Who needs the BSA?
May 20, 2008
This might surprise you.
I was looking at broadcast licences the other day. As you might guess, they can be subject to conditions, and most of the ones that are imposed relate to technical issues: making sure there’s no overlapping use of the spectrum, for example. Mostly, they’re nothing to do with the content of what’s broadcast. But there’s an exception. All broadcast licences under the Radiocommunications Act (and that includes TV broadcast licences, since they have to use the spectrum too) are subject to the conditions in Schedule 1 (see sections 99 and 101).
What are those conditions? The interesting one requires licencees not to broadcast material that is false, fictitious or misleading. (MED tells me that this may have had its genesis in preventing false distress signals, though the schedule creates obligations that are untrammelled and seem to apply to all broadcast programming).
Even more interesting: the Radiocommunications Act contains some fairly detailed remedy provisions. On my reading of the Act, a broadcast that breaches the conditions of the licence (including those in Schedule 1) is a prohibited broadcast (see sections 101(2) and 103). This is an offence (sections 103 and 128) and can trigger civil remedies – damages and an injunction (sections 103 and 117-119). Really – those remedies are actually set out.
MED tell me that these provisions have never been used (or even attempted to be used) to punish or restrain a broadcast programme, though oblique reference was made to them in Ransfield v TRN [2005] 1 NZLR 233, at para [23].
But it remains an intriguing possibility. It seems to present an alternative remedy to going to the BSA, and indeed to an action for defamation, in cases where broadcasts are – or will be – false or misleading. It’s better than a complaint to the BSA in several ways: it can found an injunction or damages, and may be less subject to the BSA’s ability to carve out exceptions to the accuracy principle (though it’s possible – likely even – that the courts would create their own limitations, such as a materiality requirement). Injunctions may be easier to get than they are in defamation cases, where they are almost impossible, though again, it’s not clear what threshold questions would be applied, or how the remedies might dovetail with the NZ Bill of Rights Act.
Topics: Broadcasting Standards Authority, Defamation, Injunctions, NZ Bill of Rights Act | 417 Comments »
Chatham House Rule
May 20, 2008
There is only one Chatham House Rule, and this is it:
When a meeting, or part thereof, is held under the Chatham House Rule, participants are free to use the information received, but neither the identity nor the affiliation of the speaker(s), nor that of any other participant, may be revealed.
Note that it allows quoting, as long as the speaker is not identified. I’m increasingly getting the feeling that when people blithely say “Chatham House rules apply”, they don’t understand this implication. Should journalists rely on it? (I confess I have).
Topics: Media ethics | 50 Comments »
Free speech log
May 12, 2008
Some upcoming free speech cases:
Electoral Finance Act judicial review: strike-out application to be heard on 15 May. Applicants John Boscawen, Garth McVicar, Rodney Hide, and Graham Stairmand now want the court to rule that the Attorney-General should have advised Parliament that the Electoral Finance Bill was inconsistent with the Bill of Rights Act, and that the Electoral Finance Act, now that it’s passed, is inconsistent with the Bill of Rights Act. The Crown seeks to strike out both challenges, on the grounds that they are contravene Parliamentary privilege.
My guess: the first challenge (the missing A-G report) will be struck out, and the case will be allowed to proceed on the second (the question of the inconsistency of the Act with the Bill of Rights).
[PS: On Wednesday, the Wellington High Court will hear National’s judicial review application against the Electoral Commission’s decision that the EPMU can be a third party for EFA purposes.]
Fairfax/Pankhurst contempt: set down for five days in the week beginning 15 September before a full bench of the High Court (two judges). This concerns several Fairfax newspapers’ “Terrorism Files” stories. It is shaping up to be the most significant contempt of court case in NZ’s history.
Important fact from the Crown’s application: the Crown’s case crucially revolves around the papers’ publication of material from communications intercepted by police: material that is (a) illegal to publish, (b) inadmissible in the trial, and (c) pretty damned prejudicial.
Fascinating issue: to what extent will the public interest in the information be relevant?
Broadcasting Standards Authority challenges: TVNZ’s lawyer Willy Akel has two challenges to BSA decisions. One was argued last week, against this BSA decision, a finding that a Close Up story about a suburban brothel was inaccurate and unfair because there wasn’t sufficient evidence that the place was indeed a brothel. The key issue seems to be whether the BSA should have given TVNZ notice that they were looking at concluding that the house wasn’t a brothel.
The second challenge is to this decision (which I discussed here). It’s being heard on Thursday in the Wellington High Court.
Topics: Broadcasting Standards Authority, Contempt of Court, Electoral speech, NZ Bill of Rights Act | 2,064 Comments »
Okay, have at me
May 11, 2008
This blog is mostly about free speech. It should be becoming clear that my philosophy is that freedom of expression is extremely important and that any limits on it should be carefully defined and properly justified. That philosophy tracks closely with the framework of the Bill of Rights Act, which is relevant to almost all speech issues in NZ, and that’s why I often discuss it and get steamed up when (as often happens) it is overlooked or poorly applied. I’m about to run a series of posts taking pot-shots at the system for checking compliance with the Bill of Rights before bills are introduced into Parliament.
So: I expect there are people out there who would accuse me of hypocrisy for supporting the Electoral Finance Act.
I don’t think I’m being hypocritical. I accept that electoral finance laws limit speech, but I argue that the advantages of reform meet the test of demonstrable justification under section 5 of the Bill of Rights Act. I set out some of my arguments here. I absolutely accept that others disagree, and do so strongly. Still, I am not blindly cheering for the Electoral Finance Act. I think (and have said) that the process followed by the government was terribly flawed, that the first version of the bill contained unjustified restrictions on speech, and that the new law isn’t perfect.
I don’t especially want to get into a debate about the nuances of the law. Go to NoRightTurn or Kiwiblog for that. But I thought I’d carve out a space for people to give me a slap over this if they feel like it.
