NZ DEFENCE FORCE AGAINST NEWSROOM

Case Number: 3539

Council Meeting: 29 July 2024

Decision: Not Upheld

Publication: NewsRoom

Principle: Comment and Fact
Columns, Blogs, Opinion and Letters

Ruling Categories: Headlines and Captions

Overview

  1. The New Zealand Defence Force (NZDF) has complained about an opinion piece published by Newsroom on 12 March 2024, headlined Dodgy data discloses Defence top brass failure to lead from the front. The Media Council decided the complaint fell to be decided under Principles (4) Comment and Fact and (5) Columns, Blogs, Opinion and Letters. For the  reasons set out below, the complaint is not upheld. 

The Article

  1. The opinion piece is labelled “Analysis” and is written by Newsroom Managing Editor, Jonathan Milne. It is a strongly worded critique of the NZDF’s reporting processes, based on a briefing to the Foreign Affairs, Defence and Trade select committee by the Auditor-General, John Ryan.
  2. The headline speaks of “dodgy data” and the standfirst asks if the NZDF’s “wailing and gnashing of teeth all an attempt to scam more public money?”
  3. The column reports that the Auditor-General finds the NZDF’s reporting “entirely unreliable” and told the select committee the NZDF‘s readiness targets have been “regularly” cut mid-year so the forces look more ready to deploy than they are. The select-committee expressed “concerns about this way of achieving targets”.
  4. Jonathan Milne writes that this raises “serious questions about Defence Force leadership”. He describes the target data as “dodgy” and the NZDF’s changing of the targets as “jiggery-pokery” and “juking the stats”. He says top brass have quietly shifted performance targets to “make themselves look less bad” while “wailing” about resourcing. The column supposes Defence Minister Judith Collins will be asking whether the NZDF’s problems are under-funding or “more a reflection of leadership trouble”. In particular, the column discusses Chief of Defence Force, Air Marshal Kevin Short and whether he could be sacked. Mr Milne says the Defence Minister can’t sack Air Marshal Short, which is as it should be constitutionally, but she would be wise to demand better performance before committing more funding.

The Complaint

  1. The NZDF first complained to Newsroom on 13 March the day after publication, saying the article was inflammatory, inaccurate, and lacked balance. It took issue with the headline that falsely claimed the NZDF promulgates “dodgy data” and the way the column questioned the integrity of senior leaders. It also provided documentation from other reports by the Office of the Auditor General (OAG) saying its data was “fair” and “good”. It asked for balance and provided a comment that could be attributed to NZDF Chief Financial Officer, Bridget Marks saying as much.
  2. After Newsroom responded the next day defending its column and declining to make the changes, the NZDF on 2 April wrote again saying while it accepted this was “a valid story”, the column’s “excessive and pejorative language… renders it misleading and untethers the story from a factual basis”. It implies the NZDF is misleading the government. The complaint argued the column failed to meet the standard of Principle 1 “by a significant margin” and was not based on accurate facts, as required by Principles 4 and 5. The alleged inaccuracies were:
  • The Defence Minister can recommend to the Executive Council that it recommend to the Governor-General to remove the warrant of the Chief of Defence Force (CDF).
  • The column is wrong to say “four key ships are docked”. Three are in “care and custody”, not four.
  • It also says the CDF has “wailed publicly” about the need for investment in tanks. That’s “a capability the NZDF does not hold” and the CDF has never requested money for tanks.
  • Comparing attrition in the military with civilian attrition is inaccurate because the military workforce cannot be hired off the street and has to be grown from the bottom up.

(NB: After this email, Newsroom removed the reference to tanks and added an explanation of how a recommendation by the Defence Minister could lead to the CDF’s removal).

  1. In its formal Media Council complaint, the NZDF summarises its correspondence with Newsroom and stresses its core concern, that the column “distorted” the OAG’s concerns and “would likely lead readers to believe that senior NZDF leaders, including the Chief of Defence Force, engaged in deliberate deception of Members of Parliament”.
  2. It continues, “The NZDF’s view is that this is the clear and necessary inference to be drawn from the article. For example, the word ‘scam’ is commonly understood to mean a “fraudulent or deceptive act or operation”. The express inference of deliberate deception to be drawn from the article is far removed from the OAG’s critique that the performance measures were “unreliable”. The column implied the OAG itself thought the NZDF was being deliberately deceptive, when it did not.
  3. The language used such as ‘scam’, ‘dodgy’, ‘juking the stats’, and ‘top brass quietly shift their performance targets to make themselves look less bad’, was misleading and excessive.
  4. The NZDF accepts Newsroom had corrected some errors, but not all. In particular, it says while the HMNZS Canterbury had been out of service and did not set sail until March 26, it was available “as already published” from March 1. So only three ships were unavailable at the time of publication.
  5. The NZDF argues that Newsroom has defended the piece as “analysis”, but it cannot be found in Newsroom’s “Opinion” section, suggesting a high degree of investigative rigour has been applied.
  6. The complainant also raises the point that Newsroom hasn’t run a news story on the select committee hearing, meaning readers do not have a factual news story to refer to and “no basis in which to view the ‘comment’ piece in context”.
  7. It believes Newsroom should have approached the NZDF and sought its views before publication.

