FOIled
August 31, 2010
NoRightTurn has done some excellent work compiling statistics on whether government Ministers are complying with the time limits in the Official Information Act.
His conclusion: too often, they’re not.
Only one Minister, Chris Finlayson, met the legal standard of responding to requests “as soon as reasonably practicable, and in any case not later than 20 working days after the day on which the request is received”. Every other Minister is breaking the law. Overall, only 71% of requests were answered on time, while four Ministers – Jonathan Coleman, Tim Groser, Judith Collins, and Gerry Brownlee, made timely responses in only 50% of cases.
Kudos to Chris Finlayson, by the way. And a huge brickbat to Paula Bennett who doesn’t seem to think her office is subject to the OIA. Here’s hoping the Ombudsmen’s office will put her right.
As for many of the others, this seems rather to reflect the contempt in which they hold this law – which, let’s not forget, is about government accountability. It’s also due, as NRT points out, to the lack of any repercussions if they flout it. Don’t imagine that Labour Ministers were lily-white either.
It’s interesting that the mean and median response times cluster around 20 working days. In some ways, this is encouraging: they seem to be aware of this deadline, and are at least complying with it most of the time, even if they’re leaving it to the last minute. I say “deadline”, though it’s not really the deadline under the Official Information Act. The legal time-limit for a response is “as soon as reasonably practicable”…the 20 working day limit is a long-stop. In this sense, pretty much everyone flouts the OIA.
NRT is right that officials are faster at responding. I found an average response time of about 11 working days, with no huge cluster at day 20, and only one in eight late.
The under-performing Ministers deserve all the bad press they get for this. It may be the only thing that will make them take their legal obligations seriously.
Topics: Official Information Act | 2 Comments »
Killing the messenger
August 29, 2010
There’s much to ponder in James Hollings’ thoughtful opinion piece on suicide reporting in this week’s Sunday Star-Times. Why are NZ’s suicide statistics so high, though our reporting restrictions are so tight? How convincing is the social science research suggesting media reports can lead to copycat suicides? Is important reporting being headed off by the gag around things that look like suicides? Did the government really think hard enough about the Bill of Rights before imposing this ban?
But I think he goes too far in saying this:
We should be clear that this censorship is in fact self-censorship.
Hollings’ theory is that the restrictions in the Coroners Act do not actually stop the media from reporting that a death is (or may be) a suicide. I think he’s wrong.
Here’s the wording of the law:
(1) No person may, without a coroner’s authority, make public any particular relating to the manner in which a death occurred if—
(a) the death occurred in New Zealand after the commencement of this section; and
(b) there is reasonable cause to believe the death was self-inflicted; and
(c) no inquiry into the death has been completed.
(2) If a coroner has found a death to be self-inflicted, no person may, without a coroner’s authority or permission under section 72, make public a particular of the death other than—
(a) the name, address, and occupation of the person concerned; and
(b) the fact that the coroner has found the death to be self-inflicted.
(3) The only grounds on which a coroner may under this section authorise the making public of particulars of the death (other than those specified in subsection (2)(a) and (b)) are that the making public of particulars of that kind is unlikely to be detrimental to public safety.
(4) In determining whether the grounds specified in subsection (3) are made out, a coroner must have regard to—
(a) the characteristics of the person who is, or is suspected to be, the dead person concerned; and
(b) matters specified in any relevant practice notes issued under section 132 by the chief coroner; and
(c) any other matters the coroner considers relevant.
Hollings has a point: the wording of this section is ambiguous. What’s a “particular relating to the manner in which a death occurred”? Might it only include descriptions of the method used to commit suicide – jumped off a building, shot to the head, car-in-garage, etc? That would still leave the media free to report that it was – or may have been – a suicide. Such an interpretation may also be supported by the Bill of Rights, which requires statutes to be read consistently with rights such as free speech if possible. Burrows and Cheer in the leading text Media Law in NZ also note the ambiguity.
My first point: just because it’s ambiguous, that doesn’t mean everyone is self-censoring. There’s no guarantee that a court would adopt this interpretation. Burrows and Cheer certainly don’t say so.
