SUSAN GODINET AGAINST THE NEW ZEALAND HERALD

The Publication

1. On Saturday 16 June 2019 under a heading “The Interview”, The New Zealand Herald (the Herald) published an interview with Diane Maxwell, the Retirement Commissioner, under the heading Retirement Commissioner won’t be leaving quietly.After four paragraphs of an introductory nature, the article proceeded to paraphrase and quote her views about the complaints of bullying that had been made against her.
2. There had been a six-month investigation of the complaints, at the request of the Minister of Commerce and Consumer Affairs initiated by the State Services Commissioner.In the report of Maria Dew QC that followed, Ms Maxwell was cleared of the bullying allegations.They were held to be “not established”.Other inappropriate conduct of two occasions of breaching the privacy of two employees were held to be “established”.There was some general reference to other failures in specific limited areas on Ms Maxwell’s part. The Retirement Commission Policies were held to be satisfactory, but more training and clarification was recommended.
3. In her interview, Ms Maxwell made no direct reference to the complaints that were upheld, and focused on the finding of no bullying on her part.She spoke on the basis that the Report was a vindication of her conduct.Her views on the bullying complaints and other general matters are set out.It can be said that the general tone of her statements is the tone of a person who has been vindicated.
4. Ms Maxwell’s term as Retirement Commissioner ended on 30 June 2019.

The Complaint

5. The complainant Ms Godinet alleges that the article lacked balance and was unfair.Under lack of balance it is said that the Dew report found three incidents of unreasonable behavior by Ms Maxwell, and two occasions of inappropriate conduct in respect of confidentiality and privacy. It is said that the lack of reference to these and the tone of vindication were unbalanced.
6. It is also said that the article unfairly did not refer to the Dew Report finding that complainant employees were found not to have acted out of self-interest, but from a genuine concern about the workplace culture.It was stated in the report that many of them had reason to be unhappy. Also, it was not explained why there were 15 complaining employees, and the genuine and common nature of their complaints.
7. There were also some new matters referred to by Ms Godinet in her reply, to which we refer later.

The Response

8. The Response asserts that this was a profile piece that focused on the process followed by the government, and the subsequent reaction of Ms Maxwell.When an article is a profile piece as part of an ongoing process, it is not necessary to set out all the previous steps in the process.

Analysis

9. Principle 1 of the Media Council’s Statement of Principles states:

   Accuracy, Fairness and Balance
   Publications should be bound at all times by accuracy, fairness and balance, and should not deliberately mislead or misinform readers by commission or omission. In articles of controversy or disagreement, a fair voice must be given to the opposition view.

10. It is fair for Ms Godinet to say that the article was not balanced in that it did not set out the point of view of complainants, who would have wanted to point out the ways in which the Drew Report had recognised merit in some of the allegations against Ms Maxwell, and where it had established that there to have been two areas of breach of standards.
11. However, Principle 1 goes on to state:

    Exceptions may apply for long-running issues where every side of an issue or argument cannot reasonably be repeated on every occasion and in reportage of proceedings where balance is to be judged on a number of stories, rather than a single report.

12. In our view the article featuring the interview must be seen as part of a sequence of newspaper reports.Earlier reports in the Herald had stated that the Maria Dew QC Report had been ordered to investigate:
    • Whether allegations Maxwell bullied current or former staff of the Retirement Commissioner can be substantiated
    • Whether Maxwell provided working conditions that were free from bullying, and the Commission for Financial Capability had systems and policies in place to support the management of staff concerns or complaints
    • Any other relevant matters arising, or which are necessary to provide a complete report.
13. The bullying allegations were the focus, and Ms Maxwell’s reputation and future could be seen as at issue in relation to those bullying allegations.The public interest in the story was added to by reports that mentioned bullying allegations against a member of Parliament. The publication of the Dew report was a matter of public interest.
14. The central allegations were not upheld in the Dew report.Despite criticisms in the Report that related to general matters, Ms Maxwell was not found to be a bully as that term was relevantly defined.
15. In our view it follows that in general terms it was not unfair for the Herald to publish an interview where Ms Maxwell treated herself as the successful party and was interviewed on that basis.The major complaint of wrongdoing on her part had not been upheld. She was facing the fact that she was being replaced as Retirement Commissioner, and this was a chance for her to state her position, and where she stood.It was a matter of legitimate public interest for her views following the issue of the Report, to be published.
16. In her reply email to this Council, Ms Godinet quotes statements by Ms Maxwell about what had happened, that Ms Godinet says were not based on fact in breach of Principle 4.However, we are unable to see any statements that are plainly wrong. Even if they were wrong, plainly this is Ms Maxwell’s opinion, setting out her view of matters.This was in terms of Principle 4, an article featuring “comment and opinion”.It was not a piece of investigative journalism.It did not purport to set out matters of fact. We do not find the statements of opinion in the context we have set out, to be unfair.
17. Objection was also taken to Ms Maxwell’s claim that she would not have faced the allegations if she had been a man. While this was a statement on which opinions could differ, again, it was plainly Ms Maxwell’s expression of how she perceived her position.As such it was not objectionable to include it in the interview.
18. The headline read “Retirement Commissioner won’t be leaving quietly”.This is not an inaccurate headline. It makes it plain that Ms Maxwell was speaking her mind about the circumstances of her departure. In this regard it was accurate. The headline did not claim complete vindication, or attack any specific person.
19. It may have been a better interview if some questions had been put to Ms Maxwell about the areas where she was directly or implicitly criticised in the report. This was not done. Further, there was no proper summary of the report. There was a side bar about the report under the hearing “Bullying Investigation “, but it made no reference to the two findings of breaches against Ms Maxwell, or the other criticisms of her. It would have been good practice to do so.
20. However, we do not see this as a basis for upholding the complaint. The side bar was under the “Bullying Allegations” heading, and Ms Maxwell was successful on the bullying allegations. This was plainly an interview involving allegations that she was a serial bully, and Ms Maxwell, having survived this considerable professional ordeal, was saying how she felt.
21. The fact that it was her subjective opinion that was being reported, after a history of reporting, meant that a reader would understand that others would hold different views.

Summary

22. This was an interview where a public figure was setting out her reaction to the publication of a Report where she had been at risk of serious bullying findings, and those allegations had been held to have not been proved. While the interview was one sided in that it was just with her, this is not unusual in an interview occurring after a long-term reporting of events, where other perspectives had already been presented.A reader would have been aware that serious bullying allegations had been made, and that complainants might still believe the allegations to be true.
23. In our view therefore, while it would have been a better article if it had made reference to the parts of the report that were adverse as to Ms Maxwell, as an interview following a history of publications, it did not transgress any of the Media Council principles.We do not uphold these complaints.

Media Council members considering this complaint were Hon Raynor Asher, Rosemary Barraclough, Liz Brown, Craig Cooper, Jo Cribb, Ben France-Hudson, Hank Schouten, Marie Shroff, Christina Tay, Tim Watkin and Tracy Watkins.