Turver and Television New Zealand Ltd - 2016-032 (25 July 2016)
- Peter Radich (Chair)
- Leigh Pearson
- Te Raumawhitu Kupenga
- Paula Rose
- Chris Turver
BroadcasterTelevision New Zealand Ltd
[This summary does not form part of the decision.]
A Seven Sharp item discussed the upcoming flag referendum and featured an interview with an Australian advocate for changing the flag. The Authority did not uphold a complaint that presenter Mike Hosking ‘encouraged the New Zealand public to vote a certain way by reiterating his own prejudices and then using an Australian broadcaster to support his own views’. While Mr Hosking made his view in support of changing the flag known, the alternative view was adequately presented during the item. Given the widespread coverage of the flag referendum, viewers could also reasonably be expected to be aware of significant perspectives on the issue, and would not have been deceived or disadvantaged as a result of this item.
Not Upheld: Controversial Issues, Responsible Programming
 An item on Seven Sharp discussed the upcoming flag referendum. Presenter Mike Hosking interviewed an Australian advocate for changing the flag and commented that he was also in favour of the change.
 Chris Turver complained that on the eve of the referendum ‘Mr Hosking encouraged the New Zealand public to vote a certain way by reiterating his own prejudices and then using an Australian broadcaster to support his own views’.
 The issue is whether the broadcast breached the controversial issues and responsible programming standards as set out in the Free-to-Air Television Code of Broadcasting Practice.1
 The item was broadcast on TV ONE on 2 March 2016. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
 The item began with Mr Hosking noting that the ballot papers for the flag referendum had been sent out and ‘no matter where you stand we’ve all been bombarded with opinions on what we should think and which box we should tick’. Brief clips were shown of a number of different people, including public figures, giving their views. Most individuals featured supported changing the flag, and one said ‘we wish to retain the current flag’. Co-presenter Toni Street then said:
So after all the ads, the op-ed, the polling, the trolling, it’s going to be a bit of a relief to just get out there and vote, isn’t it? It certainly feels like every man, woman and dog has weighed in on the debate and now, thank goodness, to really help us decide, the Aussies are getting in on the act.
 Mr Hosking referred to an advertisement from AUSFLAG2 that appeared in The NZ Herald that day, urging New Zealand to ‘ditch the flag’. He then interviewed ‘the man behind that ad’.
 Mr Hosking started the interview by pointing out that, ‘as we sit here tonight the flag is not going to change according to the polls’, and then asked the AUSFLAG representative to ‘work us through some of the ideas’ in support of keeping the current flag. These included:
- ‘people don’t like the design [of the alternative flag]’
- ‘I’m not going to vote for it because I don’t like the Prime Minister’
- ‘the veterans fought for this flag’.
 The interviewee’s first comment was, ‘It’s a very a difficult one for me because this is none of my business – this is New Zealand’s business.’ He went on to give his views in support of changing the flag, for example saying that New Zealand is ‘a long way ahead’ of Australia in many respects and, ‘on this one, New Zealand, we want you to beat us [Australia]’.
 The item concluded with some discussion between Mr Hosking and Ms Street about the interviewee’s stance. Mr Hosking explicitly agreed with the interviewee and declared he was in favour of the change saying, ‘If that doesn’t sway you, nothing will. ...He does know what he’s talking about.’ Ms Street commented that the interviewee was ‘very convincing’, but said, ‘I feel like so much of the argument now – because we’ve battled both sides – needs to come down to, which one do you actually visually like best?’
Was the item sufficiently balanced?
 The balance standard (Standard 4) 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 arguments are presented to enable a viewer to arrive at an informed and reasoned opinion.3
 Mr Turver considered that Seven Sharp had deliberately planned this item on the eve of the referendum and ‘chose to encourage an Australian to essentially reinforce the views of Mr Hosking who made no effort to put up anybody with an alternative view’. He argued that, ‘While Seven Sharp did over a period of time provide for some alternative views, they were generally dismissed or minimised by Mr Hosking who constantly used his privileged position to reinforce his own preferences.’ No reasonable opportunity was given to anybody to contest the views of Mr Hosking or the Australian broadcaster on the evening of 2 March, he said.
 TVNZ did not consider that the discussion of AUSFLAG was a controversial issue of public importance. It argued that ‘although it was clearly a discussion from a particular perspective’ and both Mr Hosking and the interviewee supported changing the flag, the opposing view was acknowledged. It noted that these individuals’ right to express their opinions was protected under the Bill of Rights Act 1990. The broadcaster maintained that other TVNZ broadcasts discussed the upcoming referendum and people’s opinions on the flags, and these achieved balance within the period of current interest.4
 A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The standard applies only to news, current affairs and factual programmes which discuss a controversial issue of public importance. The subject matter must be an issue ‘of public importance’, it must be ‘controversial’, and it must be ‘discussed’.5
 The Authority has typically defined an issue of public importance as something that would have a ‘significant potential impact on, or be of concern to, members of the New Zealand public’.6 A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.7
 The flag referendum was an issue of significant importance to the New Zealand public and which ignited much discussion and many differing opinions. While this item featured an interview with one individual who took a particular stance on the issue, the interview clearly related to the referendum. We are therefore satisfied that item discussed a controversial issue of public importance and triggered the balance standard.