My second point: I don’t think a court would adopt this interpretation. For a start, courts try to interpret statutes to fulfil the policy they’re aiming at. The policy here is to protect the privacy of families (something Hollings doesn’t mention), and to preserve public safety. I don’t know what the social science evidence says about copycat suicides where it’s only the fact of the suicide that’s reported and not the method, but I’m guessing that the reporting of (for example) celebrity suicides such as that of Kurt Cobain may produce more deaths even by those who don’t copy (or know of) the methods.
Both of these purposes are better advanced by a wider reading of the section than a narrow one. That’s likely to strongly influence a court.
Courts also construe sections against their context. When the coroner’s inquest is completed (but not before then), the Act lets the media report a finding that the death was self-inflicted. It seems that Parliament does not want this information to come out (without the consent of the coroner) until the inquest is over. But under Hollings’ interpretation, the media would be free to report the fact of suicide all the way through the inquest. This rather makes the second restriction a bit redundant.
There are arguments to the contrary. Hollings may argue that there’s a difference between the phrases in subsection (1) “any particular relating to the manner in which a death occurred” (which doesn’t include reporting that it’s a suicide) and subsection (2) “a particular of the death” (which does). That makes some sense to me, but I don’t think it overcomes the two arguments above.
Then there’s the Bill of Rights. The starting point for that argument is what the ordinary meaning of the section is. If I’m right, it’s the wide one. The next question is whether that’s demonstrably justified. That’s a complicated question, but I suspect a court would find that it is and stop there. The court would find some support in the (rather inadequate, I think) official vet on the Coroner’s Bill.
The upshot is that the section is most likely to be interpreted to include any mention of suicide, which rather undermines Hollings’ contention that the media’s interpretation of the section is … self-inflicted.
I think the really interesting issues here are:
1. Does the media’s habit of saying, as Hollings points out, that “the police are not seeking anyone in connection with the incident” break this law, by tacitly telling everyone it’s a suicide?
2. How often does the media seek consent from coroners to report details of suicides? How often is this granted and refused? That’s where I think the action in this section is. If coroners are unreasonably denying consent, then the mechanism that is put in the legislation to uphold free speech has broken down.
Topics: Journalism and criminal law, NZ Bill of Rights Act | 304 Comments »
Improving accuracy
July 21, 2010
A funny thing happened on the way to loosening the Accuracy standard in the Broadcasting Codes of Practice. It got tightened up instead.
Let me explain. The old Radio code said broadcasters have to be truthful and accurate on points of fact. The TV code was the same. Broadcasters hated it. It meant that they were responsible for every botch they broadcast, no matter how trivial, no matter how much care they took with their facts, and even if the error was made by an apparently reliable and expert source. My favourite example: when Assignment showed a clip of PM Helen Clark (wrongly) saying that full-time tertiary students were not charged interests on their student loans, the BSA upheld an accuracy complaint against TVNZ.
Actually, the BSA seemed to sense this was unfair and some of their other decisions went in the other direction.
So broadcasters were delighted when they were able to negotiate a change to this standard. Now the codes read:
Broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming:
- is accurate in relation to all material points of fact; and/or
- does not mislead
Everyone breathed a sigh of relief. Now broadcasters only had to make reasonable attempts to get it right.
But broadcasters’ delight turned to dismay when they read this decision. The BSA upheld a complaint from Kerry Bolton, former secretary of the NZ National Front. Radio NZ had broadcast an interview (on Chris Laidlaw’s Ideas segment) with Dr Scott Hamilton, who alleged that Mr Bolton was actively promoting anti-Semistism and Holocaust denial.
Mr Bolton denied it. He complained. The BSA asked for RNZ’s evidence. Dr Hamilton supplied some. Mr Bolton rebutted it. The BSA ended up saying, in effect, “well, we can’t tell whether the claims were right or wrong. But since the interview wasn’t live, and since the allegations were so serious, Radio NZ should have made more strenuous efforts to check its facts.”
To some, this may seem kind of sensible. The new standard focuses on the efforts of the broadcasters. The BSA argues that this is what broadcasters were arguing for when they got the standard changed.
