BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

An item on Story discussed the accountability of judges in New Zealand. The item referenced a number of high profile criminal judgments by a named District Court Judge that were overturned on appeal, and included a comparison between New Zealand, Switzerland and the United States on the appointment, term and removal of judges. The Authority did not uphold a complaint that this item placed undue emphasis on the decisions of the featured Judge, failed to contrast New Zealand with comparable jurisdictions, failed to cover key information about the judicial complaints service and featured an offensive gesture. The media play an important role in raising issues, such as alleged poor performance of judges, which have an impact on our communities, and this item was in the public interest. The choice to compare New Zealand with judicial systems in the United States and Switzerland was an editorial one open to the broadcaster, and did not result in audiences being misled or misinformed. Finally, the gesture used by the presenter in this item was an innocuous thumb gesture, and not a throat-cutting gesture as alleged by the complainant.

Not Upheld: Balance, Fairness, Accuracy, Good Taste and Decency

Introduction

[1]  An item on Story discussed the accountability of judges in New Zealand. The item referenced a number of high profile criminal judgments by a named District Court Judge that were overturned on appeal, and included a comparison between New Zealand, Switzerland and the United States on the appointment, term and removal of judges.

[2]  Peter Newfield complained that the item placed undue emphasis on the decisions of the featured Judge, failed to compare New Zealand with countries that had similar judicial systems (such as Australia, Canada or the United Kingdom (UK)), and failed to refer to the judicial complaints service. He complained that this lack of information gave ‘a false impression of judicial tenure and discipline in New Zealand’.

[3]  Mr Newfield also complained that one of the presenters suggested the named Judge should be sacked, and used a ‘throat-cutting gesture’ when making this comment.

[4]  The issues raised in Mr Newfield’s complaint are whether the broadcast breached the balance, fairness, accuracy and good taste and decency standards, as set out in the Free-to-Air Television Code of Broadcasting Practice.

[5]  The programme was broadcast on 3 October 2016 on TV3 at 7pm. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Was the item sufficiently balanced?

[6]  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 to the audience to arrive at an informed and reasoned opinion.

The parties’ submissions

[7]  Mr Newfield submitted that:

• It was ‘disingenuous’ for the broadcaster to assert that balance was achieved by seeking the viewpoints of those interviewed. The named Judge was unable to defend their decisions, the Prime Minister was ‘constitutionally restrained from commenting on the conduct of members of the judiciary’, the Solicitor-General could also not comment without ‘compromising due process’, and Mr Newfield considered that comments included from a university professor and a retired Judge were inappropriate in the circumstances.
• The item gave no information about the judicial complaints service. It was ‘fundamentally important’ to mention the Judicial Conduct Commissioner and ‘the robust process the Commissioner can institute’.
• The countries used to contrast New Zealand’s judicial system with other jurisdictions, namely Switzerland and the United States, were not comparable. He considered it was ‘incumbent’ on the broadcaster to mention at least one other country, such as the UK, Australia, Canada or the Republic of Ireland.

[8]  MediaWorks submitted that the item presented a range of significant points of view and, while the Judge featured was unable to comment on their own cases, comments were also sought from the Chief Justice and the Attorney-General, who refused these requests. MediaWorks responded to the remainder of Mr Newfield’s submissions under the accuracy standard.

Our analysis

[9]  MediaWorks has accepted, and we agree, that the performance and accountability of judges in New Zealand, particularly in relation to sentencing and the recent decisions of the named Judge, is a controversial issue of public importance which has generated ongoing public debate and conflicting opinion, as well as considerable media coverage. The discussion in this item therefore triggered the requirements of the balance standard.

Viewpoints sought

[10]  Having found the item discussed a controversial issue of public importance, the next question is whether the broadcaster made reasonable efforts, or gave reasonable opportunities, to present competing viewpoints.

[11]  In order to present alternative views on the issue, the broadcaster sought comment from the named District Court Judge, the Chief Justice, the Solicitor-General and the Attorney-General in relation to the topic of the item as a whole and in particular in relation to the named Judge’s decisions.

