Case Number: 2708

Council Meeting: SEPTEMBER 2018

Decision: Not Upheld

Publication: New Zealand Herald

Ruling Categories: Accuracy
Balance, Lack Of


1. Roger Brooking complains that an article published in the New Zealand Herald breaches Media Council Principles 1 (accuracy, fairness and balance) and 4 (comment and fact).

2. The Media Council does not uphold the complaint.


3. On June 2, 2018, the New Zealand Herald published an article headed “Three strikes law supported by 68 per cent of Kiwis, survey finds”. The article was written in the context of a proposal to amend the “three strikes” law and reported on a survey by Curia market research, commissioned by the Sensible Sentencing Trust. It also quoted extensively from Garth McVicar, founder of the Sensible Sentencing Trust and from Bob McCroskrie, national director of Family First NZ. It concluded with a short section on “Three strikes by the numbers”, consisting of some statistical information.

The Complaint

4. The main thrust of Mr Brooking’s complaint is that claims made in the article are inaccurate. He says it is categorically stated that 68% of New Zealanders support the “three strikes” law and that there is a survey to prove it, when the true figure is probably closer to 34% or lower. The survey figures are unreliable, based on faulty claims about the methodology, and it was carried out by an organisation run by a right-wing blogger who is known to support the “three strikes” law and cannot be said to be independent. There is also inaccurate information about re-offending risk. It seems that re-offending risk was calculated by using judges’ sentencing notes, which rely on assessments of risk made by probation officers, rather than on the much more accurate assessments made by the Department of Corrections.

5. He also complains that the headline of the article is inaccurate when it says that 68% of New Zealanders support the “three strikes” law.

6. Mr Brooking says that to a large extent, the writer of the article relied for comment on biased sources, using the inaccurate survey results. There was no attempt to achieve balance. Moreover theNew Zealand Herald has failed to distinguish between fact and opinion. By reporting the inaccurate survey as fact, “the distinction between what is fact and what is opinion in this story has completely disappeared.”

The Response

7. The senior newsroom editor of the New Zealand Herald, Oskar Alley, responded to the complaint. On the question of accuracy, he submitted that theNew Zealand Herald followed accepted practice by including in the article

  • the methodology of the survey,
  • who commissioned it
  • which polling company conducted it
  • the sample size of respondents
  • the date range the polling was conducted
  • the margin of error.

This should be sufficient information for a reader to form a view on the reliability of the survey.

8. As to balance, Mr Alley explained that theNew Zealand Herald had made numerous attempts to obtain comment from Andrew Little, Minister of Justice, or from his office. When they chose not to respond use was made of comments that Mr Little had previously made.

9. He also included a substantial amount of information from Garth McVicar describing the data held by the Sensible Sentencing Trust and its origins.

The Discussion

10. The efficacy of the “three strikes” law is a matter of debate and there has been much public discussion of it both before its introduction in 2010 and since then. While Principle 1 of the Media Council Principles requires accuracy, fairness and balance, it recognises an exception in the case of long-running issues where every side of an issue or argument cannot reasonably be repeated on every occasion. It is in this context that the Media Council considers Mr Brooking’s complaint.

11. Mr Brooking has made some pertinent points about the accuracy of the survey in question. However the question to be determined is not the accuracy of the survey but the accuracy of theNew Zealand Herald report.For example, one of the survey questions referred to assessment of re-offending risk by the Department of Corrections when it is apparent from the material supplied by theNew Zealand Herald that the re-offending risk was calculated by reference to judicial sentencing notes. However there was no mention in the article of the origins of the risk assessment.

12. A publication should certainly be wary of surveys and polls conducted by or on behalf of special interest groups, but it cannot be expected to enquire into the detail of the methodology. The Media Council is of the view that whether or not the survey was reliable, the article was an accurate report on it and the New Zealand Herald provided sufficient information for readers to form their own opinion on the survey’s reliability. This is especially so in the context of the long-running debate about the “three strikes” law and the high profile of its supporters in the Sensible Sentencing Trust.

13. It is noted that the headline to the article does not say that 68% of New Zealanders support the “three strikes” law. It says that the survey reported that 68% supported it. Again, this is an accurate report of the survey findings, whatever deficiencies there may have been in the survey.

14. Mr Brooking takes particular issue with the “facts” presented in the final part of the article under the heading “Three strikes by the numbers”. Most of the information, such as the number of offenders on their first, second or third strike, is uncontroversial. Mr Brooking presumably objects to the statement about re-offending risk and the statement that 68% of those surveyed approved of the “three strikes” law. As noted above, there is no mention in the article of the source of the re-offending risk, and whatever the faults in the survey, its results are reported accurately. The facts may be disputed, but they are not matters of opinion, nor do they need to be presented as such.

15. The article focused strongly on supporters arguing in favour of the “three strikes” law with only four short paragraphs at the end on repeal proposals. However it is noted that there were attempts to contact the Minister of Justice for comment to provide balance and only when the attempts were unsuccessful were the previously published comments used. In addition, the arguments for and against the law have been aired on many occasions. The point has definitely been reached where it is not necessary to maintain balance by repeating them.


16. The complaint is not upheld.

Media Council members considering this complaint were Chris Darlow, Liz Brown, Jo Cribb, Tiumalu Peter Fa’afiu, Jenny Farrell, Hank Schouten, Christina Tay and Tim Watkin.

Craig Cooper took no part in the consideration of this complaint.


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