To others, this is horrifying. The BSA just upheld a complaint under the Accuracy standard without finding that RNZ had got anything wrong. RNZ argued that it was implicit in the new Accuracy standard that the BSA now had to find both an inaccuracy and a failure to make reasonable efforts to get it right, before upholding a complaint.
RNZ appealed to the High Court. During the course of argument, the BSA’s lawyer agreed that there may even be circumstances in which the Accuracy standard would be breached because of a failure to take reasonable care, even though by the time the complaint was determined, it was clear that the facts were correct! (The BSA may be on slightly stronger ground in situations where it is difficult or impossible to determine the facts, though it is not clear to me that this was really such a case.)
If you’ve been reading this blog before, you’ll know what I’m going to say next. The Bill of Rights Act is surely relevant to resolving this issue. It’s strongly arguable that the BSA’s wide interpretation of the new standard restricted freedom of expression in a way that is not demonstrably justified, in part because of the central harm to free speech values when a state agency penalises speech for its error, and in part because the less restrictive interpretation would essentially serve the same aim. I waited eagerly for those arguments. They never came.
Justice Joe Williams wasn’t very impressed. “I do need you guys to confront these issues,” he said. It’s a bit disappointing that none of you has”. He called for extra submissions on the point.
This is something that I’ve been harping on for some time. In my article with Claudia Geiringer, we lament the failure of agencies exercising power over people’s speech (the Film and Literature Board of Review is another) to apply the Bill of Rights properly.
To be fair, the BSA’s lawyer really only turned up to assist the court by providing some background material, and may have been worried that she’d get a hammering for turning up at all, as there’s a question about the BSA’s role in such appeals. And to be fair to RNZ’s lawyer, he felt that the issue could be resolved without reference to the Bill of Rights, and on one reading, there’s some support for that in Williams J’s decision.
Anyway, the extra submissions were submitted last Monday. (Disclosure: I had a hand in RNZ’s extra submissions). And within a week, Williams J’s decision was out. He agreed with Radio NZ. The scheme of the Broadcasting Act, the wording of the guidelines, and the Bill of Rights all suggested that in order to uphold an inaccuracy complaint, the BSA must first find… an inaccuracy.
Allow me a boast: Williams J said our article was “of material assistance in the development of my approach to this appeal.” That’s four High Court judges in a row who’ve cited it favourably, including one particularly kind judge who did so in a case where it wasn’t really relevant.
Still, the story isn’t over: the case is now back before the BSA. At each stage Mr Bolton has argued vehemently that the allegations were inaccurate. The BSA will have to resolve the dispute now.
Topics: Broadcasting Standards Authority | 48 Comments »
My star turn
July 16, 2010
The new TVNZ 7 show “The Court Report”, filmed at VUW law school, debuted yesterday. Criminal barrister Greg King hosts; I’m the roving reporter. Check it out here.
Topics: General | 3 Comments »
Illegal shepherding
July 9, 2010
Dear Sea Shepherd anti-whalers:
I see that you were happy to lie to the public about banning Peter Bethune from future voyages – as part of your litigation strategy.
I’m afraid I now assume that you’d be equally prepared to lie to the public as part of your PR strategy.
Topics: General | 49 Comments »
The case against Michael Reed
July 9, 2010
Michael Reed QC, Morning Report on Wednesday:
The jury were completely convinced that David hadn’t done it.
This betrays either a gob-smacking ignorance of fundamental principles of criminal law, or an intention to mislead the public about the significance of a not-guilty verdict.
Fortunately, one of the Bain jurors seems to understand the law better than Reed, as demonstrated in this letter to the Christchurch Press last month:
As a member of David Bain’s retrial jury, I am angered by the misinterpretation of our not-guilty verdict by the public, and particularly by the media. In an article in The New Zealand Herald, shortly after the retrial verdict last June, Paul Holmes wrote: ‘‘David Bain is innocent. Robin Bain came in from the caravan that cold Monday morning and killed four sleeping members of his family, then himself.’’