I think I might kick things off by linking to Bryce Edwards and Stephen Franks, who hold contrary views.
Topics: Electoral speech, NZ Bill of Rights Act | 2,078 Comments »
Get over it!
May 11, 2008
Some people think flag-burning is offensive. Fine.
Some argue that it’s not speech. Not so fine. One of them, somewhat extraordinarily, is Stephen Franks:
The effect of flag-burning derives solely from its power to shock and offend. It is not speech; it is not expression. It is the suppression and destruction of others’ expression.
As someone with respectable libertarian credentials, Franks ought to know better. He was condemning Paul Hopkinson’s burning of the NZ flag outside Parliament. After taking great care to ensure that the burning did not endanger anyone, Hopkinson torched a flag to protest against the NZ government’s hosting of Aussie PM John Howard, given Australia’s involvement in the Iraq war.
I think Hopkinson’s message was pretty clear. He destroyed a symbol of our state because he was so disgusted with the government associating itself with that war, and he wanted to invite us to notice and share his outrage. Yes, he could have written a letter to the editor, which may or may not have been published, or held up a wee sign, which may or may not have attracted attention. There is a long tradition of flag-burning for political effect. It’s seldom difficult to work out what message is being conveyed. People don’t tend to burn flags just for the sake of it.
Apparently for Franks, though, Hopkinson’s message was as obscure and offensive as if he had dressed up in a bunny suit outside the railway station and thrown faeces at people. “Flag burning is not speech,” Franks says.
I’m pretty sure that Franks was just posturing. He’s smart enough to work out that flag-burning is communicative behaviour. He just didn’t like the judge’s decision, because he felt she mangled the interpretation of the Flags, Emblems, and Names Protection Act to let Hopkinson escape prosecution. That’s a fair argument to make. I confess I was surprised at the decision, too. At best, it was pushing the Bill of Rights Act to its limit.
Still, Franks has called for flag-burning to be properly banned. Franks wouldn’t normally argue for speech to be outlawed just because he (or even many people) disagree with it. What I think he really meant was that Hopkinson’s manner of conveying his message was so offensive that there is justification for banning it. And by “offensive” he means, ultimately… many people disagree with that manner of conveying a message.
I say to those people: suck it up. One of the things that flag stands for is the right to convey your message in ways that other people might find offensive. I don’t want the state telling me how I should restrain my expression of political views to means it finds congenial. Being shocking might be part of the way I like to speak. It may be the best or only way I can attract attention to my message. If I’m not hurting or endangering anyone, or breaking any other laws, there’s no justification for limiting my speech.
Part of the judge’s reasoning in Hopkinson was that there’s no demonstrable justification under the Bill of Rights for preventing non-dangerous flag-burning, and she surely got that bit right. It wouldn’t have been an offence, for example, for Hopkinson to burn an Australian flag outside Parliament, which shows how silly the law is. The US Supreme Court has reached a similar conclusion. [Update: but see Graeme’s delightful post in the comments section.]
The sensitivities around the flag-burning offence are one reason that the Solicitor-General must give consent before anyone can be prosecuted for flag-burning. Good. But now it looks as if police are seeking to do an end-run around the flag burning law. They’re using the offence of offensive behaviour instead. I think that stinks.
In this case, they successfully prosecuted Valerie Morse for offensive behaviour for burning a flag during a last year’s Anzac Day ceremony. She was protesting against the address of the Secretary for Defence. The ceremony was by the cenotaph. Morse was across the road in the University’s grounds.
The district court judge accepted that Bill of Rights was relevant, and that he should be guided by the Court of Appeal’s approach in Brooker v Police. I won’t do an exhaustive legal analysis here. But I’m surprised and concerned that, in the judge’s discussion of whether a finding of offensive behaviour is justified, there is no mention of the fact that there’s a specific crime of flag-burning which requires the Solicitor-General’s consent before prosecution. This use of the offensive behaviour offence can be seen to cut across that law, and there’s a good argument that the use of the more general section is not a justified limitation on free speech. Nor is there much acceptance of the centrality of political speech to section 14 of the Bill of Rights Act, the widely recognised importance of giving protesters considerable leeway in their manner of speech, and the need to treat manner-and-form restrictions (ie the ever-present argument that “we’re not affecting your speech, simply the manner of delivery”) suspiciously when they’re aimed at content.
But perhaps that’s too much to expect at the District Court level. The judgment is under appeal, and I’d hope for more from the High Court.
My argument is not solely a legal one. As a public, we’ve got to grow up, put aside whatever ire we feel at flag-burners, and just accept that they’re part of the cost of freedom of expression. Treating flag-burning as offensive is… offensive to democracy.
If you’re reading this, Stephen, I’m looking forward to your reply. I defy you to stick to the issue here and not try to sidetrack the debate onto the Electoral Finance Act, which I suspect you’ll be tempted to do. I’m happy to open up a debate on that separately. [In fact, I’ve just done so, in the post above.]
Topics: NZ Bill of Rights Act, Protest speech | 2,393 Comments »
JK Rowling and the Chamber of Secrets
May 11, 2008
Actually, it’s not a chamber that she’s looking to keep secret. It’s a photograph on the open street.
She’s sued over the publication of some paparazzi photos of her and her husband on a street pushing a baby buggy containing David, their 19-month old baby. And the UK Court of Appeal has just ruled that they have (or rather David has) an arguable case.
You might recall that this case is almost identical to the NZ case of Hosking v Runting, where our CA rejected a privacy claim.
This falls against the backdrop of a clash between the European Court of Human Rights in the Von Hannover case (which held that Princess Caroline and her family have privacy rights even when doing non-embarrassing things in mostly public places, unless the pictures related to some public issue) and the House of Lords in the Naomi Campbell case (which held that even celebrities don’t have privacy rights when they pop out for a pint of milk). The judge at first-instance followed Campbell and biffed out the Rowlings’ case. The Court of Appeal has reinstated the case.
