news bulletins shortly after they were received’.
• ‘The context of the item is critical and the context was the Brereton Report having been released in Australia which was a wide-ranging report into…all the actions of the Australian defence forces in Afghanistan…this can be easily distinguished from the Operation Burnham report which simply looked at one incident involving the NZDF in Afghanistan’.

The standards

[12] The fairness standard² requires broadcasters to deal fairly with any person or organisation taking part or referred to in any broadcast.³ It ensures individuals and organisations are dealt with justly and fairly and protected from unwarranted damage.

[13]  The balance standard⁴ states 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 points of view either in the same programme or in other programmes within the period of current interest.⁵ The standard only applies to news, current affairs and factual programmes, which discuss a controversial issue of public importance.⁶

Our analysis

[14]  In considering this complaint we have listened to a recording of the broadcast segment complained about and reviewed the correspondence listed in the Appendix.

[15]  We have also considered the right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information. This is the starting point in our consideration of any complaint that broadcast standards have been breached. Our task is to weigh the value of, and public interest in, the broadcast complained about, against the level of actual or potential harm that may be caused by the broadcast, with reference to the objectives of the standards described above. We may only intervene and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.

[16]  The actions and culture of government agencies in New Zealand, particularly a military agency, carry a high level of public interest. The value of broadcasts such as this, which scrutinise and hold these agencies to account, is great. This means the threshold for justifying regulatory intervention is high. For the reasons outlined below in relation to each of the nominated standards, we have not found actual or potential harm of the nature described in the complaint which outweighed the public interest in the broadcast, or justified limiting freedom of expression in this case.  

Balance

[17]  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’. An issue of public importance is something that would have a significant potential impact on, or be of concern to, members of the New Zealand public. A controversial issue is one which has topical currency, and excites conflicting opinion or about which there has been ongoing public debate.⁷

[18]  The broadcast discussed what the results of an Australian enquiry into its Defence Force means for the NZDF. The actions of the New Zealand military are of importance to the New Zealand public. The issue is controversial, as it is likely to inspire conflicting opinions and debate. We therefore find the item discussed a controversial issue of public importance for the purposes of the standard.

[19]  The nature of the programme informs the assessment of whether a reasonable range of other perspectives have been presented.⁸ In this case, the programme did not purport to be a balanced examination of the issue, but was an interview with Mr Hager, canvassing his views on the issue discussed. The comments were coming from his perspective, as the author of a book which led to an enquiry into the NZDF. RNZ listeners were likely to be acquainted with Mr Hager and his views. The broadcasting of his views does not, in itself, present them as fact.

[20]  It is not necessary for each and every programme to canvass all significant views on a particular topic. It is permissible to take an in-depth look at one perspective on an issue, without the broadcaster being required to present a countering view within the same programme.⁹ The standard allows for balance to be achieved over time, within the period of current interest and:¹⁰

• Other news bulletins played by RNZ throughout the day focused on the Australian enquiry and noted no New Zealand personnel were of interest.¹¹
• News bulletins from 4pm onwards included comments from Defence Minister Peeni Henare that New Zealand did not have a similar culture problem with its defence personnel.¹²
• An earlier Morning Report item from the same day featured the co-author of Hit and Run, Jon Stephenson. He took a different position to Mr Hager, asserting there is not the same ‘toxic warrior culture’ among New Zealand soldiers. He said: ‘I do believe that our troopers would not have conducted themselves as the Australians have done.’¹³

[21]  Given the above, we find no breach of the balance standard.

Fairness

[22]  The NZDF has alleged it was treated unfairly as it was not provided an opportunity to respond to the item.

[23]  A consideration of what is fair depends on the nature of the programme (eg, news and current affairs, factual, dramatic, comedic or satirical). It also depends on the nature of the person or organisation alleged to have been treated unfairly. It is well established that the threshold for finding unfairness to a layperson unfamiliar with dealing with the media will be much lower than for a government agency that is used to being the subject of robust scrutiny and regular media coverage.¹⁴

[24]  A consideration of whether the NZDF was treated fairly should include consideration of the following:¹⁵

• whether the audience would have been left with an unduly negative impression of the organisation
• whether the organisation was informed of the nature of its involvement in the programme, provided informed consent or was given a reasonable opportunity to comment
• the nature of the organisation
• whether any critical comments were aimed at people in their business or professional life or in their personal life
• the public significance of the broadcast and its value in terms of free speech.

[25]  Applying these factors, we find the NZDF was not treated unfairly by the broadcast. In particular, we note:

• The NZDF is a government agency, and the Authority has previously noted ‘it is commonplace for public-facing agencies to be criticised without it giving rise to an expectation of participation in each and every broadcast’.¹⁶
• The relevant comments concerned core NZDF services (rather than the personal affairs of any NZDF individual(s)).
• The audience was unlikely to have been left with an unduly negative impression of the NZDF by virtue only of the expression of an opinion by Mr Hager.
• The broadcast made it clear the Australian enquiry did not implicate any New Zealand military personnel.
• It noted the Defence Minister had been approached for comment. This comment from the Defence Minister was then included in later bulletins. In the context of a broadcast which questioned whether New Zealand should conduct a broader enquiry into its Defence Force, it was reasonable for the Defence Minister to be approached for comment and not the NZDF.
• There is a high public interest in discussions or critiques which may reasonably arise relating to military forces. Accordingly, as above (paragraph [16]), the threshold for justifying regulatory intervention is high.

[26]  Given the above, we have not found harm of a nature or extent sufficient to justify our intervention.

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

Judge Bill Hastings

Chair

15 July 2021    

Appendix

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

1  The New Zealand Defence Force’s original letter to RNZ – 25 November 2020

2  RNZ’s response to the NZDF letter – 21 January 2021

3  BSA directing RNZ to consider complaint with regard to standards – 15 March 2021

4  BSA directing the NZDF to confirm standards to RNZ – 15 March 2021

5  The NZDF’s confirmation of standards (balance, fairness) to RNZ – 16 March 2021

6  RNZ’s formal decision – 21 April 2021

7  The NZDF’s referral to the Authority – 29 April 2021

8  RNZ’s comments on the referral – 17 May 2021

9  The NZDF’s final comments – 24 May 2021

10  RNZ’s final comments – 11 June 2021

¹ Paula Rose declared a conflict of interest and did not participate in the determination of this complaint.
² Standard 11 of the Radio Code of Broadcasting Practice
³ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
⁴ Standard 8 of the Radio Code of Broadcasting Practice
⁵ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁶ As above
⁷ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁸ Guideline 8c
⁹ Bidwell and Radio New Zealand Ltd, Decision No. 2020-003 at [7] and [15]
¹⁰ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
¹¹ RNZ news bulletins: 4pm, 4.30pm, 5pm, 10pm (20 November 2020)
¹² As above
¹³ ‘Top Stories for Friday 20 November 2020’ RNZ Morning Report (online ed, 20 November 2020)
¹⁴ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
¹⁵ As above
¹⁶ Davis and RNZ Ltd, Decision No. 2019-061 at [32]