This type of conclusion has been repeated many times in the year since the trial finished. Even in Friday’s Press article about an upcoming play about the murder case, Katie Chapman states that Bain’s ‘‘defence successfully argued that Robin was the killer’’. I take exception to this flawed characterisation of David Bain’s not-guilty verdict. As a jury, we did not necessarily find David innocent or Robin guilty. Our task was to determine if David Bain’s guilt was proved beyond reasonable doubt – a very high threshold. Anyone who reads from our verdict that Robin Bain is guilty is just plain wrong. Robin Bain was not on trial – David was.
Good on RNZ’s Monique Devereux for making this point.
Incidentally, this also rather suggests that there are occasions on which it is valuable to hear from jurors after a verdict, despite the hard line taken on this issue by many judges.
Topics: General | 50 Comments »
The case against the case against Robin Bain
July 8, 2010
So, now that TVNZ has broadcast its special edition of Bryan Bruce’s The Investigator: The case against Robin Bain, compellingly arguing that Robin Bain couldn’t have committed the Bain family murders, can David Bain and his team do anything about it? They argue that it’s “unadulterated rubbish”, contains “mischievous misrepresentations of facts”, “perpetuates a fraud”, and unethically refused to include their side.
They seem particularly furious at Bruce’s conclusion that “in my view, there was no forensic evidence that Robin Bain killed himself or his family” (and later, in slightly watered down form, “the forensic evidence fails to support any such unlikely chain of events” as that required for Robin Bain to have committed the murders).
Team Bain is making noises about legal action, which could involve either a defamation lawsuit or a broadcasting standards complaint. What chance would they have? (I won’t deal with the question of whether anyone else might have remedies, such as the witness Bruce raised questions about, Daryl Young.)
Defamation
The first hurdle for Team Bain is defamatory meaning. Does this programme actually suggest that David did it? TVNZ might say that the documentary was all about Robin, not David. It never said that David must be guilty.
I don’t think that flies. A programme means what ordinary reasonable viewers would take it to mean, including the things that are between the lines. As Bruce pointed out, the defence team itself argued that Robin Bain committed the murders. That was essentially their whole strategy. As far as I know, no-one has suggested it could have been anyone but Robin or David. If you purport to demolish the case against Robin, everyone will quite reasonably take you to be saying that David did it. Round one to David.
Round two is the defences. The really interesting one is Truth. The onus would be on TVNZ/Bruce to prove the “sting” (which we’re supposing is that David is the murderer). They wouldn’t have to prove that beyond reasonable doubt, though. It’s only a civil standard that applies: balance of probabilities (though the level of proof must be commensurate with the gravity of the allegations, which would suggest a burden higher than more-likely-than-not when you’re calling someone a murderer). What’s more, a defamation jury could probably be shown all the evidence that was excluded by the criminal court, as well as anything that Bruce could turn up. It would potentially be a mammoth case, extremely long, complicated and expensive. I’m guessing David Bain can do without that – quite apart from the serious risk that the jury would find the allegation justified.
But even if TVNZ didn’t manage to convince the jury that David was the killer, it might manage to make out another defence: Honest opinion (which used to be called “fair comment”). The programme is very carefully structured as a presentation of Bruce’s “personal opinion”. At all the key places he uses language such as “in my view…”. There’s really no reason to doubt that his opinion is genuine. There’s a very solid argument that the opinion is based on facts set out or referred to in the programme. Those are the requirements of the defence. Unless Team Bain can show that the programme got some facts flat-out wrong, or perhaps omitted reference to some glaringly significant facts, this defence is a serious obstacle to a defamation lawsuit.
There’s another defence called Qualified privilege, currently in a state of development by the courts. Speaking broadly, it may be moving toward protecting speech that’s in the public interest (even if it turns out to be wrong), where the reporter has behaved responsibly. David can certainly ask whether it’s responsible journalism to exclude his views form a programme like this, but he couldn’t assume that this defence would fail here.
Broadcasting standards complaint
This might be a better prospect for Team Bain. The complaint would not need to be made in Bain’s name. I rather expect that some non-Team-Bain folk will lodge complaints with TVNZ, if they haven’t done so already. [Update: there’s a complaint already].