A few quick comments:
- The CA is not saying the Rowlings win, just that they can go to trial. Ultimately, the British courts might yet find no liability here. (Or there might be an appeal).
- The CA focuses entirely on David’s rights. JK and her hubby have not argued for privacy rights for themselves in this case.
- The CA notes that the test in the UK is different. In the first place, their law simply looks for a reasonable expectation of privacy. The CA says maybe bubs has a reasonable expectation that photos of him won’t be published, given that they were taken in a clanestine way, by a paparazzi firm, out for commercial gain, knowing that the parents had tried to protect their children’s privacy and would object to the publication. The next stage in UK law is what they call a proportionality analysis, in which privacy rights are balanced against freedom of expression. This is a rather nebulous exercise and the CA says little about it, except that it’s arguable. In NZ, by contrast, after identifying a reasonable expectation of privacy, we ask whether the publicity is highly offensive, raising the bar for plaintiffs.
- Amusingly, the judgment records that “it is accepted by the plaintiff that he was not himself upset by the taking of the photos.” (When questioned about the issue, he is understood to have said “urf, gesplursh, wheephle” and stuck his fist in his mouth).
- As is becoming increasingly common, the judgment mischaracterises the Peck case as involving a man caught on closed circuit TV “attempting to commit suicide”. No. It was shortly after he had attempted suicide, a significant difference, I think, given that people seeing the footage would just see a distraught guy with a knife.
- The CA seems attracted to a test that says: would you publish this if it involved non-celebrity children? By contrast, the NZ courts seem to accept that there is an element of loss of expectation of privacy just by being a celebrity’s child. This dicta suggests otherwise.
- The overwhelming thrust of the decision, however, is that privacy expectations all depend on the circumstances. In particular: did the parents previously expose the children to publicity? How private is the occasion being photographed? (Family and sporting activities seem generally off-limits).
Perhaps most significant is this comment:
The approved test is not whether a person of ordinary sensibilities would find the publication highly offensive or objectionable, even bearing in mind that young children are involved, but … what a reasonable person of ordinary sensibilities would feel if he or she was placed in the same position as the claimant and faced with the same publicity. The [NZ Court of Appeal] judges did not consider either of the two questions posed through the eyes of the reasonable child, or (more realistically) through the eyes of the reasonable parent on behalf of the child. Although the judge [in this case] recognised the error, he said that neither Lord Hope nor Baroness Hale expressed any doubts about the decision in Hosking v Runting…
This is grist for the mill of those who worry that the test for reasonable expectations of privacy is taking on a subjective flavour, strongly seasoned by the views of those insisting their privacy has been infringed. This is sometimes contrasted with the views of the “reasonable bystander” who might be more detached and objective, and less inclined to see invasions of privacy. The UK court is saying that our judges fell into “error” by not properly taking account of the circumstances of the claimant.
I’m still unconvinced about this. The NZ CA judges did take into account the circumstances of the plaintiff, and in particular, the special position of children. On the other hand, the UK CA insists that its test is an “objective” one (see para 39). I think they would bridle at any suggestion that they were influenced by the particular attitude of the plaintiff (as opposed to the plaintiff’s circumstances) when carrying out their assessment of the reasonableness of the expectation of privacy.
I don’t think there’s a fundamental difference between their approaches. The controlling requirement is the reasonableness of the expectation. That needs to take account of all the circumstances. But ultimately the assessment is an objective one for the judge.
Still, expect commentators to keep making jokes about the ludicrousness of talking about the expectations of the “reasonable drunk” (Andrews) or the “reasonable child molester” (Brown).
Should JK win? I don’t think so. I’m all for hiking privacy protections for children, but I think it goes too far to say that a celebrity’s baby who is in a public place, not doing anything embarrassing, who doesn’t even see the photographer and who won’t even be recognisable from the photos in a year or two, has a reasonable expectation that photos won’t be taken and published. I think our CA got this one right.
Topics: Privacy tort | 2,386 Comments »
Judicial smack-down on cameras in courts
May 8, 2008
Memo from Justice Fogarty to almost every other judge in the country: You are breaking the law. You are riding roughshod over the presumption of innocence. You are punishing defendants before they have been convicted. You are shirking your duty to ensure that witnesses are not inhibited by cameras in court. You are not doing justice according to law.
I’m paraphrasing, but not over-stating, the guts of Justice Fogarty’s decision in R v Sila. He has raised his judicial digit to the bulk of his NZ brethren. It is, as I said in the Herald, a slap in the face for the judges, including a current Supreme Court judge, who have carefully developed the guidelines for cameras in court over the last decade, and those who have been applying them during that time.
Justice Fogarty’s argument: the guidelines for cameras in court “are not a correct statement of law”. This is because they allow the media to film defendants sitting in the dock, “a public humiliation, akin to the ancient punishment of pillory.” (I think they’re more closely akin to the stocks, which it seems were less likely to result in convicts being branded, flogged or having an ear cut off).
It’s also because the guidelines allow witnesses to agree to be filmed – witnesses who may not be a good position to judge how detrimental the presence of cameras will be to their evidence.
Therefore, says Fogarty J, the guidelines allow defendants to be punished before they have been convicted – an abrogation of their right to be presumed innocent. And they affect the fairness of a trial by permitting witnesses to consent to the presence of cameras that might interfere with their evidence. A judge has an overriding duty to secure justice according to law. The guidelines, which permit that duty to be traded off against lesser principles such as open justice, freedom of expression, and the watchdog role of the media, must be illegal.
