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Authority Releases Decision On 3 News Special

MEDIA STATEMENT 4 July 2003

Authority Releases Decision On 3 News Special Complaints

Aspects of complaints about a TV3 3 News Special programme which featured an interview with the Prime Minister concerning the release into New Zealand of corn seed alleged to have been genetically modified, have been upheld by the Broadcasting Standards Authority.

The programme, which also included an interview with Nicky Hager the author of the book "Seeds of Distrust", the source of the allegations, was broadcast on 10 July 2002 between 7.00 and 7.30pm. Complaints about the programme were made by the Prime Minister, Helen Clark, and her chief press secretary, Mike Munro, Life Sciences Network, Y. Wierda of Auckland, D. Coy of Hamilton, I. Owen of Wellington and J. Rutherford of Dunedin.

In its 92 page decision released to the parties yesterday (3 July 2003), the Authority upheld a number of aspects of the complaints that the broadcast was unbalanced, that it lacked impartiality and objectivity, and was unfair.

These aspects amounted to breaches of the relevant standards of the Free-to-Air Television Code of Broadcasting Practice. Other aspects of the complaints from each complainant were not upheld.

In its decision, the Authority upheld the complaints from the Prime Minister and the Chief Press Secretary, the Life Sciences Network Inc, Mr Coy and Mr Owen that the broadcast by TV3 Network Services Ltd of a 3 News Special at 7.00pm on 10 July 2002 breached the fairness standard (Standard 6) of the Television Code of Broadcasting Practice.

It also upheld the complaints from Mr Owen that the same broadcast breached

the balance standard (Standard 4).

Similarly, it also upheld the complaints from the Prime Minister and the Chief Press

Secretary, and the Life Sciences Network Inc. that the same broadcast breached the accuracy standard (Standard 5).

The Authority declined to determine or declined to uphold all the other aspects of

the complaints made by the Prime Minister and the Chief Press Secretary, the

Life Sciences Network Inc, Mr Wierda, Mr Coy, Mr Owen and Ms Rutherford.

In releasing its decisions, the Authority said it regretted that the complainants and the public had been obliged to wait almost a year to learn the outcome. However, matters of process, raised mainly by the broadcaster, had required the Authority to issue four interlocutory decisions before it could address the substance of all the complaints.

The Authority has a performance goal of issuing decisions within 40 working days of receiving the final correspondence relating to referred complaints. In this case, the final correspondence from one complainant was received on 5 May 2003 and the decisions were released on 3 July 2003 - a total of 41 working days.

With the release of its decisions, the Authority has asked the broadcaster and the complainants for submissions by 22 July 2003 on the matter of orders under sections 13 and 16 of the Broadcasting Act 1989. The Authority expects to release its decision on these matters by the end of July.

The Authority advises that, in accordance with its usual practice, there will be no comment about this decision other than the information contained in this statement.

-ends-

Note: The full decision is available on the Authority's web site from noon, 4 July 2003, at www.bsa.govt.nz and below...

BEFORE THE BROADCASTING STANDARDS AUTHORITY

Decision No: 2003-055

Decision No: 2003-056

Decision No: 2003-057

Decision No: 2003-058

Decision No: 2003-059

Decision No: 2003-060

Decision No: 2003-061

Dated the 3rd day of July 2003

IN THE MATTER of the Broadcasting Act 1989

AND

IN THE MATTER of complaints by

THE PRIME MINISTER (Rt Hon Helen Clark)

CHIEF PRESS SECRETARY IN THE OFFICE OF THE PRIME MINISTER (Mike Munro) of Wellington

LIFE SCIENCES NETWORK INC

YURI WIERDA of Auckland

DAVID COY of Hamilton

I B OWEN of Wellington

JANET RUTHERFORD

of Dunedin

Broadcaster

TV3 NETWORK SERVICES LTD

P J Cartwright Chair

R S Bryant

J H McGregor

T Misa

Complaint: 3 News Special - interviews with Nicky Hager and Prime Minister about issues raised in Hager's book "Seeds of Distrust" - complaints that implication in interview that the book was factually correct was unbalanced and partial - some facts inaccurate - different interview styles unfair

Findings: Standard 4 - issues were scientific and government accountability - science aspect - balanced - no uphold; government accountability - not balanced - uphold; Standard 5 - scientific facts in dispute - unable to determine; approach to interview with Prime Minister in comparison with the interview with Mr Hager neither impartial nor objective - uphold; statement that Prime Minister declined her earlier offer to do another interview not inaccurate - no uphold; Standard 6 - preparation of programme fair - no uphold; presentation of programme - unfair as Prime Minister not advised of source of allegations and the accuser was interviewed in an earlier section of the programme - uphold; conduct and style of interview not unfair - no uphold

This headnote does not form part of the Decision

Summary

[1] Allegations that the Government had been aware of the distribution of genetically modified (GM) corn, made in a book published on 10 July 2002, were the subject of a 3 News Special programme broadcast on TV3 between 7.00pm and 7.30pm on that day. Interviews with the book's author and the Prime Minister were broadcast during the programme. The interview of the Prime Minister was recorded the day before the book was published and no mention of the book was made during the interview.

[2] Mr Mike Munro, the Chief Press Secretary in the Office of the Prime Minister, the Rt Hon Helen Clark, the Prime Minister, the Life Sciences Network Inc (LSN), Mr Yuri Wierda, Mr David Coy, Mr I B Owen and Ms Janet Rutherford each complained to TV3 about aspects of the broadcast. The complainants alleged, in particular, that the programme contained inaccuracies, was unbalanced and was unfair to the Prime Minister.

[3] TV3 declined to uphold any aspect of the complaints.

[4] Dissatisfied with TV3's decisions, each of the complainants referred their complaints to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons given below the Authority upholds a number of aspects of some of the complaints that the broadcast was unbalanced, that it was inaccurate and lacked impartiality and objectivity, and that it was unfair.

Decision

[5] The members of the Authority have viewed a tape of the programme, field footage of the interview with the Prime Minister and the following other material broadcast by TV3:

- extracts from 3 News broadcast on 10 July 2002 which referred to the allegations made in the book and the forthcoming programme; and

- extracts from 3 News broadcast on 11, 12, 13 and 15 July 2002 which the broadcaster contended presented other significant points of view on the allegations contained in the book and included a range of responses to the programme.

[6] The members have also read the correspondence which is listed in Appendices 2 to 7, and a transcript of the programme complained about (see Appendix 8). The Authority determines these complaints without a formal hearing. The scope of the referral from the Prime Minister and the Chief Press Secretary was contested by the broadcaster. Appendix 1 records a summary of the matters in dispute and the Authority's ruling.

The Programme

[7] The book "Seeds of Distrust" was published on 10 July 2002. The book alleged that the Government had been aware, in November - December 2000, of the accidental distribution of genetically modified (GM) contaminated corn seeds, and had allowed the seeds to be planted, harvested and processed.

[8] The matters raised in the book, written by investigative journalist Nicky Hager, featured in a 3 News Special broadcast on TV3 between 7.00-7.30pm on 10 July 2002. The item was presented by news reader and interviewer, John Campbell. The broadcast occurred during New Zealand's general election campaign, which took place on Saturday 27 July 2002.

[9] The 3 News Special comprised three sections. In the first section, the interviewer, alternatively set in the Marlborough countryside, in a cornfield, in Parliament and in a studio, outlined the arguments advanced in the book. The section also included excerpts from an interview with Mr Hager in which he was asked to summarise and confirm some of the findings contained in the book. The second and third sections involved a pre-recorded studio interview with the Prime Minister. When introducing these sections, the presenter stated that the interview was recorded the previous evening. The book, not then published, was not referred to. The contentions in the book had received wide coverage by the time the interview was broadcast.

[10] Towards the conclusion of the pre-recorded interview, the Prime Minister stated that she would be available to be interviewed again after she had been fully briefed on the issues raised. The presenter stated that the Prime Minister had later declined to participate in a second interview.

Preliminary Matters

The Format of this Decision

[11] This decision follows the following format. The first section following this section on "Preliminary Matters" is headed Standards and it records all the Standards, and relevant Guidelines, raised throughout the complaints. The second section is entitled The Complaints. In this section there is a separate part for each of the following complaints:

- The Prime Minister and the Chief Press Secretary - paras [42] to [136]

- The LSN - paras [137] to [183]

- Mr Wierda - paras [184] to [204]

- Mr Coy - paras [205] to [221]

- Mr Owen - paras [222] to [235]

- Ms Rutherford - paras [236] to [248].

[12] The part for each complaint includes a number of subheadings. They are: the initial complaint; the broadcasting standards considered to have been breached; the broadcaster's response to the complainant; the referral to the Authority; the broadcaster's response to the Authority; the complainant's final comment; and further correspondence (if any).

[13] It is noted that the part in the first section which summarises the complaint from the Prime Minister and the Chief Press Secretary departs from the stated format. This complaint has given rise to a number of procedural matters and the release by the Authority of three Interlocutory Decisions. These matters will be referred to in chronological sequence, in addition to the other matters common to each part.

[14] The third section heading is The Authority's Determination. This part has been sub-divided as follows:

- A. The Regulatory Framework - paras [249] - [260]

- B. The Standards under which the Complaints have been Assessed -

paras [261] - [263]

- C. Standard 6 - Fairness - paras [264] - [326]

- D. Standard 4 - Balance - paras [327] - [358]

- E. Standard 5 - Accuracy - paras [359] - [416]

- F. Other matters raised by Complainants - paras [417] - [423]

- G. Bill of Rights - paras [424] - [428].

The Programme at Issue

[15] Some of the complainants complained about an interview with the Prime Minister broadcast on TV3 at about 7.00pm on 10 July, while others complained about a programme broadcast at 7.00pm.

[16] This approach is apparent in the complaint to TV3 made by the Chief Press Secretary in the Office of the Prime Minister (Mike Munro) on his own behalf and that of the Prime Minister (Rt Hon Helen Clark). He complained initially about a pre-recorded interview with the Prime Minister broadcast by TV3 at 7.00pm on Wednesday 10 July.

[17] In its initial responses to the complainants, TV3 referred to a News Special, broadcast as part of 3 News, which included an outline of the issues raised by Nicky Hager in his book "Seeds of Distrust" published that day, and which contained an interview with the Prime Minister pre-recorded the previous day. TV3 used a similar section entitled Programme in its response to three of the complainants in which it wrote:

On 10 July 2002 3 NEWS ran a News Special concerning allegations made by Nicky Hager in his book "Seeds of Distrust" published that day. The programme outlined the issues raised by Hager and contained an interview recorded the day before between the Prime Minister and John Campbell. The interview canvassed the allegations made by Hager in his book. He claimed the Government had been aware of the accidental distribution of GM contaminated seeds and had allowed the seeds to be harvested, processed and exported or eaten.

[18] The referral from the Prime Minister and the Chief Press Secretary stated explicitly that the programme subject to the complaint was a programme described by TV3 as a "news special" broadcast between approximately 7.00pm and 7.30pm on 10 July 2002.

[19] The Authority includes reference to the above matters to ensure it is clear that it is dealing with complaints about the full 3 News Special broadcast by TV3 at 7.00pm on Wednesday 10 July 2002. The 3 News Special comprised the three sections listed in para [9] above. It did not include 3 News broadcast on 10 July between 6.00 - 7.00pm.

[20] The Authority considers that the 3 News Special was linked to, but separate from, 3 News broadcast between 6.00 - 7.00pm on 10 July. The release of "Seeds of Distrust" was covered extensively in 3 News. Although there was some coverage of the book's contents, most of the coverage dealt with the political reaction to the book's release. On three occasions during 3 News, the presenters on 10 July advised that there would be more on the "story" in a special programme, which they variously described as a 3 News Investigation, a Special 3 News Investigation, and a 3 News Special.

[21] The Authority notes the statement in the complaint from the Prime Minister and the Chief Press Secretary that the 3 News Special was presented "as being a current affairs presentation on that day following on from an interview recorded on 9 July with the Prime Minister". These complainants contended that this statement suggested that the material, other than the interview with the Prime Minister, was prepared on 10 July. The Authority disagrees with this contention. It considers that it was apparent, from the interviewer's change of clothing if nothing else, that the programme had been prepared over some days.

[22] The entire 3 News Special, or aspects thereof, was the subject of formal complaints from the Prime Minister and her Chief Press Secretary, the Life Sciences Network Inc, Yuri Wierda, David Coy, I B Owen and Janet Rutherford. The details of their complaints are contained in the parts of this decision which summarises each complaint.

[23] In its full response to the Standard 5 aspect of the formal complaint from the Prime Minister and the Chief Press Secretary (dated 5 December 2002), TV3 contended that the programme complained about included both the 3 News Special and the preceding 3 News as well. Given the focus of the complaints and the broadcaster's initial description of the programme complained about, the Authority does not accept this submission. As is explained in the decision, the Authority has considered the content of the preceding 3 News to the extent that it is pertinent to the aspects of the complaints on which the Authority makes a finding.

Request for co-option

[24] The broadcaster, in a letter to the Authority dated 21 August 2002, wrote:

We wonder whether the Authority is considering a change/addition to the membership of its panel for the consideration of this complaint. We consider it important that the Authority takes extraordinary measures to ensure the appearance of independence in relation to this referral by the Prime Minister, given that this Government appointed all members of the Authority.

[25] The Authority advised (3 September 2002) that it did not intend to co-opt on this occasion. It referred to a statement in Hooker v. TVNZ (Auckland H.C., 13 June 2002) when Smellie J described the Authority as "a specialised tribunal" which Parliament had set up and the decisions of which were to be respected. The Authority also pointed out that it was an independent Crown entity. In his response on behalf of the Prime Minister and himself, the Chief Press Secretary said that they had "complete confidence" in the Authority, but would accept the Authority's decision to co-opt if it was decided to do so.

[26] In its reply to the Authority's letter, TV3 wrote:

If TV3 decides to review the decision on this issue we will advise you. In the meantime please confirm that your letter constitutes the full decision of the Authority on this issue and includes all reasons.

[27] The Authority's response began:

One inference which can be taken from your letter of 4 September is that the Authority has not sufficiently explained its reasons in declining to make an addition to its membership for the consideration of this complaint.

[28] The Authority explained to TV3 the co-option provision and noted the few occasions when it had been used. The response from the Authority stated:

The Authority rejects without reservation any perception that it cannot be seen to act independently in the consideration of this complaint. The simple fact of the matter is that the exercise of the discretion to co-opt would have little practical effect given that s.26(5) [Broadcasting Act 1989] provides that a co-opted member is not entitled to vote on the matter before the Authority.

There is an irony which is implicit in the request to add to the membership of the Authority on this occasion. That irony is that by acceding to the request the Authority could be seen to be acknowledging that there was some merit in the view that the appearance of independence had been compromised in some way in dealing with the referral of this complaint. As has already been indicated, the Authority rejects out of hand any claim that it cannot have the appearance of acting independently given the background of the complaint.

[29] TV3's response in full:

We did not intend the negative inference you took from our letter of 4 September about sufficiency or otherwise of the Authority's reasons. We were merely seeking clarity on the issue and we thank you for your full reply.

Interlocutory Matters

[30] The Authority was required to deal with a number of procedural matters before it was able to consider the substance of these complaints.

(i) matters relating to the scope of the complaints of the Prime Minister and Chief Press Secretary

[31] Two of the complainants (the Prime Minister and the Chief Press Secretary) sought orders from the Authority requesting TV3 to provide further information in relation to their complaints. In response to the application for further information, TV3 challenged the scope of the referral made by the complainants. TV3 alleged that the referral went beyond the scope of the original complaints. The Authority determined the appropriate scope of the complainants' referral in Interlocutory Decision Nos: 2002-157/158, dated 7 October 2002. A further interlocutory decision (Interlocutory Decision Nos: 2002-180/181, dated 7 November 2002) dealt with the process to be followed in relation to the matters accepted as part of the referral in the earlier interlocutory decision. The matters canvassed in the first Interlocutory Decision are covered in Appendix 1.

(ii) application for further disclosure

[32] The request for further disclosure was dealt with in Interlocutory Decision Nos: 2002-213/214, dated 17 December 2002. The Authority ordered disclosure of:

- information relating to the chronology of filming of the programme;

- field footage of the interviews with Mr Hager and the Prime Minister;

- affidavits relating to an alleged confidentiality agreement about the book; and

- certain information in relation to the source material for the programme.

(iii) application for a formal hearing

[33] In a letter dated 7 March 2003, TV3 sought a formal hearing as it contended that the complaints raised "complex issues of fact and law". It referred to Interlocutory Decision No: 2002-159, dated 10 October 2002, in which the Authority indicated the types of situations in which a hearing might be appropriate. In that decision, the Authority reported that its usual practice was not to hold hearings unless there were relevant factual issues in dispute which could be best resolved at a hearing.

[34] TV3 argued that it would be a breach of natural justice to make a finding on the facts in dispute unless a hearing was held. Furthermore, it contended, a hearing would enable the legal issues to be examined in a satisfactory way.

[35] The letter seeking a hearing dealt with a number of aspects of the complaints from the Prime Minister and the Chief Press Secretary. Their response to TV3's submission for a hearing pointed out that it was the first occasion that TV3 had sought a hearing (some nine months after the broadcast complained about). They contended:

Further, this matter is overdue for decision. TV3 has persistently taken every available time period, or longer, for each of its responses and has repeatedly raised new technical objections or issues as to process when the Authority's process is well advanced.

[36] As to the grounds of the submission advanced by TV3, they contended, first, that the application did not give any particulars about the factual issues in conflict, and second, that the legal issues had been presented fully in writing.

[37] In Interlocutory Decision Nos: 2003-025/026, dated 1 April 2003, the Authority declined TV3's application. It recorded that it has received comprehensive submissions from the complainants and the broadcaster. It also recorded that it had issued three earlier Interlocutory Decisions (see paras [96] to [106] and Appendix 1) which had dealt with procedural issues, and expressed the view that the issues had been dealt with in a satisfactory manner. The Authority continued:

With regard to the complex issues of fact referred to in TV3's application, the Authority is of the view that there are some matters of fact which it will not be able to determine, regardless of whether a hearing is held. As for the legal issues raised in the complaints ¡K the Authority has been able to deal with those matters satisfactorily without the need for a hearing, and considers that it will continue to do so.

Duration of Submissions Process

[38] The first referral to the Authority of a complaint about the programme, the subject of this Decision, was received on 31 July 2002. However, partly because of the number of complaints, but more on account of some procedural issues which arose while the correspondence regarding each complaint was being collected, the final submission was not received by the Authority until late March 2003. Because of the similarity between a number of issues raised by the complainants, the Authority decided at an early stage that it would not release any decisions until it was ready to release its determination on all the complaints. As a consequence, there have been some lengthy gaps between the steps on some of the complaints. Furthermore, some complainants have been required to wait a considerable amount of time for the Authority's determination while the procedural issues were resolved. Such consequential delay is regretted.

[39] The Authority also notes that TV3 advised, in some of its correspondence to the Authority in February 2003, that it had "by arrangement" delayed its response on some of the matters raised in the complaints. As the Authority had not agreed to any such arrangement, it assumes that such arrangement is the advice it gave TV3 that it intended to release all its determinations at one time and, that as TV3 was aware of the procedural issues being resolved, it delayed its final response to some of the complaints until most of the procedural matters had been resolved.

STANDARDS

[40] The complainants alleged a breach of a wide range of Standards in the Free-to-Air Television Code of Broadcasting Practice. The Standards raised, and relevant Guidelines, provide:

Standard 1 Good Taste and Decency

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the observance of good taste and decency.

Guideline

1a Broadcasters must take into consideration current norms of decency and taste in language and behaviour bearing in mind the context in which any language or behaviour occurs. Examples of context are the time of the broadcast, the type of programme, the target audience, the use of warnings and the programme's classification (see Appendix 1). The examples are not exhaustive.

Standard 2 Law and Order

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the maintenance of law and order.

Guideline

2e The realistic portrayal of anti-social behaviour, including violent and serious crime and the abuse of liquor and drugs, should not be shown in a way that glamorises these activities.

Standard 4 Balance

In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Guideline

4a Programmes which deal with political matters, current affairs, and questions of a controversial nature, must show balance and impartiality.

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Guidelines

5c Broadcasters must ensure that the editorial independence and integrity of news and current affairs is maintained.

5d Factual reports on the one hand, and opinion, analysis and comment on the other, should be clearly distinguishable.

5e Broadcasters must take all reasonable steps to ensure at all times that the information sources for news, current affairs and documentaries are reliable.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Guidelines

6a Care should be taken in the editing of programme material to ensure that the extracts used are a true reflection, and not a distortion, of the original event or the overall views expressed.

6b Contributors and participants in any programme should be dealt with fairly and should, except as required in the public interest, be informed of the reason for their proposed contribution and participation and the role that is expected of them.

6c Programme makers should not obtain information or gather pictures through misrepresentation or deception, except as required in the public interest when the material cannot be obtained by other means.

6d Broadcasters should acknowledge the right of individuals to express their own opinions.

6f Broadcasters should recognise the rights of individuals, and particularly children and young people, not to be exploited, humiliated or unnecessarily identified.

Standard 7 Programme Classification

Broadcasters are responsible for ensuring that programmes are appropriately classified and adequately display programme classification information, and that time-bands are adhered to.

Standard 8 Programme Information

Broadcasters are responsible for ensuring that programme information and structure does not deceive or disadvantage the viewer.

Guideline

8b Broadcasters should not use the process known as "subliminal perception" or any other technique which attempts to convey information to the viewer by transmitting messages below or near the threshold of normal awareness.

Standard 10 Violence

In the preparation and presentation of programmes, broadcasters are required to exercise care and discretion when dealing with the issue of violence.

Guideline

10a Broadcasters should ensure that any violence shown is not gratuitous and is justified by the context.

[41] All the complainants considered Standard 6 had been breached. Standard 5 was referred to by the Prime Minister and the Chief Press Secretary, the LSN and Mr Owen. Standard 4 was an issue for Mr Owen and Mr Wierda. In addition to Standard 6, Ms Rutherford nominated Standards 1, 2, 7, 8 and 10 and a number of Guidelines. (She was joined by Mr Owen in regard to Standard 1.) The Authority's ruling on the Standards which it considers applicable is found in the segment titled, The Standards under which the Complaints have been assessed - paras [261] to [263].

THE COMPLAINTS

Prime Minister/Chief Press Secretary Complaints - paras [42] - [136]

[42] In his own right and on behalf of the Prime Minister, the Chief Press Secretary in the Office of the Prime Minister complained to TV3 about the preparation and presentation of the 3 News Special broadcast at 7.00pm on 10 July 2002. The complainants referred to the "unfair and misleading manner" in which TV3 handled the interview recorded in TV3's studios on 9 July and broadcast on 10 July.

[43] Specifically, the Chief Press Secretary said the complaints related to:

- the agreement under which [the Prime Minister] agreed to participate in the interview;

- the conduct and content of the interview itself; and

- the failure of TV3, between the recording and the transmission of the interview, to ensure that the recorded interview was dealt with in accordance with the applicable broadcasting standards, and in accordance with established principles of editorial and broadcasting ethics.

[44] The Chief Press Secretary said that it was clear to him that the purpose of the interview recorded on 9 July was to question the Prime Minister about an event which occurred in late 2000 involving the importation of a consignment of sweet corn seed which was suspected of being contaminated with GM material. He added that the technical issues were investigated by scientists and officials at the time.

[45] Turning to the arrangements for the interview, the Chief Press Secretary said that this specific matter had not been raised by TV3 when the Prime Minister's participation was sought and, he added, there was no basis upon which it could have been foreseen. He wrote:

They also did not disclose that they had an advance copy of researcher and author Nicky Hager's book "Seeds of Distrust", and that the interview would be based almost entirely on the allegations made in it. At the time the Prime Minister had no knowledge of this book, or the allegations made in it; and I and her staff were in the same position.

[46] The Chief Press Secretary said that TV3 had advised, as part of its request for securing the interview, that it sought an interview with the Prime Minister about GM as part of a series on special subjects during the election period, observing:

I have seen no evidence that TV3 is planning to screen such a series, which reinforces my belief that the request was based on quite spurious grounds.

[47] The Chief Press Secretary then outlined the sequence of events and matters discussed leading up to the interview which was recorded on 9 July. He repeated that he had been told that the subject would be GM and, later, when he sought more detailed information, the interviewer expanded on that and said it would also deal with issues of trust. He emphasised:

I state categorically that there was no reference to the 2000 corn seed importation case, or Nicky Hager's upcoming book (released the next day).

[48] During the interview, the Chief Press Secretary said, the corn seed case in late 2000 clearly became the issue and the Prime Minister explained during the interview that she had not been briefed on the matter. She had said during the interview that she regarded it as a "set-up", but said that she would be happy to return to be interviewed after she had properly researched the issue. The Chief Press Secretary continued:

The next morning, with the release of the Hager book, the motivation for this exercise in deception became clear. When I telephoned Mr Jennings [TV3's Head of News and Current Affairs] and challenged him over TV3's conduct around the interview, he explained that his view was that the 2000 corn seed story was "such a major event that her memory will be clear". He also said that if the Prime Minister was to return for another interview that evening (Wednesday), TV3 would show a small amount of the Tuesday interview, and make it clear that [the Prime Minister] believed she had been ambushed.

[49] The Chief Press Secretary stated:

The Prime Minister decided later on Wednesday that she would not follow through on her offer of another interview with Mr Campbell [the interviewer] as she had lost all confidence that the interview would be conducted without the same dishonesty as the first deception.

On being informed of this TV3 did not offer an alternative interviewer and [the Prime Minister] had no independent opportunity to present answers to the issues on an informed basis. The result was distortion, the presentation of matters in a way which was wrong and incomplete, and a sensationalisation of news material in breach of broadcasting standards.

[50] The Chief Press Secretary then referred to a decision released by the Broadcasting Standards Authority on 2 March 2000 (Nos: 2000-028/029) following a complaint about a 20/20 item broadcast on TV3 shortly before the general election in 1999. The interviewer on that occasion, (John Campbell - as with the current complaint), had put questions to the Chief Executive of Timberlands West Coast Ltd based on material from a book entitled "Secrets and Lies", written by Mr Hager, and which was due for release shortly after the interview took place. The Chief Executive had complained at the time that he agreed to the interview on being assured that it would deal with a Forest Amendment Bill. However, the interview was about conspiracy, lobbying and the role of a public relations company which had advised Timberlands. The Chief Press Secretary said:

In that instance, the Authority found that the complainant had been misled, knowingly deceived by TV3, and appeared to accept that there was a degree of entrapment involved. While the Authority did not find a breach of standards in that case, it is clear that the considerations which led it to do so do not apply here.

[51] The Chief Press Secretary complained that the matters he had advanced "plainly" breached Standard 6 of the Television Code of Broadcasting Practice, and Guidelines 6a, 6b and 6c. He also wrote:

There has also been a breach of Standard 5 (accuracy), generally and in relation to news standards.

[52] The Chief Press Secretary contended that TV3 had failed to act with honesty and integrity before broadcasting an item which breached the standards, and he sought from TV3 an on-air apology at the earliest opportunity. Referring to the time period during which complaints about election advertisements had to be considered by broadcasters, he sought an apology within 48 hours.

Standards

[53] TV3 assessed the complaints under the nominated standards - Standard 6 and Guidelines 6a, 6b and 6c, and Standard 5 of the Free-to-Air Television Code of Broadcasting Practice.

The Broadcaster's Response to the Complainants

[54] In its response, TV3 began:

On 10 July 2002 3 News ran a News Special concerning allegations made by Nicky Hager in his book "Seeds of Distrust" published that day. The programme outlined the issues raised by Hager in his book and contained an interview recorded the day before between the Prime Minister and John Campbell. The interview canvassed the allegations made by Hager in his book. He claimed the Government had been aware of the accidental distribution of GM contaminated seeds and had allowed the seeds to be grown, harvested, processed and exported or eaten.