[12]  The District Court Judge was unable to comment on their own decisions and the Attorney-General was also unable to comment onindividual cases. However, alternative viewpoints were expressed during the item in the following ways:

• The Solicitor-General stated that the ‘appeals court did that job’ (ie, held judges accountable for their decisions).
• While the Prime Minister acknowledged he could not comment on specific judgments, he did say that ‘the judgment was appealed to the High Court and a new sentence was issued, so the system is working’.
• The reporter said that she had spoken with a retired District Court Judge, who told her: ‘Nobody’s perfect. Judges will make mistakes’. She went on to say that the former Judge ‘warns against calls to dismiss them, saying that’s the path to tyranny. He points out it’s the only occupation in the world that makes all their decisions public, with reasons why. But he does think that judges should have a probationary period to check they’re up to the job.’
• A university professor pointed out that ‘Judges are rightly independent. They’re of incredibly high calibre in New Zealand so it would take a really extreme act for there to be any involvement as far as discipline of a judge is concerned’.
• At the end of the item, Ms du Plessis-Allan stated, ‘The thing with this is – and it’s right to point this out – ...there’s a lot of concern around the politicisation of judges and the fact that the judges need to... be keeping... checks and balances in the various arms of Government.’

[13]  In our view these aspects of the item presented a range of different perspectives to viewers, and were sufficient to achieve balance. While Mr Newfield may have preferred that other experts were interviewed, or that the scope of the item was broadened, this was a matter of editorial discretion for the broadcaster. The accountability of New Zealand’s judiciary is an issue in the public interest and this item was valuable in terms of the exercise of freedom of expression. Our media have an important role to play in investigating and highlighting issues about those who hold public office and whose decisions directly impact the country and the community. In this context we are satisfied that the broadcaster made reasonable efforts to provide balancing viewpoints.

Judicial complaints service

[14]  Mr Newfield argued that the item should have referred to the Judicial Conduct Commissioner (JCC), in order for viewers to be fully informed about the issue.

[15]  Our understanding is that complaints made to the JCC cannot relate to a judge’s decision. The correct process is for the decision to be appealed, and this was noted in the item by the Solicitor-General, the Prime Minister and in the reporter’s discussion of the named Judge’s overturned decisions. The decision not to include information about the JCC, which may have broadened the scope of the item beyond what was reasonable during the item’s brief overview of New Zealand’s judicial system, was, again, a matter of editorial discretion for the broadcaster, and did not in our view result in an unbalanced broadcast.

Comparable jurisdictions

[16]  The complainant’s view that a more appropriate comparison could be made between New Zealand and, for example, the UK, Australia or Canada, is understandable. However, while the jurisdictions of Switzerland and the United States may not be directly comparable to New Zealand’s judicial system, we do not find that the broadcaster’s use of these countries as an example resulted in an unbalanced (or inaccurate) broadcast. This segment gave viewers a general sense of where New Zealand sits internationally in relation to the appointment, term and removal of judges and audiences would not have been misinformed, in the context of a general example, by the omission of references to other countries.

[17]  We therefore do not uphold Mr Newfield’s complaint under Standard 8.

Was any individual or organisation taking part or referred to in the broadcast treated unfairly?

[18]  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 people 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.¹

[19]  Mr Newfield submitted that:

• The item was unfair to District Court Judges and particularly the Judge whose decisions featured in this item.
• As judges cannot speak in their own defence, broadcasters were therefore under a higher duty of care to provide fairness and balance. He said that, ‘It was simply not good enough to mention that [the featured Judge] could not comment or respond, in the midst of an articlethat made such an intemperate and inaccurate attack on [them]’.

[20]  MediaWorks submitted that, ‘Given the controversial nature of several of [the named Judge’s] recent decisions, and the significant public interest in those decisions... the broadcast’s scrutiny of these decisions was clearly justified in the public interest.’ It did not consider that ‘District Court judges’ generally could be an ‘organisation’ for the purposes of the fairness standard.

Our analysis

[21]  The threshold for finding a breach of the fairness standard in relation to politicians or public figures is higher than for a lay person or someone unfamiliar with the media.² As noted by a former District Court Judge during the item (and paraphrased by the reporter), judges’ decisions are public and, as appointed members of the judiciary, judges are necessarily subject to public comment and scrutiny, including by the media. It is a fundamental aspect of the judicial system that court processes and decisions are available to the public, and judges can expect to be subject to public scrutiny. The question is whether the item’s criticism of this particular Judge’s decisions went beyond what was fair.