The fact that this reasoning flies in the face of NZ’s judicial consensus is pretty extraordinary. But what’s more gob-smacking is that Fogarty J didn’t take the low-key option of simply noting that the guidelines were merely guidelines, not legal rules, and simply applying his own discretion. Oh, no. He issued declarations that two of the guidelines were illegal. Despite the fact that no party had applied for those declarations. Despite the fact that the argument had not been addressed to a general ruling. Despite the fact that his power to issue them is based on what looks to me like an extremely elastic view of his inherent powers. For non-legal types: inherent jurisdiction is a magical hat from which judges produce hitherdo undiscovered powers when they find they need them to do justice. (My argument, for the legal boffins, is that it’s a long stretch from an inherent jurisdiction to suppress a name – Taylor v A-G, which Fogarty relies on – to an inherent jurisdiction to issue a general declaration that wasn’t sought and wasn’t, I think, necessary to enable the court to act effectively with the issue before him.)
Suffice to say, I think a number of judicial eyebrows will have gone into orbit after they first encountered this decision.
Still, in issuing these declarations, Fogarty J has raised the stakes. I think District Court judges would have to treat themselves as bound by this decision, rather than the guidelines. And from now on, High Court judges can no longer merrily apply the guidelines, and will need to address a prelimary question: do they agree with Fogarty J that chunks of them are illegal?
Should they? Is Fogarty J right? I don’t think so. Let’s look at the two issues. First, the filming of the accused: is this a form of pillory that effectively punishes the defendant and undermines the presumption of innocence? Well, true, accused people will be harmed, whether they’re innocent or guilty, by such coverage. Probably more harmed than simply by missing out on name suppression, as the judge argues. But he forgets one big thing: the media (or some of them) can still say, “stuff the in-court rules, we won’t make any application, we’ll film the bugger going into court instead.” Upshot: defendant pilloried anyway. The judge’s rulings won’t necessarily achieve their aim. To the extent that they infringe freedom of expression under the Bill of Rights Act (and the judge accepts that the Bill of Rights is triggered), it’s hard to say they’re a justified and proportionate restriction on the media’s rights to report trials if the protective restriction can be so easily circumvented.
In any event, it’s drawing a long bow to say that filming an accused person infringes the presumption of innocence.
It’s drawing an even longer bow to suggest that the common law says so. As Justice Fogarty points out, Britain has legislated to outlaw photographing and sketching of defendants. But he doesn’t tease out the the natural implication: Britain needed to legislate because the common law didn’t outlaw them. I guess he’s concluded that the common law has evolved. He cites no authority for that. He says numerous common law judges agree with him. He cites no authority for that either, though it’s probably true. On the other hand, I’m sure that plenty don’t.
Before he issued such a sweeping judgement, I would have liked to see the judge make a closer analysis of the evidence and principles in play. Given that the danger to the presumption of innocence here is, at best, a peripheral one, I don’t think it’s legitimate to use it to trump the other principles in play: open justice and freedom of expression. The guidelines themselves strike me as the product of a careful balancing of principles and experience that seems absent in Justice Fogarty’s reasoning.
What about the second issue? Should judges be given a power to override a witnesses acceptance of the recording of their evidence? Justice Fogarty cites evidence that many witnesses in filmed cases said they were distracted by the cameras. It’s not clear what impact this had on their evidence though.
He reasons that:
Honest witnesses can hestitate, and correct their recall [for example, he added later, when they were confronted with earlier inconsistent statements]. They may be inhibited from doing so, if their hesitations and corrections are to be are to be on the evening news.
Yes, rather than admitting to those inconsistencies or errors, no doubt witnesses would rather see them mercilessly exposed in cross-examination on the evening news. I’d like to see some more evidence before making up my mind about this (the judge cites a Australian article, which I confess I should read). Still, I’m inclined to be comforted by the fact that the guidelines were drawn up by experienced judges.
It should be noted that the judge did allow the adult witnesses to be filmed in this case if they chose.
Topics: Suppression orders | 2,012 Comments »
A victory for the Berrymans?
May 6, 2008
You will have heard that Justice Mallon has granted judicial review of the coroner’s ruling in the Berryman’s bridge collapse case. Here are some things you might think you know about the Berryman case from the media coverage:
- The Berrymans “won” the case
- The decision said the bridge collapse was “not their fault”
- The Berrymans were “cleared of blame” for the collapse
- It was faulty army workmanship that caused the collapse
- The decision quashed the finding that the Berrymans were responsible for the collapse of the bridge and the death of Kenneth Richards
It makes a nice story, and I have no doubt it’s the way lawyer Rob Moodie would like it told. But it’s not really what the judge said. You can check out the decision, or just cut to the media summary.
Actually, it wasn’t entirely a win for the Berrymans. They sought a new inquest. They didn’t get it. They wanted judicial review of the Army’s decisions and conduct. They didn’t get that either. They failed on most of the grounds on which they sought to challenge the coroner’s findings.
In fact, they really only succeeded on one point: quashing the coroner’s finding that there was no issue with the design or construction of the bridge by the Army. Bits of the coroner’s decision were struck out to make this change.
Does this absolve the Berrymans of blame? No. The judge considered doing that, but found that there was evidence before the coroner upon which he was entitled to find that the Berrymans had inaquately maintained the bridge, quite apart from the problems with its design and construction. She said that, even considering what we know now, it is unlikely that the Berrymans could be completely exonerated.
Does it mean the Army was at fault? Not necessarily. The judge made no finding about fault or wrongful conduct on the part of the Army. She merely struck out the parts of the decision that confidently concluded that the Army wasn’t at fault.
The coroner had concluded that the collapse was primarily the Berrymans’ fault. The judge effectively amended that to partly their fault.
We shouldn’t be too surprised at this result. It’s exactly what Wild J said when he considered similar issues in an early chapter of the litigation.