[55] TV3 then dealt with the arrangements for the interview and agreed that the specific issue regarding the corn had not been disclosed. That had occurred, it stated, because of confidentiality arrangements in regard to the release of the book to TV3.

[56] Rejecting the allegation that the series of specials was spurious, TV3 listed a number of specials which had been, and were to be, broadcast. It acknowledged that those programmes had not been given the same prominence as the interview with the Prime Minister. The varying degrees of prominence, it wrote, related to the issues being addressed and, it pointed out, GM was the second most significant issue at the time with voters, according to the latest NFO poll.

[57] TV3 agreed with the outline of the arrangements for the interview which the complainants put forward, noting that care had been taken to raise the issue in a general way while reflecting the confidentiality requirements in regard to the book. Moreover, TV3 advised, the interviewer recalled that he had raised issues of trust with the complainants and, citing the collapse of Enron in the United States, he had asked whether people were entitled to trust reassurances given by a government. In summary on this point, TV3 wrote:

As a more general answer to the criticism of lack of the provision of a specific question line we confirm that it never has been the practice of our news team in general and [the interviewer] in particular to provide a line of specific questions to be asked. Indeed, no such provision was sought by you or the Prime Minister. The long standing practice (used as recently as in the leader's debate) is to provide a general subject for the interview.

The reasoning behind this is not, in any way, a reflection on the honesty and integrity of the person being interviewed. It is purely a matter of principle - in a robust democracy it must be the role of the news media to "ask the hard or unexpected questions". It would never be acceptable for media interviews to be conducted only on a scripted basis.

[58] As for the interview itself, TV3 acknowledged that "due to the requirements of confidentiality", Mr Hager's book was not mentioned. However, it denied that the Prime Minister had been misled. She had said during the interview that "I remember the case", and a little later, "I do recall it generally quite well". Moreover, TV3 observed, she had been interviewed for the New Zealand Listener on border control a day or so before the TV3 interview.

[59] TV3 then said that there were differences in its account of events after the interview to that advanced by the complainants.

[60] First, while the Prime Minister was "clearly angry" immediately after the recording, she confirmed she would do another interview after she had been properly briefed. Arrangements for the interview were discussed with the complainant the following day and, TV3 maintained, there was no request for a different interviewer. It was proposed that the item would include some footage of the first interview as word of the interview and the Prime Minister's anger "was on the street" and could not be swept under the carpet.

[61] Second, TV3 had tried throughout the day to settle the timing of the second interview and noted that it "was prepared to go to extraordinary lengths" to make the arrangement for a second interview. It was not until 5.45pm, TV3 recalled, that it had been advised that the Prime Minister would not do a second interview, it was said, because of the lack of available time. As it was not possible to make other arrangements, TV3 stated, it considered that it "had no option" but to use the interview that had been pre-recorded "the previous night".

[62] As to the complaint that the Prime Minister had no opportunity to present issues on an informed basis, TV3 maintained that she had been given "generous opportunity" but declined to do so. Indeed, TV3 added, further opportunities had been provided until 15 July. It wrote:

So, if there is any lack or distortion the responsibility for that lies squarely with the Prime Minister. Her refusal to make the second interview, despite the extraordinary lengths to which TV3 was prepared to go to make it possible, suggests not that she could not make it but that she determined she would not make it. To suggest that the reason was because she feared further "dishonesty" is again disingenuous. Here was the opportunity she sought - to give fully informed answers - now she knew of the Hager book (it had been published that morning): now she had the benefit of a full staff briefing from those who had been responsible.

[63] Dealing with the complaint about deception, TV3 said it was unable to comment given the lack of details in the complaints. There had been no request not to broadcast the pre-recorded interview and it considered that the standard had not been breached.

[64] In regard to the reference to Decision Nos: 2000-028/029, dated 2 March 2000, (involving the Timberlands interview) and the allegation about "similar deception", TV3 argued that the earlier decision was not relevant other than to the extent:

¡K that it confirms that, as circumstances and public interest demand, at times it is necessary to deceive a subject being interviewed, in order to get the "unvarnished" response.

[65] After dealing with the aspect of the complaint relating to the preparation of the programme, TV3 turned to the requirement in Standard 6 that people taking part in a programme be dealt with justly and fairly. It said the complaint had to be assessed taking the abilities of the interviewee into account. It continued:

Here the person being interviewed is in a special category - Helen Clark is the Prime Minister currently actively engaged in an election campaign. She is a woman of high intelligence and considerable experience. We also consider it relevant that the Listener had been asking the same or similar questions of the Prime Minister just a day or two earlier.

In all the circumstances this [Standards] Committee considers the general indications given were fair warning of the topics raised by the interview. The Committee finds that TV3 made every effort to afford the Prime Minister a further opportunity to be interviewed on a fully briefed basis, as she requested.

As to the conduct of the interview itself this Committee finds it was conducted in a fair and even way, both the Prime Minister and [the interviewer] conducted themselves in a professional and measured fashion. The debate was vigorous and points strongly made but in light of the context of the interview and the calibre of the people involved that was not at all inappropriate.

[66] As for the Guidelines to Standard 6, TV3 denied that the editing which took place distorted the interview. It considered that it had already addressed the Guideline 6b aspect above, and Guideline 6c, it wrote, referred to technical deception only and was irrelevant.

[67] Moving to the Standard 5 requirement for accuracy, TV3 conveyed its view that it was unable to address this matter as the complaint did not refer to any specific inaccuracies. It wrote:

If you care to set out in some detail how and why you consider these standards to have been breached we shall respond but we do not intend to speculate about what you might mean by the allegation.

[68] TV3 declined to uphold the complaints. In addition, it did not consider that its actions, or those of its staff, lacked honesty or integrity. Rather, it wrote, it had gone "to unprecedented lengths" to meet the Prime Minister's concerns, and it saw no reason for an apology. Pointing to the complainants' request for urgency, TV3 said it had given the matter priority but it did not consider the time taken to be unreasonable in view of the serious allegations contained in the complaints and the need for a full investigation and response.

[69] TV3 also referred to the right of "freedom of expression" contained in s.14 of the New Zealand Bill of Rights Act 1990. Taking into account the reference in s.5 to limitations on freedoms, it said that to uphold the complaints would "unreasonably and unjustifiably restrict the public's right to receive information and opinions".

The Referral to the Broadcasting Standards Authority

[70] After expressing their dissatisfaction with both TV3's decision and the action taken, the complainants in the referral noted TV3's reliance on an "agreement for confidentiality" with regard to the book "Seeds of Distrust", and its assertion that it held material to support the broadcast. They asked the Authority to exercise its powers to obtain and consider that information and also to order disclosure of it to the complainants.

[71] Then, focusing on TV3's response to the complaints, the complainants said that while they considered the complaints could be dealt with without a formal hearing, they were unable to complete their submissions until they had inspected the documents sought in para [70]. The complainants also attached to their referral two press releases and copies of news media articles which they considered were relevant to the referral.

[72] The complainants described the programme as comprising three distinct elements. The first dealt with the release of "Seeds of Distrust", where they alleged that the interviewer in his comments had accepted the book's material as being true. The second involved linkage between the book and the interview with the Prime Minister recorded the previous day, and the third comprised the interview itself.

[73] The complainants rejected TV3's comment that the "interview [with the Prime Minister] canvassed allegations by Hager in his book". Rather, they complained, the matters in the book were presented as fact on which the Prime Minister was challenged. Further, they maintained that the interview included no reference to the book, to its author, or to its publisher (who they said was a list candidate for another political party). In addition, they stated, the interview contained no reference to any past "connections between Mr Hager and the interviewer".

[74] In regard to TV3's response to the "series of specials" aspect of the complaint, the complainants submitted that the programmes referred to by TV3 were not part of any ongoing series of specials relating to the election. The complainants maintained that the Prime Minister was "induced" to participate.

[75] In support of that contention, the complainants cited a comment printed in the New Zealand Herald on 13 July, in which the interviewer said that he had not mentioned the Hager book to the Prime Minister as, he believed, she would not have been prepared to do the interview if she had been told the specific line of questioning.

[76] Dealing again with TV3's statement that it did not disclose Mr Hager's book because of the requirements of confidentiality, the complainants argued that TV3 had been involved in some way in "covert preparations aligned with the publication of the book" given the material it had been able to use (including visuals of the book being printed). In this situation, they sought all the documentation relating to the confidentiality agreement. They added:

Any claim to "confidentiality" should put a professional journalist or competent broadcaster on its guard. What the person claiming confidentiality is seeking to do is to control the content and the presentation of information which they, not the broadcaster, has prepared. Often, as here, the publication of selective or misleading information has an immediate effect which can never be undone entirely. The publication of such material during election time used to be a criminal offence under the Electoral Act. That provision was repealed, at least in part, on the grounds that the public interest would be protected by other measures such as broadcasting standards. Here TV3 utterly failed to investigate Mr Hager's information, and to the contrary presented it as settled fact.

[77] The complainants said that the New Zealand Listener article referred to by TV3 dealt with effective border control and contended that it was "irrelevant" to the subject matter of the complaint and that it provided no support to TV3's argument that the December 2000 corn importation was, in July 2002, an issue of significant public interest.

[78] The opportunity for a second interview was addressed in the referral. The argument was advanced, given TV3's comments, that the opportunity was not for a new interview, as it was intended to use part of the old interview.

[79] It was also false, the complainants asserted, for TV3 to claim that the Prime Minister had said that she would do another interview and then did not do so. The complainants said that Mr Hager's book was released after the initial offer and, consequently, the second interview would not be about the same issue. They added:

Given that by this time the accuracy of Mr Hager's claims was at least seriously open to doubt, if not in fact substantially refuted, the proposal summarised by [the interviewer] would have served only to assist TV3 in a continuation of its breaches of programme standards and standards of professional journalism.

[80] The complainants then dealt with the aspect of the complaint where it was alleged that TV3 accepted the claims in the book as fact. They wrote:

It is distinctive that the decision of the TV3 standards committee proceeds on the same basic assumption that [the interviewer] also made, namely that the allegations of Mr Hager were objectively true and were core facts from which he could proceed.

[81] The complainants also contended that some of the comments in the programme were factually untrue and defamatory. These included:

Factual statements that there has been a breach of the law, statements that persons have been deceived, that the Prime Minister knowingly broke the law, was involved in a cover-up and was involved in a deception.

[82] Further, they said, some of the allegations had been dealt with in a press release (which was attached to their referral) from the Minister for the Environment dated 19 December 2000.

[83] In response to TV3's point that the person being interviewed had to be taken into consideration when assessing fairness, the complainants accepted that this was so, adding:

However, having obtained an interview by deception, and having presented false statements as fact, the Prime Minister was then submitted to a sequence of opinionated abuse by [the interviewer].

[84] The complainants did not accept TV3's comment that Guideline 6c applied to technical deception only. And in response to TV3's reference to the New Zealand Bill of Rights Act 1990, they contended that it applied to imparting and receiving information - not false information. Moreover, they wrote, TV3 was acting in breach of s.4 of the Broadcasting Act 1989. They added:

What TV3 did was to present some information, and the opinions of Mr Hager, (as if they were fact) and [the interviewer] (as if they were factually based), in denigration of the Prime Minister within an artificially created interview situation where she was not able to respond. The freedom which was at risk, and was damaged, by TV3 was the freedom and rights of the Prime Minister.

[85] The complaints then covered some matters which, the complainants said, had not been dealt with by TV3.

[86] The complainants contended that the transmission involved an editorial decision to conduct an interview and "to deceive" the Prime Minister into participating. The "more serious breach", was to broadcast the programme. They stated:

On 10 July, in the context of the information which had then become known, any reasonable consideration of the broadcasting standards would have identified that the interview was obtained in breach of the standards and was not to be transmitted. TV3 did not so decide, and to the contrary compounded and extended its breaches in the added material which formed the first segment and the linking material to the programme.

[87] The complainants also observed that at 4.30pm on 10 July, the Prime Minister held a press conference which representatives of TV3 attended. At that conference, the complainants contended, Mr Hager's claims "were rebutted, if not substantially refuted" and, they continued, the 3 News Special should have included the main elements of the rebuttal. Failure to do so, they argued, was a breach of standards.

[88] Moreover, because TV3 attended the press conference and asked questions of the Prime Minister, the 3 News Special was inaccurate to state that the Prime Minister had failed to participate in a further interview.

[89] As for the Standard 5 aspect of the complaint alleging inaccuracy, the complainants said that the programme breached the accuracy requirement by presenting Mr Hager's allegations as fact. The most serious of the errors, they commented, was the statement that "tests had confirmed GM material was present". As stated in the press release dated 19 December 2000, and confirmed in the press release dated 10 July 2002 (also attached to their referral), "there was no evidence of GM contamination in the corn seed," they said.

[90] The complaints then dealt with the actions of the interviewer and Mr Hager, as reported in Decision Nos: 2000-028/029, dated 2 March 2000, and elsewhere in the media. They began by quoting an interview with the interviewer reported in the Sunday Star-Times of 14 July 2002. The complainants wrote:

By 2002, TV3 management should, on any view of the matter, have been aware that Mr Hager was not an independent journalist, but a political activist with a specific agenda and a method of operating in which information was selectively used to seek to discredit persons with whom he disagreed; and more importantly that [the interviewer] was associated with Mr Hager in such activities in an active and knowing way.

[91] TV3's response, the complainants argued, did not acknowledge this, and:

¡K [the interviewer] became the instrumentality of Mr Hager in propounding the latter's activist campaigns, and the particular selection of facts, and personal interpretation of facts, which he considers will achieve his objectives.

[92] The referral also expressed some dissatisfaction with TV3's response to the complaint by way of process. It pointed out that polls showed a 5% drop in support for the Labour Party within one day of the interview and other publicity given to Mr Hager and the book, and in view of the request for a response within 48 hours, the complainants expressed concern with the time taken by TV3 to respond to the complaint. Dissatisfaction was also expressed at the reasons given by TV3 for its ruling in declining to uphold the complaint.

[93] The referral then considered how the programme had been assessed by other journalists. (A number of articles were attached in support of the complainants' assertions.)

[94] As for a remedy, the complainants acknowledged that TV3 had declined the request for an apology. The apology, they noted, was sought within the period of the election. As the election was over, and in view of what was described as TV3's intransigence and the seriousness of the allegations contained in the broadcast, the complainants argued that action was now required which would substantially discourage similar breaches.

[95] Accordingly, they sought:

- the broadcast of a statement summarising the Authority's conclusions;

- the broadcast of an apology to the Prime Minister;

- an order directing TV3 to refrain from broadcasting for a period of 12 hours; and

- an order for costs to the Crown or to the complainants as appropriate.

Procedural Issues

[96] TV3 objected to the Authority making the order for disclosure of documents sought by the complainants without an opportunity to make a submission. TV3 suggested that the first step required was an explanation from the complainants about precisely what documents were sought and why. The Authority agreed with TV3 and sought those details from the complainants. The Authority also sought from the complainants a transcript of the media conference - noted in the referral - given by the Prime Minister and the Hon Pete Hodgson at 4.30pm on the afternoon of 10 July in the Sheraton Hotel in Auckland. A transcript was later supplied, although the identities of the questioners were not recorded.

[97] The reasons for the application, the complainants stated, arose from the issues as to whether:

- the programme was properly researched before broadcast;

- allegations were presented as facts;

- there was deception on TV3's part;

- there were conditions on the supply of Mr Hager's book to TV3;

- information available on 10 July was included in the programme; and

- the broadcast breached accepted standards of journalism.

[98] A detailed list of the documents sought by the complainants was provided.

[99] In its response to the application for disclosure, TV3 said that the Broadcasting Act 1989, as interpreted by both the High Court and the Authority, limited the Authority's jurisdiction to an investigation and review of the initial formal complaint.

[100] In this instance, TV3 defined the main thrust of the original formal complaint from the Chief Press Secretary as being that:

[T]he Prime Minister had been "tricked" or misled into providing the interview and that a lack of notice of the detailed subject matter had tainted the broadcast and caused it to be unfair and in breach of the relevant standards - Standard 6 was nominated.

[101] However, TV3 continued, the main theme of the referral was that Mr Hager's allegations "were uncritically accepted by TV3" and broadcast as fact. The complainants, TV3 submitted, were now seeking to add substantial new material to the original complaint, and should be required to recast their disclosure application in terms of the original formal complaint.

[102] The procedural issues regarding the scope of the referral and the expected response from TV3 were dealt with by way of two Interlocutory Decisions. They are Interlocutory Decision Nos: 2002-157/158, dated 7 October 2002, and Interlocutory Decision Nos: 2002-180/181, dated 7 November 2002. In the first ruling, the Authority outlined aspects of the complaints from the Prime Minister and her Chief Press Secretary which it found had been appropriately referred to the Authority. The second ruling set out a timeframe for the response from TV3. The particular issues leading to the ruling, the ruling and the parties' responses are recorded in Appendix 1 of this decision.

[103] In Interlocutory Decision Nos: 2002-157/158, dated 7 October 2002, the Authority accepted the following alleged breaches of Standard 5 as having been appropriately referred to the Authority. They were:

(i) The programme did not canvass "allegations" but presented matters as fact on which the Prime Minister was challenged.

(ii) A number of specific matters were advanced as "what really happened" during the interview with Mr Hager. The complainants argued those allegations included claims that the Prime Minister knowingly broke the law, was involved in a cover-up, and was involved in a deception.

(iii) Other journalists had commented that the programme breached programme standards.

(iv) By 10 July, the complainants alleged, it would have been obvious that the interview had been obtained by deception and, thus, was in breach of the standards. TV3 nevertheless proceeded to broadcast the programme and compounded the breach by linking the first segment to the second.

(v) At 4.30pm on 10 July, the Prime Minister held a press conference (which TV3 attended) and Mr Hager's claims were "rebutted, if not substantially refuted". As a matter of both accuracy and balance, the complainants contended, the 10 July item should have included the main elements of this rebuttal. By participating in a news conference, the complainants argued that TV3 stated inaccurately in its 3 News Special that the Prime Minister had refused to participate in a further interview.

(vi) The complainants repeated that the programme presented allegations as facts, and the most serious was the statement that "Tests had confirmed GM material was present".

TV3's Response to the Matters in the Referral Accepted by the Authority

[104] TV3 began its response to the complainants in the following way:

The [Standards] Committee has viewed the programme and interviewed [TV3's Head of News and Current Affairs] and [the interviewer]. It has considered documents provided by [the interviewer]. For the purpose of this investigation the Committee regards the "programme' as incorporating material contained in the News bulletin and all material presented as part of the News Special broadcast on 10 July 2002.

¡K

It is not the function of this Committee to determine whether the corn had been genetically modified. This Committee lacks the expertise to determine such an issue. It appears that scientists, who are experts in this area, cannot themselves agree on whether the tests confirm that the corn was genetically modified.

The only question for this Committee is whether the programme complied with broadcasting standards. For the purposes of this decision that analysis is limited to a consideration of the requirements of Standard 5.

Standard 5 requires that news, current affairs or factual programmes are at all times impartial and objective and it requires that points of fact are accurate and truthful. Opinion, analysis and comment is not required to be accurate and truthful but it must not be so obviously wrong that it would "automatically be questioned by a well informed lay person" [80/95 Evans v TVNZ]. Sources must be reliable. Previous decisions of the Authority support this interpretation. (Examples are - Evans [cited above] and 2002-024 Trussell v Radio New Zealand). [These decisions are BSA decisions]

[105] TV3 responded to the specific issues (i) - (vi) contained in para [103] above:

(i) To the complaint that the allegations made by Mr Hager were, inaccurately, presented as fact in respect of which the Prime Minister was challenged, TV3 observed, first, that the allegations did not distinguish between fact and opinion, and second, the complaint suggested that the Prime Minister was not allowed an opportunity to respond.

Dealing with the first point, TV3 argued that the programme made clear that the "substantial propositions put forward" were sourced from the book written by Mr Hager. It cited seven examples in 3 News and one in the 3 News Special where the book was referred to. TV3 explained that the book was not mentioned in the actual interview because it had not been released at the time the interview was recorded, and TV3 had agreed not to mention the book ahead of release. TV3 concluded:

The [Standards] Committee finds that a viewer would have understood that Mr Hager's book had brought the issues to light. The Committee finds the propositions to be the comment, analysis or opinion of Nicky Hager.

TV3 then considered the question of whether Mr Hager was a reliable source. It recorded the work carried out and the awards won by Mr Hager as an investigative journalist. Furthermore, it recorded that 3 News had earlier used Mr Hager as a source, and had found him reliable.

As to whether the Prime Minister was given an adequate opportunity to comment, TV3 pointed to a number of excerpts from a transcript of the interview. Accepting that some of the propositions were put to the Prime Minister in a forceful way, it nonetheless considered that she was given an ample opportunity to respond.

(ii) In response to the specific examples as to "what really happened" listed by complainants (see Appendix 1), TV3 provided a transcript of the full comments from which the quotations were taken. Thus, it wrote, it was apparent that the statement was taken from the first segment of the programme and was clearly identified as Mr Hager's "comment, analysis or opinion". The questions put, it continued, were designed to elicit information and lacked neither objectivity nor impartiality.

TV3 then advanced an alternative explanation:

Alternatively, if the statements [Mr Hager's comments] are not in this category but are seen as points of fact then the allegation implies that [the interviewer] made no independent assessment of these "core facts". The [Standards] Committee has asked [the interviewer] to comment. He categorically denies that he proceeded from any such assumption.

TV3 reported the interviewer's written comments that, in preparing the report, he had seen not only all the documents referred to in the book, but he had also seen others which were not used ("because they too clearly identified their sources") which were consistent with the documents cited.

TV3 contended that its task was not to establish the truth about the corn, but to satisfy itself that its reporter took reasonable steps to investigate and corroborate factual matters before presenting them as facts. TV3 said that the interviewer had independently researched the issues and confirmed the accuracy of the core facts from the material advanced at the time. It accepted that its interviewer and the Network's Head of News and Current Affairs were sufficiently satisfied with the research conducted by Mr Hager to proceed with the story. TV3 concluded on the matter:

In considering whether the statements complied with code requirements they must be placed in the context of the whole programme. The statements referred to cannot be taken in isolation from the rest of the programme. The whole programme must then be assessed to see whether it breached the requirements of the code. Inconsistencies or inaccuracies that are immaterial or irrelevant to the main thrust of the story will not constitute a breach of the standard.

In the context of the programme, and in light of [the interviewer's] assurances, the [Standards] Committee considers these statements do not breach the Code requirements. They were either opinion, comment or analysis and identified as such, or points of fact for which a sufficient basis had been established by a senior journalist.

Explaining its task when dealing with a complaint about a breach of broadcasting standards, TV3 repeated its conclusion that the comments - that the Prime Minister had broken the law, that there had been a cover-up which the complainants argued had been rebutted in 24 hours - were Mr Hager's opinion, comment or analysis.

However, it also considered each statement as a point of fact and had asked its interviewer to advise the Standards Committee the basis for each statement. The Committee then decided "whether reasonable steps were taken to investigate and collaborate the alleged "points of fact'".

(a) "illegal seeds left in the ground"

Listing the material the interviewer had examined in support of this contention, including a reference to some tests which showed that some of the seeds tested were contaminated with GM material, TV3 stated that a sufficient basis existed for the statement.

(b) "the Government's role in covering the whole affair up"

The papers examined by the interviewer during the preparation of the programme were again listed and TV3 reached a similar conclusion to that in (a).

(c) "so Helen Clark was involved in an action that covered up breaking the law at the time."

A similar process was carried out with the same result.

(d) "she did so knowing that GMOs had been released into the food chain ¡K and Helen Clark already knows this already occurred".

This statement, said TV3, was dealt with in the discussion under sub-

paras (a) to (c) above.

(e) "more important issues were about process and trust ¡K first they had to deceive Cabinet ¡K then they had to deceive the public and they ended up deceiving the Royal Commission".

TV3 wrote:

The documents seen by [the interviewer] confirmed there was unease expressed by ERMA about the way in which notification and reporting of the positive testing of seed was dealt with, as referred to above.

The [Standards] Committee finds a sufficient basis existed for the statement.

TV3 maintained that there was a sufficient basis for the questions posed, and that to describe them as "opinionated abuse" did not raise a matter of accuracy. TV3 agreed that the statements were "testing" but maintained that they did not amount to lack of impartiality or objectivity.

(iii) TV3 described as "unhelpful" to the Authority the views of other journalists and political commentators in determining these complaints.

(iv) As for the complaint that the main elements of rebuttal were advanced in the press conference at 4.30pm and that the failure to include them in the programme amounted to a breach of standards, TV3 said that it intended to confine its comments to issues of accuracy as required by Standard 5. It said that it did not intend to deal with the question of balance, although it was raised by the complainants, as balance was a Standard 4 concern. TV3 continued:

At all times TV3 believed that the Prime Minister was intending to participate in a further interview to be conducted by TV3. This is borne out by a scheduling print out which demonstrates that at 1.45pm on 10 July seven minutes of air time had been allocated to this proposed second interview. As a result, the material obtained from the press conference was not edited for use in the programme beyond the limited use which was made of it in the first segment (see below). By the time [the Head of News and Current Affairs] was told that the Prime Minister would not do the second interview it was too late to make use of any further material from the press conference in the programme.

Nevertheless, TV3 considered that the "main elements of rebuttal" were referred to in the programme. It noted that 3 News on 10 July had reported that the claims in the book were being strongly denied by the Prime Minister and her Ministers and, with reference to the press conference, TV3's Chief Political Reporter reported during the item:

Well what the Government did this afternoon was obviously to brief the Prime Minister very well throughout the day and this afternoon, late this afternoon at a press conference she wheeled out Pete Hodgson who is the big gun in terms of science. Now he went right through all the details of the science to do with this, he went through the details of that particular crop of the reporting of it, he looked at the press statements that the Government issued at the time and his explanation was very much on that scientific basis. One of the things he did then go into was of course the politics of it and he really hit out at the Greens and said for a party that seems to be so concerned about the future of the planet he worries about that because they spend so little time on it.

In declining to uphold that aspect of the complaint, TV3 said:

In all the circumstances the programme contained sufficient material which accurately encapsulated the "main elements' of rebuttal put forward by the Prime Minister on 10 July 2002. The broadcaster was ready and willing to make time available for the Prime Minister. The Prime Minister elected not to avail herself of this opportunity.

(v) As for the complaints that the Prime Minister had substantially refuted the claims at a press conference and that it was inaccurate to state that the Prime Minister refused to participate in a further interview because of the press conference at 4.30pm, TV3 pointed out that the complaint involved an aspect of balance and Standard 4 had not been raised in the complaint. In view of the expectation that the Prime Minister was intending to participate in a further interview:

[T]he material obtained from the press conference was not edited for use in the programme beyond the limited use which was made of it in the first segment. ¡K By the time [the Head of News and Current Affairs] was told that the Prime Minister would not do the second interview it was too late to make use of any further material from the press conference in the programme.

In regard to the contention that the press conference amounted to a further interview, TV3 stated that it was not told that the press conference should be regarded as the occasion for a second interview. Indeed, it wrote, the Prime Minister's staff gave TV3 to believe, until 5.45pm, that arrangements could be made for another interview.

TV3 provided the following sequence of events:

The late notification to TV3 that the Prime Minister would not participate in a second interview meant more of the original interview was broadcast than was planned. If the Prime Minister had been re-interviewed, as she had requested, the planning was that only three minutes of the original footage would have been used. The Prime Minister would have had more than twice that amount of time (seven minutes) to have "rebutted, if not substantially refuted", the claims by Mr Hager, something that, according to the complainants, she was well able to do by 4.30pm on 10 July 2002 when she held the press conference.

