BSA upholds complaints against Radio NZ over three strikes coverage

November 25th, 2013 at 4:00 pm by David Farrar

complained to and then the Broadcasting Standards Authority about a Nine to Noon item on 29 May 2013 regarding the law. The has ruled that the item was both unbalanced and inaccurate. Their ruling is here.

David has provided Kiwiblog with a guest post about the ruling:

“Three Strikes”, Radio New Zealand and the Broadcasting Standards Authority

 On 29 May Radio New Zealand’s “Nine to Noon” featured what was supposedly a panel discussion about how the “three strikes” (3S) law  was working, almost three years after its passing.  The only problem – or at least the  most obvious one – was that the panel consisted only of Professor John  Pratt,  who had voiced his strident views against the law from well before it was passed, and the lawyer for one Elijah Whaanga,  a man with 20 odd convictions as an adult, two of them  “strikes” for aggravated robbery.

 And of course there was the supposedly neutral  presenter, one Lyn Freeman, filling in for Kathryn Ryan, who in all fairness would probably  have done a much better job. As the recently released Broadcasting Standards Authority (BSA) determination on my complaint about the programme makes clear, while nominally presenting the programme – and supposedly acting as devil’s advocate :

“…the presenter appeared to largely adopt the position of the interviewees without any real challenge….[her questions] were insufficient to provide balance on the topic under discussion, especially considering the broadcast involved two people strongly opposed to  the law” (at para. [25])

The programme began with a major  inaccuracy: that persons on their third strike “had no possibility of parole”, when in  fact  the “no parole at strike three” provision  will  not apply if the Judge finds it to be “manifestly unjust” in the circumstances of a particular case. The insertion of this proviso occurred after Judith Collins took over negotiation of the contents of the 3S  law from then Justice Minister Simon Power, and the Nats stopped playing games.

It is an important qualification – and gives the lie to the oft repeated claim that the law removes judicial discretion.  ACT readily agreed to this provisio being included. Radio New Zealand simply ignored its existence in Freeman’s introduction. Things got much worse from that point on.

Throughout the discussion, Elijah Whaanga, the second strike aggravated robber whose lawyer was a panelist, was referred to constantly  as “Elijah” and “a playground bully ”, presumably because his second strike aggravated robbery was of a skateboard and a hat. What wasn’t  mentioned was that the robbery occurred  in the street not a playground; that the victim was “only” robbed of a skateboard and a hat because he had no money; and that in Whaanga’s first strike – also an aggravated robbery in the street – the victim had all his money taken, and his head  kicked in.

As the BSA puts it in its decision:

“The offender on his second strike…was referred to throughout the discussion and  used as an example of the type of people  targeted by the law , without balancing comment to challenge this…Given the participants strongly held views that the law operated in a way that was unjust and unfair, and out of proportion to the crime committed, there was a clear requirement of the broadcaster to ensure the discussion was balanced” [paras. 19 -20]

The BSA concluded that the programme was one to which the “balance” standard applied,  that  RNZ “…did not include sufficient balance on the issue”, and therefore upheld the  first limb of  my complaint.

Inaccuracies

My second complaint was about the many inaccuracies the programme contained, none of them corrected or challenged by the presenter.  I identified a lengthy list of statements – mostly by Professor Pratt  – (see para. [37] of the determination)  which were inaccurate or misleading.

The BSA found that the programme was misleading in two crucial respects: firstly by its  many completely inaccurate comparisions with California’s “three strikes” law; the second  was the way “playground bully” Elijah Whaanga was “portrayed and used as an example of the type of criminals (sic.)  targeted by the law “ (See para. [43] of the BSA decision).

The first  point  is of course indeed  crucial. From the outset, opponents of 3S have attempted to use the indisputable   excesses of the law in California as it was originally enacted   as a reason not to enact  a law with the same name here.

In 2007, Garth McVicar and I went to California specifically to find out whether the “life for stealing a chocolate bar” stories were true (we never verified  that one, although there were others which were clearly unacceptable and unjust) and if so, to work out how to draft our  3S law so  injustices like them  couldn’t happen here.

California recently modified its law to make it much more like ours: no more “technical felonies”, and much more prosecutorial and  judicial discretion. Rather than make those points, Freeman talked about California “backing away” from 3S, and rhetorically asked “What does that tell you? ” Professor Pratt obliging leapt on his soapbox and gave his version of what the changes in California meant, untroubled by any dissenting voice.