And although Rob Moodie makes a lot of the judge’s recommendation that the parties try to settle the Berrymans’ $4.5 million damages claim, Justice Mallon didn’t make any comments on the merits of the claim, which is a separate proceeding.
The Berrymans gained a partial victory in the court. But they won a striking victory in the media.
Topics: Media ethics | 4,916 Comments »
We’re free. Really.
May 1, 2008
The latest world press freedom rankings are out. As usual, we’re in the top 10, where we’ve been for at least the past five years (this year, we’re 9th equal, actually). Those who like to rhapsodise about the US First Amendment and American press freedom might like to ponder that country’s rankings for the past four years: 16th, 17th, 24th, 15th. (Australia does worse).
A quirk of methodology? Well, check out the Reporters Without Borders’ annual press freedom indices. NZ is routinely in the top 20 (currently at 15th – before that 19th, 12th, 9th, and 17th). The US is hasn’t made the top 20 in the last five years (it’s currently 48th – before that 53rd, 44th, 22nd, 31st).
That’s not to say all is rosy. And I’m not entirely sure how familiar the rankers are with what’s going on in NZ. Still, this is a general indication that our protection of free speech scrubs up pretty well internationally.
Topics: General | 2,652 Comments »
A politician’s guide to ducking awkward questions
May 1, 2008
This week’s lively Media7 show about the art of interviewing reminded me of a programme I put together for Radio NZ some years back. It’s a spoof instructional cassette for politicians on how to duck questions. All the clips are from real interviews.
Here’s the script.
HOW TO DUCK AWKWARD QUESTIONS: A GUIDE FOR POLITICIANS
MUSIC –chirpy civil service instructional cassette music. Fade under…
Hello. Welcome to the Incoming Member of Parliament’s Guide to Ducking Awkward Questions. This is volume one of the Parliamentary Advice cassettes, and we recommend that you study it thoroughly before moving onto the others in the series, How to leak documents, How to spread rumours of a leadership coup, How to dispel rumours of a leadership coup and, of course, our most popular instructional cassettes, How to dig up dirt on other MPs, and its companion volume, How to smear it on them without getting any on yourself.
As you will quickly learn, the media in this county lack a comprehensive understanding of complexities of government and a proper respect for the dignity of political office. They frequently ask questions which, on a full and balanced appreciation of all the circumstances, it is not in the public interest to answer. There may even be occasions when you do not know the answer, or you do know the answer and it is embarrassing to you or your party. In such situations, it is imperative for the maintenance of confidence in the institution of government and the integrity of our democracy that a reassuring response be given, though not, of course, the actual answer to the question.
Over the next 20 minutes you will learn how to realign an interview conversation so that it tracks more closely with the public interest. This will enable you to steer it away from the unhelpful and unproductive line being pursued by the interviewer. You will learn the Seven Strategies for Successfully Shifting the Subject.
But first, a note of warning about what happens if you get it wrong. As former Local Government NZ President Louise Rosson discovered recently to her cost, hell hath no fury like a media misled.
You accept that what you said on Monday was not true?
Yes, I would have to agree with that.
You accept that you lied.
Hindsight is always very easy.
Miss Rosson, I think we just need to get it clear. You accept that what you said on Monday was not true. You accept that you lied.
…it would appear. Yes yes I did not give, I gave part of the truth.
Be warned, then. You must never mislead the media if there is any chance they will find you out.
However, that does not mean that you must answer their questions. At first, this may strike you as somewhat rude, but you will soon overcome that. You should not think of the interview as a conversation, but as an opportunity for you to get across your point of view to the voters. After all, it was you they elected you to represent them, not the media. You are far better placed to appreciate what the public need to know and what they do not. So you should treat the interviewer’s questions as mere vehicles which you can ride to the destination you find most beneficial. Sometimes that will involve changing lanes, sometimes you may drive along the road for a while and then turn off, and sometimes you will want to execute an immediate u-turn.
The most direct way to turn the interview onto the desirable path is to use a strategy known as the Headbutt, which involves ignoring the question altogether and talking about whatever you like. NZ First leader Winston Peters is a master of the Headbutt. In this example, Mr. Peters utilises it in a particularly adroit fashion, suggesting that his question is more interesting than the interviewer’s. He is being interviewed about the decision of David Bradshaw, the head of the serious fraud office, not to prosecute those involved in the Winebox transactions.
When he started the investigation, he did say that he didn’t shirk from prosecution if he found the evidence. Why would he be doing that?
I’m not interested in what he said. I’m interested in this fact: that if he cannot, as they couldn’t in the past, find evidence in this matter, then they should be removed from their job and someone competent and able to understand the issues be given the job….
Be aware, though, that the Headbutt is high-risk and requires great self-assurance. For those with less experience and fortitude, we recommend the Flip instead. The Flip is similar to the Headbutt, but instead of launching straight into your message, you use a transitional phrase so that the clash between question and answer isn’t quite as startling. The Flip comes in many variations, but the classic formulation involves five very simple but magical words: “Let me just say this.” Who could refuse such a polite and reasonable request? Of course, you don’t leave time to refuse anyway, as Health Minister Annette King demonstrates when she is asked about the Green Party’s little rebellion during the passage of the health reforms:
Annette King, is the govt happy that a party which is its partner in a lot of things is going to be proposing amendments to legislation like this?
Well first of all, Geoff, can I say that this is an exciting day for the govt because we are seeing the rollback of a health system that was based on competition and secrecy and returning it to a public health system, and as Sue said with an emphasis on community involvement and cooperation. So it is an exciting day.
Notice that this use of The Flip is so bold that it almost amounts to a Headbutt. Here’s a more subtle example of The Flip by former Conservation Minister Nick Smith during the Timberlands saga. How will he cope with Mary Wilson pressing him on whether the Prime Minister’s staff passed on information to Timberland’s PR firm?
Have they ever handed on posters or publications from NFA to Shandwick?