In these circumstances it was not untrue to say the Prime Minister had "refused¡K" nor was it "deceptive to fail to include¡K".

(vi) As for the aspect of the complaint that the programme presented allegations as facts, TV3 said that the most serious inaccuracy was said to be to report that tests had confirmed GM material. That matter, it wrote, had been addressed above.

[106] In declining the entire complaint, TV3 included the following comment about s.14 of the New Zealand Bill of Rights Act 1990:

This important right to "free speech" (as it is sometimes called) can only be limited if it is considered reasonable and justifiable in a free and democratic society to do so (s5 of the Act). The Standards Committee has considered your complaint weighed against the right to "freedom of expression" and considers that to uphold your complaint would unreasonably and unjustifiably restrict the public's right to receive information and opinions.

The Complainants' Response to the Authority

[107] The complainants, in their initial response to TV3's report on the Standard 5 matters, confirmed that all the matters referred to the Authority on 19 August 2002 remained referred to the Authority. TV3's report was described by the complainants' counsel in the following terms:

As the real nature of the document is in the form of submissions in defence of the broadcaster against submissions already presented by my clients to the Authority under the complaint referral, little would be achieved by repeating those submissions in response to the content of this document. All that material is already before the Authority.

Interlocutory Decision Nos: 2002-213/314, dated 17 December 2002

[108] The complainants' document disclosure application was the subject of an Interlocutory Decision Nos: 2002-213/214, dated 17 December 2002, when the Authority, pursuant to s.12 of the Broadcasting Act 1989 and s.4C of the Commissions of Inquiry Act 1908, ordered TV3 to make available:

- A sequential chronology which records when and where each segment which comprises the 3 News Special broadcast on TV3 on 10 July 2002 was created.

- The full interview tape in respect of Mr Hager.

- The full interview tape in respect of the Prime Minister.

- An affidavit from each of the parties to the confidentiality agreement which sets out the terms of that agreement under which TV3 was provided with an advance copy of the book "Seeds of Distrust" by Mr Hager.

[109] The Authority also ordered TV3 to confirm that the primary material which it stated had been returned to its source, was from one source and that source was Mr Hager.

TV3's Response to the Order for Disclosure

[110] TV3 provided the following chronology:

Footage Date filmed

John Campbell in TV3 studio Live on 10/7

John Campbell in rural lane Sunday 7/7

John Campbell in cornfield Sunday 7/7

John Campbell in debating chamber Friday 5/7

Interview with Mr Hager Saturday 6/7

Visual material Either Saturday 6/7 or on 8 or 9/7

Interview with PM Tuesday 9/7

[111] The full interview tape with the Prime Minister was supplied but in regard to the full field tape in respect of Mr Hager, TV3 wrote:

The field tapes of the interview with Mr Hager were not preserved and have

been reused in accordance with normal procedure.

[112] Affidavits from TV3's Head of News and Current Affairs and the interviewer were enclosed in regard to the confidentiality agreement. The one from the interviewer contained the following statement:

The terms on which the book was made available to TV3 were never

written down. They were agreed as the result of verbal exchanges between

Mr Hager and me. It was agreed between us that the book would be made

available to TV3 in advance of its general release but only on the basis that

there would be no disclosure of the book or even of the fact that the book

had been written ahead of its release. Before agreeing to those terms I

referred the matter to [the Head of News and Current Affairs] for his

approval.

[113] A substantially similar statement was included in the affidavit from the Head of News and Current Affairs.

[114] TV3 also confirmed that the source of the material was Mr Hager and that the

material had been returned to him.

[115] TV3 advised that it had no objection to the release of its letter in response to the Order for Disclosure and the accompanying material to the complainants.

The Complainants' Response to TV3's Report on the Accuracy Aspects, and

the Documents Disclosed

[116] The complainants maintained that the chronology disproved TV3's earlier assertion that the programme presented on 10 July was a current affairs presentation on that day, following the interview with the Prime Minister on 9 July. Rather, they said, the programme included footage of the interviewer filmed in Parliament on 5 July in which he made "unqualified statements of fact". Referring to the sequence during which the footage had been filmed in different locations, the complainants contended that the allegedly incorrect factual matters to be presented had been settled by 9 July.

[117] Accordingly, they wrote, it was "indefensible" to use the material in a broadcast on 10 July as, by that date, information at least in rebuttal of Mr Hager's statements was available. Furthermore, the chronology disclosed "a second feature of significance" in that the interviewer held a predetermined position when he interviewed the Prime Minister. He was not testing issues, they alleged, "but seeking to confront the Prime Minister with an undisclosed and partisan position he had already taken up".

[118] As for the interview tape with Mr Hager which TV3 maintained had been reused, the complainants argued that the broadcaster would have been aware from 11 July that a breach of standards had been asserted. They contended:

The Authority would be entitled to infer that the failure to retain the field tape was intentional.

[119] Turning to the confidentiality agreement about disclosing the book "Seeds of Distrust" before publication, the complainants pointed out that TV3 had earlier argued that the Prime Minister had not been told of the book before the interview "due to the requirements of confidentiality". The affidavit now said that the existence of the book was the confidential matter. The complainants contended that the agreement did not mean that there was any confidentiality about the information that the interviewer relied on, the contents of the interview with Mr Hager, or the contents of the footage filmed before the interview with the Prime Minister. The complainants summarised the point:

The Authority can now see that the defence mounted by TV3 in its decision of the complaints was without foundation and the presentation of it in that decision was exaggerated and in consequence deceptive.

[120] The complainants also took issue with the Standards Committee's finding that there was "a sufficient basis" for several statements on the basis of "taking a selection of earlier information", while ignoring the information made available on 10 July before the broadcast. This, they said, was "deliberate disregard" that meant the broadcast could not be balanced or accurate. The complainants also rejected TV3's suggestion that comments from other journalists were unhelpful, saying they were "expert and contemporary evidence" of the breaches alleged.

The Broadcaster's Response

[121] TV3 advised that its response dealt with a number of issues earlier raised by the complainants, some when they referred their complaint to the Authority initially, and some when they responded to the material supplied pursuant to the disclosure order. TV3 made the following submissions:

- The programme complained about included not only the 3 News Special broadcast on 10 July 2002, but also the relevant material contained in the preceding 3 News.

- Because of the confidentiality agreement, there was no reference to the book during the arrangements for the interview, or during the interview, with the Prime Minister. The "book", it said, included its contents, author and publisher.

- The past connections between Mr Hager and the interviewer were irrelevant, other than to confirm that he was a reliable source.

- The broadcaster denied that it had deceived the Prime Minister when it made arrangements for the interview. It acknowledged that the discussion was "deliberately general". Moreover, even if deception did occur, it was justified in the public interest. In adding that comment, TV3 referred to Authority Decisions Nos: 1995-064/065, dated 20 July 1995, and Nos: 1999-060/061, dated 14 June 1999.

- TV3 also dealt with the allegation that it had deceived the Prime Minister

by saying that the programme was part of a "series" of specials, stating:

TV3 confirms that by the time the original standards committee decision was released no further work was being considered - the reference to "more work in this line" in the decision (which was discussed by the Committee for some time in draft form) should have been deleted from the final form of the decision (see penultimate paragraph on pg 1 of the decision).

- Dealing further with the deception aspect of the complaints, TV3 considered that it was speculation to assert that the Prime Minister would have turned up for the interview if she had known about the book.

- TV3 reiterated its argument that the confidentiality agreement prevented the types of disclosure which the complainants had submitted were not covered, such as its contents (without attribution) and the various locations in which filming had taken place. With respect to the chronology, TV3 said that it had endeavoured to present up-to-the-minute and full treatment of the issue, and referred to the content of 3 News on 10 July and on succeeding days.

- TV3 repeated its point that the New Zealand Listener article indicated that the issue "had some currency for the Prime Minister".

- As for the status of the proposed second interview, TV3 contended that consideration had to be given to both the 3 News Special and preceding 3 News, and the material which was part of an evolving news story. It also reported TV3's Head of News and Current Affairs' efforts on 10 July to provide the Prime Minister with an opportunity to comment further.

- With reference to the comments from journalists about the ethics of the interview provided by the complainants, TV3 offered to provide a range of opposing views from other journalists on the ethics involved. Nonetheless, it still considered that such views were unhelpful for the Authority in determining the issues raised by the complainants.

- TV3 stood by its comments about the "technical" thrust of Guideline 6c in view of the Authority's comments about its predecessor (Standard G7) in the decisions cited above. It maintained that the complainants' concerns about deception were adequately covered by the complaints that the broadcast breached the fairness requirements in Standard 6.

- Turning to the New Zealand Bill of Rights Act 1990, TV3 repeated its contention that the Authority, if it upheld the complaint, would impose "an unacceptably high restriction on news media reporting the allegation of public wrongdoing".

- TV3 said that a requirement to disclose the specific allegations would be an "unacceptable restriction on a functioning democracy", adding that the interviewer had established that there was a proper foundation for them. It was not necessary, it maintained, for a journalist reporting an allegation to prove its accuracy totally beyond doubt before putting it to a spokesperson for comment.

- TV3 also replied to two other points concerning freedom of speech:

The complainants contend that TV3 did not adequately report, on 10 July 2002, all the information that was available on the issue. TV3 believes it is an unacceptable restriction to look at each broadcast item separately when each programme is part of an evolving story on an issue. The application of codes must consider the whole treatment of an issue - not just the first airing.

The complainants contend that the freedom and rights of the Prime Minister were at risk and damaged by the programme. TV3 believes that the Prime Minister's rights were respected when it allowed a sufficient further opportunity for the Prime Minister to respond to the allegations - an opportunity prior to and after the initial programme went to air.

- Assessing again the complaint which, it said, suggested that a breach of standards occurred because of a past relationship between Mr Hager and the interviewer, TV3 reiterated that he was a reliable source.

- TV3 advised for a second time that its action on the complaint followed its standard complaints procedure, and considered that the time taken had been appropriate. The complainants' rights, it wrote, had "not been defeated".

[122] TV3 then advanced some submissions on the process and the Standards raised by the complainants. It expressed agreement with the Authority's decision to deal with each of the referrals separately, but to release its decisions at the same time.

[123] Standard 5, it said, required that news, current affairs and factual programmes be accurate and truthful on points of fact. Opinion, analysis and comment, however, did not need to be accurate and truthful provided that it was not obviously wrong. It added the following comment in regard to Decision No: 2002-169, dated 17 October 2002, when the Authority upheld a complaint that the Prime Minister's comment about the calculation of interest on student loans was inaccurate:

We believe that decision is wrong. The Prime Minister's statement was not presented as a point of fact - it was a report of the Prime Minister's opinion (or comment or analysis). The statement was made by the Prime Minister who should be regarded as an appropriate and reliable source. The statement was not so obviously wrong on its face that it would be "automatically questioned by a well informed lay person". To expect that a broadcaster should check all statements made in those circumstances sets an unrealistic standard for compliance with Standard 5.

[124] TV3 also submitted that even if the statement in Decision No: 2002-169 was correctly defined as a point of fact, it was wrong to find that Standard 5 imposed an "absolute requirement". It referred to Decision No: 2002-009, dated 7 February 2002, where the Authority accepted that an inaccuracy must be material to constitute a breach, and to Decision No: 2002-090, dated 25 July 2002. It continued:

TV3 submits that Standard 5 itself does not impose an absolute requirement for accuracy. It also submits that a proper application of the requirements of the New Zealand Bill of Rights Act 1990 require the least possible restriction to freedom of expression - so an assessment should always be made as to the material nature of the fact at issue before considering whether the inaccurate fact constituted a breach of the Standard.

[125] TV3 summarised its submission on Standard 5:

The proper approach to the interpretation and application of Standard 5 is clearly of crucial importance in the determination of this complaint and the referral of other complaints which contend for a breach of Standard 5.

[126] Focusing next on the requirement for fairness in Standard 6, TV3 submitted that "fairness is always a subjective assessment". Nevertheless, consideration had to be given to context, the people involved, and the circumstances of their involvement.

[127] Contending that the assessment of what was fair in the preparation and presentation of a programme must depend on the weighing of all relevant factors, TV3 submitted, with the present complaints, consideration had to be given to the following "conditions":

1. The public interest importance of the issue - an allegation of public wrongdoing;

2. The conditions imposed on TV3 for confidentiality;

3. The Prime Minister's considerable experience and skill in media matters;

4. The opportunity - before broadcast and subsequently - for further involvement.

[128] TV3 also pointed to decisions in which it said the Authority had found that "deception" was acceptable because of the importance of the issue, or because the information could not be obtained in any other way.

[129] Moreover, in dealing with the fairness complaint, TV3 said:

TV3 also contends that the Authority must consider this complaint as one element of an evolving news story - this was the first airing of what has continued to be a matter of considerable public interest sparked by the publication of Mr Hager's book. To look at this programme in isolation from the other material presented by the broadcaster on this issue would be wrong. TV3 coverage of the issue was accurate and fair.

[130] As the final section of its submission, TV3 observed that the complainants raised "complex issues of fact and law". It referred to the Authority's ruling in Decision No: 2002-159, dated 10 October 2002, and submitted that, on this occasion, the Authority would be assisted by conducting a hearing to determine the issues. A hearing was necessary to determine any conflict in the written material between the parties and to avoid a breach of natural justice, TV3 wrote, and a hearing to examine the legal issues would allow those matters to be examined "in a more satisfactory way".

The Complainants' Response to the Authority

[131] The complainants made the following specific comments in response:

- They described TV3's point that the programme complained about included the preceding 3 News as a new contention which it was not justified in making. They also accepted that the Authority could take the prior news programme into account, but not as part of the programme to which the complaint referred.

- The complainants maintained that TV3 either misunderstood or ignored the scope of the "alleged agreement as to confidentiality". It was noted from the affidavits that it was an agreement that the presence of the book would not be referred to in the interview. The agreement did not preclude reference to any allegation, document, event, or other matter referred to in the book. Accordingly, they wrote:

An interview could have been conducted on normal professional lines without any breach of the agreement recorded in the affidavits.

The complainants continued:

In seeking an interview on those matters, it would be normal for the interviewer to identify the subject with sufficient particularity to ensure that the person being interviewed was able to make an informed response. TV3, conditioned by [the interviewer's] prior commitment to the Hager theories, now says it was permissible to make a challenge without prior disclosure. But even if that were so (and TV3 advances no basis for such a claim in the absence of a need to challenge wilful deception by the subject of the interview, which has no relevance here) this fails to deal with the fact that the line of questioning failed because the Prime Minister did not have the detailed knowledge which [the interviewer] had assumed and relied on.

- Referring to an interview given by the interviewer reported in the Sunday Star-Times of 14 July 2002, the complainants contended that the interview "trap" technique did not work, and the recorded result of that failure should not have been broadcast.

- Because of the past history between Mr Hager and the interviewer, the complainants said, a level of editorial care and independent control should have been exercised which was not apparent.

- Pointing out that TV3 first made use of the word "deception", the complainants noted that TV3's claim about the existence of a "series of specials" had now been modified.

- The complainants expressed the opinion that the purpose of the second interview, as disclosed by the transcript of the item, was as a replacement interview, not a supplementary interview. They added that the information which would have been provided was advanced in the news conference which was "largely unreported" on 3 News and completely unreported on the 3 News Special. They continued:

Proposals for a later interview are irrelevant where there have been breaches of the extent and seriousness which applied on this occasion. It was not for the Prime Minister to seek to respond; but for the broadcaster to act to remedy its breaches.

- The complainants submitted that Guideline 6c and the former standard G7 were not interchangeable. The wording of Guideline 6c, they added, required the Authority to investigate the issue of deception.

- Explaining that the freedom of expression issue had already been dealt with in earlier submissions, the complainants repeated that the standards made under the Broadcasting Act had to be complied with as the media's freedom of expression was made expressly subject to compliance with the Broadcasting Act and the standards. The complaints, it pointed out, were about the broadcaster's failure to comply with the standards.

- As to the interviewer's familiarity with the documents on which the book was based, the complainants stated:

Here TV3 again asserts, without any substantiation, that [the interviewer] had conducted independent research and had consulted various documents. In fact its response to the disclosure requirements shows that at best [the interviewer] may have read some papers which Mr Hager provided him with - papers that have not been and seemingly cannot be produced.

[132] In regard to TV3's contention that Decision No: 2002-169, dated 17 October 2002, was wrong, the complainants noted that this earlier decision considered the question of what was required when a broadcaster reported the statement of a third party. That issue, it maintained, did not arise with the current complaints. It did not arise, they argued, as TV3 adopted the statements of Mr Hager, a third party, as its own. They described Mr Hager's role during the interview as confirming that what TV3 said was true.

[133] In response to the four "conditions" which, TV3 maintained, applied to the specific complaint (para [127] above), the complainants contended:

Condition 1 is to be matched against the enhanced need for fairness (and absolute accuracy) within an election period; and the need to ensure that any allegation broadcast met the programme standards. Condition 2 is of no relevance. A broadcaster is never excused from compliance with standards by a voluntary agreement on its part for "confidentiality" and in this instance that related only to the existence of a book. Condition 3 is a matter having no impact one way or the other on fairness. All persons are equally entitled to fair treatment under the standard. Condition 4 is not applicable given that there was no pre-broadcast option for a replacement interview and once a breach has occurred it is not open to the broadcaster to claim that the victim of the breach should afterwards have taken action to remedy it.

[134] The complainants then dealt with TV3's application for a hearing, pointing out that, almost nine months after the programme was broadcast, TV3 had proposed a hearing. On the basis, first, that no particulars were given in the application, and second, that there was very little factual conflict involved in the complaints, the complainants argued that there was no need for a hearing. They added:

Further, this matter is overdue for decision. TV3 has persistently taken every available time period, or longer, for each of its responses and has repeatedly raised new technical objections or issues as to process when the Authority's process is well advanced.

[135] The complainants attached a table which recorded the actions taken by the complainants, the broadcaster and the Authority during the 244 days which, at that time, had elapsed after the broadcast. It considered that TV3 was responsible for 145 days - or 59% - of the delay and added:

The complainants submit that this matter is now ready for determination and that the Authority should proceed to determine it as early as possible.

[136] The complainants submitted that they saw no benefit in the oral presentation of legal submissions. Moreover, they stated that TV3 did not explain how a hearing would proceed without the participation of the other five complainants and still meet the natural justice obligations to them. The Authority's ruling in which it declined TV3's Application for a Formal Hearing is dealt with in paras [33] to [37] above.

The Life Sciences Network's (LSN) complaint - paras [137] - [183]

The Complaint

[137] The LSN complained to TV3 that the broadcast, which it described as an "Investigation", uncritically accepted the allegations contained in Mr Hager's book, "Seeds of Distrust", without checking their veracity or providing alternative points of view. It complained that the interview with the Prime Minister was biased and that she had not been given sufficient time to prepare to deal with the technical points raised. It continued:

The result was that she could not provide an effective response to Hager's claims.

[138] The complainant said that the interviews with Mr Hager and the Prime Minister accepted the following allegations as established fact:

- Sweet corn contaminated with GM seed had been let into New Zealand.

- Various Cabinet Ministers had known that the corn was in New Zealand, in violation of the moratorium on the importation or release of genetically modified organisms.

- For some unspecified reason, rather than disclose that the corn had entered New Zealand and remove it, these Ministers established a temporary threshold allowing the importation of GM seeds where they were below a certain percentage of any shipment.

[139] These were not facts, the complainant wrote, as:

- It is not at all clear that any GM seed entered New Zealand. Eight tests were conducted on the impugned shipment of seed. None were able to conclude that any of the seed had been genetically modified.

- A "threshold" was not, as Mr Hager claimed, established to allow the import of GM seed. Rather, it represents the scientific uncertainty limits on testing seed. It is impossible, using current technology, to completely eliminate the possibility that some seeds in a shipment do not conform to the required genotype. This is a scientific fact. The "threshold" was not a policy designed to allow the import of GM seed despite the moratorium, but a formal establishment of a testing protocol and an acceptable level of scientific uncertainty and recognises that GM free status cannot be guaranteed by existing scientific tests.

[140] These matters, the complainant observed, were not presented to viewers. Rather, the LSN contended, Mr Hager's version of events was described by TV3 as "what really happened". Moreover, as the footage indicated that the broadcaster had prior knowledge of the book's publication, the complainant argued that TV3 had sufficient time to verify the material advanced by Mr Hager and to invite comment from other interested groups.

[141] Turning to the interview with the Prime Minister, the complainant described it as "biased and unethical" as the Prime Minister had been given no warning that she was to be "questioned on a complicated technical issue of some antiquity". Moreover, and unlike the interview with Mr Hager, she was subjected to aggressive questioning. Consequently, the LSN stated:

The effect of this differential and unfair treatment was that Hager appeared much more credible, despite some of his complaints being highly dubious.

[142] Describing the broadcast as "factually incorrect and unbalanced" in claiming that the Government had been involved in the release of genetically modified sweet corn seeds, the complainant alleged a breach of the standards relating to balance, accuracy and fairness.

[143] It was unbalanced, the complainant continued, in view of the different approaches taken to Mr Hager ("shown in a favourable light") and the Prime Minister ("browbeaten and verbally attacked"), and because there were no contributions from other groups with expertise or interest in the area. The bias of the programme in favour of Mr Hager's viewpoint, the LSN concluded, meant the programme was unbalanced.

[144] The complainant asserted that the item was inaccurate, and that editorial independence and integrity had not been maintained, as it failed to distinguish between factual reports and opinion. It wrote:

The very controversial views of Nicky Hager, the author of "Seeds of Distrust", were presented as though they were factual. The viewer was led to believe that Mr Hager's theories were undisputed and uncontroversial. [The interviewer] did not critically evaluate Mr Hager's views.

[145] As an example of material which was presented as if it was not controversial, the LSN said it was inaccurate and misleading for Mr Hager to characterise the scientific limit on the ability to test for the presence of GM seeds as a regulation adopted for political or personal reasons. It was also inaccurate to state that GM seeds had entered the country and been planted in the fields that the interviewer was standing in. First, it was not proven that any seeds had entered the country, and second, it was not proven that they had been planted in that field.

[146] Moreover, as the material presented as factual in that item was contested rapidly after the book's release, the complainant maintained that the broadcaster could have ascertained that many of Mr Hager's claims were incorrect. The complainant added:

The problems and controversies surrounding Mr Hager's arguments were only touched on briefly, in a token manner, at the very end of the segment setting out his hypothesis. This was not sufficient to offset the strong, and erroneous, impression that Mr Hager's claims are factually accurate.

[147] The LSN concluded on this aspect:

By uncritically portraying untruths and opinions as fact, the Investigation was in breach of its duty to be truthful and accurate. By heavily criticising the Prime Minister, while letting Hager make his allegations unchallenged, the Investigation breached its duty to be unbiased and impartial.

[148] As for the requirement for fairness in Standard 6, the complainant argued that the broadcast failed to deal fairly with the Prime Minister given, first, the different approaches to the interviews of Mr Hager and the Prime Minister, and second, by not telling the Prime Minister of the precise subject she was to be interviewed on.

[149] The LSN sought a public acknowledgment by way of a broadcast on television that the programme had breached standards, and a public censure of the "journalists involved in the production of the programme". The complaint concluded:

The LSN concludes that the Investigation was in breach of Standards Four, Five and Six. Its disingenuous approach to the important issue of GM seed release concealed the truth of the matter from the public. The failure of the programme to observe even the most basic tenets of journalistic integrity during an election, resulting in a heavily biased approach to an election issue, could call the motives of its host broadcasters into question. It is essential that TV3 remedies this regrettable shortcoming.

The Standards

[150] The LSN nominated Standards 4, 5 and 6 as the standards against which the complaint should be considered.

The Broadcaster's Response to the Complainant

[151] Dealing first with the Standard 4 aspect of the complaint, TV3 agreed that the broadcast "certainly" raised a controversial issue of public importance. It noted the standard acknowledged that balance could be achieved in the period of current interest and, on the basis that this period extended beyond 10 July, it referred to 11 items which had been broadcast on 3 News on 11, 12, 13 and 15 July. Those items, TV3 said, included comment from a range of organisations and individuals, as well as further comment from Mr Hager.

[152] As for the aspect of the complaint which raised the technical issues of testing material for GM, TV3 maintained that the issues of accurate testing and a definitive test for GM were explored in the items broadcast during the period of current interest. TV3 stated:

This [Standards] Committee does not agree that the programme uncritically accepted Mr Hager's view of the events. His view was certainly set out and the Prime Minister was asked to refute it if she could. It was always accepted that she might not be able to do this upon the first opportunity but subsequent opportunities to do so were afforded to the Prime Minister. She chose not to avail herself of these. However, comment from other Ministers and officials were given some prominence in the days following the programme.

[153] Pointing out that the function of a news service was to raise public awareness and to inform the public fully and fairly, TV3 contended that sufficient material was presented to enable viewers to make up their own minds. In view of the material broadcast during the period of current interest, TV3 did not consider that the broadcast was unbalanced.

[154] As for the complaint that the item was inaccurate and in breach of Standard 5, TV3 said its response to the balance aspect was again applicable. It denied that Mr Hager's contentions were accepted uncritically. The contentions, it wrote, were put to the Prime Minister for comment and she was asked why a threshold test had been introduced and why it was discontinued. In declining to uphold the accuracy aspect of the complaint, TV3 wrote:

As for the test results we find that the reporting accurately reflects the confusion surrounding their significance. Some positive testing occurred, how accurate that testing was and what it meant remains unclear. It is not for the media to determine the scientific facts. The media role is to raise the issues and ask the questions.

[155] Examining the Standard 6 aspect, and giving specific focus to the requirement in Guideline 6b, TV3 reported that the Prime Minister's advisers were told in general terms what would be covered during the interview. It said that she was told that the interview would raise issues of trust and confidence in her Government's ability to deal with issues raised by genetically modified products. TV3 stated that the advisers neither sought, nor were they offered, the specific questions list. It added that this was "standard and accepted practice". It repeated the points made to other complainants about the role of the media, and concluded that a general indication had been given to the Prime Minister's advisers.

[156] Submitting that the Standard 6 requirement for fairness, rather than the Standard 4 focus on balance, was the appropriate provision under which to consider the interview style (the contention that the Prime Minister was browbeaten and verbally attacked), TV3 pointed to the abilities and role of the interviewee.

Here the person being interviewed is in a special category. Helen Clark is the Prime Minister currently actively engaged in an election campaign. She is a woman of high intelligence and considerable experience.

[157] It said that there was no evidence of "browbeating" or a verbal attack to the extent that the Standard was threatened.

[158] In declining to uphold any aspect of the complaint, TV3 also repeated its view made to other complainants as to the relevance of the freedom of expression provision in the New Zealand Bill of Rights Act 1990.

The Referral to the Broadcasting Standards Authority

[159] In its referral, the LSN repeated its contention that the 3 News Special was "factually incorrect and unbalanced and breached Standards 5 and 6 of the Television Code". The aspect of the LSN complaint which raised the requirement for balance in Standard 4 was not referred to the Authority.

[160] Pointing out that Standard 5 required that broadcasters be not only truthful and accurate on points of fact, but also impartial and objective at all times, the LSN disagreed with TV3's argument that it had not accepted Mr Hager's contentions uncritically. It stated:

The terminology used to discuss Mr Hager's contentions implied that they were undisputed facts. Many of Mr Hager's points were either entirely false or were misrepresentations.

[161] The LSN repeated the issues raised in paragraphs [138] and [139] above. In response to TV3's comments about the threshold which Mr Hager contended had been established to allow the importation of GM seed, the LSN said:

It is worth noting that the [Standards] Committee also misunderstood this point, saying that the threshold test "was introduced after the issue arose". The point is that the threshold test was not introduced at any point. It is not a policy capable of being introduced. It is a scientific limit present in all tests.

