Rupa and Television New Zealand Ltd - 2011-055
- Peter Radich (Chair)
- Leigh Pearson
- Te Raumawhitu Kupenga
- Mary Anne Shanahan
- Dilip Rupa
ProgrammeWaitangi: What Really Happened
BroadcasterTelevision New Zealand Ltd
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Waitangi: What Really Happened – docu-drama about events leading up to the signing of the Treaty of Waitangi – allegedly in breach of controversial issues, accuracy, fairness, discrimination and denigration, and responsible programming standards
Standard 4 (controversial issues), Standard 5 (accuracy), Standard 6 (fairness), Standard 7 (discrimination and denigration), Standard 8 (responsible programming) – complainant’s concerns are matters of personal preference and editorial discretion – decline to determine under section 11(b) of the Broadcasting Act 1989
This headnote does not form part of the decision.
 Waitangi: What Really Happened was broadcast on TV One at 8.30pm on Sunday 6 February 2011. The programme was a docu-drama following the events leading up to the signing of the Treaty of Waitangi in 1840. It was presented as if a modern-day reporter travelled back in time to 1840, documented events and interviewed prominent figures involved in the signing of the Treaty, such as James Busby and Hone Heke. The following caption was displayed at the beginning of the programme:
The following is a dramatisation of the four days leading up to the signing of the Treaty of Waitangi.
Some dialogue has been imagined, but the events presented are... WHAT REALLY HAPPENED (pretty much).
 Dilip Rupa made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the programme breached standards relating to controversial issues, accuracy, fairness, discrimination and denigration, and responsible programming.
 With regard to Standard 4, Mr Rupa argued that the Treaty was a “controversial subject” and that “sovereignty under a colonial power was not discussed”. He said that the programme did not refer to “the need to change the existing jurisdiction by Treaty”, Hone Heke’s objection to the change in flag, or its relation to Waitangi. He said that New Zealand’s first national flags were not identified and were not correctly referred to, and that the programme did not refer to the fact that Busby wrote the Declaration of Independence (the Declaration) or that the Treaty had to alter native status.
 Looking at accuracy, Mr Rupa argued that the flag raising ceremony was not referred to prior to the Treaty, and that the lawful status of New Zealand prior to the Treaty was not accurately stated. He said that the two flags playing jurisdictional roles on Waitangi Day and their significance were not explained. He said there was no evidence that Hone Heke used a United States flag on his waka.
 With regard to fairness, the complainant considered that the failure to refer to the Declaration and the failure to show the lowering of New Zealand’s first national flag when raising the Union Jack was unbalanced.
 Mr Rupa argued that omitting information about the Declaration discriminated against the Royal family and the Native Chiefs in breach of Standard 7.
 Finally, the complainant considered that by failing to present historical events accurately, viewers were not fully informed of New Zealand’s legal history, and TVNZ had breached Standard 8.
 Mr Rupa nominated Standards 4, 5, 6, 7 and 8 of the Free-to-Air Television Code of Broadcasting Practice in his complaint. These provide:
Standard 4 Controversial Issues – Viewpoints
When discussing controversial issues of public importance 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.
Standard 5 Accuracy
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/or
- does not mislead.
Standard 6 Fairness
Broadcasters should deal fairly with any person or organisation taking part or referred to.
Standard 7 Discrimination and Denigration
Broadcasters should not encourage discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status, or as a consequence of legitimate expression of religion, culture or political belief.
Standard 8 Responsible Programming
Broadcasters should ensure programmes:
- are appropriately classified;
- display programme classification information;
- adhere to timebands in accordance with Appendix 1;
- are not presented in such a way as to cause panic, or unwarranted alarm or undue distress; and
- do not deceive or disadvantage the viewer.
Broadcaster’s Response to the Complainant
 TVNZ declined to uphold the complaint under Standards 4 and 5 on the basis that the programme was not news, current affairs or factual programming to which those standards applied. It said that while the programme relied on historical events, these had been dramatised for comedic and dramatic effect.
 With regard to Standard 6, TVNZ noted that Mr Rupa had not identified any person or organisation that he considered had been treated unfairly. It also noted that the people in the programme were actors. TVNZ declined to uphold the complaint under Standard 6.
 The broadcaster pointed out that Mr Rupa had not identified a section of the community that he considered had been denigrated or discriminated against in breach of Standard 7. It noted that guideline 7a to Standard 7 stated that the standard was not intended to prevent the broadcast of legitimate drama, and declined to uphold the complaint under Standard 7.
 TVNZ considered that Mr Rupa’s concerns did not raise any issues under Standard 8, but rather were matters of personal preference. It did not consider that the programme would have caused panic, alarm or distress, as it was clearly a dramatisation of historical events. This was clearly stated at the beginning of the programme it said, and was clear from the tone of the programme as a whole. It declined to uphold the Standard 8 complaint.
Referral to the Authority
 Dissatisfied with the broadcaster’s response, Mr Rupa referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. He maintained that viewers had not been accurately informed about the historical events in the programme. Mr Rupa argued that “dramatisation does not give licence to alter, mislead or delete historic events relating to the jurisdictional foundations of the country”.
 The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
Standard 4 (controversial issues), Standard 5 (accuracy), Standard 6 (fairness), Standard 7 (discrimination
and denigration) and Standard 8 (responsible programming)
 Section 11(b) of the Broadcasting Act 1989 states that the Authority may decline to determine a complaint if it considers “that, in all the circumstances of the complaint, it should not be determined by the Authority”.
 Mr Rupa has made a number of complaints to this Authority relating to the presentation of New Zealand’s history and its flags.1 In this case, his complaint is that the programme’s dramatisation of the events at Waitangi did not include certain aspects that he considered should have been included. In our view, the decision to dramatise historical events in a certain way is clearly within the programme makers’ right to employ dramatic licence, and their editorial discretion. Further, we note that section 5(c) of the Broadcasting Act 1989 states:
Complaints based merely on a complainant’s preferences are not, in general, capable of being resolved by a complaints procedure.
 Mr Rupa’s complaint that the programme, which in our view was clearly a drama, should have presented the events at Waitangi differently, is his own preference rather than a matter of broadcasting standards which could be resolved by this complaints procedure.
 We have therefore reached the view that, in all the circumstances, it is appropriate to decline to determine the complaint in accordance with section 11(b) of the Broadcasting Act 1989.
For the above reasons the Authority declines to determine the complaint.
Signed for and on behalf of the Authority
9 August 2011
The following correspondence was received and considered by the Authority when it determined this complaint:
1 Dilip Rupa’s formal complaint – 4 March 2011
2 TVNZ’s response to the complaint – 1 April 2011
3 Mr Rupa’s referral to the Authority – 2 May 2011
4 TVNZ’s response to the Authority – 1 July 2011
5 Mr Rupa’s further submissions – 13 July 2011