Rutland and TVWorks Ltd - 2012-009
- Peter Radich (Chair)
- Leigh Pearson
- Te Raumawhitu Kupenga
- Mary Anne Shanahan
- Michael Rutland
Channel/StationTV3 # 3
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Inside New Zealand: Inside Child Poverty – documentary investigated child poverty in New Zealand – documentary-maker gave his perspective on the role of government policy in contributing to the current situation – allegedly in breach of law and order and fairness standards
Standard 6 (fairness) – investigation into child poverty engaged high value speech – proposals for policy reform were not specific to any one political party – generic and non-partisan approach – not unfair to National Party – not upheld
Standard 2 (law and order) – broadcast did not encourage viewers to break the law or otherwise promote, condone or glamorise criminal activity – not upheld
This headnote does not form part of the decision.
 An episode of the documentary series Inside New Zealand, entitled Inside Child Poverty, was broadcast on TV3 on 22 November 2011. The documentary-maker, Bryan Bruce, investigated the current state of child health among the poorest sections of New Zealand society and gave his perspective on the role of successive government policy, in particular the shift from a socialist state toward a free-market economy, in contributing to the current situation.
 Michael Rutland made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the documentary, made by a non-political party, dealt with “significant electoral issues” immediately before an election, in contravention of electoral law. He also considered that the content of the documentary was biased towards former Labour governments, and an attempt to unfairly influence the election outcome.
 The issue is whether the documentary breached Standards 2 (law and order) and 6 (fairness) of the Free-to-Air Television Code of Broadcasting Practice.
 The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
Nature of the programme and freedom of expression
 At the outset, we recognise the right to freedom of expression which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990, and acknowledge the importance of the values underlying that right. The right to free expression includes the freedom to seek, receive, and impart information and opinions of any kind in any form. Any restriction on the right to freedom of expression must be prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society (section 5).
 The documentary Inside Child Poverty was a serious investigative report into a pressing social issue – child poverty – in a manner that aimed to enhance knowledge and understanding of the causes, responsibilities and potential solutions to the problem. In particular, the documentary-maker, Mr Bruce advocated an alternative ideological framework to that promoted by past governments.
 We consider that the type of speech engaged here was of high value. It brought the issue of child poverty to the forefront at a critical time for political discussion, facilitating debate about policy reform in the days immediately preceding the general election. The programme aimed to detail, and draw public attention to, the scale of child poverty in New Zealand. There was a high level of public interest in the item, which the courts have suggested is an indicator that the speech is socially important.1
 Given the nature of the documentary and the high value of the speech engaged, we consider that a very strong justification is required to restrict the speech. The documentary would have to have contained serious flaws, inaccuracies or misrepresentations to justify restricting the broadcaster’s right to impart such information and the audience’s right to receive it.
Was the documentary unfair to the National party?
 Standard 6 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.2
 Mr Rutland argued that the documentary was biased towards former Labour governments. In particular, he considered that it used “social welfare images” that were positive in relation to former Labour governments, and attributed “negative images” to former National governments. In addition, he argued that the programme’s comparison of the New Zealand and Swedish systems created an unfair impression that New Zealand could have a Swedish system under a Labour government.
 TVWorks argued that Inside Child Poverty was explicitly framed as an authorial documentary, noting that, at the beginning of the programme, Mr Bruce stated, “I’m Bryan Bruce and this is my report.” It said that his proposals for significant changes to health, housing and welfare policy were aimed at all parties and governments, regardless of their position on the political spectrum. It stated:
We are satisfied that [Mr] Bruce’s intention in making the documentary was to identify significant areas of concern relating to child health in New Zealand and to offer a method of addressing these, not to advance the interests of a particular political party.
 While we accept that the topic under discussion, child poverty (and indirectly welfare policy), was an election issue, it does not necessarily follow that the documentary amounted to election advertising or an attempt to improperly influence voters. While the item could be said to be political in the sense that it discussed policy issues, we consider it was generic in its approach. The documentary provided a prime example of democracy at work, disseminating the type of information, and prompting the types of discussions, that should be welcomed during election periods.