[162] Moreover, in addition to describing Mr Hager's version as "what really happened", the footage of the presenter in a barren cornfield indicated that TV3 had sufficient time to invite comment on Hager's material from other interested parties. It added:

However, [the interviewer] did not seem to have any real grasp of the issue beyond blind acceptance of Hager's allegations. The LSN submits that this segment of the [item] is clearly biased in favour of Hager's point of view.

[163] The LSN said that the item did not adequately distinguish between fact and opinion. As specific examples of "misleading" aspects of the programme, it referred to two matters dealt with in the broadcast. They were:

- Hager's characterisation of a scientific limit on our ability to test for the presence of GM seeds as a regulation adopted for political or personal reasons. This is not true. It was, however, accepted as fact by [the interviewer] during the programme. [The interviewer's] uncritical acceptance misled viewers as to the reasons for, and political significance of, the threshold.

- [The interviewer's] assertion that GM seeds had entered the country and been planted in the field of corn he was standing in. It has not been shown that any GM seeds did in fact enter the country. It is even ridiculous to assert that one particular field had contained GM seeds in the absence of any tests on corn from that field.

[164] Expressing the opinion that the controversies surrounding Mr Hager's arguments were touched on only briefly at the end of the segment in which he featured, and that those remarks were insufficient to offset the impression that his claims were factually accurate, the LSN maintained that Standard 5 had been transgressed. It summarised its submission on the Standard:

By uncritically portraying untruths and opinions as fact, the Investigation was in breach of its duty to be truthful and accurate. By heavily criticising the Prime Minister while letting Mr Hager make his allegations unchallenged, the Investigation breached its duty to be unbiased and impartial. The LSN believes that the Investigation did not meet its obligations under Standard 5.

[165] The LSN then reiterated its complaint that the broadcast breached the fairness requirement in Standard 6, stating that it disagreed with TV3's conclusions that the Standard had not been contravened. Specifically, it described the interview with the Prime Minister as "biased and unethical" as she was given no warning of the topics to be canvassed. Accordingly, she was unable to counter Mr Hager's contentions.

[166] The LSN also referred to the variation in the styles of interview with the Prime Minister and Mr Hager. One effect, it wrote, "was that Hager appeared much more credible, despite some of his claims being highly dubious". In response to TV3's argument about the adequacy of the advice given as to the topic to be addressed, the LSN wrote:

Although the Prime Minister was alerted to the fact that the interview would cover the issue of genetic modification, the issue on which she was being asked to comment was highly complex. It related to events that had occurred some time before the interview. The LSN accepts that in general it is not necessary to alert interviewees to the precise subject on which they are to be interviewed. However, we submit that the topic covered by the Investigation was so specific, and so specialised, that the Prime Minister was unable to respond to [the interviewer's] questions without some specific preparation. In these particular circumstances, the questioning was unfair.

The LSN does not agree that the Prime Minister's intelligence and political status allow interviewers a free licence to attack her in interviews. The LSN believes that despite the special circumstances surrounding the Prime Minister, [the interviewer's] interviewing style was so hostile as to make the interview unfair and biased.

[167] The LSN then argued that TV3's Bill of Rights analysis was incorrect and submitted that the Codes of Broadcasting Practice, approved by the Broadcasting Standards Authority under the Broadcasting Act 1989, were limits on free expression and that individual complaints were not limits but applications of the limiting rules. It contended:

If a complaint falls within the guidelines the Bill of Rights requirements for limits on section 14 have been met. The [Standards] Committee was not required to consider whether allowing the LSN's complaint was a reasonable limit on the right to freedom of expression protected in section 14 of the Bill of Rights Act 1990.

[168] In conclusion, the LSN wrote:

[T]he Investigation was in breach of Standards Five and Six. Its disingenuous approach to the important issue of GM seed release concealed the truth of the matter from the public. The failure of the programme to observe even the most basic tenets of journalistic integrity during an election, resulting in a heavily biased approach to an election issue, could call the motives of its host broadcasters into question. It is essential that TV3 remedies this regrettable shortcoming.

The Broadcaster's Response to the Referral

[169] Pointing out that the LSN referred only the Standards 5 and 6 aspects of the complaint to the Authority, TV3 contended that the complainant had accepted that the broadcast had not breached the requirement for balance. It noted, nevertheless, that the LSN alleged in the referral that the item had advanced an "unbalanced" view about the Government's responsibilities.

[170] TV3 summarised the LSN's referral of the accuracy aspect of the complaint and said that, first, it questioned whether any GM seeds entered New Zealand, and second, denied that a threshold was established to allow the importation of GM seeds.

[171] TV3 then maintained that the allegations made in the programme were comment, analysis and opinion advanced by Mr Hager, whom it described as a reliable source, and to which the requirement for accuracy in Standard 5 did not apply.

[172] Nonetheless, TV3 continued, and noting the point that its Standards Committee did not have the scientific expertise to determine whether or not the imported corn was GM contaminated, it had considered whether the arguments made in the programme were presented as "points of fact" and so required to be accurate. TV3 then advised that the programme's interviewer had examined the papers provided by Mr Hager and had ascertained that they were genuine and supported "the factual proposition that Mr Hager ascribed to them".

[173] As the process of reviewing the material amounted to "sound journalistic practice", TV3 said it was satisfied that there was sufficient basis for the factual statements made in the programme. Furthermore, TV3 wrote, the lack of legal action against Mr Hager or his publishers suggested that what he had written "was substantially correct".

[174] TV3 then answered the aspects of the referral which argued that the Prime Minister had not been dealt with fairly. It said that the participants in the interview "vigorously put their points of view", but that the Prime Minister had not been browbeaten or attacked. It said that the requirement for fairness had been met when arrangements had been made for a second interview. As the Prime Minister chose not to take part in a second interview "until very late in the day", TV3 reasoned that "it was necessary to use the material at hand from the first interview". Furthermore, it said that it considered that the interview was neither irresponsible nor biased.

[175] Finally, TV3 contended that a breach of the freedom of expression provision in the New Zealand Bill of Rights Act 1990 would occur if the Authority upheld the complaint. It wrote:

The important right of "free speech" (as it is sometimes called) can only be limited if it is considered reasonable and justifiable in a free and democratic society to do so (s5 of the Act). The Standards Committee has considered your complaint weighed against the right of "freedom of expression" and considers that to uphold your complaint would unreasonably and unjustifiably restrict the public's right to receive information and opinions.

The Complainant's Final Comment

[176] In its final comment, the LSN dealt first with the Standard 5 - Accuracy aspect of its complaint. It was noted that TV3 and the presenter had relied solely on Mr Hager as its source of documents and their interpretation, and had advanced those interpretations as fact. The LSN observed:

As one clear example he was filmed standing in a bare cornfield making the allegation that GM corn plants had grown there. There was absolutely no basis in fact for the assertion - however the effect was profound.

[177] In the LSN's opinion, the programme should have made it clear that the allegations were open to question and, by failing to do so, the programme was both incomplete and inaccurate. Moreover, because the book was published during an election campaign in which the question of GM was a major issue, the LSN maintained that TV3 was obliged to ensure that the programme "reflected all the interpretations surrounding controversial facts".

[178] In response to TV3's point that the presenter followed sound journalistic practice in reviewing the material which Mr Hager relied on, the LSN noted the observation made by TV3's Standards Committee that it lacked scientific expertise. The LSN added that the Committee apparently also had no expertise in deciding on what was good journalistic practice. It wrote:

Nowhere in the response is there any evidence that [the interviewer] sought independent advice from people who are scientifically and procedurally more knowledgeable than himself as to whether the conclusions Hager was drawing from the material he had assembled was appropriate. If he had made these enquiries a very different story would have emerged - one which included all the elements which surfaced in the period following.

[179] The LSN argued that a fundamental precept of ethical journalism was to check the accuracy of data obtained from external sources, and that such a step was especially important on this occasion given the election campaign taking place at the time the book was released. Indeed, it continued, the timing of the story required "greater caution about the facts and their interpretation".

[180] The LSN did not consider that TV3's reference to the lack of any legal action was relevant. It pointed to the broadcasting standards complaints as evidence that there was "serious disquiet" about the standards of journalism displayed in the broadcast.

[181] Turning to the issue of fairness, the LSN reiterated its contention that broadcasters, during an election campaign, were under a higher obligation to comply with broadcasting standards. Furthermore, TV3's promotion of the programme prior to broadcast, indicated that TV3 regarded it as a potentially very important public issue.

[182] The LSN accepted that politicians have to expect vigorous questioning, especially if their decisions suggested misbehaviour. However, it added, on this occasion, failure to provide the evidence along with an inadequate opportunity to counter the allegations, rendered the treatment of the Prime Minister unfair.

[183] The LSN concluded by describing TV3's argument about the Bill of Rights as "nonsense". The Bill of Rights Act, it wrote, accepted limits such as those contained in the Codes of Broadcasting Practice.

Yuri Wierda's complaint - paras [184] - [204]

The Complaint

[184] Mr Wierda complained to TV3 that the broadcast breached the requirement for balance. Specifically, he complained that the language and visuals used in the 3 News Special were unbalanced. Visuals comprising footage of "rotting corn" in a "barren cornfield", he wrote, were not applicable to genetic engineering. As for the language used, he referred to Mr Hager's response "I am afraid so" to questions which could simply be answered with a "yes". Such a response, he said, would prejudice viewers' understanding of the issues.

[185] Continuing with his complaint about the language used, the word "contamination" was of particular concern to Mr Wierda. Not only did he consider it "highly emotive", but he also argued that a test which suggested that the possible presence of GM in less than 0.5% of the test sample did not amount to contamination. While the item used the term "contaminated corn", Mr Wierda contended that despite the possibility of contamination, there was no "conclusive proof" that it actually was contaminated.

[186] Mr Wierda then argued that a fair report would have included both a Government and a pro GM response. The 3 News Special, he maintained, "was just a masked advertisement for the Anti GE lobby group". Further, an accurate item would have reported that the first tests suggested that the imported seed had an indication of GM of less than 0.5%, and that subsequent tests did not detect the presence of any indicators.

The Standards

[187] TV3 assessed Mr Wierda's complaint under Standards 4 and 6.

TV3's Response to the Complainant

[188] Assessing the balance aspect of the complaint under Standard 4, TV3 explained that the Standard required that significant points of view on current issues were advanced either during the same programme or during the period of current interest. The controversial issues raised in the 3 News Special, it continued, were addressed in 11 news items broadcast on 3 News between 11 and 15 July. These items, it observed, included comment from Government Ministers and officials, and representatives from both sides of the GM debate. Its news service, it contended, had performed the precise function of an active news service when it raised an issue and then provided sufficient detail to ensure that the public was "fairly and fully informed".

[189] As for the complaint about the language and images used, TV3 considered that they were neither inappropriately emotive nor distorted.

[190] Taking into account both the item complained about and subsequent items, TV3 said that its reports of the allegations were appropriate and that information contained in the 3 News Special "was accurate based on the information available to the News team at that time and presented in a balanced way".

[191] TV3 advised Mr Wierda that, although he had not referred specifically to Standard 6, it had assessed his complaint that the Prime Minister was not treated fairly under that Standard.

[192] TV3 commented that the Prime Minister, at the time of the interview, was engaged in an election campaign, and was a person of high intelligence and considerable ability. It repeated the points made to the other complainants about the issues she was told would be raised, her apparent knowledge of the incident, and the offer of a second interview. It also described the interview as vigorous but professional and declined to uphold the Standard 6 aspect.

[193] TV3 declined to uphold the entire complaint, and commented that the provision relating to the freedom of expression in the New Zealand Bill of Rights Act 1990 was particularly relevant in the circumstances given that:

The media must be and be seen to be unfettered in the way it discharges its duty to the public to ask questions of politicians and scrutinise political matters particularly during an election period. This is at the heart of freedom of speech and the role of the fourth estate.

The Referral to the Broadcasting Standards Authority

[194] Mr Wierda's referral to the Authority included a letter he sent directly to TV3. The letter to TV3 dealt first with the broadcaster's comments in regard to the period of current interest. He conceded that the period might exceed beyond 10 July but maintained that the initial coverage in other media provided "a much more balanced view".

[195] In his letter to the Authority, Mr Wierda described the programme as "sensationalistic" and unbalanced. Under Standard 6 Mr Wierda asserted that the Government and the Prime Minister had been ambushed, and that TV3 had been devious in seeking instant answers to detailed questions. He wrote:

Regardless of the political parties involved or Mr Hager's right to make controversial claims, the centre of the issue was that the programme was unbalanced in its fairness in representing the different sides of the issue. This is clearly visible by the types of questions asked of Mr Hager and the types of questions asked of [the Prime Minister].

[196] He argued that TV3 had not displayed the responsibility expected of the media when advancing false claims, such as those which Mr Hager was making.

The Broadcaster's Response to the Authority

[197] TV3's response to the Authority in relation to Mr Wierda's referral focused solely on the aspect of the complaint that the Prime Minister had not been dealt with fairly, and the allegation that she had been "ambushed".

[198] TV3 advised that the Prime Minister's advisers had been told "in general terms" the topics to be covered during the interview. That would include the issue "of trust and confidence in the Government's ability to deal with the issues raised by genetically modified products". TV3 added that the provision of a general topic rather than a specific question list was the standard practice of 3 News generally, and the interviewer specifically, and observed that the Prime Minister's advisers did not seek advance notice of specific questions.

[199] TV3 contended that the general indication given was fair. It also pointed out

that it had made time available to the Prime Minister for a second interview

after she had taken the opportunity to become fully briefed on the topic.

However, it said, she decided not to do the second interview. It declined to

uphold the complaint.

The Complainant's Final Comment

[200] In his final comment Mr Wierda contended that a broadcaster must ensure that its reports were fair and balanced. He wrote:

A balanced interview would have ensured that both sides of the argument would have endured the same level of scrutiny. Hager was in no way subjected to the same level of "hard and unexpected questions" that TV3 reserves the right to make. Hager's interview appeared calm, calculated and perhaps even scripted as opposed to Helen Clark's interview, which was clearly hostile and despite her protestations was continued.

[201] Mr Hager, he added, was not questioned seriously about the accuracy of his accusations, which had been debated in other media and which Mr Wierda quoted from. He described Mr Hager as a seasoned activist who should have been subject to the same hard questioning as the Prime Minister.

[202] Mr Wierda reiterated the points made in his initial complaint about the language and images used, repeating the point that the item used the phrase "contaminated corn" on a number of occasions, but without presenting proof that the corn was contaminated. He considered that TV3's actions should be penalised.

Further Correspondence

[203] In response to Mr Wierda's complaint that a "sinister implication" could be drawn from the footage of the interviewer in a cornfield, TV3 explained that television was a visual medium. It explained that the changes of scenery during the programme were part of the normal process of providing interesting visual material to the viewer. The setting did not suggest, TV3 maintained, that the field "was somehow different" because it had been planted with GM contaminated corn.

[204] TV3 advised that it was sometimes necessary for an interviewer to play "Devil's Advocate", or to present material in different ways to ensure that the viewer fully understood a point. In its view:

[T]his programme and the other material presented by TV3 during the period of current interest dutifully fulfilled the function of a responsible news reporting service in bringing this issue to the attention of the public and presenting the public with enough material from all sides of the debate for the public to make up its own mind about the issue.

David Coy's complaint - paras [205] - [221]

The Complaint

[205] Mr Coy complained to TV3 that the broadcast was unfair to the Prime Minister. He focused on the interview with the Prime Minister broadcast on 10 July. Noting that it had been recorded on 9 July, he commented that it was apparent that the Prime Minister had been invited to respond to questions about the general topic of GM. However, he said, the interview had concentrated largely on the details of some specific events which had occurred in November and December 2000 - some 20 months earlier and which had been the direct responsibility of two other Cabinet Ministers. The Prime Minister's inability to answer the detailed questions, he contended, led to suggestions from the interviewer that there had been a Government cover-up, and to "thinly veiled attacks" on the Prime Minister's integrity.

[206] TV3's failure to advise the Prime Minister that the interview was to focus on the allegations made in Mr Hager's book, he maintained, was unreasonable and breached the fairness standard in the Television Code.

The Standards

[207] TV3 assessed the complaint under Standard 6 and Guideline 6b.

The Broadcaster's Response to the Complainant

[208] In its response to Mr Coy, TV3 advised that the Prime Minister's advisers were told "in general terms" the topics to be covered during the interview. That included the issue "of trust and confidence in the Government's ability to deal with the issues raised by genetically modified products". TV3 added that the provision of a general topic rather than a specific question list was the standard and accepted practice, and observed that the Prime Minister's advisers did not seek notice of specific questions.

[209] TV3 contended that the general indication given was fair. It also pointed out that it had made time available to the Prime Minister for a second interview after she had taken the opportunity to become fully briefed on the topic. However, it said, she decided not to do the second interview.

[210] TV3 declined to uphold the complaint, and commented that the provision relating to the freedom of expression in the New Zealand Bill of Rights Act 1990 was particularly relevant in the circumstances. It wrote:

The media must be and be seen to be unfettered in the way it discharges its duty to the public and ask questions of politicians and scrutinise political matters particularly during an election period. This is at the heart of freedom of speech and the role of the fourth estate.

The Referral to the Broadcasting Standards Authority

[211] Mr Coy referred his complaint to the Authority as he was dissatisfied with TV3's decision and reasoning. In the referral, Mr Coy maintained that it was "unreasonable and unfair" to subject anyone to detailed questioning about an event which occurred 20 months earlier and for which she had not been primarily responsible.

[212] Expressing his support for the concept of freedom of expression, and for the media to hold public institutions accountable, he said that they were not relevant issues on this occasion. He stated:

By not advising the Prime Minister of the line of questioning to be pursued in the interview, especially with regard to the historical and detailed nature of matters that were not her primary responsibility, I believe that TV3 breached the broadcasting code of fairness.

The Broadcaster's Response to the Referral

[213] In its response to the referral, TV3 confirmed to the Authority that it had never been its practice, or its interviewer's practice, to provide a line of specific questions to be asked in an interview. That was not a reflection on the interviewee's honesty and integrity, but a matter of principle for the media in a democracy to ask "the hard or unexpected questions".

[214] TV3 advised that Mr Hager's book was not mentioned during the arrangements for the interview or during the interview "due to the requirements of confidentiality". TV3 also noted that, early in the interview, the Prime Minister said, in regard to the corn issue, "I remember the case", and a little later "I do recall it generally quite well". The issue, TV3 stated, was of real and significant public interest and, moreover, an interview with the Prime Minister about border control was conducted by Gordon Campbell of the New Zealand Listener, a day or two before the interview on 9 July.

[215] TV3 said that it was also important to acknowledge the fact that in the interests of fairness, the Prime Minister was given the opportunity of a second interview.

The Complainant's Final Comment

[216] Mr Coy described TV3's response as "disingenuous" because, although it included much with which he agreed, it did not address the substance of his complaint. He maintained that the interview was unfair, and the Prime Minister's decision to decline the second interview did not make it fair.

[217] The central issue, Mr Coy said, was TV3's deception when it advised the Prime Minister of the subject of the interview. The subject was not, he insisted, the general topic of GM. It was the very specific and detailed allegations to be made in the book to be published the following day. He agreed that the book raised important issues, which were later publicly debated. However, by not advising the Prime Minister that the interview would focus on historical and detailed matters for which she had not been primarily responsible, Mr Coy continued to argue, TV3 breached the standard relating to fairness.

Further Correspondence

[218] In its reply to Mr Coy's final comment, TV3 contended that the standard practice of a general question line was appropriate, and it maintained that the reference to issues of trust and confidence, given to the Prime Minister's advisers prior to the interview, gave a fair warning of the topic to be covered.

[219] In regard to the Prime Minister's inability to respond in detail, TV3 pointed out that she had sought and had been given the opportunity to be reinterviewed. Moreover, she demonstrated at a press conference given during the afternoon of 10 July that she had become fully briefed. However, at about 5.45pm that afternoon, her office advised TV3 that she would not participate in a second interview.

[220] On the basis that fairness involved giving people opportunities, as well as relating to how they were treated, TV3 contended that "extraordinary efforts" were made to allow the Prime Minister and the Government to respond.

[221] TV3 concluded:

It is clear from the news bulletin preceding the special and from programming that screened on the following days that TV3 was willing and able to present the views of those who disagreed with the propositions contained in Mr Hager's book. In all the circumstances preceding and after the interview was recorded and before it screened the [Standards] Committee considers that TV3 conducted itself in a fair and responsible manner.

I B Owen's complaint - paras [222] - [235]

The Complaint

[222] In his complaint to TV3, Mr Owen said that he considered the interview of the Prime Minister in the programme was "in very bad taste". He expressed the view that the interview was harassment of a person who, apparently, had not been advised fully of the topic to be discussed. Describing the interview as unethical journalism, he considered that the interviewer had been objectionable, rude and overbearing. Mr Owen complained that the broadcast breached the standards relating to good taste and decency, fairness, accuracy and balance.

The Standards

[223] TV3 considered the complaint under Standards 1, 4, 5 and 6 which were the standards nominated by Mr Owen.

The Broadcaster's Response to the Complainant

[224] In regard to the requirement for good taste and decency in Standard 1, TV3 stated that it did not consider the standard to be relevant and that the issues raised under this heading were more appropriately dealt with under the other nominated standards.

[225] Dealing with balance, TV3 said that the issue was one of public importance and the period of current interest extended beyond 10 July. A total of 11 items, it said, had been screened in news bulletins on 11, 12, 13 and 15 July. It added:

These items carried comment and question from ERMA, Government Ministers and officials, representatives of other political parties, scientists working in this area, comment by other media, organic farmers and organisations working in this general area as well as further comment from Nicky Hager and the Network news team.

[226] In view of the material screened during the period of current interest, TV3 stated that the issue was dealt with in a balanced way.

[227] Pointing out that no specific examples of any alleged inaccuracies were given in the complaint, TV3 stated that the item was accurate based on the information available at the time.

[228] As for the fairness aspect, TV3 pointed out that the interviewee, the Prime Minister then actively engaged in a general election campaign, was in a special category of interviewee. Moreover, TV3 stated, she was a woman of high intelligence and considerable experience, and her advisers were told in general terms the topics to be covered.

[229] As for the interview itself, TV3 contended that it was conducted in a fair and even way, the participants acted professionally and points were made strongly, but that was not inappropriate in context. It disagreed that the Prime Minister was harassed or the interviewer had been objectionable, rude or overbearing.

[230] In declining to uphold any aspect of the complaint, TV3 referred to the New Zealand Bill of Rights Act 1990 using the phrases which have been included above with regard to the complaints from the LSN and Mr Wierda - see paras [175] and [193].

The Referral to the Broadcasting Standards Authority

[232] Mr Owen disagreed with TV3 as, he submitted, it had condoned the interview. He pointed out that TV3 must have had access to the book at the time the interview was recorded, and thus the interview was a case of "entrapment".

The Broadcaster's Response to the Authority

[232] In answering the "entrapment" issue, TV3 made the same points recorded in its response to Mr Coy about its practice when interviewing politicians, about the confidentiality agreement in relation to the book, and about the Prime Minister's response to the issue, adding that she had been given a further opportunity to comment.

The Complainant's Final Comment

[233] In his final comment, Mr Owen contended that the Prime Minister had been "set-up", and it was unrealistic to think she could recall the full details of the specific events about which she was questioned. He asked the Authority to address the following questions:

Why did TV3 use their prior knowledge of the book and its contents to "entrap" the Prime Minister? [The interviewer] was remorseless and gleeful in his "attack" knowing full well that he had the upper hand as he had all the detail/facts and could quote letters and dates without fear of contradiction.

Further Correspondence

[234] In its response to Mr Owen's final comment, TV3 denied that the interview involved "entrapment" or was a "set-up". The book, it added, could have been discussed during a second interview, but the Prime Minister chose not to take up the opportunity. TV3, moreover, did not accept that the interviewer's responses during the debate, while asking testing questions, could be characterised as "remorseless" or "gleeful", as Mr Owen alleged.

[235] In his reply, Mr Owen maintained that the interview involved entrapment. By using the contents of the book, TV3 had had an unfair advantage. The interview described by TV3 as "robust" was, he wrote, a "remorseless" attack carried out by a "gleeful" interviewer.

Janet Rutherford's complaint - paras [236] - [248]

The Complaint

[236] In her complaint, Ms Rutherford expressed concern about the "style and tactics" of the interview. She described the interview of the Prime Minister on 10 July as an "interrogation" which breached Standards 1, 2, 5, 6, 7, 8 and 10 of the Television Code.

[237] The requirement for good taste and decency in Standard 1 was breached, she argued, given the "barrage" of the interviewer's words, his "accusatory" tone, and his interruptions. Moreover, given his high-profile role, it set a bad model for young people. The interviewer's "anti-social behaviour", she added, breached the requirement for law and order in Standard 2.

[238] The complainant considered that the accuracy requirement in Standard 5 was transgressed as well. Ms Rutherford also asked why a Cabinet Minister who was at the cutting edge when the issue arose in December 2000 had not been interviewed. The interviewer breached the standard relating to editorial independence when the interviewer said to the Prime Minister "I think you can remember, but won't tell us", followed by a "bullying" barrage of questions. She described the interview as an "interrogation".

[239] As for the fairness requirement in Standard 6, Ms Rutherford contended that the Prime Minister was not treated fairly as, although she had not been advised of the topic to be addressed, she had been asked specific details of events which had occurred 20 months earlier. Furthermore, some of the questions were designed to exploit or humiliate the Prime Minister. Moreover, she had not been allowed to express her opinion fairly as the interviewer either suggested she was lying or did not give her the opportunity to answer the questions without interrupting. Under Standard 7, Ms Rutherford argued that as the Prime Minister had declined a second interview the first interview should not have been screened as it contained unsatisfactory footage.

[240] Standard 8 requires that broadcasters do not deceive or disadvantage the viewer. Ms Rutherford considered it was contravened by the accusatory methods of interview which suggested that the Prime Minister was lying about something of great importance to the nation. The interviewer's aggressive tone, she added, transgressed Guideline 8b relating to subliminal perception. Finally, Ms Rutherford considered that the interviewer's verbal violence was gratuitous and in breach of Standard 10.

[241] Ms Rutherford concluded:

I feel very strongly and research has verified, that television does influence people in what they think, and to some extent, their expectations of themselves and others, and their behaviour. In this light, broadcasters of topical issues must adhere to the standards that have been set with this in mind, to try and keep an unbiased, truthful and communication role model before viewers, so they can make an informed judgement about what is occurring within our society, and decide how best to cope with it. This is particularly true in the midst of an election campaign, where what the majority think will determine how our country and daily living will be affected in major ways.

The Standards

[242] TV3 listed the Standards, and the Guidelines, which Ms Rutherford nominated in her complaint. They were Standard 1 and Guideline 1a, Standard 2 and Guideline 2e, Standard 5 and Guideline 5c, Standard 6 and Guidelines 6b, 6d, 6f and 6g, Standard 7, Standard 8 and Guideline 8b, and Standard 10 and Guideline 10a.

The Broadcaster's Response to the Complainant

[243] Upon recording the Standards cited by Ms Rutherford, TV3 contended that, having examined the issues, all the broadcasting standards issues raised were addressed under Standard 5 (and Guideline 5c) and Standard 6 (and Guidelines 6b, 6d, 6f, 6g). Moreover, as no examples were provided of alleged inaccuracies, TV3 said that it would consider the complaint about "bullying" tactics under Standard 6. As for the matters raised under Standard 5, TV3 wrote:

Generally, the Standards Committee has considered whether the item was accurate based on the information reasonably available to the reporters preparing the item. As far as we are able to determine all reasonable steps were taken to obtain accurate information and proper research was conducted. The Committee considers that on this issue the Prime Minister was the correct person to be interviewed. The Standards Committee did not detect any lack of impartiality or objectivity in the way in which the item was researched or reported.