The BSA was perhaps  harshest on this point, saying:

“…comparing the legislation in this manner, without any countering views, and in particular the presenter’s unequivocal statement that California had started to ‘back away’  from the legislation, would have misled listeners as to the nature of New Zealand’s ‘three strikes’ law  and any comparison with California.” (see para. [42] )

The BSA concluded its decision on the balance and accuracy complaints thus:

“The programme omitted any alternative voice to counteract the one sided statements  made by the panelists, and the presenter failed to adequately challenge those statements. Compounding this, the panelists also made statements which created a misleading impression in the absence of any balancing comment.” (See para. [49] )

As I did on the morning  I heard this travesty of journalism unfolding, I have offered to  appear as “balance” for any future programme on 3S. Somehow I don’t think I’ll be getting a call, but at least after receiving  a spanking from the BSA like this one, they might be a bit more careful next time.

Well done to David for getting a successful ruling, and hopefully Radio NZ will be more balanced in future on this topic.

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36 Responses to “BSA upholds complaints against Radio NZ over three strikes coverage”

  1. Jack5 (5,137 comments) says:

    Well done David Garrett!

    Radio NZ’s bias continues. On Laidlaw’s Sunday Morning show yesterday, the piece about the “Koanga Institutre and Heritage Seeds” made outrageously exaggerated and undocumented claims about genetically modfied seeds and vegetables. Assertions included that old varieties of tomatoes had a hundred times the nutritional value of newer species found in supermarkets.

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  2. Allyson (47 comments) says:

    Does the ruling mean this radio station can now be accurately described as proven liars?

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  3. Graeme Edgeler (3,289 comments) says:

    David G – do you consider yourself “author of the ‘three strikes’ legislation” as described by the BSA?

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  4. David Garrett (7,318 comments) says:

    Graeme: Perhaps more the midwife? I have always acknowledged the vital role played by Stephen Franks and others in finally getting 3S into law….the maximum sentence instead of 25 years to life at stage three was Stephen’s idea..

    Allyson: At the very least it means they are a station indifferent to balance on controversial issues…on the day they broadcast it I rang them and offered to come on then and there to balance Pratt…offer rudely declined…the producer told me she was “happy with [her] editorial decision”

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  5. Archer (210 comments) says:

    I can’t believe that tax money from New Zealand workers goes towards putting Radio NZ on the air. Get rid of it!

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  6. Chuck Bird (4,897 comments) says:

    I agree with DPF, well done David.

    I cannot think of anything else ACT achieved that I believe will be remembered except combining the Auckland councils and that was not done very well.

    It is a shame many individuals and groups do not challenge the MSM. I would like to see some complaints against the Herald. I wonder if Colin Craig will have a go.

    In an ideal world 3 Strikes would not be necessary. However, because judges and legislators were not doing their jobs properly there was no quick alternative. Tiding up the Sentencing Act would have been a lot more difficult.

    A very late guilt plea when it is clear there is no change of a jury buying their bullshit should not attract much discount if any. That is just one example.

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  7. smttc (752 comments) says:

    John Pratt was one of my criminology lecturers at Victoria University in the mid ’80s shortly after he arrived from the UK.

    Basically he is and always has been opposed to prisons and would close them all tomorrow if he had the power to do so.

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  8. kiwi in america (2,454 comments) says:

    Great win David although I’m not sure Red Radio will pay much attention. I’m not surprised to hear it was Lynn Freeman – she is weak tea compared to Katheryn Ryan who mostly makes an attempt at impartiality even if she lets her biases slip in occasionally.

    I remember the farce of Summer Noelle last summer when in NZ – they had a series called “From Both Sides”. Each time I listened the two sides they had on each of the issues were from the far left and the centre left! I emailed the producer pointing out the obvious bias in this and suggesting reputable spokespeople from the centre right that could’ve and should’ve been on the programmes and got chirping crickets for my answer.

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  9. hj (7,033 comments) says:

    Lyn Freeman on Asia Report: (on anit-Asian immigration sentiement): “they difn’t do what was done to the Maoris”!?.