 Mr Bruce expressed his opinions on the underlying causes of child poverty in a manner that was non-partisan and did not advocate for or against any particular party. In particular, the problems highlighted by the documentary were attributed to the effects of decisions made by politicians over the last 30 years, and in particular the shift from a socialist-like country to a free-market economy.
 Mr Bruce linked the rise in the free-market economy to policies implemented by both National governments (for example, Robert Muldoon’s “Think Big” policies and Finance Minister Ruth Richardson’s slashing of benefits), and Labour governments (e.g. Finance Minister Roger Douglas’ sale of state assets and the introduction of the Working for Families tax credit). In this sense, he was critical of aspects of both National and Labour government policies.
 By way of example, Mr Bruce made the following comments in the documentary:
- “Since the introduction of the free-market economy, all the diseases of poverty that affect poor children most, have all gone up. In trying to generate wealth we are bankrupting our children’s health.”
- “Whatever the intention, the trickle-down theory just hasn’t worked. In our switch to the free-market economy we’ve created such a wide gap between the rich and the poor that it’s now estimated that one in five children live in a house where a major caregiver is on some sort of benefit. That’s 230,000 children...”
- “What happened, I think, is that we applied the trickle-down theory to the care of our kids. We give the welfare money to the parents in the hope that it’s going to filter down to the children, but it isn’t working.”
- “Let’s face it – we know what you have to do. Fix the houses, make them warm and dry. Give the kids one free meal a day and free medical care whenever they need it. All we need is for our politicians to show courage and wisdom and foresight. We have to give them the mandate to put our children first before everything else.”
- “We need to sit down and talk to each other, have a cross-party conference and come up with a long-term plan for our children... because no child should go hungry in this country. No child should have a preventative disease. We are good people. We can do this, if we want to.”
 We do not consider that the omission of certain information relating to the differences between the New Zealand and Swedish systems resulted in the programme being unfair to the National Party.
 For these reasons, and taking into account the principles expressed above at paragraphs  to , we find that the National Party was treated fairly and we decline to uphold the Standard 6 complaint.
Did the broadcast of the documentary encourage viewers to break the law or condone
 The intent behind the law and order standard is to prevent broadcasts that encourage listeners to break the law, or otherwise promote, glamorise or condone criminal activity.3 The standard exists to ensure that broadcasters refrain from broadcasting material which does not respect the laws which sustain our society.4
 Mr Rutland’s concerns under this standard related to the timing of the documentary, which screened four days before the general election. In his view, the broadcasting of a documentary by a “non-political party” and dealing with “significant election issues” during an election period amounted to “third party” advertising in breach of electoral law.
 TVWorks provided an opinion from the Electoral Commission which concluded that the documentary did not breach the Electoral Act 1993 or Part 6 of the Broadcasting Act 1993.
 For the reasons expressed in relation to fairness, and having regard to the findings of the Commission, we are satisfied that nothing in the broadcast promoted disrespect for electoral law.
 Accordingly, we find that the documentary did not encourage viewers to break the law, or otherwise promote, glamorise or condone illegal behaviour. We therefore decline to uphold the complaint under Standard 2.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
1 May 2012
The following correspondence was received and considered by the Authority when it determined this complaint:
1 Michael Rutland’s formal complaint – 22 November 2011
2 TVWorks’ response to the formal complaint – 20 December 2011
3 Mr Rutland’s referral to the Authority – 31 January 2012
4 TVWorks’ response to the Authority (including letter from Electoral Commission) –
10 February 2012
5 Mr Rutland’s final comment – 24 February 2012
1See, for example, Tipping J in Hosking v Runting PDF317.33 KB,  3 NZLR 385 (CA).
2Commerce Commission and TVWorks Ltd, Decision No. 2008-014
3See, for example, Keane and Television New Zealand Ltd, Decision No. 2010-082.
4Hunt and Māori Television, Decision No. 2009-010