We have considered Guideline 5c and found nothing in the item which was in breach of that guideline. The Committee considers that editorial independence and integrity was maintained.

[244] Turning to Standard 6, TV3 made the same points as it had made to Mr Coy and Mr Owen about the information provided to the Prime Minister before the interview, why the book was not mentioned during the interview, her professed knowledge about the incident, and the opportunity given for a second interview. It also repeated the comments about the professional style of the interview and the interviewee's abilities, and concluded, as with the other complaints, that the broadcast did not breach Standard 6.

The Referral to the Broadcasting Standards Authority

[245] When she referred her complaint to the Authority, Ms Rutherford emphasised her concern that the style of the interview should not become a generally accepted interview style. She considered that the Prime Minister had been inadequately briefed in view of the specific questions asked, and her lack of knowledge meant the questioning was unfair. Ms Rutherford said she enjoyed lively debate but the Prime Minister was not accorded the respect that ordinary people could expect, and had been harassed.

The Broadcaster's Response to the Authority

[246] In its response to the Authority, TV3 agreed the style was robust, but it argued that the tone of the interview was not objectionable given the calibre of the person being interviewed. Furthermore, in relation to the allegation regarding a lack of fair warning, it considered no issue of fairness was raised as the Prime Minister had said she could remember some aspects of the events about which she was questioned, and she was offered the opportunity of a further interview.

The Complainant's Final Comment

[247] Ms Rutherford replied that bullying, as was exhibited by the interviewer on this occasion, was not appropriate regardless of the calibre of the person being interviewed. She also said that the Prime Minister stated that she recalled the case "generally quite well" but had been asked specific questions aggressively.

[248] Referring to the offer of a second interview, Ms Rutherford did not regard that as an excuse to screen footage which was going to cause distress. She wrote:

At best it can only be construed as being used to undermine the credibility of a political figure, which is hardly being unbiased in their reporting if the purpose of the interview was to find out specifics about genetic engineering and what had happened months earlier.

The Authority's Determination

A. The Regulatory Framework

[249] In view of the likely public interest in these findings, the Authority considers that its discussion about the regulatory framework under which it operates, first explained in Decision Nos: 2002- 071/072, dated 6 June 2002, merits repeating.

[250] The Authority considers that the social objectives of regulating broadcasting standards are to encourage broadcasters to develop and maintain broadcasting standards which respect human dignity and acknowledge current social values, and guard against broadcasters behaving unfairly, offensively, or otherwise excessively.

[251] Under the Broadcasting Act, every broadcaster is required to maintain, in programmes and their presentation, broadcasting standards consistent with:

- the observance of good taste and decency;

- the maintenance of law and order;

- the privacy of the individual;

- the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest; and

- any approved code of broadcasting practice applying to the programmes.

[252] Broadcasters are involved in the setting of appropriate broadcasting standards, as they are given primary responsibility under the Broadcasting Act for developing the codes which they must observe.

[253] It is the Authority's task to consider and determine complaints about breaches of broadcasting standards which have been referred to it under the Broadcasting Act. The Broadcasting Act sets out the functions and powers of the Authority and provides the framework within which it operates.

[254] The regime established under the Broadcasting Act for the maintenance of broadcasting standards is not a system which is unique to New Zealand. The ability of broadcasters to impart information to citizens is made subject to limits which prevent the abuse of broadcasters' power in all democratic societies.

[255] In making its decisions, the Authority is required to give full weight to the relevant provisions of the New Zealand Bill of Rights Act 1990. Section 14 of the New Zealand Bill of Rights Act 1990 affirms the right to freedom of expression in the broadest sense. It provides:

14 Freedom of Expression

Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

[256] In each case where the Authority determines a complaint about an alleged breach of broadcasting standards, the Authority is required to consider whether there is good reason to limit the broadcaster's right to freedom of expression. Whether a limit is "reasonable" requires a consideration of all the circumstances of a complaint. The Authority must always ensure that its decisions are "subject only to such reasonable limits prescribed by law in a free and democratic society" (s.5 of the New Zealand Bill of Rights Act). It must also ensure that it interprets its empowering legislation in a manner which is consistent with the Bill of Rights (s.6 of the New Zealand Bill of Rights Act).

[257] The Broadcasting Act clearly limits freedom of expression. The Authority considers that the limitations envisaged by the legislation are reasonable and can be demonstrably justified in a democratic society in view of:

- the important social objective of the legislation;

- the involvement of broadcasters in the development of broadcasting codes of practice; and

- the similarities between the system for regulating broadcasting standards in New Zealand and those in place in other democratic societies.

[258] As to whether the Authority's decisions are themselves reasonable, the Authority considers that the combined effect of s.5 and s.6 of the New Zealand Bill of Rights Act requires the Authority to ensure that there is proportionality and a rational connection between the social objective of the Broadcasting Act and any limit imposed on the right to freedom of expression in each individual case.

[259] The Authority also takes into account the fact that the broadcast complained about on this occasion took place during a general election campaign. As some of the parties have remarked, the Authority believes that its ruling on Bill of Rights issues must acknowledge that aspect of the broader environment.

[260] The Authority notes that the Court of Appeal in Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 suggested a five step approach to use "when it is suggested that the provisions of another Act abrogate or limit [freedom of expression]". On this occasion, the Authority has followed a different process, which the Authority considers gives full effect to the New Zealand Bill of Rights Act and is better suited to the way the Authority exercises its legislative power to determine complaints.

B. The Standards under which the Complaints have been assessed

[261] TV3 assessed the complaints under Standards 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice. The Authority agrees that they are the appropriate standards. Additionally, Mr Owen and Ms Rutherford cited Standard 1 and Ms Rutherford also cited Standards 2, 7, 8 and 10 - see para [40].

[262] Mr Owen and Ms Rutherford referred to the Standard 1 requirement for "good taste and decency" as they considered that the interviewer's tone was offensive. In addition, Ms Rutherford contended that the Standard was breached as the interviewer's approach was a bad model for younger viewers. She also complained that the interviewer's behaviour was "anti-social" and in breach of Standard 2. The Authority considers that these concerns are more adequately treated as a requirement for fairness contained in Standard 6.

[263] Ms Rutherford considered that TV3's decision to broadcast the programme, after the Prime Minister had declined to give TV3 another interview, was in breach of the requirement in Standard 7 to broadcast warnings. The Authority deals with the question of the second interview, and TV3's decision to screen the interview, as a matter of accuracy under Standard 5. Standard 8 requires broadcasters not to deceive viewers and Ms Rutherford's complaint that the provision was breached by the tone and content of some of the questions is addressed under Standards 5 and 6. Verbal violence was the issue for Ms Rutherford when she nominated Standard 10. The tone of the interview is considered by the Authority as an aspect of the fairness standard.

C. Standard 6 - Fairness

[264] Each complainant argued that the broadcast amounted to a breach of Standard 6 of the Television Code, which provides:

Standard 6

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

[265] The Television Code includes a number of Guidelines which, as the Code records, are there to assist viewers, broadcasters and the Authority in applying the Standards to specific complaints. Nevertheless, as the Television Code also explains, the Authority determines whether a broadcast breaches a Standard, using the Guidelines as aids in reaching that decision.

[266] The relevant Guidelines in relation to Standard 6 which have been nominated by the complainants or the broadcaster in regard to the complaints about the 3 News Special broadcast on 10 July 2002 are:

6a Care should be taken in the editing of programme material to ensure that the extracts used are a true reflection, and not a distortion, of the original event or the overall views expressed.

6b Contributors and participants in any programme should be dealt with fairly and should, except as required in the public interest, be informed of the reason for their proposed contribution and participation and the role that is expected of them.

6c Programme makers should not obtain information or gather pictures through misrepresentation or deception, except as required in the public interest when the material cannot be obtained by other means.

6d Broadcasters should acknowledge the right of individuals to express their own opinions.

6f Broadcasters should recognise the rights of individuals, and particularly children and young people, not to be exploited, humiliated or unnecessarily identified.

[267] While each complainant believed that the 3 News Special transgressed the Standard, the focus of individual complaints varied. Some complainants nominated a specific Guideline or Guidelines, while in some instances the broadcaster selected the Guideline or Guidelines which seemed appropriate given the specific matters raised.

[268] In regard to Standard 6, the complaints from the Prime Minister and the Chief Press Secretary argued that the arrangements involved in the preparation for the interview were unfair and that it was unfair not to advise the Prime Minister of the source of the material advanced by the interviewer. They also maintained that the conduct and content of the interview was unfair, in particular as the broadcast included material obtained by deception. These complainants referred to Standard 6, and Guidelines 6a, 6b and 6c.

[269] The LSN referred to Standard 6 and alleged that the broadcast was unfair in that the Prime Minister was not told precisely the subject of the interview, nor was she informed of the reasons for her contribution. It further alleged that the different treatment accorded the two interviewees was unfair.

[270] Mr Wierda did not nominate specific standards. TV3 assessed his following concerns under Standard 6: the treatment of the Prime Minister was "disgraceful" in that she was not given the opportunity to provide an informed response; and one day's notice of a second interview was insufficient time to prepare an informed response.

[271] In his complaint, Mr Coy contended that the broadcast breached Guideline 6b of Standard 6 in that the Prime Minister was not advised beforehand of the specific allegations to be dealt with and, as she was unable to answer the questions clearly, the interview involved "thinly veiled attacks" on her honesty.

[272] Mr Owen complained that the broadcast breached Standard 6 and Guidelines 6a, 6b, 6d and 6f. In his brief letter of complaint, he complained about the harassment of the interviewee who had not been advised fully of the topic, and the "objectionable, rude and overbearing" attitude of the interviewee. In later correspondence, he claimed that the interview involved "entrapment".

[273] On the Standard 6 aspect of her complaint, Ms Rutherford referred to Guidelines 6b, 6d, 6f and 6g. In particular, she complained about what she regarded as the inadequacy of the briefing, the interruptions by the interviewer which prevented the Prime Minister from expressing her opinion, the interviewer's efforts to humiliate the Prime Minister, and the denigration of politicians which the interview encouraged.

[274] In its response to the complaints from the Prime Minister and the Chief Press Secretary, TV3 questioned the relevance of Guideline 6c, pointing out that the Authority had confined the application of the provision which had preceded it in the former Code of Broadcasting Practice for Television to technical deception - for example describing footage as "amcam" when it was supplied by the broadcaster's staff. The predecessor provision, Standard G7, was replaced on 1 January 2002 following a complete revision of the Code. The complainants contended that no such limitation appeared in the Guideline, adding:

To the contrary, the present situation is a plain example of how deception can be used to obtain "information"(the spoken content of the programme) and "pictures" (the visual content).

[275] The Authority agrees with the complainants and finds no justification for confining Guideline 6c in the manner proposed by TV3 as there is nothing on the face of the words in the Guideline to confine its application to technical issues. The Authority also notes that the provision is now a Guideline - not a stand-alone Standard - which may be taken into account when determining whether a breach of Standard 6 has occurred. It is applied in this way on this occasion.

[276] In summary, the complainants have argued that a number of aspects of the programme breached Standard 6. These include:

- The alleged inadequacy of TV3's briefing of the Prime Minister before the interview which included the omission by TV3 of any reference to Mr Hager's forthcoming book "Seeds of Distrust" or to allegations in the book.

- The failure to refer to the book during the interview.

- Interviewer's challenge to the Prime Minister's recollection of the events detailed in "Seeds of Distrust".

- The conduct and style of the interview.

- The time taken by TV3 to respond to the complaints from the Prime Minister and the Chief Press Secretary.

[277] Some of the matters which arise when dealing with aspects of fairness also involve issues of accuracy and balance. The extent to which they are more appropriately examined under Standards 4 or 5, which deal with balance and accuracy respectively, is dealt with below.

[278] The Authority notes the requirement in the Standard is to deal "justly and fairly" with a person taking part in the "preparation and presentation" of a programme. The Authority has considered the issues of preparation and presentation separately.

[279] In its response to the Standard 6 aspect of the complaint, TV3 referred to a New

Zealand Listener article entitled "Planting the Seeds of Doubt" published in July

2002. This matter is addressed in paras [422] and [423] at the end of the

decision.

The alleged inadequacy of TV3's briefing of the Prime Minister before the interview which included the omission by TV3 of any reference to the forthcoming book "Seeds of Distrust" or to the allegations in the book

[280] TV3 told the Authority that it did not refer to the book "Seeds of Distrust" in its pre-interview discussions with the Prime Minister's staff, or during the interview, because of the confidentiality agreement under which it had been provided with a copy of the book. Per Interlocutory Decision (Decision Nos: 2002-213/214, dated 17 December 2002), the Authority sought from TV3 details of that agreement. It was told that the confidentiality agreement was oral. It transpired that matters raised in the book were known to TV3 at least by Friday 5 July (four days prior to the Prime Minister's interview and five days before the broadcast of the item in its entirety) when footage for the item was filmed in Parliament.

[281] The Prime Minister and the Chief Press Secretary alleged that, although the forthcoming publication of the book was subject to the confidentiality agreement, its contents and some actions taken by TV3 as a consequence of its knowledge of its contents - such as filming in Parliament and in Marlborough, and interviewing Mr Hager - were not. Accordingly, they maintained, TV3 could have advised the Prime Minister of the allegations, the filming and the interview with Mr Hager, during the preparation for the interview recorded on 9 July, without mentioning the book and thus compromising the confidentiality agreement.

[282] The Authority does not rule on TV3's claim that the confidentiality agreement did not allow it to refer to the book and its contents during its preparations for, and while interviewing, the Prime Minister. While it is of the view that a confidentiality agreement cannot override a broadcaster's responsibilities to comply with broadcasting standards, it considers a decision on the confidentiality agreement to be unnecessary in its determination of the complaints. For the Authority, the essential matter requiring determination is whether failure to refer to the book breached broadcasting standards. In deciding this point, the Authority considers at this stage whether the briefing given to the Prime Minister was fair.

[283] TV3 advised all the complainants that the Prime Minister was told in general terms what topics would be covered in the interview. It added that the interviewer recalled that he had told the Prime Minister's Chief Press Secretary, while making arrangements for the interview, that the interview would deal with issues of trust and "whether the people of New Zealand could have confidence in the government's bona fides on these issues". In its response to their complaints, TV3 added that the interviewer said:

He remembers clearly raising with [the Chief Press Secretary] the topic of the Enron scandal and how wary that was making the public when it came to government assurances that all was well. He said that he would be looking for assurance that no similar breach of trust in the area of genetically modified material entering New Zealand had happened.

[284] TV3 explained that the briefing complied with its long-standing practice, and the Prime Minister had not been given, nor did she seek, specific questions. The Prime Minister and the Chief Press Secretary did not complain specifically on those aspects of the briefing. Rather, they raised matters regarding presentation, for example, the way the material was put to the Prime Minister and the format of the 3 News Special itself.

[285] The Authority considers that TV3's briefing of the Prime Minister before the interview was adequate to the extent that it did not give rise to a breach of the fairness standard on this occasion. In its view, the general indication by TV3 did not derogate from the requirement to deal justly and fairly with a person taking part when a programme is being prepared. The broadcaster has acknowledged that it kept pre-interview discussions "deliberately general". It maintained that it "has never been the practice of our news team in general and [the interviewer] in particular to provide a line of specific questions to be asked" and "[t]he long standing practice is to provide a general subject for the interview".

[286] The issue for the Authority is not whether TV3 should have provided specific questions to the Prime Minister, which it accepts is not usual practice of most journalists, but whether TV3, in keeping pre-interview discussions "deliberately general", breached the requirement to deal justly and fairly with the Prime Minister.

[287] The Authority finds, on balance, that the briefing was sufficient to avoid a breach of the standard on this occasion. In addition, it notes that the broadcast took place during an election campaign in which issues relating to genetic modification had a high profile. However, it should be noted that the matter of presentation of the interview, in contrast with its preparation, raises other issues on this occasion.

[288] As another aspect of the briefing, the Chief Press Secretary stated that TV3 advised that the proposed interview was one in a series of specials about election issues. The Prime Minister and the Chief Press Secretary argued that this advice was deceptive as TV3 did not broadcast such a series. They complained it was another instance of being dealt with unfairly.

[289] TV3 contended initially that there had in fact been such a series and more were planned but, unlike the broadcast complained about, the topics were not of such high public interest. It listed a number of "specials" in its response to these complainants.

[290] However, in a recent letter to the Authority which dealt with the issue of the general briefing, TV3 wrote:

TV3 confirms that by the time the original standards committee decision was released [24 July 2002] no further work was being considered - the reference to "more work in this line" in the decision (which was discussed by the Committee for some time in draft form) should have been deleted from the final form of the decision.

[291] The Authority notes that there were a number of what TV3 described as issue based "specials". While the Authority does not consider that the inducement aspect involved in the preparation of the programme is a breach of the fairness standard, it agrees with the complainants that the "issues-based specials" which were broadcast did not carry the same weight as the programme complained about.

[292] Accordingly, the Authority reiterates its finding that the preparation of the programme did not involve a breach of Standard 6 of the Code.

[293] Some of the complainants used the word "ambush" to describe the style of the interview. The Authority is aware that surprise tactics are commonly used in political reporting as a journalistic device.

[294] The Authority agrees that the specific nature of the questions asked of the Prime Minister during the interview broadcast on 10 July amounted to the use of surprise tactics. However, the Authority finds that the use of this journalistic device in an interview with the Prime Minister during an election campaign does not constitute a breach of the standard on this occasion.

The failure to refer to the book during the interview

[295] The requirement for fairness in Standard 5 applies to presentation as well as preparation. The Authority finds that the Prime Minister was not treated justly and fairly during the presentation of the programme. It so determines because the Prime Minister was asked to respond to questions about a specific event. She was not aware that the questions were based on allegations made by Mr Hager who was interviewed in a previous segment of the broadcast.

[296] Throughout the interview that was conducted with her, the Prime Minister was unaware of, one, the previous interview, two, Mr Hager's allegations, and three, the book that contained the allegations,. The viewers, however, knew the nature of the allegations, who had made them, and the existence of the book which was covered extensively during the preceding 3 News. Furthermore, the book was referred to as part of the reintroduction to the interview with the Prime Minister after the commercial break. The Authority concludes that this was unfair. In effect, the Prime Minister was accused of a number of practices - including dishonesty - but was not told the identity of her accuser.

[297] In its response to the complainants that the Prime Minister was not treated justly and fairly during the presentation of the programme, TV3 noted that its finding on that aspect of the complaints required an assessment of all relevant factors. The factors it considered to be of particular relevance on this occasion were:

- the public importance of an allegation of public wrongdoing;

- the conditions of confidentiality imposed on TV3;

- the Prime Minister's considerable media expertise; and

- the opportunities for further involvement.

[298] In their response to TV3, the Prime Minister and the Chief Press Secretary first pointed to the enhanced need for fairness, given the seriousness of the allegations and the publication of the book during an election campaign. They argued that the other three points were not relevant: a confidentiality agreement could not excuse compliance with broadcasting standards; everyone is entitled to fair treatment; and "there was no pre-broadcast opportunity for a replacement interview" and, after the breach occurred, it was not the Prime Minister's responsibility to remedy it.

[299] The Authority agrees with TV3 that allegations of wrongdoing by government are important. Also, as noted in para [282] above, the Authority finds that the confidentiality agreement does not override a broadcaster's responsibility to comply with broadcasting standards. Although the Authority also agrees with TV3 that the Prime Minister is very experienced in dealing with the media, equally it must be accepted that everyone, even a media-experienced Prime Minister, is entitled to fair treatment. It regards the final point about the opportunities for further involvement as raising a point relating to accuracy which it addresses when dealing with the Standard 5 aspect of the complaints in paras [383] and [388] below.

[300] Amplifying its response to the complaint that the item was unfair in that the Prime Minister was not told of the source of the specific allegations during the interview, TV3 referred to other determinations by the Authority where the broadcaster had apparently misled an interview subject or had allowed the person to be interviewed with a false perception of the real purpose of the interview. It referred to Decision Nos: 1999-220/223, dated 25 November 1999, and Nos: 2000-028/029, dated 2 March 2000.

[301] In view of its acceptance in Decision Nos: 2000-028/029 (the Timberlands complaint) that the fairness standard was not breached by failing to inform an interviewee of the source of the questions which were put to him given the public interest in his response, the Authority has considered carefully the relevance of this decision by reference to the current complaints. It notes that this decision reflects the provision in Guideline 6b of Standard 6 that a participant should be advised of the reason for their proposed contribution, "except as required by the public interest".

[302] The Authority considers that Decision Nos: 2000-028/029 is not directly relevant and is distinguishable on the basis that the interviewee in that case had denied a specific matter in some earlier comments, and the denial was shown to be incorrect. Further, the Authority accepted the broadcaster's argument that the prospective interviewee would not have participated had he been informed of the precise topic.

[303] On this occasion, the Prime Minister had not previously commented about the matter and, weighing the relevant considerations, the Authority finds that it was unlikely that she would have declined an interview had she been appraised of the allegations contained in the book. The Authority is inclined to this view on balance and observes there was no evidence provided to the contrary. The Authority also notes that the invitation was made during an election campaign when it is generally in the interest of all politicians to maximise publicity opportunities.

[304] The finding that the Prime Minister was not treated justly and fairly during the presentation of the programme is reinforced for the Authority by the sequence of events involving "Seeds of Distrust". The book had not been released when the Prime Minister was interviewed on 9 July but, by the time the interview was broadcast on 10 July, it had featured extensively in the media. That publicity included an interview with Mr Hager as part of the programme complained about, and the presenter, as part of the re-introduction to the interview after the commercial break, made a specific reference to the book. As the interview was recorded on 9 July, with the item being broadcast on 10 July, the Prime Minister might have been seen by viewers to have been the only person who did not know of the book at the time of the broadcast.

[305] The Authority has ruled that Decision Nos: 2000-028/029 is not applicable to its determination of these complaints. Nevertheless, in view of the reference to "the public interest" exception in Guidelines 6b and 6c, the Authority has considered whether the issue dealt with in the programme was in the public interest and, if it is, how that impacts on its determination. This phrase is also used in some of the correspondence. The Authority observes that there is a wide range of understandings within the media and elsewhere as to what can be described as "the public interest". It notes that the concept is widely accepted, and that programmes which deal with the accountability of public figures who are alleged to have acted incorrectly, inconsistently, or illegally, are almost always matters of public interest.

[306]The Authority's general approach that participants should be informed of the reason for their proposed contribution is contained in Guideline 6b. The Guideline accepts, nevertheless, that there may be occasions when, in the public interest, it is permissible to hide the real purpose of the interview from the interviewee. The Authority's application of Guideline 6b is reflected in its rulings, for example, on the use of door-stepping or hidden cameras. The Authority has ruled in its interpretation of Guideline 6c that such procedures may be used only as a last resort, after the alternatives which involve openness on the broadcaster's part have been considered and, with sound justification, have been found not applicable.

[307] The Authority believes that the public interest claimed by the broadcaster on this occasion in adopting the approach taken - by not referring to the book or informing the Prime Minister that she was answering specific allegations made by Mr Hager and put to her by the interviewer as fact, and by including in the broadcast an interview with the author of the allegations before the pre-recorded interview with the Prime Minister - is not outweighed by the broadcaster's obligation to deal with a participant justly and fairly in the presentation of a programme.

[308] Furthermore, the Authority agrees with the Prime Minister and the Chief Press Secretary, and Mr Coy, that the offer of the second interview does not outweigh its finding of unfairness in not referring to the book or referring to the source of the specific allegations. In their referral, the first two complainants wrote in regard to the offer:

This is not "doing the interview again" but in fact a use of part of the old interview, with a new interview of unknown extent and content.

[309] The Authority upholds the complainants' submission that the publication of the book changed the situation from that when the Prime Minister made the offer on 9 July and, consequently, the offer could not be implemented on 10 July.

Interviewer's challenge to the Prime Minister's recollection of the events detailed

in "Seeds of Distrust"

[310] In the first question of the interview included in the broadcast, the presenter asked the Prime Minister if she remembered the importation of some genetically contaminated corn in October 2000. She began her response:

I remember the case and I've also recently looked through the Ministry of Agriculture and Fisheries discussion document on the whole issue of GM seed.

[311] The Prime Minister's response to the third question, again about the importation of the corn seed, was:

That was the first time that issue had arisen and I do recall it generally quite well, but as I say ¡K

[312] These two responses were advanced by TV3 as evidence that the Prime Minister was aware of the facts of the events dealt with in "Seeds of Distrust".

[313] The Authority does not accept TV3's contention. In her answers, the Prime Minister stated that she was aware of the events but not the specific facts relating to the events. Moreover, as the questions proceeded to explore details, the Prime Minister responded:

Well John I haven't had any notice of this question and my memory on this would be pretty stretched on an area that I do not work in, in any consistent area to be questioned on it now, 20 months down the track, but what I can say to you is that initially it was thought that all of it might have to come out.

[314] The Authority records the above comments as evidence that the Prime Minister said that she recalled the matter "generally quite well" but was "pretty stretched" about the specifics. The Authority finds no evidence to justify TV3's contention that the Prime Minister was aware of the facts of the events dealt with in "Seeds of Distrust". Accordingly, the Authority is unable to determine whether the Prime Minister was sufficiently aware of the details to justify TV3's contention that she recalled them.

Conduct and style of the interview

[315] The complainants used such words and phrases as "persistent", "a harangue", "unfair", "overbearing", "opinionated abuse", objectionable", "an attack on the Prime Minister's honesty and integrity", "an interrogation", and "aggressive" when complaining about the interviewer's style during the interview. In response, TV3 accepted that the interview was "vigorous", and "robust", but declined to uphold the complaint that the style used by the interviewer was unfair.

[316] The Authority considers, on balance, that the conduct of the interview did not breach the requirement for fairness. It accepts that it was robust and indeed aggressive at times. It could be described as a challenging interview, and one in which the interviewer frequently interrupted the Prime Minister.

[317] Although the interview was forceful, the Prime Minister referred to the threshold level for testing on at least three occasions. She described her role as akin to the chair of a board on two instances, and she also made a distinction between the Prime Minister's Office and the Department of the Prime Minister and Cabinet. As well, she described the interview as a "set-up" on seven occasions; stated several times that there was no point in asking such detailed questions until she had been briefed; and contrasted what she saw as the Government's ethical actions with the interview's unethical journalism. The Authority believes that the Prime Minister as an interviewee made her points firmly in a robust exchange with a persistent interviewer.

[318] The Authority also takes into account that the interview took place in the course of an election campaign and it involved a political leader. Interviewers are entitled to ask questions about accountability and, in particular, to move beyond answers which are primarily designed to provide a political flavour during general elections.

[319] In sum, the Authority considers that both the interviewer and the Prime Minister, who is an experienced interviewee, were challenging in their questions and comments, and that the Prime Minister was not treated unfairly given the nature of the interview. The Authority accepts that not all members of the public support an aggressive interviewing style, but aggression per se does not constitute a breach of the requirement for fairness.

[320] The difference in the style of the interviews with Mr Hager and the Prime Minister was raised in some of the complaints as a matter of fairness. The LSN referred to the contrasting styles, asserting that the Prime Minister, unlike Mr Hager, "was subjected to aggressive questioning". The effect of the variation in treatment, it argued, was that Mr Hager "appeared much more credible" than the Prime Minister. In contrast, as a number of the complainants observed, the Prime Minister appeared "evasive" and "untruthful". It was also raised as a matter of impartiality.

[321] The Authority accepts that the style of questioning differed and that viewers could well have been left with the impression that the Prime Minister was being evasive. The Authority also accepts that it is largely a matter of editorial discretion as to the way an interviewee is to be approached. The Authority considers that the different styles of interviewing is appropriately addressed as a matter of impartiality under Standard 5 - see paras [392] to [401] below.