[22]  This item used a recent decision by the featured Judge, as well as the Judge’s other previous decisions that had been overturned in the High Court, as a starting point for a general discussion about the accountability and performance of judges in New Zealand. The Judge’s alleged poor performance was used as the basis for the item but they were unable, by law, to comment on their own decisions, or to defend themselves. Due to the necessary independence of the judiciary, the broadcaster was also unable to provide meaningful comment from others in the Judge’s defence.

[23]  While a negative impression may have been created of the Judge featured, we do not consider that this item strayed beyond criticism of the Judge in their professional capacity into something that amounted to personal abuse or a personal attack.³ The discussion of the Judge’s overturned decisions was matter-of-fact, and while Ms du Plessis-Allan’s comments could be interpreted as robust criticism of the Judge, this was an opinion she was entitled to express and she asserted that her comments were made in relation to the judiciary generally.

[24]  We therefore do not consider that undue emphasis was placed on the Judge’s decisions, or that overall the item resulted in unfairness to them. We do not uphold the fairness complaint.

Was the broadcast in accurate or misleading?

[25]  The accuracy standard (Standard 9) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead. The objective of this standard is to protect audiences from being significantly misinformed. The requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.⁴

The parties’ submissions

[26]  Mr Newfield submitted that Ms du Plessis-Allan attempted to argue that ‘her comments in the programme about “sacking” were not directed at [the featured Judge] when it was clear beyond a doubt that they were’. He also reiterated his argument that the item failed to give an accurate report of judicial discipline in New Zealand (again stating that the item did not mention the judicial complaints process and the use of Switzerland and the USA as comparisons with New Zealand’s judiciary was inappropriate).

[27]  MediaWorks submitted that ‘the broadcast conveyed an accurate impression of judicial tenure and discipline that was as comprehensive as could reasonably be expected within the scope of the item’. The comments made by Ms du Plessis-Allan were clearly her own opinion and were therefore not subject to the accuracy standard. During the item, Ms du Plessis-Allan asserted that her comments were made about the judiciary generally, and not about the Judge featured in the item.

Our analysis

[28]  We have addressed Mr Newfield’s concerns in relation to the judicial complaints process and the use of the USA and Switzerland as comparative jurisdictions in our consideration of the balance standard above.

[29]  In relation to the remaining aspects of Mr Newfield’s complaint, at the end of the item, Ms du Plessis-Allan said:

The thing to remember though – the thing that I think is important – is that, sure, I think the judiciary should have independence. But if a judge is rubbish and is consistently making bad calls, someone needs to go, ‘you’re kind of a bit crap at your job, jog on’, right? Because you can’t say that every single person in one particular industry or one particular profession is going to be amazing.

[30]  She later clarified:

I just want to point out – when I say, jog on, I’m not necessarily talking about [the named Judge]...

[31]  Ms du Plessis-Allan’s concluding comments were clearly an expression of her own opinion, and did not amount to statements of fact. She preceded her statement by saying that ‘the thing that I think is important’ [emphasis added] and, while it may have come across as disingenuous, she clarified that her comments were directed at the judiciary generally.

[32]  We are satisfied that the item was not inaccurate or misleading in the manner alleged, and we therefore do not uphold this aspect of the complaint.

Did the broadcast threaten current norms of good taste and decency?

[33]  The purpose of the good taste and decency standard (Standard 1) is to protect audience members from viewing broadcasts that are likely to cause widespread undue offence or distress, or undermine widely shared community standards.

[34]  Mr Newfield submitted that, at the end of the item, Ms du Plessis-Allan used a ‘throat-cutting gesture’ when discussing the removal of judges, which was offensive.

[35]  Having viewed the concluding segment, we are satisfied that the gesture used by Ms du Plessis-Allan was clearly a thumb gesture to accompany the phrase ‘jog on’, and was not a throat-cutting gesture as alleged by the complainant.

[36]  We therefore do not uphold Mr Newfield’s complaint under Standard 1.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
17 March 2017

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:
1      Peter Newfield’s formal complaint – 12 October 2016
2      MediaWorks’ response to the complaint – 9 November 2016
3      Mr Newfield’s referral to the Authority – 7 December 2016
4      MediaWorks’ final comments – 20 December 2016

¹Commerce Commission and TVWorks Ltd, Decision No. 2008-014
²Kiro and RadioWorks Ltd (Decision No. 2008-108); Craig and 4 Others and Television New Zealand Ltd (Decision No. 2013-034)
³ Kiro and RadioWorks Ltd (Decision No. 2008-108), at [78]
⁴ Guideline 9a