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 that a Labour Party election programme which used the phrase ‘it’s about by Māori, for Māori’ was misleading on the basis the Aotearoa New Zealand Government is allegedly mostly funded by non-Māori taxpayers. The Authority held that a reasonable viewer would not understand this term to relate to government funding but to leadership and decision-making roles being held by Māori for Māori issues. The misleading programmes standard did not apply.

Not Upheld: E1: Election Programmes Subject to Other Code (Accuracy), E4: Misleading Programmes

The broadcast

[1]  A Labour Party election programme was broadcast on 26 September 2023 at 8.22pm on TVNZ 1. The programme was promoting Labour’s achievements and plans for Māori in New Zealand. It included the following comments from a series of speakers:

Hon Chris Hipkins:               From day one, Labour has delivered for Māori whānau. 

Hon Kelvin Davis:                 Ensuring our kaimahi and tamariki are supported with the resources they need to learn.

Cushla Tangaere-Manuel:    We're ensuring our whānau are safe during cyclone recovery.

Hon Peeni Henare:                Making sure our whānau get their health needs met. 

Hon Rino Tirikatene:            And we're growing the Māori economy through more international trade. 

Hon Willow-Jean Prime:      The largest ever investment in Te Matatini. 

Hon Willie Jackson:              It's about by Māori, for Māori. 

Hon Nanaia Mahuta:             And we need your support to keep the momentum long into the future.

Overview – Election Programmes

[2]  During the election period, the Election Programmes Code of Broadcasting Practice applies to election programmes which are broadcast for a political party or candidate. This year, the election period runs from 10 September 2023 to midnight on 13 October 2023. This is a complaint about an election programme broadcast for the Labour Party on TVNZ 1.

[3]  Generally, broadcasting complaints will first be determined by the broadcaster. However, the Broadcasting Act 1989 requires that complaints about election programmes must come directly to the Authority for determination. This is so that any concerns about programmes that may influence voters can be determined swiftly.

[4]  When we receive a complaint about an election programme, we seek submissions from the complainant, the broadcaster and also the political party. We also seek to determine the complaint under a fast-track process. We thank the parties involved in this matter for their timely responses to our request for submissions.

The parties’ submissions

The complaint

[5]  Ross Payne complained the broadcast breached standard E4 (Misleading Programmes) of the Election Programmes Code of Broadcasting Practice, as it was misleading to claim Labour has been doing a lot for Māori by Māori given ‘most of it is funded by’ non-Māori taxpayers.

[6]  The misleading programmes standard is concerned with programmes imitating existing programmes, formats or identifiable personalities in a manner which is likely to mislead.¹ Payne’s concerns relate to the allegedly misleading impression of a particular statement in the broadcast (and not that the broadcast imitated other programmes). On this basis the misleading programmes standard does not apply and will not be analysed in this decision. We consider the complaint is best addressed under the accuracy standard of the Code of Broadcasting Standards in New Zealand,² and invited the parties’ submissions on that standard.

The Labour Party’s response

[7]  The Labour Party response to the complaint included the following:

• ‘The phrase "by Māori, for Māori” is not commonly interpreted as being about funding sources, and Mr Jackson does not mention anything about funding in the advertisement.’
• ‘Instead, "by Māori, for Māori” means providing public programmes that are:
  • Targeted specifically to help our Māori population (that is “for Māori”),
  • Provided using specialist Māori providers (that is “by Māori”), and/or
  • With significant Māori representation in the decision-making (also “by Māori”)’
• ‘There are many examples of this approach over the years, including programmes initiated by both National-led and Labour-led governments. Examples include Whānau Ora, iwi management of some conservation assets, establishing Te Aka Whai Ora / the Māori Health Authority, legislating to allow Māori wards on local councils, ongoing commitment to support Māori broadcasting, and more.’