The Time Taken by TV3 to Respond to the Complaints from the Prime Minister and

the Chief Press Secretary

[322] The Authority does not regard the time taken by TV3 to respond initially to the complaint as being unfair and in breach of Standard 6. While it appreciates the complainants' concern about the influence the broadcast is said to have had on the general election public opinion polls, TV3 complied with the requirement in the Broadcasting Act to respond to the complainants within 20 working days of receipt of the complaints.

Standard 6 - Summary

[323] In its assessment of the complaints that the broadcast failed to deal justly and fairly with the Prime Minister, the Authority has considered separately the processes during the "preparation" and "presentation" of the broadcast.

[324] For the reasons given in paras [280] to [294], the Authority declines to uphold the aspects of the complaints which alleged that the Prime Minister had been dealt with unfairly during the preparation apropos the adequacy of TV3's briefing of the Prime Minister before the interview.

[325] The Authority upholds the complaint that the fairness requirement in Standard 6 was breached on the grounds that the presentation of the interview was unfair because the Prime Minister was not advised of the source of the specific allegations. It was also unfair that the Prime Minister was not told that the person who advanced the allegations had presented his conclusions in the same programme as the interview with the Prime Minister, but before her. Accordingly, the Authority upholds aspects of the complaints which alleged a breach of Standard 6 from the Prime Minister and the Chief Press Secretary, the LSN, Mr Coy and Mr Owen.

[326] In summary, in respect to other matters determined as issues of fairness, the Authority declines to uphold or declines to determine the aspects of the complaints which related to:

- The alleged inadequacy of TV3's briefing of the Prime Minister before the interview which included the omission by TV3 of any reference to Mr Hager's forthcoming book "Seeds of Distrust" or to allegations in the book.

- Interviewer's challenge to the Prime Minister's recollection of the events detailed in "Seeds of Distrust".

- The conduct of the interview.

- The time taken by TV3 to respond to the complaints from the Prime Minister and the Chief Press Secretary

D. Standard 4 - Balance

[327] Standard 4 reads:

Standard 4 Balance

In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

[328] Mr Wierda complained that the language and visuals used in the 3 News Special were unbalanced. He also contended that a balanced report would have included, in addition to a response from the Government to Mr Hager's claims, a pro GM response. Mr Owen also complained that the programme was unbalanced but did not specify the ways in which he regarded the programme as unbalanced. The question of balance was not referred to the Authority by any of the other complainants. The Authority notes that some of the other complainants use the word balance when focusing on specific complaints. Nevertheless, because the Authority's task is to review the broadcaster's decision, it does not address the balance aspects raised in the referral which were not raised in the initial complaint to the broadcaster.

[329] In response to Mr Wierda's concern about balance, TV3 referred to the provision in Standard 4 which provides that significant points of view are to be advanced either during the same programme or during the period of current interest. TV3 then advised that the issues raised in the 3 News Special were addressed in 11 items broadcast on 3 News between 11 and 15 July. TV3's response to Mr Owen's balance complaint adopted a similar approach.

Use of Language and Visuals

[330] In response to the specific complaint from Mr Wierda about the language and visuals used during the programme, TV3 explained that television was a visual medium. The state of the cornfield in which the presenter was filmed at times during the first segment of the programme, it said, was a reflection of the season during which the programme was filmed. TV3 denied that the visuals had any "sinister" implication. As for the complaint about the nature of the questions asked, TV3 argued that it was often necessary for an interviewer "to play "Devil's Advocate' to elicit a story".

[331] As for the complaint about the use of language in the programme, the Authority intends in its discussion on Standard 5 - Accuracy (below) to deal with the complaints about the differing styles of interviewing which were apparent, and one specific comment about the cornfield made by the interviewer.

[332] With regard to the complaint about visuals under Standard 4, the Authority notes that the interviewer spoke to camera not only while standing in a cornfield, but also while walking along a country lane and while in Parliament. The Authority acknowledges the importance of visual images for television and does not regard any of these settings, either individually or collectively, as threatening the requirement for balance. It declines to uphold the aspect of the complaint that the item lacked balance because of the visuals used.

Pro GM Point of View

[333] In response to Mr Wierda's concern that the broadcast on 10 July did not include a pro GM reply, TV3 again referred to the provision in Standard 4 which provides that significant points of view are to be advanced either during the same programme or during the period of current interest. The Authority notes that the broadcast was not a general debate about the advantages and disadvantages of GM. It was concerned with a specific event involving the importation of some allegedly contaminated corn seed, and Government accountability and trustworthiness following its response to the event. Accordingly, as the complaint refers to an issue that was not the focus of the broadcast, the Authority declines to uphold this aspect.

Issues Addressed in the Broadcast

[334] In its assessment of the aspect of Mr Owen's complaint which alleged that the programme was unbalanced, the Authority studied the broadcast in order to understand which issues were addressed. It carried out this task in order to determine which aspects of the programme required balance. It considers that the broad focus of the programme was on two issues. These were, one, the scientific concerns about the possibility of contaminated corn and, two, Government accountability and trustworthiness in relation to GM. The Authority also considers that the broadcast was promoted and presented as a high impact programme which was very important within the context of the election campaign then in process.

[335] Having decided on the two principal content issues addressed in the 3 News Special complained about, the Authority then examined how the broadcast dealt with each of them. It accepted that there was no question that the issues were controversial and of public importance, and required, in order to meet the balance objective, that reasonable efforts were made or reasonable opportunities given, to present significant points of view within the period of current interest. Furthermore, in view of the heavily promoted and relatively lengthy 3 News Special, the Authority looked at the impact of the balancing material.

[336] When referring to the 11 items broadcast between 11 and 15 July, TV3 pointed

out that the items included comment from Government ministers and officials,

representatives from both sides of the GM debate, and further comments from

Mr Hager and TV3's news team.

Period of Current Interest

[337] Dealing first with TV3's contention that balance was achieved in the period of current interest, the Authority observes that balance is not assessed by the use of stopwatch measurements or some other mathematical formulae, and nor is it automatically restored by other programmes broadcast within the period of current interest. Determination of the adequacy of balance requires an assessment of each item, and an assessment of their collective and incremental contribution to the ongoing debate.

[338] In its consideration of the concept of "period of current interest", the Authority has had regard to Decision Nos: 2000-030/031, dated 2 March 2000, when it declined to uphold complaints that items were unbalanced which reported that a Lyprinol extract from green-lipped mussels might be effective in killing cancer cells. In that complaint, the Authority ruled that the deficiencies in the initial items on One News and Holmes "were remedied" by subsequent broadcasts and, as a consequence, the initial broadcasts had been balanced by the broadcasts during the period of current interest.

[339] The Authority notes that in the Lyprinol decision, the subsequent broadcasts included spokespeople who questioned the validity of the initial claims, and suggested that it was a marketing ploy. Indeed, the principal researcher for the company making the claims expressed regret that the claims for Lyprinol had been overstated, and emphasised that a cure for cancer had not been claimed, but that clinical trials were about to begin.

[340] That was not the situation with the current complaint. The items broadcast during the period 11 to 15 July included comment from politicians from across the political spectrum, spokespersons for ERMA and the Ministry for the Environment, academics, scientists, organic farmers, Mr Hager, and a number of TV3's network news staff including its Head of News and Current Affairs. But rather than retreating from the claims advanced in the initial item or expressing regret about them (as occurred with the broadcasts about Lyprinol), TV3 allowed Mr Hager to repeat and elaborate on his allegations. The Authority therefore distinguishes the Lyprinol decision as the context and sequence of events differed markedly from this case.

The Press Conference

[341] TV3 contended that balance was provided by the comments made at the press conference given by the Prime Minister and the Hon Pete Hodgson on the afternoon of 10 July, and reported in the 3 News which preceded the 3 News Special complained about. The Authority notes the following references by TV3's staff to the press conference made during the news:

And by this afternoon Helen Clark was forced to initiate serious damage control. She cancelled her election visit to Whangarei to hold a special news conference. The Government says although the seeds showed minute traces of contamination, the tests found no evidence that the contamination was anything to do with GE.

[342] And later:

What we saw from Helen Clark today was controlled fury. I have never seen her so angry over anything. She was very much pushing the line that she has been ambushed on all of this. She's pushing the line that she's up against a conspiracist and a conspiracy theory in a book and she was - her whole demeanour was to say she's chairman of the board as Prime Minister and a lot of this stuff she doesn't remember and it is not of her issue. ¡K Well what the Government did this afternoon was obviously brief the Prime Minister very well throughout the day and late this afternoon at a press conference she wheeled out Pete Hodgson who is the big gun of science. Now he went right through all the details of the science to do with this. He went through the details of that particular crop, of the reporting of it, he looked at the press statements that the government issued at the time and his explanation was very much on that scientific basis. One of the things he did then go into was, of course, the politics of it and he really hit out at the Greens. He said for a party that seems to be so concerned about the future of the planet, he worries about that because they spend so little time on it.

[343] The Authority does not consider that these comments, broadcast before the programme complained about and which touched briefly on both scientific concerns and Government accountability, were sufficient to balance the comments in the 3 News Special which followed. At the press conference, Mr Hodgson spoke at length about the scientific issues involved in response to the claims in the book. His contribution in 3 News, summarised as noted in the paragraph above, does not explore any of the scientific details which he advanced.

[344] Furthermore, and despite the news report which did not deal with the substance of the Government's response in any comprehensive way, the Authority also believes that it may well have been difficult for viewers to appreciate the matters advanced in rebuttal in 3 News before they were aware of the allegations to be refuted. Those allegations were contained in the 3 News Special which began at 7.00pm - after the end of 3 News. The Authority concludes that while the information from the press conference broadcast during 3 News was a contributing factor in achieving balance, it was of minimal weight.

Scientific Concerns

[345] The 3 News Special's approach to scientific concerns about the possibility of contaminated corn is the first major theme of the broadcast to be considered and, the Authority finds, the matter was dealt with in the items broadcast during the period of current interest in a way which complied with Standard 4.

[346] The Authority believes that confusion about the science involved was the probable conclusion viewers would draw upon viewing the broadcast on 10 July which was the subject of the complaint. Nonetheless, if viewers were inclined to the belief that contaminated seed had been planted, harvested and processed after viewing the initial programme, the Authority is in no doubt from the material advanced in a number of items broadcast in the following days - certainly within the period of current interest - that viewers would be certain that some experts (politicians and others) were questioning the claims in the book. Parts of the allegations contained in the "Seeds of Distrust" were confirmed by some speakers who at the same time challenged the book's conclusions. The range of items, the Authority decides, led to the conclusion that there was uncertainty as to whether contaminated corn seeds had been imported and planted.

[347] Some of the content broadcast between 11 and 15 July 2002 which leads the Authority to this conclusion about the scientific concerns includes the following:

Ministry for the Environment Chief Executive (Barry Carbon): 11 July

And the experts cited, in my department, in MAF, in ERMA, when asked the question, is this contaminated, none of them would say it was contaminated.

Dr Russell Poulter - Crop and Food Research: 11 July

We now think there was a problem with the crop and food sample, an external bacterial contamination of material which wasn't present in the samples that were tested in Melbourne.

Commentary by TV3 reporter (Stephen Parker): 12 July

I think the problem here is that if you look at the Cabinet Papers they actually say how do we judge this, how do we say where there's contamination or not, if you say you get a small sample of that sample you get some positive indications but you get mostly negative indications, they look at that and they say we'll put a judgment of this, we'll say no contamination. Now you get someone like Nicky Hager who says well hang on, you can't say no contamination, there's a small sample of some positives that seem to represent a GE contamination that's been planted.

[348] In view of the material contained in the programme complained about and broadcast during the period of current interest, the Authority concludes that the requirement for balance was not breached with regard to the issue of scientific concerns about the allegations of the contamination of corn.

Government Accountability and Trustworthiness

[349] The Authority is unable to reach the same conclusion - that balance was achieved - in regard to the issue of Government accountability and trustworthiness. The programme broadcast on 10 July, while focusing on the importation of corn seeds which were allegedly contaminated with GM material, questioned forcefully the trustworthiness of the current Labour Government then seeking re-election. Some of the items broadcast between 11 and 15 July pointed out, justifiably, that the Government was in the process of damage control following the publication of the allegations contained in the book. The Authority accepts that such comment is acceptable.

[350] Nonetheless, the Authority finds that TV3's response, in addition to comment on the issues, tried at times to justify the broadcast of the original programme, rather than adopt the role of a balanced and impartial broadcaster screening programmes dealing with a controversial issue. The Authority accepts that while it may indeed be justifiable for a broadcaster to defend an item under attack, this does not remove the broadcaster's obligation to present all other viewpoints and perspectives adequately to ensure balance.

[351] The Authority reaches this conclusion - that balance was not achieved - taking into account the content and manner of the broadcasts provided by TV3 when arguing that it had complied with the balance requirement in Standard 4.

[352] Some examples of the content concerning accountability and trustworthiness which leads the Authority to the conclusion that TV3 adopted on occasions an approach which fell short of the requirement for balance include:

TV3's Head of News and Current Affairs (Mark Jennings): 11 July

Well far from being unethical or disreputable, it's a hallmark of good news services that they don't bow down to politicians or be seen to cower to them in any way.

Radio Talkback Host (Bill Ralston) to caller: 11 July

You've fallen for the Helen Clark spin here where she's attacking the messenger.

Presenter (John Campbell) to TV3 reporter (Jane Young): 11 July

Right Jane Young, in the midst of a crisis, this poll gives Helen Clark higher marks for handling of crises. Is she the "Teflon Donna" of politics?

[353] The Authority considers that the "high impact" of the 3 News Special is another element to be considered when weighing up whether balance was achieved. Taking this aspect into account, the Authority is confirmed in its finding that balance was not achieved with regard to the issue of Government accountability and trustworthiness by the subsequent broadcasts of 11 to 15 July. The final comments in each of the broadcasts on 11 and 12 July involved excerpts from interviews with Mr Hager in which the interviewer asked him to confirm yet again the findings in the book, and in each case did not challenge him in any serious way. On 11 July, the exchange included:

Presenter (John Campbell) to Nicky Hager:

Okay, let's look at what the head of the Ministry of Environment said today, in Wellington, giving a big briefing, he said your information is good, your facts are good, but your interpretation is bonkers.

Nicky Hager:

I waited today, when I saw the fury of Helen Clark and Pete Hodgson I wondered if there was some new evidence which maybe I didn't know about, some new tests, something that happened later, there has been no new evidence. So let me repeat what I see as the basic facts. From that date, the 24th November when Marian Hobbs was told there are several positive tests, there were two weeks of reports that kept saying there is contamination. We have to act on this contamination, there is more contamination. There were no more tests after that. If the Government at some point after that got it into its head that perhaps the tests weren't conclusive any more why didn't they re-test, why did they do nothing.

[354] Part of the exchange, as the final item about the debate on 12 July, was:

Presenter (John Campbell) to Nicky Hager:

The Government has, this evening, put out a wad of papers, they have hit you for three days with spin, with science, with the whole nine yards. Are you ready to accept that you were wrong?

Nicky Hager:

Not even slightly. I've waited for three days thinking perhaps they were going to come out with some papers which I hadn't been given which cast doubt on my book and I have to admit that they were so fierce and certain about the fact that I was wrong, I wondered what they were going to produce. We've now heard in the news already this evening from the Head of ERMA, Bas Walker, that there were no extra tests which Pete Hodgson had pretended to wave in the air and which the Government said were coming and so I think the book stands. I'm actually relieved about it.

Presenter:

Nicky how can two different groups of people see the same stuff so differently?

[355] With regard to the issue involving the impact of the presentation of the initial and subsequent broadcasts, the Authority records the four aspects which lead it to the conclusion that the programme complained about had a high impact, followed by the four aspects which are relevant to its decision that the initial high impact was not balanced as required by Standard 4:

Initial Programme

- "Special" title

- replaced scheduled programming

- involved a one-to-one interview with the Prime Minister

- 30 minutes long.

Subsequent Coverage

- collection of smaller items

- no "Special" title

- part of regular programming

- relative brevity of each item.

[356] Focusing primarily on the manner of presentation of the 11 items broadcast between 11 - 15 July provided by TV3, the Authority sees little which could be described as robust debate on the question of Government accountability and trustworthiness which was designed to counter the high impact of the 10 July broadcast.

Standard 4 - Summary

[357] When determining issues of balance, the Authority notes that it is not necessary to decide the factual issues which are being debated. Rather, the balance requirement means that competing arguments must be advanced with sufficient purpose to enable a viewer to arrive at an informed and reasoned opinion.

[358] In weighing the competing arguments as to whether balance was achieved during the period of current interest on this occasion, the Authority concludes that there were two elements in the programme complained about. The Authority also took into account the high impact of the presentation. The first element was scientific concerns about the possibility of contaminated seed, and the second focused on Government accountability and trustworthiness. As the Authority considers that viewers were left to reach their own conclusion in regard to scientific issues, the first element is not upheld. However, as the Authority is of the view that reasonable efforts were not made to present significant points of view on the issue of Government accountability and trustworthiness, it finds that the second element is upheld. Accordingly, the Authority concludes, Standard 4 was breached by the broadcast as significant viewpoints were not advanced during the period of current interest to the extent necessary to counter the high impact of the strong allegations which called into question the accountability and trustworthiness of the Labour Government raised by the publication of "Seeds of Distrust". This aspect of the complaint from Mr Owen which referred to Standard 4 is upheld.

E. Standard 5 - Accuracy

[359] The contention that the 3 News Special breached Standard 5 of the Code was made by the Prime Minister and the Chief Press Secretary, the LSN, Mr Owen and Ms Rutherford. Standard 5 provides:

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

[360] In his initial complaint, Mr Wierda referred specifically to balance (Standard 4). In view of his complaint that TV3's treatment of the Prime Minister was "disgraceful" in that it failed to give her an opportunity to provide answers, TV3 also assessed the complaint under the fairness requirement in Standard 6. In his latter correspondence, Mr Wierda added a concern about the "hard and unexpected" questions put to the Prime Minister, while Mr Hager was not subject to a similar style of questioning. The Authority's function with regard to referred complaints is to investigate and review the broadcaster's decision. As the concern about impartiality was not raised in Mr Wierda's initial complaint to the broadcaster, the Authority is unable to consider his later concern.

[361] In his complaint, Mr Owen did not specify why he regarded the broadcast as inaccurate. The Authority accepted (see para [103]) that the Prime Minister and the Chief Press Secretary had referred the following alleged inaccuracies to the Authority:

(i) The programme did not canvass "allegations" but presented matters as fact on which the Prime Minister was challenged.

(ii) A number of specific matters were advanced as "what really happened" during the interview with Mr Hager. The complainants argued those allegations included claims that the Prime Minister knowingly broke the law, was involved in a cover-up, and was involved in a deception.

(iii) Other journalists had commented that the programme breached programme standards.

(iv) By 10 July, the complainants alleged, it would have been obvious that the interview had been obtained by deception and, thus, was in breach of the standards. TV3 nevertheless proceeded to broadcast the programme and compounded the breach by linking the first segment to the second.

(v) At 4.30pm on 10 July, the Prime Minister held a press conference (which TV3 attended) and Mr Hager's claims were "rebutted, if not substantially refuted". As a matter of both accuracy and balance, the complainants contended, the 10 July item should have included the main elements of this rebuttal. By participating in a news conference, the complainants argued that TV3 stated inaccurately in its News Special that the Prime Minister had refused to participate in a further interview.

(vi) The complainants repeated that the programme presented allegations as facts, and the most serious was the statement that "Tests had confirmed GM material was present".

[362] In its complaint to the Authority that the broadcast breached Standard 5, the LSN included material which in essence involved reiterating points (i), (ii) and (vi) made above. It strongly argued that the interview advanced Mr Hager's contentions as fact, quoting the interviewer's words when he said that Mr Hager's account was "what really happened". In addition, as a specific example of a factual inaccuracy, the LSN complained that the item was inaccurate when the interviewer said, in a piece to camera while standing in a cornfield, that the contaminated corn had been planted in that field. As another aspect of its complaint that the item was inaccurate, the LSN contended that the interview failed to distinguish between fact and opinion.

[363] The LSN also raised, as a Standard 5 complaint, that the contrasting styles of the interviews with the Prime Minister and Mr Hager breached the requirement for impartiality. It wrote:

By heavily criticising the Prime Minister while taking Hager through his allegations unchallenged, the Investigation breached its duty to be unbiased and impartial.

[364] Ms Rutherford considered the interview was inaccurate in that it involved an attempt to assassinate the Prime Minister's character.

[365] As an aspect to its response to the complaints, TV3 argued that it was unable to refer to the book "Seeds of Distrust" during the interview with the Prime Minister because of the confidentiality agreement under which it had been supplied with the book. This matter was noted by the Authority in its finding on the Standard 6 - Fairness aspect of the complaints (see paras [280] - [282]) and will be considered further below.

Allegations Advanced as Fact

[366] Standard 5 requires that news and current affairs be not only factually accurate, but also impartial and objective. The complaints from the Prime Minister and her Chief Press Secretary contended that the 3 News Special breached the standard when the interview, rather than canvassing the allegations in the book, advanced matters as fact on which the Prime Minister was challenged.

[367] In response to the complaints that some of the factual material advanced by Mr Hager was inaccurate, and in breach of Standard 5, TV3 argued first that the material advanced was clearly comment, analysis and opinion, to which Standard 5 did not apply, and second, that it was accepted by the interviewer as factually accurate. The interviewer, it noted, had arrived at that position as he had been given access not only to all the material cited by Mr Hager in "Seeds of Distrust", but also to all the relevant material held by Mr Hager which had not been cited, for example, to protect sources.

[368] The Authority considers that the material portrayed in the 3 News Special was presented as a mix of fact and interpretation which included comment, analysis and opinion. In the Authority's opinion, a reasonable viewer would have assumed that the comments presented, without qualification or question, were advanced as factual. It reaches that conclusion after looking at all the material and uses as an example the interviewer's introduction, when he said:

Over the next half hour we'll return to the big story of the day, the sweet corn contamination, the decision to let it grow, the decision to let it be harvested, and the Government's role in this affair. Later we'll see an interview an interview I recorded with the Prime Minister right here last night. But first, what really happened, the story of the sweet corn.

[369] As another example of material being advanced as fact, the interviewer, after

summarising "the story of the sweet corn", finished the introduction:

Tonight we explain how and why that happened and we look in detail at the Government's role in covering the entire affair up.

[370] Nevertheless, the interviewer concluded the first segment of the programme

with:

Well there we have it, the thrust of Nicky Hager's controversial book.

[371] In contrast with the previous material advanced, this statement suggested the

item had been presenting allegations only.

[372] Despite the final comment, the Authority does not accept TV3's submission that the material was advanced solely as Mr Hager's opinion, analysis and comment. It is confirmed in that opinion by TV3's acknowledgment that the interviewer considered the material to be factual and that a viewer could well be left at the end of the programme with the impression that the matters advanced were factually correct.

[373] However, because the Authority does not have the scientific expertise to reach definite findings on the scientific matters in dispute, and in the absence of conclusive evidence one way or the other, it considers that it is not possible for it to determine whether the details contained in the book were or were not accurate.

[374] While the Authority has been unable to determine whether the facts were accurate or not, the complainants contended that the interviewer, by putting "allegations as fact", was in breach of Standard 5. In determining the matter, the Authority notes the interviewer's concluding comment to the first segment of the programme which indicated that the questions to be advanced were contentions made by Mr Hager. The Authority does not uphold the complaint that the interviewer by putting "allegations as fact" was in breach of Standard 5.

[375] Nevertheless, the Authority agrees with the LSN that as news organisations derive their protection as the fourth estate because they act in the public interest, they have an important public duty when advancing controversial stories as fact during, for example, an election campaign, to check every detail and fact and to confirm the validity of every interpretation.

Contaminated Seed?

[376] The Prime Minister and the Chief Press Secretary, and the LSN complained that the item was inaccurate when it reported that sweet corn seed contaminated by GM seed was let into New Zealand. Accordingly, these complainants said that it was also inaccurate to report that various Cabinet Ministers were aware of the importation in violation of the moratorium, and the LSN alleged a specific inaccuracy when the programme said that Cabinet established a temporary threshold to allow the importation of these GM seeds.

[377] The Authority notes TV3's comment as to whether the seed was or was not contaminated, when it wrote in response to the complaints that the item was inaccurate in describing the corn as contaminated:

It is not the function of this Committee to determine whether the corn had been genetically modified. This Committee lacks the expertise to determine such an issue. It appears that scientists, who are experts in this area, cannot themselves agree on whether the tests confirm that the corn was genetically modified.

[378] The Authority is similarly unable to determine those aspects of the accuracy complaint. It notes from recent discussions in Parliament that the matter is apparently yet to be resolved. It accepts that the early tests which were conducted suggested that GM material was present but this finding was not confirmed by later tests. It also accepts the scientific view that there was an acceptable confidence level which allowed the Minister for the Environment (Hon Marian Hobbs) to state when interviewed on 3 News on 11 July:

From the testing and retesting I've been able to confidently say there was none planted, there was none there.

[379] However, it also notes the Minister's view that a 100% level of confidence would require testing, and destruction, of all the seeds. As that did not occur, the Authority is not in a position to determine the complaint that the item was inaccurate when it alleged that contaminated GM seed was imported into New Zealand, or that various Cabinet Ministers were aware of the importation in violation of the moratorium, and that Cabinet established a temporary threshold to allow the importation of these GM seeds.

[380] At one stage during the first segment of the 3 News Special, the interviewer was standing in a corn field and his comments included reference to the moratorium on the release of GM organisms, and he continued:

[I]t was in force right the way through the time the corn arrived in New Zealand, right the way through the time it was planted in this field and many others like it, right the way through the time it grew, was harvested as you can see, and entered the food chain.

[381] The LSN complained that as there was no evidence that GM contaminated seed had entered the country and, if so, had been planted in the field shown, the comment was inaccurate. No evidence has been presented to the Authority by the broadcaster that the alleged contaminated corn was in fact planted in the field in which the presenter was standing. However, the Authority has no evidence to the contrary either.

[382] The Authority notes that as part of his balance complaint, Mr Wierda submitted that the "barren" cornfields and the "close ups of decaying corn" suggested contamination along the lines of an oil spill. He argued that barren fields of rotting corn had nothing to do with indicators of GM material. The Authority has already commented on the impact of the visuals and, because it is unable to determine whether any contaminated seed entered the country, it is unable to determine the LSN's complaint that nominating a specific location of the "contaminated" sweet corn amounted to a breach of Standard 5.

The Offer of a Second Interview

[383] At the end of the item broadcast on 10 July, the interviewer spoke to the camera and said:

As we mentioned earlier we invited Helen Clark to come back today to be interviewed again as she had asked us to. We made that offer several times, but late this afternoon we were told she had declined that offer despite last night saying she would and asking us to do that.

[384] In its response to the complainants, TV3 emphasised that it had been prepared to go "to extraordinary lengths" to arrange a second interview. In its response to the complaints from the Prime Minister and her Chief Press Secretary, TV3 noted that it was not advised until 5.45pm that the Prime Minister would not be coming. The Prime Minister's office, TV3 wrote, had told a "stunned" Head of News and Current Affairs at TV3 that there was a lack of available time. TV3 then said that it had "no option" but to use the interview recorded on 9 July.

[385] TV3 argued to the Prime Minister and the Chief Press Secretary:

So, if there is any lack or distortion the responsibility for that lies squarely with the Prime Minister. Her refusal to make the second interview, despite the extraordinary lengths to which TV3 was prepared to go to make it possible, suggests not that she could not make it but that she determined she would not make it. To suggest that the reason was because she feared further "dishonesty" is again disingenuous. Here was the opportunity she sought - to give fully informed answers - now she knows of the Hager book (it had been published that morning): now she had the benefit of a full staff briefing from those who had been responsible.