As for Team Bain themselves, they have questioned the accuracy of the documentary. Was there in fact significant forensic evidence linking Robin Bain to the killings that the documentary omitted? Even if there is, TVNZ can still argue that this was presented as opinion, not fact. Perhaps Team Bain will identify specific factual allegations that they think are wrong, or (more readily) create misleading impressions. The BSA in the past, however, has been ready to roll a lot of things up under the rubric “opinion”.
The fairness standard, and the Standard Formerly Known As Balance, are more promising for Team Bain. They overlap to some degree.
The fairness standard requires that people “referred to” in the broadcast be treated fairly. That certainly includes David.
Balance relates to broadcasters’ discussions of controversial issues of public importance. It would be a brave BSA that found that no such issue was involved here.
Balance requires the broadcaster to make reasonable efforts to include “significant viewpoints”. It strikes me as difficult to argue that David Bain’s viewpoint wasn’t significant in the context of a documentary about his case. Apparently he tried to provide input into the documentary, but was turned down. The BSA has said the balance standard applies with particular force when serious criticisms are advanced against someone. The same goes for fairness. Looks like a slam dunk to Team Bain so far.
But it’s not so straightforward. TVNZ will argue that the focus of the documentary was Robin Bain’s guilt. That was the issue of public importance. And that didn’t require David Bain’s input. Yep, they’ll argue that. I think it’s unconvincing for the same reasons I set out above.
Next, TVNZ will argue that less balance is required for authorial documentaries. The guidelines say so explicitly. That’s a much better argument. This documentary is plainly authorial. It emphasises at every turn that it’s Bryan Bruce’s view. Reasonably early on, he tells us that that the documentary is his “personal opinion.”
The guidelines also talk about whether viewers can be expected to be aware of significant views from other coverage. That’s surely also the case here. Team Bain can hardly argue that they haven’t been given plenty of ink and airtime for their views on TVNZ and in every other media outlet in the country.
These are powerful arguments for TVNZ. Still, they may not be enough. The most comparable BSA case is the one about Keith Hunter’s documentary Murder on the Blade, arguing that Scott Watson was wrongly convicted. The BSA split over the question of balance. The majority said that the balance standard wasn’t breached. (Note that the guidelines were slightly different back then, though I’m not sure it would make a difference). They said:
- The fact that it was one person’s perspective was clear from the introduction
- It was made clear that the programme did not deal with all the evidence
- The documentary did present the key elements of the case of the side it criticised
- It didn’t misrepresent the case
- It sufficiently acknowledged other viewpoints
- There was extensive previous coverage of other viewpoints
- The Bill of Rights protected the speech
How does The Case against Robin Bain fare under these factors? It probably satisfies 1, 6 and 7. It may satisfy 2 and 4. According to Team Bain, it fell down badly on 3 and 5. TVNZ will say that the programme wasn’t about David Bain’s guilt or otherwise, and in fact, mentioned uncritically that the second jury felt that there wasn’t enough evidence to convict.
So here’s the question: was enough balance provided, even if the threshold is low because the documentary is authorial, and focused on Robin Bain’s guilt? Was there enough indication of the material supporting Team Bain’s view that the evidence pointed to Robin? Was there, as they allege, some degree of misrepresentation? Might some omitted information be so significant as to render the programme misleading (or at least unfair) without it? Might the BSA find that the need for balance here is greater than it was in the Murder on the Blade case since it’s effectively accusing someone of murder rather than suggesting someone didn’t do it? Or might they say the need for balance is less because the programme didn’t directly tackle David’s guilt, and there were plenty of other sources of information about the trial?
Whatever the case, TVNZ has dealt itself an extra trump by giving Team Bain some air time to rebut the documentary in its news and current affairs coverage afterwards. Smart move. The balance standard requires only that the range of “significant viewpoints” be broadcast within the “period of current interest”. So it will be able to draw on the rebuttal offered during Close Up last night, for example. (That may not insulate it from a fairness complaint, though. Fairness has been treated as separately required in each programme. On the other hand, a slight change in the wording of the fairness standard recently may have changed that…).