Quite clearly Mary, I’m not going to know exactly what her staff are doing.
Yeah, well, how can you say that these things haven’t happened?
What I can say is that I’m aware of the level her staff involvement in this issue and it is nothing of the order or scale that Nicky Hager claims.
An excellent response which neatly sidesteps the question about posters and publications being passed while for all the world sounding like an answer. Notice the use of the phrase “what I can say is…” which flips the conversation from Mary Wilson’s topic to Nick Smith’s one. The best ways of Flipping are:
But let me just say this…
The point, Sean, is this…
I think the public want to know that…
But I think we need to be quite clear here…
Well, what I can observe is…
What we have is…
I mean, what I’ve tried to do in this thing is say…
I strongly suggest that the people of New Zealand really do want…
What I’m saying is that…
I think it’s very clear that…
As we will see, The Flip is often best used in combination with other techniques, and in particular, The Dodge. The Dodge is the most cunning strategy of all, because it most sounds like a real answer. The essence of the Dodge is providing an answer to a different question, but one that is very similar to the one being asked. Here, Minister of Immigration Lianne Dalziel uses the Dodge to deal with a question about a botched dawn raid on a Filipino family.
Will there be a blitz of morning raids on the houses of overstayers with people being hauled off to the airport?
What we are going to see is that there will be far better enforcement of people’s obligations under their permits to be in New Zealand.
Note that the question the minister answers is: “how will the government toughen up on overstayers?” which is a far more appropriate question from the government’s point of view.
In the next example, we hear former Finance Minister Bill Birch use The Dodge several times to avoid Kim Hill’s questions about the government’s commitment to Incis. You’ll notice that Sir William also utilises a couple of other useful techniques – repetition and stating the obvious.
Are you committed to going ahead with INCIS?
Well the bottom line for the govt is that the police need computers to help them catch criminals and we’re determined to deliver a satisfactory computer system.
That wasn’t the question.
Well, no but that’s the answer because that’s the outcome we’re seeking.
So you’re not committed to going ahead with INCIS and IBM?
We’re committed to achieve a good computer system. And we have a contract with IBM. And the police are going to get support from the government to ensure they get a satisfactory outcome from that.
Is there a committee here looking at alternative systems around the world at the moment?
Ah, the, I mean the government is aware of alternatives but currently we have a contract with IBM and we’re focussing on that.
Is there a committee looking at alternative systems at the moment?
No – I don’t think – the answer to that is no.
Are you thinking of setting one up? I mean you sound like you’re trying to avoid something. If you tell me what you’re trying to avoid, I’ll give up asking about something I don’t know you’re trying to avoid.
Well we’re not trying to avoid anything.
National’s Murray McCully also performed some deft Dodging when asked whether he was deliberately drip-feeding material about Louise Rosson to the media.
Have you got more evidence? Have you got more stuff that you’re going to release today or tomorrow?
I’ve some people in local govt who are pretty angry about things who are giving me information as things unfold and I’m hoping that more people will also try and put the spotlight on this thing.
Notice that there’s no denial there. Later in the interview, he criticises Louise Rosson for making misleading public statements, prompting this response from the interviewer.
Which you knew perfectly well at the time she was saying it because you had the document.
That wasn’t a horrendously smart thing for her to do, I admit that.
Here, Mr. McCully Dodges a suggestion that his behaviour was unethical with a magnanimous concession that Louise Rosson’s behaviour was stupid. Brazen, but effective.
Undoubtedly Prime Minister Helen Clark is New Zealand’s leading exponent of the Dodge. Her answers, even when not quite on point, merge seamlessly with the questions. Take her description of the time she ticked off Tariana Turia for comparing the plight of Maori after colonisation to the holocaust:
Was Tariana Turia happy with your message to her?
I think she’s pretty upset and distressed by what’s happened over the last week as well. Now you could say it was self-inflicted but that doesn’t exactly help. I’m trying to take a constructive approach. I have known her for a number of years. I know of the good work she’s done and I want to see those skills used to improve a whole lot of statistics for the Maori community.
She uses the Dodge again for this question, though slightly less successfully. The pause here is a little too long for maximum effect.
Did she indicate she was happy to take advice or direction from Mr. M?
I think she really wants to do an effective job. She has strong views and they’re not always popular ones.
Did she defend her right to express those strong views in the future to you?
Ah, what we’ve been talking about is how she can express views in a way that don’t cause offence.
And is she happy with the way you’ve come up with is the right way?
Well, I hope so.
Did she not give you that assurance?
Well, I found her wanting to deal with it constructively. She is not in denial about it. She knows there was a firestorm last week….
Artful dodging indeed. Former Prime Minister Jenny Shipley also uses the Dodge from time to time, but with slightly less facility. Here, she fields two curly questions from Sean Plunket about visiting East Timorese Nobel Peace prize winner, Jose Ramos Horta ,who was in the New Zealand during APEC to plead with world leaders to stop Indonesia slaughtering his people. However, instead of replying directly, Mrs Shipley uses the Dodge to answer the less taxing question: is Mr. Ramos Horta likely to meet anyone here?
Mr Ramos–Horta here today, what sort of official status will he have at APEC if any, and what can the New Zealand government do to assist him in the lobbying he clearly wants to do here?
Well obviously there are a lot of people who will want to meet him, Sean, and already from discussions I’ve had this morning, I’m sure that some meetings will occur.
However, Mrs Shipley is much more talented at employing the fourth strategy – The Smother Tackle. The Smother Tackle involves wrapping the interviewer in a blanket of vague words, generalisations, homilies and obvious facts which are slightly relevant – so that even though you are not answering the question, you come across as so competent and reassuring that the question gets swallowed up by your answer. In this fine example, Mrs. Shipley is again talking about the crisis in East Timor in 1999.