[386] In response, the complainants described TV3's claim that the Prime Minister had been offered and had then declined another interview as "false". In view of the publication of "Seeds of Distrust" on 10 July, to which there had been no previous reference, the complainants wrote, the offer made on 9 July applied to a situation which had changed. Their complaint contended:

Given that by this time [5.45pm] the accuracy of Mr Hager's claims was at least seriously open to doubt, if not in fact substantially refuted, the proposal summarised by [TV3's interviewer] would have served only to assist TV3 in a continuation of its breaches of broadcasting standards and standards of professional journalism.

[387] The Authority does not accept that TV3 had "no option" but to broadcast the interview footage filmed on 9 July. Clearly it had an option not to proceed. The Authority finds it difficult to understand why it was too late at 5.45pm to arrange the broadcast of other material relating to the publication of the book which had become available that day, particularly when TV3 attended the press conference called by the Prime Minister at 4.30pm on 10 July to deal with the issue. The Authority is not aware of any technical reasons why aspects of the press conference should not have been broadcast.

[388] The Authority agrees with the complainants that the situation had changed since the offer of a second interview was first made, and that the Prime Minister's refusal to appear did not absolve TV3 of its standards' compliance obligation. Until late in the afternoon of 10 July, the Authority accepts that TV3 expected that the Prime Minister would be prepared to be interviewed again. The Authority also accepts that the Prime Minister did not consider that it was possible in view of the changed circumstances. While the Authority finds it difficult to understand why TV3 would expect that the Prime Minister would again be willing to be interviewed, it is prepared to believe that expectation. For this reason, the Authority determines that the remark in the broadcast that the Prime Minister had declined another interview, did not amount to a breach of the requirement in Standard 5.

Confidentiality Agreement

[389] The terms of the confidentiality agreement according its access to "Seeds of Distrust", under which TV3 claimed that it was unable to inform the Prime Minister of the source of its questions, is a matter of dispute between these complainants and TV3. To ascertain whether it was possible to resolve the differences, the Authority sought affidavits from TV3 explaining the substance of the agreement. TV3's Head of News and Current Affairs and the interviewer both testified that the book was made available to TV3 prior to release "only on the basis that there would be no disclosure of the book or even of the fact that the book had been written ahead of its release".

[390] The Prime Minister and the Chief Press Secretary argued that the agreement did not prevent the disclosure of the book's contents before the interview, if not of the book itself. In reply, TV3 disagreed and maintained that the confidentiality agreement prevented disclosure of all the material. TV3 added:

It is not appropriate to endeavour to scrutinise the confidentiality agreement in an overly legalistic fashion - it was an agreement between journalists who clearly understood its terms and abided by them.

[391] The Authority is obliged to accept the affidavit evidence as to the scope of the confidentiality agreement. Moreover, as it concluded above (para [282]), the Authority is of the opinion that any confidentiality agreement is not a defence to a possible breach of broadcasting standards. It finds that the existence of the agreement did not justify denying the source of the allegations to the Prime Minister during the interview. However, in view of its decision that the failure to do so amounted to a breach of Standard 6, the Authority does not consider it necessary to rule as to whether the failure to put the source of the allegations to the Prime Minister during the interview amounted to a breach of Standard 5. The matter is res judicata.

Impartiality and Objectivity of Interviews with the Prime Minister and Mr Hager -

Differential Treatment

[392] As for the complaint from the LSN about the contrasting styles of interview, the Authority has previously upheld a complaint that an interviewer's approach was a breach of the standard which requires impartiality - now Standard 5 (Decision Nos: 2001-049/050, dated 7 June 2001). In that case, the Authority considered that the presenter failed to challenge the interviewee's credibility on a contentious issue "in the forceful manner which one would expect of an impartial broadcaster". The Authority also referred in that decision to the contrast between the "conciliatory" style the presenter adopted to interview two parties whose views he appeared to share, to the "forceful" style adopted in his interview with the Prime Minister. In its conclusion, the Authority noted the "comparatively cursory manner" with which one party was treated compared to the "adversarial approach" taken with another party.

[393] In order to examine this aspect of the current complaint further, the Authority requested the full interview tapes (the field tapes) of the interviews with the Prime Minister and Mr Hager. TV3 provided the former which showed that the interview was approximately seven minutes longer than the interview which was broadcast. There were about four minutes of scene setting, before any part of the interview was screened, in which the interviewer raised the issues and asked some questions about the labelling of GM content on food. Then there is about a three minute sequence in the middle of the interview which was not broadcast. The focus during this segment is on ERMA's reports to the Minister about specific events in late 2000 and early 2001. The format and style of the segments not broadcast were consistent with the substantial segments of the studio interview which were broadcast.

[394TV3 was unable to provide the full tape of the interview with Mr Hager, advising:

The field tapes of the interview with Mr Hager were not preserved and have been reused in accordance with normal procedure.

[395] The Authority is astounded at TV3's actions. In view of the way TV3 promoted the item, and the 300 emails and 200 calls to the switchboard TV3 claimed to have had, the broadcaster must have suspected that it could have a substantial impact on the election campaign. Given that reaction and the publicity the interview did in fact generate, it would have been reasonable for TV3 to expect a formal complaint. The Authority is unable to view the field tape with Mr Hager and can, therefore, make no conclusions on the basis of the Hager field tape.

[396] The Authority notes that it is not considering again the aggressive style said to be adopted by the interviewer when questioning the Prime Minister. That is a matter of fairness and the Authority has discussed and declined to uphold that matter in its review of Standard 6. Rather, it is now determining the aspect that the interviewer adopted different approaches when interviewing Mr Hager and the Prime Minister and, in doing so, breached the requirement in Standard 5 for objectivity and impartiality. The Authority notes the absence of the field tape of the interview with Mr Hager and records that it probably would have been useful in determining this aspect of the complaints.

[397] The Authority begins its consideration of this aspect by noting that the interviewer displayed two contrasting interview techniques. The questions to the Prime Minister were forceful, challenging and prosecutorial. In contrast, Mr Hager was asked, in a restrained manner, either to advance the findings contained in his book, or to confirm a summary of a finding given by the interviewer. The issue for the Authority is whether the contrast displayed a degree of partiality or a lack of objectivity which contravened Standard 5.

[398] TV3 contended that the forceful questions to the Prime Minister were acceptable given that she has considerable skill in dealing with the media, and she was the Prime Minister during an election campaign. TV3 argued that special conditions attach to particular people in specific roles.

[399] The Authority considers that reasoning should also apply to Mr Hager. As Mr Wierda pointed out as an aspect of his Standard 4 complaint, Mr Hager is a skilled publicist and has considerable expertise in television. In addition, while not standing for political office, Mr Hager published his book during an election campaign. In the Authority's opinion, he should have been exposed to similarly robust questioning in the interests of impartiality. Instead, in the 3 News Special and subsequent programmes submitted by the broadcaster as being in the period of current interest, Mr Hager was treated in either a deferential or neutral manner in the segments of the interview which were broadcast.

[400] The Authority accepts the validity of TV3's view as to its responsibility to make public those issues which are of public interest. Nonetheless, it also has an obligation in that type of situation to ask difficult questions on behalf of the public, which, the Authority finds, it failed to do in its questioning of Mr Hager.

[401] In view of the impact which TV3 considered the allegations contained in the book would have, the Authority accepts that it was an occasion for robust questioning. However, TV3's failure to adopt that requirement in its questions to Mr Hager, the Authority finds, breaches the requirement for impartiality and objectivity in Standard 5.

Press Conference - 4.30pm 10 July 2002

[402] At 4.30pm on 10 July, the Prime Minister and a Cabinet Minister (Hon Pete Hodgson) gave a press conference in Auckland in which they responded to a number of the points made in "Seeds of Distrust". The Prime Minister and the Chief Press Secretary have provided the Authority with a transcript of that press conference. The questioners are not named. However, the Authority accepts that TV3 attended the conference as, first, it was referred to by its political editor (Jane Young) during 3 News on 10 July, and second, footage of Mr Hodgson speaking at the conference was used by TV3 in a later item submitted as relevant balancing material during the period of current interest. The specific content broadcast in 3 News on 10 July is reported in paras [341] - [344] above.

[403] The Prime Minister and the Chief Press Secretary argued that Mr Hager's claims "were rebutted, if not substantially refuted", at the press conference and the failure of TV3 to include the main elements of the rebuttal in the 3 News Special breached Standard 5 as it led to impartiality.

[404] Dealing with it as an alleged breach of Standard 5, TV3 said that, until 5.45pm, it believed that the Prime Minister was intending to participate in a further interview. It said:

As a result, the material obtained from the press conference was not edited for use in the programme beyond the limited use which was made of it in the first segment. By the time [the Head of News and Current Affairs] was told that the Prime Minister would not do the second interview it was too late to make use of any further material from the press conference in the programme.

[405] The "limited use" involved reporting that Mr Hager's claims were being strongly denied and a brief summary of some political consequences of the disclosure. However, the Authority considers that it did not involve an analysis of the claims in the book.

[406] As the Prime Minister and the Chief Press Secretary's complaint did not raise the balance requirement in Standard 4, the Authority has considered whether the failure to report the details of the press conference breached the impartiality and objectivity provision in Standard 5.

[407] In its coverage on the specific allegations, TV3's reporter said that Mr Hodgson:

¡K went right through the details of that particular crop, of the reporting of it, he looked at the press statements that the Government issued at the time and his explanation was very much on that scientific basis.

[408] A transcript of the press conference recorded that Mr Hodgson dealt in some detail with the corn which was alleged to be contaminated. Among the details Mr Hodgson talked about, he said:

The scientific advice was that the indeterminate results are probably an artefact. The only way to know that grain is 100 per cent GE free ¡K is to test every grain that comes into New Zealand. That is why a sample is used and as with any sampling a margin of error arises. The question is then, what is an acceptable margin of error and at what confidence level.

Officials, officials, and only officials have been advising on these matters from the outset. As statistical analyses on legal advice has changed, so has the way in which a zero tolerance is expressed. At present it's addressed that a 99 per cent confidence does not exceed 0.5 per cent - that has been in place since August 1 last year and runs out on 30 July this year. ¡K

These confidence levels do not mean that a sample is contaminated. We have a zero tolerance for contamination, which means that if there is any positive result, any positive result, then there is no entry. But it is to define what a negative result really means given that you can't sample every grain without destroying that which you are trying to import, and right through Nicky Hager's book or the bits of it that I have read, is the confusion over that matter.

[409] The Authority considers that TV3 had ample opportunity to include substantial comment from the press conference during the news, or during the special, and that by omitting any such material, TV3 acted with some degree of partiality. The Authority notes that there is nothing in the nature of modern television technology that would have precluded the inclusion of the press conference. The Authority now considers whether that partiality and lack of objectivity was sufficient to breach Standard 5.

[410] The Authority has noted TV3's comment that the coverage of the press conference on 3 News did not include scientific detail. Rather, TV3 responded to a number of complainants that it had "no option" but to screen the interview with the Prime Minister after, it said, she declined to be interviewed again. The Authority does not accept that TV3 had "no option". It notes that the programme originally listed in the print media for broadcast by TV3 at 7.00pm on 10 July was Home Improvement. The broadcast of the pre-recorded interview was an editorial decision.

[411] The Authority considers that, in this instance, an editor might reasonably consider the following factors when arriving at a decision to broadcast:

- that subsequent comment arising after the recording of the interview with the Prime Minister demonstrated, at best, that there were two sides to the story and such comment needed to appear in connection with the pre-recorded interview;

- that the issue had received considerable public exposure during the day and, thus, the public interest might not be best served by screening a pre-recorded interview with the Prime Minister who, at the time of the interview, was unaware of the existence of the book or the identity of the accuser; and

- the technical and production issues involved.

[412] The Authority finds, in this instance, that the omission of comment from the press conference in the broadcast of the programme screened, fell short of the requirements for impartiality and objectivity and was in breach of Standard 5.

Standard 5 - Summary

[413] Putting "allegations as facts" to the Prime Minister during the interview was a principal focus of the complaints which alleged that the broadcast breached Standard 5. In response, TV3 contended, first, that the allegations were "opinion, analysis and comment" to which Standard 5 did not apply. Second, it acknowledged that the interviewer accepted the contents of "Seeds of Distrust" were factual as he had examined all the source material available to Mr Hager, the book's author.

[414] The Authority does not consider that it has the skills to determine the accuracy of the scientific issues raised in the book and discussed in the programme. It notes that these questions still remain in debate. As there is no readily available source to establish without question the accuracy of the allegations, the Authority declines to determine those aspects of the complaints.

[415] While the requirement for "accuracy" might be a summary of the requirement of Standard 5, it also requires that news, current affairs, and other factual programmes "be impartial and objective at all times". The Authority concludes that the broadcast was not impartial and objective, and upholds that aspect of the LSN complaint, given the differential treatment apparent in the interviewer's approach to Mr Hager and to the Prime Minister.

[416] It also upholds the Prime Minister's and the Chief Press Secretary's complaints that the omission of any reference to the press conference given at 4.30pm on 10 July in the 3 News Special broadcast at 7.00pm that day breached the requirement in Standard 5 for impartiality and objectivity.

F. Other Issues Raised by Complainants

(i) Previous Relationship Between Mr Hager and Mr Campbell

[417] TV3 acknowledged that it had had previous dealings with Mr Hager.

Accordingly, it was able to regard him as a reliable source. The Authority is of the view that some of the complaints could be read to suggest that Mr Hager and Mr Campbell, the programme's presenter, collaborated in some way when preparing the programme to influence the outcome of the election. The Prime Minister and the Chief Press Secretary contended that the presenter "became the instrumentality of Mr Hager in propounding the latter's activist campaigns".

[418] The Authority finds that the "collaboration" accusation has not been established to its satisfaction. However, because of the content and timing of Mr Hager's previous publications, it believes that TV3 should have been put "on notice" when offered the book "Seeds of Distrust" subject to a confidentiality agreement. The Authority accepts that this is not a matter of broadcasting standards, but reiterates, regardless of Mr Hager's intention to focus on the issue of accountability during an election campaign and a desire to promote the book, that TV3 was under an obligation in the public interest to subject him to robust questions, and to adopt, if need be, the role of being a "Devil's Advocate".

(ii) Adequacy of Editorial Supervision

[419] The Prime Minister and her Chief Press Secretary claimed on a number of occasions that the broadcast of the item by TV3 indicated inadequate editorial control. They suggested that TV3 had breached the requirement to ensure the independence and integrity of its editorial supervision.

[420] The Authority notes that TV3 advised on a number of occasions that its Head of News and Current Affairs was closely involved in the preparation and presentation of the broadcast and he, in fact, first approached the Prime Minister's Chief Press Secretary. The Authority accepts that the broadcast was afforded adequate editorial supervision.

(iii) Other Media Comment

[421] Attached to their complaint, the Prime Minister and her Chief Press Secretary submitted a range of comment from media participants and observers on the programme complained about. In acknowledging that it has received such material, the Authority records that they have not influenced its determination in any way.

The New Zealand Listener Article

[422] To the Prime Minister and the Chief Press Secretary and some of the other complainants, TV3 argued that an interview given by the Prime Minister to a journalist from the New Zealand Listener on effective border control, shortly before the interview with TV3 on 9 July, covered the same matters, thus demonstrating that the Prime Minister was well aware of the specific issues raised in Mr Hager's book and covered in the television interview.

[423] The article "Planting the Seeds of Doubt" was published in the New Zealand Listener issue of 20 July 2002. The article refers to the book "Seeds of Distrust". It also reported that the interview for the New Zealand Listener article took place three days before the release of "Seeds of Distrust". It is clear from the article that the specific events covered in TV3's interview were not, in fact, covered in the New Zealand Listener interview. The Authority records that the New Zealand Listener article provided no assistance in its deliberations on the complaints about the broadcast.

G. Bill of Rights

[424] To a number of complainants, TV3 referred to s.14 of the New Zealand Bill of Rights Act 1990 and advanced the contention that, by upholding the complaints, it would unduly restrict the public's right to receive information and opinions. On the basis that the New Zealand Bill of Rights Act 1990 requires that any restraint on the freedom outlined in the Act must impose the least possible restriction, TV3 asserted that an interpretation of the Standards which allowed any findings of breach would ascribe a meaning to the standards which was inconsistent with the freedom curtailed.

[425] Counsel for the Prime Minister and her Chief Press Secretary disagreed that a decision to uphold any of the complaints would contravene the Bill of Rights. Section 14, he wrote, related to receiving and imparting information, not false information. Further, TV3 was acting in breach of s.4 of the Broadcasting Act 1989. He submitted:

Every matter of information and every opinion which was broadcast in this matter could have been raised as part of journalistic research, and (if substantiated) presented in a broadcast interview in a manner which respected the freedoms under the NZ Bill of Rights Act 1990 of all persons, including the Prime Minister. The broadcasting standards present no obstacle to this and are not in conflict with this freedom in any way. To the contrary, they protect the exercise of that freedom. What TV3 did was to present some information, and the opinions of Mr Hager, (as if they were fact) and [the interviewer] (as if they were factually based), in denigration of the Prime Minister within an artificially created interview situation where she was not able to respond. The freedom which was at risk, and was damaged, by TV3 was the freedom and rights of the Prime Minister.

[426] The LSN noted that broadcasting standards set justifiable limits on the freedom of expression and submitted that TV3's argument was "nonsense" and if adopted would lead to the standards becoming "meaningless".

[427] In reaching its decision the Authority records that it has considered whether the limits it has placed upon the broadcaster's right to freedom of expression, as contained in s.14 of the New Zealand Bill of Rights Act 1990, are demonstrably justified as required by s.5 of the Bill of Rights. The Authority is satisfied that the upholding of these complaints is reasonable and demonstrably justified and gives effect to the intention of the Broadcasting Act, interpreted together with the Bill of Rights Act, for the reasons given in this determination. In reaching this conclusion, the Authority has taken into account all the circumstances of these complaints, including the nature of the complaints, and the manner in which the material was broadcast.

[428] The broadcaster and a number of the complainants noted that the broadcast took place during an election campaign where GM was a major issue. The Authority accepts that one of the roles of a broadcaster, as part of the fourth estate, is to encourage democracy and that this is heightened during a campaign. It accepts that "freedom of expression" is necessary to assist in the development of an informed community. The Authority also considers that the broadcasters' increased importance is accompanied by increased responsibility and that the upholding of these complaints is reasonable and demonstrably justified and gives effect to the intention of the Broadcasting Act, interpreted together with the Bill of Rights Act, for the reasons given in this determination.

For the reasons given the Authority upholds the complaints from the Prime

Minister and the Chief Press Secretary, the Life Sciences Network Inc, Mr Coy

and Mr Owen that the broadcast by TV3 Network Services Ltd of a 3 News

Special at 7.00pm on 10 July 2002 breached Standard 6 of the Television Code

of Broadcasting Practice.

It also upholds the complaints from Mr Owen that the same broadcast breached

Standard 4.

It also upholds the complaints from the Prime Minister and the Chief Press

Secretary, and the Life Sciences Network Inc. that the same broadcast breached

Standard 5.

The Authority declines to determine or declines to uphold all the other aspects of

the complaints made by the Prime Minister and the Chief Press Secretary, the

Life Sciences Network Inc, Mr Wierda, Mr Coy, Mr Owen and Ms Rutherford.

Having upheld the above complaints, the Authority may make orders under ss. 13 and

16 of the Broadcasting Act 1989. It invites submissions in writing from the parties by

22 July 2003.

Signed for an on behalf of the Authority

Peter Cartwright

Chair

3 July 2003

Appendix 1

Summary of Interlocutory Decision Nos: 2002-157/158, 7 October 2002

[1] The Authority dealt with questions relating to the scope of the referral from the Prime Minister and the Chief Press Secretary in an Interlocutory Decision (ID Nos: 2002-157/158, 7 October 2002) in which it ruled that much of the referral was made in response to TV3's invitation for further information. The ruling accepted the following alleged breaches of Standard 5 as having been appropriately referred to the Authority:

i) The programme did not canvass "allegations" but presented matters as fact on which the Prime Minister was challenged.

ii) A number of specific matters were advanced as "what really happened"

during the interview with Mr Hager. They included:

"Despite the fact it was illegal to do this the seeds were left in the ground¡K ."

"[W]e look in detail at the Government's role in covering the whole affair up."

[Interviewer to Hager]: "So Helen Clark was involved in an action that covered up breaking the law of New Zealand at the time? [Hager] "I'm afraid so".

"She did so [dismissed the Greens] knowing that GMO's had been released into the food chain." [this] "had in fact ¡K and Helen Clark knows this, already occurred."

[Hager] "[M]ore important issues were about process and trust ¡K ." "[The] cover up got worse and worse. First of all they had to deceive the Cabinet because they didn't want the Cabinet Ministers to know about it ¡K and then they had to deceive the public and they ended up deceiving the Royal Commission".

(iii) In addition to being "what really happened", the complainants argued those allegations claimed that the Prime Minister knowingly broke the law, was involved in a cover-up, and was involved in a deception. Moreover, that had been broadcast on 10 July 2002 despite the point that the contentions were shown within 24 hours to be untrue. In addition, on 19 December 2000, an ERMA (Environment Risk management Authority) press release recorded:

"Although initial testing suggested there might be minute traces of GM content, a more detailed evaluation concluded with a high degree of confidence that, if present at all, the GM material was at levels below that which can be reliably detected".

(iv) The interviewer, in asking the Prime Minister whether New Zealanders could trust her, made some false statements. They were:

"Isn't this part of the context of the debate which is going on - whether we can trust you? ¡K Whether we can trust you?"

"Is it possible that the people of New Zealand may be offended by the fact that over the summer of 2001 they were eating genetically modified corn that your Government knew about, had invented some bogus threshold to disguise, had not informed us about and had let get out to our dinner plates? Isn't it possible that that is offensive?"

"I wanted to talk about the issue of trust. I wanted to talk about the issue of responsibility. I wanted to talk about whether the people in power could be trusted."

"I think you do remember what happened."

"How ethical was it to allow 178 ha of genetically modified sweet corn plants, contaminated plants, to remain in the ground despite the law said their presence there when you knew about it was illegal? How ethical was that? Are you confident that you ¡K behaved during this affair ethically, honourably, reasonably and legally?

"You are happy that over the summer of 2001 some New Zealanders ate genetically modified corn, that that was in breach of the moratorium, it was in breach of the law of the land - you didn't tell us about that? You're happy about that?"

(v) Other journalists had commented that the programme breached programme standards.

(vi) By 10 July, the complainants alleged, it would have been obvious that the interview had been obtained by deception and, thus, was in breach of the standards. TV3 nevertheless proceeded to broadcast the programme and compounded the breach by linking the first segment to the second.

(vii) At 4.30pm on 10 July, the Prime Minister held a press conference (which TV3 attended) and Mr Hager's claims were "rebutted, if not substantially refuted". As a matter of both accuracy and balance, the complainants contended, the 10 July item should have included the main elements of this rebuttal.

(viii) By participating in a news conference, the complainants argued that TV3 stated inaccurately in its News Special that the Prime Minister had refused to participate in a further interview.

(ix) Returning to the complaint, the complainants repeated that the programme presented allegations as facts, and the most serious was the statement that "Tests had confirmed GM material was present". On 10 July 2002, the Minister of the Environment had issued a press release that "there was no evidence of GM contamination in the corn seed".

[2] Following release of Interlocutory Decision 2002-157/158, a further procedural issue was raised arising out of TV3's response to the Authority's ruling in that Decision. The complainants contended that all the relevant matters had been referred to the Authority, while TV3 pointed out that it had not had an opportunity to reply in detail to the matters in the referral now accepted by the Authority.

Interlocutory Decision Nos: 2002-180/181, 7 November 2002

[93] TV3's appropriate response to ID Nos: 2002-157/157, dated 7 October 2002, was resolved in a further Interlocutory Decision (ID Nos: 2002-180/181, 7 November 2002) in which the Authority accepted TV3's undertaking to respond to the complainants on the Standard 5 (accuracy) aspects of the complaints within 20 working days and, at the same time, to respond to the complainant's disclosure application.

Appendix 2

The following correspondence was received and considered by the Authority when it determined the complaints from the Prime Minister (Rt Hon Helen Clark) and the Chief Press Secretary (Mike Munro):

1. The Complaint from the Prime Minister's Chief Press Secretary (Mike Munro) on his own behalf and that of the Prime Minister (Rt Hon Helen Clark) to TV3 Network Services Ltd - 12 July 2002

2. TV3's Response to the Formal Complaints - 24 July 2002

3. The Complainants' Referral to the Broadcasting Standards Authority (plus attachments) - 19 August 2002

4. TV3's Response to the Authority - 21 August 2002

5. Mr Munro's Response to the Authority - 28 August 2002

6. TV3's Letter to the Authority - 28 August 2002

7. Morrison Kent's Letter to the Authority - 27 August 2002

8. TV3's Letter to the Authority - 30 August 2002

9. TV3's Letter to the Authority - 4 September 2002

10. Mr Munro's Letter to the Authority (plus attachment) - 5 September 2002

11. The Complainants' Submissions to the Authority - received 9 September 2002

12. TV3's Letter to the Authority - 12 September 2002

13. Mr Munro's Response to the Authority - 17 September 2002

14. TV3's Letter to the Authority - 17 September 2002

15. TV3's Letter to the Authority - 20 September 2002

16. Complainants' Submission to the Authority - 24 September 2002

Interlocutory Decision Nos: 2002-157/158 - 7 October 2002

17. TV3's Letter to the Authority - 9 October 2002

18. Complainants' Letter to the Authority - 10 October 2002

19. Complainants' Letter to the Authority - 14 October 2002

20. TV3's Letter to the Authority - 14 October 2002

21. Complainants' Letter to the Authority - 22 October 2002

22. TV3's Letter to the Authority - 23 October 2002

Interlocutory Decision Nos: 2002-180/181 - 7 November 2002

23. TV3's Letter to the Authority - 11 November 2002

24. TV3's Response to the Formal Complaint (plus attachments) - 5 December 2002

25. Complainants' Letter to the Authority - 10 December 2002

Interlocutory Decision Nos: 2002-213/214 - 17 December 2002

26. Complainants' Letter to the Authority - 19 December 2002

27. TV3's Letter to the Authority - 19 December 2002

28. Complainants' Letter to the Authority - 20 December 2002

29. TV3's Letters to the Authority (plus attachments) - 4 February 2003

30. TV3's Letter and Fax to the Authority - 5 February 2003

31. TV3's Letter to the Authority - 12 February 2003

32. Complainants' Letter to the Authority - 13 February 2003

33. TV3's Letter to the Authority - 7 March 2003

34. Complainants' Letter to the Authority - 12 March 2003

35. TV3's Letter to the Authority - 19 March 2003

36. Complainants' Letter to the Authority - 20 March 2003

37. TV3's Letter to the Authority - 20 March 2003

Interlocutory Decision Nos: 2003-025/026 - 1 April 2003

38. TV3's Letter to the Authority referring to complaints - 16 April 2003

39. Complainants' Letter in Response - 5 May 2003

40. Complainants' Counsel's Letter about availability - 18 June 2003

Appendix 3

The following correspondence was received and considered by the Authority when it determined the complaint from Life Sciences Network:

1. Life Sciences Network's Formal Complaint to TV3 Network Services Ltd - 12 July 2002

2. TV3's Response to the Formal Complaint - 24 July 2002

3. Life Sciences Network's Referral to the Broadcasting Standards Authority - 22 August 2003

4. TV3's Response to the Authority - 12 February 2003

5. Life Sciences Network's Final Comment - 21 February 2003

Appendix 4

The following correspondence was received and considered by the Authority when it determined the complaint from Yuri Wierda:

1. Yuri Wierda's Complaint to TV3 Network Services Ltd - undated

2. TV3's Response to the Formal Complaint - 24 July 2002

3. Mr Wierda's Response to TV3 - 28 July 2002

3. Mr Wierda's Referral to the Broadcasting Standards Authority - 28 July 2002

4. TV3's Response to the Authority - 7 August 2002

5. Mr Wierda's Final Comment - 17 August 2002

6. TV3's Further Response to the Authority - 12 February 2003

Appendix 5

The following correspondence was received and considered by the Authority when it determined the complaint from David Coy:

1. David Coy's Complaint to TV3 Network Services Ltd - 12 July 2002

2. TV3's Response to the Formal Complaint - 24 July 2002

3. Mr Coy's Referral to the Broadcasting Standards Authority - 29 July 2002

4. TV3's Response to the Authority - 7 August 2002

5. Mr Coy's Final Comment - 16 August 2002

6. Mr Coy's Further Comment to the Authority - 12 September 2002

7. TV3's Further Response to the Authority - 12 February 2002

Appendix 6

The following correspondence was received and considered by the Authority when it determined the complaint from Mr I B Owen:

1. I B Owen's Complaint to TV3 Network Services Ltd - undated

2. TV3's Response to the Formal Complaint - 24 July 2002

3. Mr Owen's Referral to the Broadcasting Standards Authority - 6 August 2002

4. TV3's Response to the Authority - 12 August 2002

5. Mr Owen's Final Comment - 18 August 2002

6. TV3's Response to the Authority - 12 February 2003

7. Mr Owen's Response to the Authority - 23 February 2003

Appendix 7

The following correspondence was received and considered by the Authority when it determined the complaint from Janet Rutherford:

1. Janet Rutherford's Complaint to TV3 Network Services Ltd - 22 July 2002

2. TV3's Response to the Formal Complaint - 19 August 2002

3. Ms Rutherford's Referral to the Broadcasting Standards Authority - 4 September 2002

4. TV3's Response to the Authority - 12 February 2003

5. Ms Rutherford's Final Comment - 13 February 2003

Appendix 8

Transcript of programme complained about

(prepared by the Authority)

Voice-over

This is a 3 News Special with John Campbell.