The Response

  1. Newsroom stands by the column as an honestly held comment piece by a senior editor with decades of experience covering politics and the public sector. It says it is a correct summation of the OAG’s points. The OAG’s conclusions about the performance targets were not a glancing mention but “rare, strong and telling” concerns that deserved coverage. The select committee said it “has concerns about this way of achieving targets”, which is strong language from a government-majority cross-party committee. The publication provides a series of quotes from the OAG’s report to underscore the serious nature of this issue, such as “This [changing of targets] is a problem as it is Government that set the readiness levels so the target should be 100%.”
  2. Newsroom’s checking confirmed no other agency changes targets mid-year, making it reasonable to describe its data as “unreliable” or use a synonym such as “dodgy”.
  3. It says the NZDF’s initial complaint pointed Newsroom to earlier OAG reports but ignored the select committee briefing that the column was about. In its first email, Newsroom says “Your complaint is peculiar in that it almost performs an out-of-body experience… We reported on the briefing, which is the latest and fullest examination of these issues.”
  4. It accepts “scam” in particular is strong language, “but is used here in the widely accepted use of to lobby for/take advantage of/muddy the waters in seeking greater funding generally or at least limiting any cuts to Defence”. It accepts the word implies manipulation, but rejects it implies dishonesty. The column made clear the target changes were “hidden in plain sight”.
  5. Newsroom says, “NZDF chooses to rely on the American Merriam-Webster dictionary to interpret the word “scam” as a noun, entailing fraud or deception. Newsroom used scam as a verb, not a noun – that is, to attempt to obtain something (in this case, ministerial confidence or even continued government funding) by scamming someone. For reference, the NZ Police definition explicitly distinguishes between scams and frauds – and only the latter necessarily entails deception.”
  6. As for “juking the stats”, it says that phrase stems from TV show The Wire and refers to public agencies manipulating figures to make their performance look better than it is, not to deliberate deception.
  7. To the heart of the complaint, Newsroom says the columnist does not believe Defence Force leaders were trying to deliberately mislead MPs and the column at no point claims they were. “There was no suggestion of subterfuge in changing the metrics, much less some deliberate and dishonest subterfuge; just a corporate expedience”.
  8. “Clearly officials within Defence did, deliberately, change the performance targets in a manner not replicated elsewhere in the public service. Jonathan Milne commented that this served the purposes of Defence being able to ‘meet’ its targets. The Chief of Defence Force is the official responsible for the service overall, for all its accountabilities and was the official publicly quoted commenting on both budgeting pressures and staffing difficulties. The column makes no claim that the Chief of Defence Force wilfully or personally deceived MPs or the other inferences you choose to take. Where he is referred to and quoted it is about his public statements on resourcing and budgets,” Newsroom says.
  9. It continues that while “the piece might well have been awkward and inconvenient for NZDF… that is not, and should not be, a concern for news media bringing an issue to the attention of the public”.
  10. On the claims of inaccuracy, as noted, Newsroom removed the reference to tanks, acknowledging it was incorrect, and added more information on how a Chief of Defence Force may be removed (while standing by its claim the Minister of Defence cannot directly dismiss the Chief of Defence Force). 
  11.  It says the comparison between staff attrition rates in the military and public sector was made by the OAG and any complaint on that front should be directed to the OAG.
  12. On the matter of four ships being “docked”, Newsroom relied on information from Navy Today that, at the time of writing in early March, three ships were in care and custody and the Canterbury was out of service. In the emails Newsroom argued that while the Canterbury was available from March 1, it was not deployed until after the column was published and it stood by the four ships number. However after NZDF’s official complaint it said it would “now change the article’s reference from four ships docked, to three”.
  13. There is no requirement under Council principles or normal journalistic practice to seek comment before publishing a column and no requirement for balance when analysis is being offered. There is also no requirement for an opinion piece to be based on a connected news article.
  14. As for the column not appearing in Newsroom’s ‘Opinion’ section, it was written for the daily ‘8 Things’ newsletter, which is a forum for specialist writers to make arguments based on fact, not simply ‘reckons’.
  15. Finally, Newsroom notes that in its first email it offered the NZDF the opportunity to respond, as long as its response related directly to the select committee briefing. The NZDF has not taken up that offer, but it still stands. 