 The next question, then, is whether the broadcaster made reasonable efforts either within this programme or within the period of current interest to present significant viewpoints on this issue.
 While the item only included an interview with an advocate for changing the flag, and Mr Hosking made his personal views in support of changing the flag known, comments made throughout the item made it clear that other perspectives existed on the issue. For example:
- ‘...no matter where you stand we’ve all been bombarded with opinions on what we should think and which box we should tick’ (Mr Hosking)
- ‘It certainly feels like every man, woman and dog has weighed in on the debate’ (Ms Street)
- ‘...as we sit here tonight the flag is not going to change according to the polls’ (Mr Hosking)
- ‘...we’ve battled both sides’ (Ms Street)
 The question line of the interview in essence put forward the main arguments against changing the flag (see paragraph ). Additionally, in her ‘final word’ at the conclusion of the Seven Sharp episode, Ms Street again acknowledged the debate and summarised the main arguments for and against changing the flag, saying:
So it’s been the most widely debated and talked about Kiwi vote in a long time, the flag. We’ve been dissecting the colours, the design, the process, the merits of both [options] for months and still it seems to have momentum. I’m not going to overthink it, though. The way I see it, the current flag has our history going for it, it’s been fought for and celebrated on winners’ podiums for years. The new option carries the fern, which is a symbol of being a Kiwi, it’s fresh and distinctly different to Australia’s. But let’s not overanalyse it. At the end of the day we have two choices left, regardless of whether you agreed or disagree with how we got here. We’re here anyway so the best way to get what you want now is to simply pick the flag that you think looks the best.
 In light of this, we find that significant viewpoints were adequately acknowledged in the programme, and we do not think the broadcaster was required, in the interests of balance, to include an interview with an advocate from both sides of the flag debate.
 The item was in our view an example of a style of advocacy presentation which is now utilised in some current affairs programmes. Although this strays from traditional news broadcasting where presenters do not usually offer their own opinions on topical issues, it does not automatically follow that a current affairs item in which a presenter advocates for a certain stance will be unbalanced. The standard requires broadcasters to make reasonable efforts to present significant points of view, either within the programme itself or within the period of current interest. We are satisfied that TVNZ made reasonable efforts to provide balance both within this programme and in the surrounding period (see  and footnote 4 above).
 As a subject which generated robust and widespread discussion among New Zealanders, both sides of the flag debate received considerable media coverage over a significant period. It is reasonable to expect that viewers of this programme would have been well aware of different points of view on the issue, and we do not think that this programme in itself prevented them from making an informed choice when voting in the flag referendum.
 For these reasons we do not uphold the complaint under Standard 4.
Did the broadcast breach the responsible programming standard?
 The responsible programming standard (Standard 8) is typically concerned with programme classification and scheduling, but it also requires broadcasters to ensure programmes do not deceive or disadvantage the viewer.
 Mr Turver argued that the broadcast deceived and disadvantaged viewers because TVNZ failed to ensure fair and balanced coverage in the weeks leading up to the referendum to enable viewers to make their own judgement.
 TVNZ disagreed that there was any element of ‘deception’, saying that Mr Hosking and the interviewee both made it clear they were giving their own opinions, and this was a legitimate exercise of free expression as guaranteed by the Bill of Rights Act.
 In our view the complainant’s concerns are better addressed as a matter of balance. For the reasons we have discussed above in relation to Standard 4, we do not believe viewers would have been deceived or disadvantaged as a result of this Seven Sharp item, or prevented from exercising their own judgement in relation to the flag referendum.
 Therefore we find that Standard 8 was not breached.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
25 July 2016
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Chris Turver’s formal complaint – 2 and 6 March 2016
2 TVNZ’s response to the complaint – 4 April 2016
3 Mr Turver’s referral to the Authority – 12 April 2016
4 TVNZ’s response to the Authority – 10 June 2016
1 This complaint was determined under the previous Free-to-Air Television Code, which applied up until 31 March 2016. The new Broadcasting Standards in New Zealand Codebook took effect on 1 April 2016 and applies to any programmes broadcast on or after that date: http://bsa.govt.nz/standards/overview
2 AUSFLAG is described as an ‘apolitical, non-profit organisation seeking to secure the popular support of the Australian people for the adoption of a truly Australian flag’: http://www.ausflag.com.au/
3 Commerce Commission and TVWorks Ltd, Decision No. 2008-014
4 Examples of other coverage of the flag referendum on TV ONE included https://www.tvnz.co.nz/one-news/new-zealand/one-news-poll-two-thirds-want-to-keep-current-nz-flag; https://www.tvnz.co.nz/one-news/new-zealand/voting-on-new-flag-starts-tomorrow-which-one-is-zealand-backing; and https://www.tvnz.co.nz/one-news/new-zealand/kiwis-see-through-celebrity-charge-over-flag-referendum-little.html?autoPlay=4767612248001
5 For further discussion of these concepts see Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Television (Broadcasting Standards Authority, June 2010) and Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Radio (Broadcasting Standards Authority, June 2009)
6 Powell and CanWest TVWorks Ltd, Decision No. 2005-125
7 See, for example, Dewe and TVWorks Ltd, Decision No. 2008-076