He was also talking about a ready reaction force that would move in within 24 to 48 hours. If Habibie turns around and says martial law isn’t working I will want help, will New Zealand be part of such a force?
Well again, I think we need to wait and see the conditions that prevail then, but I can give you a clear indication that the New Zealand government has agreed to make troops available – we’ve had discussions with the PM of Australia, we’ve had discussions with President Habibie and also with Kofi Annan today. We would certainly make troops available if the UN said that either a coalition of the willing or a UN peace-keeping force was required, depending on the circumstances or the conditions we most certainly would consider assisting.
Excellent. What’s more, to dispel any concern that all that talk about conditions and discussions and indications and circumstances may be a little imprecise, Mrs. Shipley compensates with liberal use of the words “clearly” and “certainly” which provide an air of decisiveness, even though her answer really amounted to “We’ll have to wait and see.” Mrs Shipley continues to make marvelous use of the Smother Tackle throughout the rest of the interview. For example, notice that the answer to the next question is actually “No”.
So are armed forces now on a 48 hour alert?
We are certainly on 14 day alert as we speak. And I have a group of Ministers who have the power of anytime to consider information as it comes forward. We can move as quickly as we are required if we are requested to do so.
Is it likely that the defence forces will be put on a 24 or 48 hour alert within days?
We have a 24 hour alert for the C130s that may be required to evacuate people out of Dili. They are already on 24 hour alert, these are the people associated with the two aircraft and if they are required they are in a position to go at any time. If we are required to join a force we can bring the timing down depending on the request. I don’t want to commit to a 24 hour because I have not discussed the wider allocation of troops on that time basis at this stage. What I can tell you is that New Zealand has been preparing for some months to see that we not only have the people but also the equipment ready to make a contribution in this area.
Extraordinary. Notice that the answer to that question was, “I don’t know”.
Our next example of the Smother Tackle also comes from Mrs Shipley. This time, she’s being asked whose heads are likely to roll over the Incis debacle.
Who are some of the other individuals who will be scrutinised?
Well again, I think there have been many players, some of them have been named in select committee reports, some of them have been in other documents that have been released publicly. I don’t intend to implicate any individual or group of people, I intend to leave it to the commissioners to inquire into this issue based on the terms of reference the govt will approve. And once this report has been received the govt will see whether there are any individuals or groups of people who need to be held accountable or responsible for any failure that’s found.
In that response, Mrs Shipley also used elements of another strategy – the Block. To use the Block, you simply have to come up with a plausible excuse for not answering. Usually it won’t be too hard to find a report that you’re waiting for, and if there isn’t one, you can always commission one. Here are some good Blocks.
Look I’m not going to be trapped into games of words.
It’s inappropriate that I comment on that for you.
I certainly haven’t considered the questions that you’re putting to me at this stage.
The Minister of Social Services, Steve Maharey also used the Block when it was claimed that the Department of Work and Income was shortchanging beneficiaries millions of dollars worth of beneficiaries.
Do you agree with the data?
There’s obviously a dispute about this, Sean, in the sense that the Department of Work and Income is saying that they have behaved in the way that they should and Mr Hackwell and his team saying that there are people who are missing out. My job as a member of a new govt of course is to ensure that there is no confusion – this government has made that clear.
The genius behind Mr. Maharey’s responses throughout this interview – in which he’s essentially saying the government doesn’t know who’s right – is how often Mr. Maharey is able to talk about how clear his government’s policy is. Later, the discussion turns to a very prickly question indeed – will the government backpay beneficiaries who’ve missed out over the years if it turns out the department of work and income has been getting it wrong?
Hackwell: I would have some argument with the Min about the retrospectivity. Going backwards. This entitlement has been an entitlement for that time. Now if the dept discovered that someone had been overpaid five years ago they would go back and get that money. And what’s good enough for the goose has to be good enough for the gander.
Interviewer: Fair point Steve Maharey?
Maharey: It may well be, but I just have to say to Kevin and people who are listening that the govt is not saying anything about retrospectivity here. We have been clear about our policy and we will deliver on that.
A splendid answer. First, he blocks the question about retrospectivity simply saying that the government isn’t talking about it. Then he is able to boast about how clear the government’s policy is even though he’s admitted the government isn’t sure whether thousands of people have been shortchanged. And finally, he promises to deliver on that policy even though there’s nothing actually being delivered except a promise not to compensate for any botch up.
Finally, if you are getting tired of blocking, dodging, tackling and flipping, another tried and true tactic is to go on the attack. One ploy is to attack the critic, as we see Prime Minister Helen Clark do here over the Sunday Star Times revelations that she opposed a low income housing development in her neighbourhood.
Is this a case of not in my backyard for the PM?
The story is a complete and utter scam Sean.
Helen Clark uses the same strategy when asked about Richard Poole’s open letter to the government blaming its economic policies for the brain drain.
I think there’s a beat-up going on here ably assisted of course by Mr. Kerr, and I think it’s time the Business Roundtable had a look at Mr. Kerr’s employment.
Here is former SOE Minister Tony Ryall, defending his government against allegations that it collaborated with a Timberlands PR campaign against conservationists.
Finally and quickly Minister is there enough in this book or in the allegations made that you believe warrants further investigation by yourself or anyone else?
Look, this is part of an ongoing campaign against sustainable forestry by Nicky Hager, I think it should be seen as a political document and as such I don’t think it warrants the time of New Zealanders to read it, but certainly I think the media have given the book a lot of sales and promotion and I think Mr Hager will be very happy.
You’ll see that Mr Ryall has attacked not only his critic, Nicky Hager, but also the media for taking any notice of him.
Attacking the media may be your most useful strategy when your back is against the wall. In this, politicians of every stripe have much to learn from NZ First leader Winston Peters. He accuses the media of repeating itself…
Look, you’ve already said that and let’s not waste everybody’s time.