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  10. Adolf Fiinkensein (2,903 comments) says:

    “and hopefully Radio NZ will be more balanced in future on this topic.”

    Why not all topics?

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  11. peterwn (3,277 comments) says:

    Why is it then, that taxpayers are having to fund people like Professor Pratt who will not give a balanced and factual viewpoint when on the radio show. This should be an ideal opportunity for him to showcase the University and its works, not making himself and the University a laughing stock.

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  12. Pauleastbay (5,035 comments) says:

    In an ideal world 3 Strikes would not be necessary. However, because judges and legislators were not doing their jobs properly there was no quick alternative

    Good comment Chuck, I’m coming around to the idea after being very against it

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  13. big bruv (13,931 comments) says:

    It is interesting to witness the way the left slag off David Garrett at every opportunity yet David G achieved more on his short time in the house that most Labour MP’s achieve in a lifetime.

    Well done DG.

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  14. Viking2 (11,488 comments) says:

    big bruv (11,754) Says:
    November 25th, 2013 at 6:35 pm

    It is interesting to witness the way the left slag off David Garrett at every opportunity yet David G achieved more on his short time in the house that most Labour MP’s achieve in a lifetime.

    Well done DG.

    ===
    There BB put that right for ya.

    Deserved accolades Mr Garrett.

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  15. Keeping Stock (10,342 comments) says:

    I’ve said this before but it’s the right occasion to say it again; David Garrett has left a greater legacy in just half a term in Parliament than most of those who sup from the trough will do in their entire careers. You have my respect for that David.

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  16. Maggy Wassilieff (409 comments) says:

    @ Jack 5.. I agree that last Sunday’s Laidlaw interview with Kay Baxter was a disgrace. Where to start???

    Kay Baxter stated that Heritage tomatoes had 20x the nutrient value of modern tomatoes, Heritage apples 8x more nutrition than modern ones and the purple Maori potatoes 100s X more antioxidants than today’s potatoes (Varieties not named). Laidlaw just accepted all this as fact.
    Baxter stated that food grown from hybrid seed was unable to nourish us fully. laidlaw then postulated that most of the fruit and vege in our supermarkets would be derived from F1 hybrids… Baxter agreed and Laidlaw added “Disturbing thought”.
    For goodness sake what do they imagine F1 hybrids are????? …. some Novel type of organisms with undigestible tissues???

    Baxter stated that you could determine nutrient density by the use of a refractometer – using the Brix scale. Well that’s news to me.
    I thought Brix was a measure of soluble sugars in solution. I had no idea that you could accurately determine mineral levels, vitamin content, essential oils etc, all through the use of a simple Brix-calibrated refractometer. ( Note to Govt Departmenets and universities doing Plant assay…get rid of your expensive chromatography machines, AA spectrophotometers, electron microprobes and just buy a refractometer).
    Baxter stated that plants with Brix levels less than 12 were full of simple sugars and as such were food for fungi and insects. Humans needed food with brix levels greater than 12 because we need complex carbohydrates.
    Well my old Botany profs will be spinning in their graves….. I seem to remember cellulose, the main organic constituent of veges and fruit, and a complex carbohydrate, is indigestible by humans (and even sheep and cattle need a little help with bugs in their tummies).
    Funnily enough, fungi and some insects love digesting cellulose.
    Most disturbingly, Baxter said it was well known that GE crops had “leaked” in NZ (presumably from research outfits)..Laidlaw didn’t challenge this and try and ascertain where , when, and what crop(s).
    Finally, Baxter implied that modern crops weren’t being bred for nutrient content…. This is quite contrary to my understanding of some of the work that is being undertaken by NZ Plant & Food Research… who have a unit specialising in selecting vegetable seeds with high nutrient content.
    I support saving heritage crops and have even bought Koanga seeds from time to time, but pseudo science baloney I do not support.

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  17. Ricardo (54 comments) says:

    Chris Laidlaw? Just continues to justify my belief that Sid Going was always the better half-back.

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  18. dishy (248 comments) says:

    Maggy, it’s always a pleasure to read your learned contributions. It disturbs me how willing the media are to foment unhappy mischief, contrary to role that they would have us believe that they play.