The broadcaster’s response

[8]  TVNZ responded to the complaint as follows:

• ‘We consider that there has been no breach of Standard E1. It is apparent that the election programme in question comprises advocacy and political opinion, and we consider that these elements are readily distinguishable from factual information.’
• ‘We note that the programme did not make any claims in regard to funding. The statement in question, “it’s about by Māori for Māori” (which was made by MP Willie Jackson), in our view, related to the efforts made by the Labour Party’s Māori MPs to advocate for and support Māori citizens, and Māori interests.’
• ‘There are no grounds on which to conclude the programme breached Standard E1.’

The standards

[9]  Under standard E1 (Election Programmes Subject to Other Code) all other standards in the Code of Broadcasting Standards in New Zealand, except for the balance standard (Standard 5) apply.³ The accuracy standard is relevant in assessing this complaint. The purpose of the accuracy standard⁴ is to protect the public from being significantly misinformed.⁵ 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.

Our analysis

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

[11]  The starting point in our consideration of any election programme complaint is the right to freedom of expression, and specifically the importance of political speech, which includes the right of broadcasters, political parties and candidates to impart ideas and information, and the public’s right to receive that information. This is an important right in a democratic society and is particularly important in the lead up to a general election, when political parties and candidates are seeking to influence voters, and audiences are seeking information to enable them to make informed voting decisions.⁶

[12]  Given the high value placed on political speech in the lead up to an election, a correspondingly high threshold must be reached to conclude an election programme has breached the Election Programmes Code (ie the harm caused or potentially caused by the programme must be great).⁷

[13]  Determination of a complaint under the accuracy standard occurs in two steps. The first step is to consider whether the programme was inaccurate or misleading. The second step is to consider whether reasonable efforts were made by the broadcaster to ensure that the programme was accurate and did not mislead.

[14]  The first question for the Authority is whether or not the item was misleading. To ‘mislead’ in the context of the accuracy standard means ‘to give another a wrong idea or impression of the facts’.⁸ The complainant alleges the statement ‘it’s about by Māori for Māori’ was misleading as the majority of Government funding is by non-Māori taxpayers. 

[15]  In our view, a reasonable viewer would understand the statement to relate to:

• efforts made by Māori Labour Party Members of Parliament to advocate for Māori people and interests
• the overarching ethos of the Labour Party in relation to the role of Māori in Government, as decision makers for Māori people and interests.

[16]  We do not consider that a reasonable viewer would understand this election programme or the particular statement to be making any claim about funding sources, or the proportions of taxpayer funding based on race. The issue of funding sources was not referenced during the programme and viewers are, in any event, likely to be aware that government initiatives are largely funded by tax revenue from the New Zealand public.⁹

[17]  Taking into account the vital importance of free political expression in the lead up to the general election, we do not consider that the right to freedom of expression ought to be limited in this case. It is important that political parties and candidates are able to exercise this right to tell their story and convey their political message in the way they choose, so long as standards are maintained. We do not consider a reasonable viewer likely to be misled by the election programme, and therefore the complainant has not identified any concerns which warrant our intervention.

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

Susie Staley
Chair
2 October 2023   

Appendix

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

1  Ross Payne’s formal complaint to Authority – 26 September 2023

2  Labour Party’s response to the complaint – 27 September 2023

3  TVNZ’s response to the complaint – 27 September 2023

¹ Standard E4, Election Programmes Code 2023
² The Authority can consider standards not raised in the original complaint where it can be reasonably implied into the wording of the initial complaint, and where it is reasonably necessary in order to properly consider the complaint, as per Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [62]
³ Standard E1, Election Programmes Code 2023
⁴ Standard 6, Code of Broadcasting Standards in New Zealand
⁵ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand at page 16
⁶ Introduction, Election Programmes Code 2023 at 1
⁷ Guideline G1a
⁸ Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [98]
⁹ New Zealand Taxpayers' Union Inc and MediaWorks TV Ltd, Decision No. 2020-116 at [13]