…of hiding the facts…
Mr Plunket, you can sit here with the report in front of you and keep everybody in New Zealand ignorant of the facts.
…of getting its facts wrong…
No no no no no . Now hang on a second. Just get this thing correct.
…of not giving him a chance to have his say…
Did it or did it not contain new and-
Can I just finish Mr Plunkett?
Did it or did it not-
Can I just finish what I’m saying here?
No Mr Peters. You can’t.
Well I’m going to finish what I’m saying here and you’re not going to overtalk me.
Well I just wonder if you could answer?
Ka Awatea was a programme that we wrote in consultation with the Maori people and it set out the strategies in four key areas whereby we might turn around the performance of the Maori people and it asked not for more money, but for less money and better focussed money on those outcomes.
He also accuses the media of sloppiness and prejudice:
Mr. Peters your speech in Waipukerau suggests that separate programmes can be racist and that separatist policies have been pursued. I’m just trying to reconcile that with the fact that you under Ka Awatea promoted…
I know what you’re trying to do, but you’re getting it wrong again but you have obviously not read Ka Awatea, took no time to study it, and you’re just coming up with a whole lot of prejudice when it comes to this policy and I regret that. Because we’re talking about the most serious issue facing this nation at the beginning of the 21 st century.
When he was asked whether he’d be financing his own complaint against those involved in the Winebox allegations, Mr. Peters even accused the media of complicity in a cover-up.
Well really that statement is ridiculous. Really it ill-behoves you as a servant of the state on state radio to be making that sort of stupid excuse for Mr Birch and a government that’s been involved in a long, long coverup….
Those who prefer an approach which is a little less pugilistic can model their answers after those of Helen Clark. In this interview, she is asked about John Tamihere and Willie Jackson’s objections to parts of the government’s health reforms. Three times, she delivers a brief counter-punch against the media then neatly executes a Flip, using transitional sentences like “The issue in the end is” or “What we have is.”
They don’t seem to think it’s the same thing as developing a treaty partnership with the tribes of the respective areas which the boards are required to do. That’s the kind of relationship they want.
Well I think that gets into semantics. The issue in the end is, who gets a say in developing strategies and in service delivery. And that is a say which is open across the board to the urban organisation or the hapu or iwi one.
…
You expect Willie Jackson and John Tamihere to change their minds on this then? Seeing it’s so clear that there is decision-making here for the urban authorities.
Again I think that you are beating this up. What we have is a willingness to work together to get the very best outcome we can for Maori health and we will do that.
So if Willie Jackson and John Tamihere read the legislation properly, they’ll change their minds?
No I think you’re being extremely patronising at this point. What I’m saying is that we have a common commitment in the Labour party to work for organisational forms and strategies which will improve Maori health and we will do that.
Here are a few other useful ways to attack an interviewer who is interfering with the public’s right to hear what you have to say:
Well, if you would let me finish.
Well, I think that’s overstating it actually.
I don’t think the confrontational overlay you’re putting on this is particularly helpful.
Oh, I think it is a bit harsh to try and bring me into this as some sort of villain.
When you have mastered the individual question-ducking skills, you will be ready to put them together in combinations. For example, you may need to Dodge or Block for a bit while you are waiting for your chance to Flip and then Attack. Here’s Jim Anderton being questioned about Sandra Lee’s comments comparing Maori depopulation with the holocaust.
If she wishes to apologise to ordinary New Zealanders if offence is caused, she can do that of course,
Is she going to?
Well that’s over to Sandra.
Have you discussed it with her?
I haven’t discussed ordering Sandra Lee to make an apology anyone, that’s a personal thing.Do you think it’s likely that she will?
That’s over to her but let me just say this – Mrs Shipley has no credibility talking about race relations and causing ill feeling in race relations – her statement this year is the most incredible incitement of race relations…
Here is a magnificent combination of Dodging, Smothering, Flipping and Blocking from Jenny Shipley, in response to a question about the Singapore Free Trade Deal.
Now the meeting with Jim Sutton you told us was quite long arranged to discuss this. So can you tell us what is your proposal to work your way through this?
The discussions were very useful. Obviously we had access to officials who had been advising the Minister and they were very forthcoming about what they had been going through. Look, National is not prepared to vote on the text on the text of the current treaty in Parliament as it currently stands. But there are a series of ways that our needs might be able to be accommodated while still meeting the govt’s desire to sign this treaty and I understand that the PM made comments late yesterday afternoon that she was willing to sit down and talk about what options may be there. It’s not appropriate that I perhaps discuss in full how this might be arranged because clearly political parties have different views and there needs to be some time to see if they can be accommodated.
Finally, if all else is lost, you can turn to the Amazing Shipley One-Size Fits All Multi-purpose response. This remarkable answer, which was given in reponse to a question about on East Timor, can actually be utilised as an answer to almost any question an interviewer can think up. So if you’re facing a tricky question about what you’re going to do about abortion, about crime, about golden handshakes, about foreign policy anywhere, about, in fact, anything at all, here’s all you need to say.
What I want New Zealanders to know is that we are doing all the preparatory work with some very clear instructions that were given yesterday morning so that the New Zealand government has all the choices available to it as we get this new information in.
That’s worth listening to again and committing to memory.
What I want New Zealanders to know is that we are doing all the preparatory work with some very clear instructions that were given yesterday morning so that the New Zealand government has all the choices available to it as we get this new information in.
Some last words of advice. Talk a lot about the people of New Zealand and what they really want to know. If something’s gone wrong, try to pass the buck or say that it happens all the time and is nothing to worry about. At the same time, use the word “responsibility” as often as you can. Voters respond well to it.
We hope you have found this tape useful. With a little practice, we are confident that you never need be troubled by irksome media questions again.
MUSIC
Topics: Media ethics | 241 Comments »
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