John Campbell (studio)

Yes thanks for staying with us everyone and welcome to this 3 News Special. Over

the next half hour we'll return to the big story of the day, the sweet corn

contamination. The decision to let it grow, the decision to let it be harvested, and the

Government's role in this affair. Later we'll see an interview I recorded with the

Prime Minister right here last night. But first, what really happened? The story of the

sweet corn.

John Campbell (visuals of shipping freight)

On the 10th of October 2000 a consignment of sweet corn seeds arrived by ship from

the United States. In total there was five point six tonnes of it, about 40 million seeds.

That's seven percent of New Zealand's entire annual sweet corn crop, and what you've

never been told is that the shipment was contaminated with genetically engineered

seeds.

John Campbell (country lane, Marlborough)

It took three weeks for routine tests to reveal that the corn was contaminated. Three

weeks during which time two tonnes of this seed had been planted, two tonnes covering

roughly 180 hectares in Gisborne, in Hawkes Bay and here in beautiful Marlborough,

where horticulture is obviously so important to the economy. The companies who

had imported the seeds decided immediately it should be torn out, all of them torn out. The

Government agreed, but, and here's where things start to go badly wrong - it

wasn't. Despite the fact it was illegal to do this the seeds were left in the ground.

They grew, were harvested and eaten. Tonight we explain how and why that

happened and we look in detail at the Government's role in covering the entire affair

up.

John Campbell to Nicky Hager (studio)

So Helen Clark was involved in an action that covered up breaking the law of New

Zealand at the time?

Nicky Hager

I'm afraid so, I'm not sure whether she was advised she was breaking the law but I

would have thought that she knew that New Zealand had very strict laws about that

yes.

Prime Minister (visuals from footage of an interview on 3 October 2001)

These trials are contained, they are so strict.

John Campbell (voice over footage of interview tape)

Helen Clark being interviewed on 3 News October of last year.

Prime Minister (same interview)

It's not going to be some rampant GMO that's out there rushing around, it is

contained research.

John Campbell (voice over visuals of Prime Minister meeting people)

Helen Clark's message the GMOs, genetically modified organisms won't be quote

"rampant" and "rushing around" out there has been at the heart of Labour's public

positioning on genetic engineering, where proceeding with caution has been the

repeated message when the subject of GE has been raised. Tight containment. Strict

controls.

John Campbell (visuals of advertisement)

So when the Greens took out newspaper ads claiming Labour policy would see GMOs

on our dinner plates, Helen Clark's response to Jeanette Fitzsimons was blunt.

Prime Minister (at unspecified press conference)

I told her I thought the ad was grossly untruthful.

John Campbell (in Parliament by himself)

Grossly untruthful, clearly the end of the story, except for one crucial detail. When

Helen Clark so bluntly dismissed the Greens and elsewhere she called them pathetic,

ridiculous, and luddites, she did so knowing that GMOs had been released into the food

chain, that the thing the Greens were fearing or claiming could happen in the future

had in fact, and Helen Clark knew this, already occurred.

John Campbell to Nicky Hager (in studio)

What happened to the corn, did we eat it?

Nicky Hager

Yes, I'm afraid so. What happened was that around Gisborne and in Hawkes Bay and

down in Marlborough those crops were just treated like the rest, they were harvested,

they were mixed in with all the other crops that were going into the processing

factories, they were put in cans, they were exported, they were frozen and for the next

year that was the crop that was being sold in our supermarkets and overseas.

John Campbell

So, when the Greens came up with their nightmare scenario of GE organisms entering

the food chain in the future, it had in fact already occurred.

Nicky Hager

I'm afraid so.

John Campbell (Visuals of book being printed)

The details of the arrival of the corn, the discovery it was contaminated and the

Decisions, politics and secrets that followed can be found here. Nicky Hager has

assembled the Cabinet papers, briefing papers, emails and memos that passed between

a small but highly influential group of people in or near Parliament. Hager's book

"Seeds of Distrust" published this morning details a sequence of events that resulted in

the country being kept in the dark, but began quite differently.

Nicky Hager

For the first week or two after the crisis began, very secret crisis, but bubbling on

within a few - within the Government, they not only thought they should pull them out

but they began urgently preparing for it and so very soon into the crisis they had

everything in place to pull them out and then they didn't.

John Campbell (Undated visuals of Hon Marian Hobbs)

The first person in Government to learn of the contaminated shipment was

Environment Minister Marian Hobbs, she was told verbally on the 13th of November

2000.

Helen Clark (Press Conference undated)

Today the Government is announcing its key decisions in response to the

recommendations of the Royal Commission on genetic modification .. .

John Campbell (voice-over visuals of press conference)

When the Prime Minister looked into the problem overall control of the issue went to

the Department of Prime Minister and Cabinet, the Royal Commission was sitting, it

was a sensitive issue at a highly sensitive time.

Voice-over (at investiture)

The Right Honourable Sir Thomas Eichelbaum, Chief Justice of New Zealand.

John Campbell (voice-over visuals of investiture and of highlighted quote from media release))

Chaired by former Chief Justice Sir Thomas Eichelbaum, the Royal Commission was

an unprecedented attempt to gather and evaluate the arguments for and against GE. In

deference to Sir Thomas and the task his team was to undertake, a voluntary

moratorium was placed on the release of all GMOs. This is the media release in which

Marian Hobbs announced the decision to have the voluntary moratorium. The

moratorium Ms Hobbs said and I quote "will be in force for the length of the

commission's inquiry..."

John Campbell (in cornfield)

¡Kand indeed it was, it was in force right way through the time the corn arrived in

New Zealand, right the way through the time it was planted in this field and many

others like it, right the way through the time it grew, was harvested as you can see,

and entered the food chain. Yes the great and striking irony of this entire affair is that

the GE contaminated corn that grew in this field and many others through New

Zealand did so during the Royal Commission on genetic modification, and did so

during a Government initiated moratorium, against exactly that kind of behaviour.

Nicky Hager (in studio)

When it came that something had gone wrong in genetic engineering it was quite

convenient in the middle of the Royal Commission, hearings going on, people writing

submissions, if this wasn't stirred up, if just nobody knew.

John Campbell

In fact had this become public knowledge that there'd been a large shipment of corn,

seven percent of our annual crop contaminated with GE seeds during the Royal

Commission that would have strongly fuelled the arguments against.

Nicky Hager

That would have probably made a lot - this would have been their calculation, would

have made a lot more people think "hang on a moment we have to take this much more

seriously you know we're perhaps we're being complacent at the moment" and so it

was convenient to do nothing.

John Campbell

And we were denied that information?

Nicky Hager

To me these issues in the book and in the story are partly about the genetically

engineered corn and what they did with it but the more important issues are about

process and trust, those are the ones which I care about and which I really most

wanted to write about, and what you see in the story is that once they'd started to feel

that it was convenient, it was pragmatic just to cover it up, the cover up got worse and

worse. First of all they had to deceive the Cabinet because they didn't want the

Cabinet Ministers to know about it because they'd be likely to - one of them would

spill the beans somewhere, and then they had to deceive the public and then they

ended up deceiving the Royal Commission.

John Campbell (Visuals of ERMA offices and downtown Wellington)

What's clear is that some people had strong misgivings about what was going on.

ERMA is the Environmental Risk Management Agency. It's based here in BP House

in Downtown Wellington. Though a Crown entity it is perhaps sufficiently distant

from Parliament to give it some perspective on the place. Its CEO for example wrote

an urgent in confidence letter to the Government warning they could be seen as

misleading the Royal Commission, and earlier two other ERMA members had written

their own confidential memo.

Female Voice-over: (graphics of wording)

"We have become increasingly concerned at the fact that some major decisions have

been made (leading amongst other things, to the planting of contaminated sweet corn ...")

John Campbell (Visuals of ERMA offices)

They went on to observe a paradox, noting that while ERMA was exercising extreme

caution to prevent GMOs entering the environment, the government had let

contaminated seed grow in large numbers in unprotected fields.

Female Voice-over (graphics of wording)

"The Authority is being very cautious in its approvals of field trial containment

applications. We have agonised over the risk of very small pollen escapes and how we

could prevent these. It is ironic to find that Cabinet and officials are taking a less

cautious approach to a release decision."

John Campbell (Visuals of ERMA building)

And then the senior ERMA members ended with a simple question.

Female Voice-over (graphics of wording)

"Should the public, who we know care about "genetic pollution", be informed about the

whole sweet corn issue?'

John Campbell (Visuals of cornfield))

But the public were never informed. Until now. So the GMOs did come for dinner and

in fields in Marlborough, Gisborne and Hastings the contaminated corn that wasn't

harvested is now broken down and entered the soil. Why did the Government allow it

to happen and why didn't they tell us it had. Well, perhaps they didn't want to upset

the businesses who'd imported the seeds. Perhaps they didn't want to give

ammunition to the Greens. Perhaps they didn't want people to see how easily such

accidents can occur, not when the Royal Commission was considering our very future

direction in GE. So they let the plants stay in the sunlight and they kept us in the

dark, and then as Nicky Hager said, they left us to eat the evidence.

Nicky Hager (In studio)

I find it really remarkable, I always find it shocking that the Government headed down

the cover up road because it would have been so easy to do the right thing ¡K it wasn't

like it was the whole New Zealand sweet corn crop wiped out. They ¡K at the time when they

discovered it was only about two hundred hectares. They could have easily ordered

them to be removed. I think if they'd done that, although it would have caused a bit of a

stir for a couple of day in the news, it would have built public trust that when

something goes wrong the Government's prepared to act, and that would have been

the kind of foundation in which they could expect people to believe that we really do

have reliable trustworthy precautionary systems for genetic engineering in New

Zealand. And so it was such an obvious strategy which means that as I read my way

through the papers and saw that they weren't going down that road, they had started down

that road and suddenly when they realised that the story wouldn't leak out by itself and

they had the option of secrecy they were tempted into going that way. I couldn't

believe it because each step after that was deceiving somebody and covering up and

then they knew they went home for Christmas and had their holidays knowing that

there were these genetically engineered crops being harvested and put in cans and

packets and being sent around the world and into New Zealand supermarkets as they

were making their speeches about honesty and integrity and you know reliability of

our regulatory systems and things. I don't know why they did it.

John Campbell (alone in studio)

Well there we have it, the thrust of Nicky Hager's controversial book. After the break,

we hear from Prime Minister, Helen Clark.

COMMERCIAL BREAK

John Campbell (in studio - voice to camera)

Welcome back everyone to this 3 News Special.

Last night at half past 7, sitting here, I interviewed the Prime Minister Helen Clark. It was as you will see a tense interview. During it and after it was over Helen Clark insisted she'd been set up. Ambushed. She wanted to be interviewed again after she'd had an opportunity to be fully briefed by her staff on the GE sweet corn issue and as she left the building she threatened that if the interview went to air she would not take part in our next Leaders Debate with Bill English. That left us with a dilemma, of course.

We were not prepared to bow to pressure from the Prime Minister, or any politician, in fact, but at the same time we wanted to be certain we were being fair, especially when the country is in the middle of an election campaign. So we decided we would show part of last night's interview, but also give the Prime Minister an opportunity to do the interview again, to be re-interviewed. We made that offer. Several times in fact. But at 5.45 this evening we were told she would not appear.

That leaves us with the interview I conducted last night and it needs an explanation. The threshold that Helen Clark refers to was introduced after the seeds arrived in New Zealand. It was an interim testing regime which said that some level of contamination was acceptable. The Government then said that as the level of contamination was lower than the threshold it had just introduced the corn could stay in the ground. Incidentally, MAF has subsequently rejected the idea of a threshold saying New Zealand must have zero tolerance.

Interview of Prime Minister

John Campbell

Can we go back to October 2000; 5.6 tonnes of corn arrived in New Zealand. Some of it was genetically contaminated. Do you remember that?

Helen Clark

I remember the case and I've also recently looked through the Ministry of Agriculture and Fisheries discussion document on the whole issue of GM seed. MAF operates a zero tolerance policy. That is, if they detect, they don't admit and there have been consignments of seed destroyed.

John Campbell

Right, that seed wasn't destroyed Prime Minister.

Helen Clark

Because it was below a certain threshold level that's considered internationally acceptable.

John Campbell

But that threshold level didn't operate at the time and doesn't operate now. It was introduced after the corn came into New Zealand.

Helen Clark

That was the first time that issue had arisen and I do recall it generally quite well, but as I say ¡K

John Campbell

Your office managed it, didn't it? Ruth Wilkie was in charge of the issue on an hour by hour basis.

Helen Clark

I have a Department of Prime Minister and Cabinet person who takes an interest in that, but it's managed by the people in the bio security GE area.

John Campbell

When you were told that 178 hectares had been planted with that corn and that corn was GM contaminated, your first reaction was that it should be torn out, wasn't it?

Helen Clark

Well we really went back and sought further information as to whether there was a threshold level that had been breached, that's my recollection. I haven't looked at this for 18 months now.

John Campbell

Prime Minister the threshold didn't exist at that time. It would seem to me, and I've studied it closely, that the threshold came in after the fact as a somewhat disingenuous justification for the fact that somebody close to you had made the decision to allow the corn to stay in the ground.

Helen Clark

The decisions on this were being taken on advice from the MAF people. MAF's Bio security Minister at the time was Marian Hobbs. Jim Sutton, of course took an informed interest. Yes someone in DPMC took an interest, but it certainly wasn't my decision.

John Campbell

Okay, so it wasn't your decision that Ruth Wilkie was running it, in terms of the logistics, out of your office?

Helen Clark

Oh, let's be clear about the role of the Department of Prime Minister and Cabinet. There are people who keep an eye on portfolios. They provide independent advice through the Prime Minister, but the key decisions are taken by other Ministers. Sometimes it all comes up to a Cabinet Committee.

John Campbell

Was the Royal Commission sitting at the time? Let's go back to the end of 2000, was the Royal Commission sitting at the time?

Helen Clark

You'd have to look at when it was set up, it probably was.

John Campbell

It was, it was sitting at the time. So there was a moratorium in place?

Helen Clark

Oh, yes, yes there was, but I think the Government . . .

John Campbell

So you allowed corn to stay in the ground despite the fact that the unapproved release of GMO was illegal, despite the fact that the Royal Commission was sitting, and despite the fact that there was a moratorium in place.

Helen Clark

Well John I haven't had any notice of this question and my memory on this would be pretty stretched on an area that I do not work in, in any consistent area to be questioned on it now, 20 months down the track, but what I can say to you is that initially it was thought that all of it might have to come out. A lot of advice was taken and my recollection was that on testing and sampling it was determined that it didn't pass a sufficient threshold level to be considered a problem. What I can tell you is that consignments of seed which have subsequently been tested to be above such a threshold level have been rejected.

John Campbell

Okay, I want to go back to some of that advice that was taken and I want to refresh your memory, if I may, by quoting some of it to you. On the 24th November 2000 the CEO of ERMA told Marian Hobbs and I quote: "there are already several positive tests for contamination which can hardly be ignored". That is entirely unequivocal.

Helen Clark

Of this particular batch of seed?

John Campbell

Yes of this 5.6 tonnes.

Helen Clark

Well there's really no point questioning me on this on any detail without any advice that you're going to run this line of questioning.

John Campbell

Why not Prime Minister? This is important isn't it?

Helen Clark

Because John it is not something that I've been briefed up on. It's not something that's arisen for quite a long time. My recollection is that initially there was grave concern that it might have gone over any sort of acceptable threshold level and this was the first time the issue had arisen. My vague recollection is that subsequent testing showed that that was not the case, but it has led MAF to put out a discussion document on the policy that applies and that document looks pretty good to me.

John Campbell

That document also, and we know that now don't we, rejects exactly the threshold that you're justifying, that you're using to justify leaving the corn in the ground.

Helen Clark

I'm not seeking justify anything because you're questioning me on something that I have no expertise on at all, something that I did not run, something that is sufficiently . . .

John Campbell

Well you did run it . . .

Helen Clark

No, I'm sorry John.

John Campbell

Well you did run it, it was being run out of your office.

Helen Clark

No, I'm sorry John, no, I'm sorry it was not run out of my office.

John Campbell

Well who was Ruth Wilkie?

Helen Clark

Ruth Wilkie is an advisor in the Policy Group.

John Campbell

Of your office?

Helen Clark

Not of my office, of the Department of Prime Minister and Cabinet. We have people in that department who keep an eye on various portfolios. They do not run issues, except in very exceptional circumstances and I do not believe that was one of them.

John Campbell (voice to camera)

The Prime Minister. I spoke to her sitting here last night. After the break we resume our interview with Helen Clark.

COMMERCIAL BREAK

John Campbell (voice to camera)

Welcome back to this 3 News Special everyone. We are going to resume our interview with Labour Leader Helen Clark now.

During the time the accidental release of GE sweet corn was taking place, the Royal Commission was sitting, as we said previously. In his book, Nicky Hager claims that the Government was less than fully forthcoming in the information it supplied to the Commission.

Interview of Prime Minister

Did you mislead the Royal Commission, yes or no?

Helen Clark

Did I? Most certainly not!

John Campbell

Did the Government mislead the Royal Commission?

Helen Clark

Most certainly not.

John Campbell

Right, well I want to quote something to you. The Cabinet report that went to the Royal Commission said and I quote: Tests could not confirm whether or not GE material was present.

Your Government, your Cabinet told the Royal Commission that tests had confirmed GE material was not present.

Helen Clark

John, you may think this is a really smart way to set up the Prime Minister, but you are questioning me on things I cannot possibly be expected to answer. I am not the specialist.

John Campbell

I've seen the minutes of that Cabinet meeting that approved the statement that went to the Royal Commission. You were there that day Prime Minister.

Helen Clark

John, I do not run these issues.

John Campbell

You were there at Cabinet.

Helen Clark

If you want to give, if you want to give proper notice of an interview where you go into this, do that, but it is simply not acceptable to set up the Prime Minister on something that happened a long time back in the term of the Government that she was not the responsible Minister for.

John Campbell

Is it simply not acceptable to ask you entirely reasonable questions about an unapproved release into New Zealand of genetically modified sweet corn.

Helen Clark

John, you can ask me questions if you give me notice that this is what you want to run your interview about. What you asked about was for me to come in and do an interview ¡K

John Campbell

About genetic modification ¡K

Helen Clark

About genetic modification ¡K

John Campbell

Yes and that is what I'm interviewing you about ¡K

Helen Clark

and what I would assume about that is the debate that is going on at the moment about the regulatory regime that's being set in place.

John Campbell

Isn't this part of the context of the debate that's going on? Whether or not we can trust you?

Helen Clark

Well I'm afraid it is far to specific an issue for me to offer an opinion on.

John Campbell

Can I ask you, do you believe you didn't mislead the Royal Commission?

Helen Clark

Look, I would be extremely surprised if the Cabinet misled the Royal Commission, but this is not something that I can give you any informed answers about.

John Campbell

In late February 2001 ERMA's Chief Executive, Bas Walker wrote an urgent and confidential memo to Acting Environment Minister, Pete Hodgson saying he was quote: concerned and that some of Cabinet's report to the Royal Commission could be seen to be, and I quote: misleading.

Helen Clark

Well I just can't comment on it. I mean the more the interview goes on the more offended I am that TV3 thinks that it is appropriate to set the Prime Minister up on an issue like this. If you want to give me proper advice that you want to go into this issue I will come back with informed answers. But it is simply preposterous to carry on like this.

John Campbell

Prime Minister, ERMA estimated that 15 to 30,000 plants, corn plants¡K

Helen Clark

Look ¡K

John Campbell

were genetically modified.

Helen Clark

Look John ¡K

John Campbell

Is it possible the people of New Zealand may be offended, much more offended than you are by my interview, by the fact that over the summer of 2001 they were eating genetically modified corn, that the Government knew about, had created some kind of bogus threshold to disguise, had not informed us about and had let get onto our dinner plates? Isn't it possible that that's offensive?

Helen Clark

John, there is no point in carrying on like this. The interview is a set up. You've given no notice of these kinds of questions. In fact my staff gave me some general indicators they received from you as to what you wanted to talk about.

John Campbell

I wanted to talk about issues of trust ¡K

Helen Clark

You never raised these issues ¡K

John Campbell

I wanted to talk about the issue of responsibility. I did raise the issues. I wanted to talk about whether or not ¡K

Helen Clark

No, no. You are going back over ¡K

John Campbell

Whether the people in power could be trusted or not.

Helen Clark

No, you are going back over how Ministers responsible for a certain issue handled it back in October.

John Campbell

Prime Minister, you were there. You were in the Cabinet that approved the report to the Royal Commission. Ruth Wilkie was running it on a logistics ¡K.

Helen Clark

John, I'm sorry, Ruth Wilkie is not the responsible official. This comes under MAF and I think the interview is a set up. I am very happy to come back and do an interview at another time, when you've given me notice that this is what you want to talk about. But it is pointless to carry this on.

John Campbell

I think you do remember what happened.

Helen Clark

No, I'm sorry John. I remember in general about as much as I've told you, which is that we were told that there was concern about a certain level and then later my broad recollection is that there was an acceptance that it hadn't passed any certain threshold. You're now raising a whole lot of issues which are not familiar to me.

John Campbell

Why didn't you tell us Prime Minister? Why didn't you tell us at the time?

Helen Clark

No, don't go why didn't you tell me anything. I am not running this issue.

John Campbell

Why didn't the Government tell us? Why didn't your Minister tell us? Marian Hobbs? Why didn't she tell us? That's a fair question.

Helen Clark

If you want to set down ¡K

John Campbell

That's a fair question.

Helen Clark

If you want to set down a set of questions about this for a properly informed interview I am happy to do that, but I'm not going to be harangued on a set up interview that I've had no advice on.

John Campbell

You are not being harangued.

Helen Clark

I am being harangued.

John Campbell

You are not being harangued. It's an entirely reasonable question line given the importance of the issue, given the importance of genetic modification.

Helen Clark

You have to understand that the Prime Minister is the chair of a board. There are responsible Ministers. The Prime Minister cannot be expected ¡K

John Campbell

So you're blaming your Ministers now?

Helen Clark

No. I'm not blaming anybody. I'm blaming you for not giving proper advice about a course that you wanted to follow.

John Campbell

I'm sorry Prime Minister, I was not in Cabinet, I was not in any way party to this thing.

Helen Clark

John, if you . . .

John Campbell

Feel free to shoot the messenger, but I'm afraid to say I'm had nothing whatsoever to do with this.

Helen Clark

No, what I wanted to say to you, if I'm allowed to get a word in, is that it is a set up to invite the Prime Minister in for a general interview about genetic modification when you give no advice that you want to go into detail about how the Government handled a specific issue. I consider that unethical journalism and I don't think we should have to put up with it ...

John Campbell

I don't consider it unethical journalism

Helen Clark

The Prime Minister does her best to be informed about a wide range of issues, but to do any specific interview on something as specific as that she needs advice as to what the topic is and you have given us no such advice. Now if you want to make your reputation on that sort of approach to journalism ¡K

John Campbell

I don't give a damn about unethical journalism ¡K

Helen Clark

So be it, but we will revisit John, whether we are prepared to be interviewed in circumstances like this again.

John Campbell

You've talked about ethics.

Helen Clark

I have.

John Campbell

How ethical was it to allow 178 hectares of genetically modified sweet corn plants, contaminated plants, to remain in the ground despite the fact the law said their presence there, when you knew about it, was illegal and despite a moratorium? How ethical was that?

Helen Clark

If you want an interview on this issue, please go away, ask me back another time and I will answer your questions.

John Campbell

Why didn't you contact us at the time and answer questions at the time? Why didn't you raise it at the time?

Helen Clark

Look, if you want to do an informed interview on this, give me the privilege of going away and researching it. But you are asking me to dredge up from my memory. . .

John Campbell

Something really important.

Helen Clark

. . .things that happened.

John Campbell

Something really important ¡K

Helen Clark

John, I deal with really important things every day of the week as Prime Minister. I am not normally expected to come onto a set and with no advance notice answer specific questions.

John Campbell

I think that many of us have a great deal of admiration for your capacity to recollect things. I'm somewhat surprised by your inability to recollect specifics now.

Helen Clark

You might well say that, but you could get me in here and throw any thousand number of things at me about specifics where I as the Prime Minister would not have any detailed knowledge because my job is to keep a broad overview.

John Campbell

Alright, let's talk broadly. Are you confident that you behaved, that your Government behaved, during this affair, ethically, honourably, reasonably and legally?

Helen Clark

Well I've got no reason to think that the Government ever sets out to act unethically or unreasonably.

John Campbell

I didn't ask you that question. Was the end result ethical and reasonable?

Helen Clark

The Government sets out to be ethical and reasonable and I have no reason to believe that that was not the case here.

John Campbell

So you are happy that over the summer of 2001 New Zealanders, some New Zealanders ate genetically modified corn, that that was in breach of the moratorium, it was in breach of the law of the land and you didn't tell us about it. Are you happy about that?

Helen Clark

I am satisfied that the Government sets out to act ethically.

John Campbell

Prime Minister thank you very much indeed for your time.

Helen Clark

Well I'm not thanking you. I think it's unethical journalism.

John Campbell (to camera)

Helen Clark recorded last night.

As we mentioned earlier we invited Helen Clark to come back today to be interviewed again as she had asked us to. We made that offer several times, but late this afternoon we were told she had declined that offer despite last night saying she would and asking us to do that.

That completes this 3 News Special. The Nightline team will be along at 10.30. Make sure you join the 3 News team again at 6 tomorrow evening.

I'm John Campbell, good evening.

EBDS


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