The Discussion

  1. This complaint and the response covers a wide range of issues but largely boils down to the accuracy of the facts the columnist relied on and the language used. We note that these issues are best covered under Principle (4) Comment and Fact which states “Material facts on which an opinion is based should be accurate” and Principle 5, Columns, Blogs, Opinion and Letters, which includes the point that “Though requirements for a foundation of fact pertain, with comment and opinion balance is not essential”

Principle (1) largely covers news reporting, so is not appropriate in this case when all parties accept this is an opinion piece.

  1. On the issues of accuracy listed above, Newsroom rightly corrected the misleading reference to tanks. By the official complaint the NZDF has dropped its concern about the comparison between military and civilian attrition rates, so we will leave that as it was not central to the overall complaint. The Council finds that Newsroom was not wrong to say the Defence Minister cannot sack the Chief of Defence Force but agrees the column is better for the brief explanation. On the number of ships docked, the fact the Canterbury had been back in service 10 days when the column ran but would not be deployed for another two weeks is a nuanced point. The Council welcomes the fact Newsroom agreed to change the number from four to three but is disappointed to note that has not been done at the time of writing. We would expect Newsroom to act promptly on its commitment.
  2. Newsroom is correct to say that balance is not required in commentary; by definition columns are a person’s point of view not a news article requiring all sides. Similarly, columnists do not need to interview those they are commenting on and nor is a publication required to provide news coverage of something it wishes to comment on. Many media sites rely largely or even exclusively on commentary.
  3. The more central point is whether the journalist’s language was fair or excessive, inaccurate or incorrect. The strong language in the column reflected the strong, if more politic, language used by the OAG and select committee. As the NZDF accepts, this was a “valid story”. Arguably, it is a serious issue that deserved more coverage. While it is reasonable for the NZDF to explain and seek to justify its action, it is perfectly legitimate for a free press to strongly critique the moving of targets where tens of millions of public money and the deployment capability of our country’s troops are involved.
  4. The use of the word scam in the way Newsroom describes does push at the boundaries of its meaning and some council members thought it an unwise choice that raised the spectre of fraud and illegality. However, it was decided that if the article is read as a whole, a reasonable reader would not believe the NZDF or  Chief of Defence Force was involved in fraudulent activity and that ‘scam’ has in context a lesser meaning of unjustified manipulation of figures. Furthermore, a columnist has every right to deploy editorial discretion and use strong language on an issue that the columnist feels is serious and contrary to the public good. In this case the columnist has gathered facts and taken a serious and strong position on a serious issue.
  5. The nub of the complaint is whether the column goes beyond the OAG’s and select committee’s criticism of the NZDF’s use of “entirely unreliable” data in a way that breaches the Council’s principles. In the Council’s eyes it does not.
  6. The column consistently refers to the Defence Force, Army, Navy et al in terms of the moving targets. Where it names the Chief of Defence Force, Air Marshal Kevin Short it is to quote his argument the NZDF is underfunded and to state he is ultimately responsible for the “entirely unreliable” data because the buck stops at the top. It suggests that in the light of this unreliable data, the Defence Minister might wonder about the performance of him and other “top brass” before being willing to increase funding.
  7. Such criticism is robust and pejorative but the columnist has the right to come to his own conclusions on the material at hand. Any columnist also has the right to criticise senior public servants and even call for their resignations; and many do. Media must judge what is excessive, but they have the right to be fierce in their critique of public agencies. The Council’s concern in this matter is whether the material facts on which the analysis is based are accurate and we are comfortable that they are.
  8. The NZDF complaint under Principle (4) Comment and Fact and Principle (5) Columns, Blogs, Opinion and Letters, is not upheld.

ADDENDUM

Raynor Asher and Marie Shroff considered that the use of the word “scam” on its own connoted an element of fraud and deceit.  For that reason, they seriously considered voting for an uphold of the complaint because the facts as outlined in the article do not support such an allegation.  However, having considered the article in totality, they concluded that despite the use of that word, a reader would not think that the article was alleging fraud, but rather was robustly alleging the unjustified manipulation of figures.

Council members considering the complaint were Hon. Raynor Asher (Chair), Rosemary Barraclough, Scott Inglis, Marie Shroff, Richard Pamatatau, Alison Thom, Ben France-Hudson, Clio Francis, Hank Schouten, Judi Jones, Tim Watkin and Katrina Bennett.

Council member Jo Cribb declared a conflict of interest with the complaint and did not participate in its consideration.

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