Upshot: this would be an interesting complaint if it’s properly argued. I’m inclined to think the outcome will depend to a large extent on whether Team Bain can point to material that was glaringly left out or misrepresented.
Topics: Broadcasting Standards Authority, Defamation, NZ Bill of Rights Act | 1,351 Comments »
Stormin’ Norman 2
June 23, 2010
Okay, I’ve watched the footage. I think there’s plainly an assault (probably several). They’re plainly minor. The Chinese security detail were plainly desperate to spare their guy from the indignity of having to look at the Tibetan flag. They try to stand in front of Norman, and one pushes an umbrella in front of his flag.
Their behaviour is kind of pathetic.
Ducking the umbrella, Norman takes a few steps toward the security entrance and the knot of people around the Vice President. It’s not at all clear that he would have done so if Umbrella Fellow hadn’t done his trick.
National has described this as a “lunge”, and then as a “charge”. That’s absurd.
Norman then has the flag ripped out of his hands, and has to scramble to recover it. He gets it back, then follows the group inside the entrance, calling for “Freedom for the people of Tibet”.
Some may call this undignified behaviour for an MP. Not me. Norman is the one pointing up the really offensive behaviour in all of this, which is the Chinese regime’s treatment of Tibetans. Here’s an example dear to my own heart (from Amnesty International’s latest country report on China):
On 28 December, DhondupWangchen, an independent Tibetan film maker, was sentenced to six years imprisonment for the crime of “subverting state power” after a secret trial by the provincial court in Xining, Qinghai province. The lawyer originally hired by his family was barred from representing him, and it is unclear if he subsequently had any legal representation or was able to defend himself during the trial.
Some things are worth ruffling some feathers about.
Topics: Protest speech | No Comments »
Sunday paper lies to boost circulation!
June 22, 2010
Here’s the Sunday Star-Times headline from last week:
Sex attack gets drunk driver off
This is almost true. To be precisely accurate, however, it should have read:
Sex attack doesn’t get drunk driver off
The story is about a woman who was convicted of drunk-driving in the middle of the night after she said she was fleeing from someone in her household who tried to sexually abuse her.
She appealed against the penalty imposed: a 12 month suspension of her licence. She did not appeal against her conviction. So there was never any possibility of her “getting off”. The headline is badly misleading (and, we should note, was probably written by a subbie not the journalist).
To underscore the botch, there’s a sidebar headed “The ones that got away”, all of which concerned people who were discharged without conviction: that is, who can properly be said to have “got off”.
What happened here was that the woman managed to convince a High Court judge that the circumstances of her offending – a panicked, early-morning escape – meant that it wouldn’t be just to suspend her licence. So in some sense, she “got off” the suspension part of her penalty. But even then, she didn’t “get off” entirely. Justice Heath tripled her community service sentence to 300 hours instead.
It seems a fair call to me. Without the ridiculously overblown headline, it’s difficult to see why this is a front page story.
Topics: Media ethics | 1 Comment »
Stormin’ Norman
June 21, 2010
So police have investigated the incident in which Greens leader Russel Norman claimed to have been assaulted by members of the Chinese delegation who wrenched a Tibetan flag from his grasp on the grounds of Parliament… and concluded that there is “insufficient evidence to substantiate any assault charges at this time”.
Police say the “available footage” and information from “a number of people who witnessed the incident” was not enough to support a finding of assault. That’s surprising, given the phalanx of journalists and hangers-on who were around. But let’s assume it’s right.
Still: why was the word of an MP not enough to substantiate an assault charge? (The only possibility that doesn’t leave me gob-smacked is that it’s hard to work out precisely who committed the assault. In that case: what steps have police taken to try to ascertain the identity of the alleged assaulter?)
[Update: Colin Espiner has watched footage and seems to doubt there has been any assault. I haven’t seen the footage. But I think it would be difficult to rip a flag from someone without committing a (technical, at least) assault.]
Also: why is the PM apologising to the Chinese when they appear to have committed a contempt of Parliament?
Topics: General | 54 Comments »
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