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  19. Maggy Wassilieff (409 comments) says:

    And just because I need to check facts…. I thought I’d suss out this paper on antioxidant levels in the most popular maori potato – Urenika – seems that the levels were pretty low………. read it for yourself

    http://www.tandfonline.com/doi/pdf/10.1080/0028825X.2006.9513001

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  20. quinnjin (24 comments) says:

    What a pack of right wing group think losers you all are, a collection point for all the mentally enfeebled opinionated intellectual dross form around the country, oooh a few minor inconsistencies, it’s a crap law, written at the behest of morons. It’s crap in the sates and it;ll be crap here. Starve em, put em in shit houses, lock em up, that’s the only answer you troglodytes have isn’t it. Well has it worked? HAs it worked anywhere else? Do any of you have a braincell to rub between you? NO.

    Personally I find the whole concept of balance often means we are forced to listen to some drongo moron from the right prattle his free market /neo liberal/ right wing piffle as if it had any worthy relevancy what so ever, as if it had the same weight as socially responsible views, logical, grounded in reality. Unlike the entire gamut of right wing delusional idiocy.

    The whole left / right paradigm is offensive. As if the ideas of the so called “right” deserved the same respect, and were merely the other side of the coin.

    Ridiculous, right wing thinking is the preserve of the racist, the bigoted, the vengeful, the greedy and the selfish. The right are to be despised as the criminally self centred greedy, retrograde. failed ideology worshipping, intellectually and spiritually inferior scum that they are.

    National radio is the only reputable source of debate and current affairs in the country. Of course the right want it destroyed, they can’t handle the truth. It keeps showing up their corrupt, delusional ideology.

    A couple of very minor errors. So what. You knew the POV of the commentators. Make your own minds up. Compared to the average. The idea of “balance” is often an excuse for lazy journalism, and the idea of giving equal time to “both sides of the debate” often means that the ignorant, stupid and corrupt point of view, is given the appearance of the same worthiness and relevance as the correct and view. When it fact it warrants no such thing.

    It is in fact considered better, according to modern journalism practices, to simply state ones view out at the outset, give ones evidence, and let the viewer decide.

    Regardless, if this is worthy of a broadcasting complaint, because some ignorant right wing loser nobody; David Garret, wrote a little whiney letter, then no doubt every single day should generate multiple complaints to be upheld against the strong holds of retarded right wing thinkers, talk back radio, radio live etc and the other innumerable dim witted private radio stations and crappy corporate owned newspapers that endlessly pump out their pro corporate, pro National, bigoted, ignorant, slanted news with misleading headlines, or fail to mention certain stories injurious to the views of the senior editors and their corporate masters, as I encounter constantly in my trawl through the media.

    A minor mistake for National radio maybe, barely worth mentioning, as the commentators were ultimately correct. It’s a crap law, a crap idea, and it won’t do anything but swell our jails. But anything so the corporates and the rich can dodge paying any more tax and funding the schools and support networks properly ay?

    You’d rather fund the Jails, clog up the court houses, and pay the insurance premiums.

    Idiots.

    Compared to the rest of NZ media, National radio is the only station worth listening to.

    Of course you’d all like to see it go. Your intellectual dishonesty can’t handle the scrutiny. That’s why John Key refuses to be interviewed except on talk back.

    National Radio is perfectly balanced, that’s why we constantly have to listen to Hooten and Farrars et al’s twaddle as if it had any relevance or value. Especially compared to the mountains of corporate owned crap in what passes for the rest of NZ’s so called media.

    Get over it you whiny little right wing turds.

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  21. RightNow (6,994 comments) says:

    Oh yeah, that’s why I don’t like leftards.

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  22. kiwi in america (2,454 comments) says:

    quinnjin
    Oh the arrogance of the left. The only right and correct view is their view and as long as it is promulgated then that makes for balance on National Radio. Did you read the report? This type of bias is frequent and constant at National Radio. It manifests itself in a variety of ways:
    * The subject matter – a quick look at WHO Chris Laidlaw and Kim Hill interviews reveals a wish list of lefty performers, academics, commentators, authors etc on subjects that excite the left. There is almost no attempt to cover topics of interest to centre right taxpayers who also fund National Radio and they rarely interview anyone with that orientation and when they do, they are usually hostile. Kim Hill was at her aggressive rudest when she interviewed John Howard. If Laidlaw and Hill are to be allowed to spend their entire show focusing on left leaning guests and topics then they need to be balanced by a right leaning show and topics or at least alternated. Likewise on Focus on Politics, the producers more frequently chose topics that are anti government issues that exercise the Opposition parties and feature low in polls done of voters on what they consider to be important issues.
    * Chosen panelists – I posted earlier about Summer Noelle’s pathetic attempt at balance with its “From Both Sides” series. The both sides chosen were the hard and soft left with no one from the centre right even asked. This happens all the time.
    * Interview style – with a few exceptions (Kathryn Ryan and sometimes Jim Mora and Mary Wilson) National Radio interviewers go soft on Labour and Green interview subjects and are more aggressive when interviewing National or ACT representatives. The same is true on social issues – those with a lefty world view (e.g. unionists) get softball questions and few challenges and those who might see the world through a more-market lens (e.g. business people or the supporters of charter schools) get a more thorough grilling.
    * What is reported – National Radio is much more likely to report on issues that are beltway issues that are pushed and elevated by the opposition parties and less likely to report on controversies that might put lefties in a bad light. The NZ Herald coverage of the Brown affair is a classic case in point. As soon as there was an angle mildly embarrassing to anyone on the right (John Palino) this was highlighted front and centre and a raft of questions that ought to be put to Len Brown on say his hidden trip to Hong Kong were never asked or covered sparingly so as to not press him too hard. Had a National cabinet minster had an affair like Brown’s, John Campbell would’ve been full fangs and anger whereas with Brown he was all sympathy and careful soft questions.

    The left love echo chambers – quinnjin virtually admits that. National Radio is an echo chamber of the left and it is no surprise that when someone makes a complaint to the BSA about its bias and that complaint is not only upheld but the extent and detail of the bias is pointed out, the left are in a huff about it. More people voted for the centre right at the last election than the centre left and so arguably slightly more right leaning tax payers are contributing funds to run National Radio than the left. Centre right tax payers are entitled to expect balance from a radio station that ALL taxpayers fund. If NR was a private station it can have whatever content it wants. The left expects all NZers to pay for a radio station that pretty much only caters for their niche of the political market.

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  23. Keeping Stock (10,342 comments) says:

    quinnjin said

    Ridiculous, right wing thinking is the preserve of the racist, the bigoted, the vengeful, the greedy and the selfish. The right are to be despised as the criminally self centred greedy, retrograde. failed ideology worshipping, intellectually and spiritually inferior scum that they are.

    Get over it you whiny little right wing turds.

    Why don’t you stop beating around the bush and tell us what you REALLY think quinnjin :D

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  24. tas (625 comments) says:

    quinnjin: If you political ideology leads to you viewing the majority of the population (who support 3S) as “intellectually and spiritually inferior scum”, then there is something wrong with it.

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  25. Scott1 (552 comments) says:

    Good to see people in the media being picked up on this sort of thing.
    And yes every single day should probably generate complaints like this until the standard improves.

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  26. Nookin (3,357 comments) says:

    “It is in fact considered better, according to modern journalism practices, to simply state ones view out at the outset, give ones evidence, and let the viewer decide.”

    I really doubt whether anyone would express journalistic practice in such simplistic terms and meaningless terms. A sound view can only be formed by clearing the mind of any view and agenda and collating all of the facts. Stating one view in advance and then stating the facts (or in the case of quinnjin, enjoying the luxury of fact free prejudice) generally tends to lead to misrepresentation, bias and falsehood. That is the complaint that DG made and he was vindicated.

    If qinnjin’s rant is any indication of the internalised conflict raging in the deep recesses of what might loosely be called “his mind” then he is in dire need of some counselling. That level of hatred and vitriol cannot be healthy. What is worse is the sheer bloody arrogance that tells him that a substantial sector of society is so wrong that he is entitled to regurgitate the bile that is eating away at his insides in the manner above.

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  27. Lance (2,662 comments) says:

    So what Labour MP is ‘quinnjun’ ?

    The lone voice calling all the others moron.
    So much hate, so much shaking of tiny fists of rage. So many insulting names joined together in long sentences.

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  28. RRM (9,933 comments) says:

    Quinnjin:

    Get a job.

    That is all.

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  29. duggledog (1,559 comments) says:

    Good for you DG.

    As I’ve said before, the 3S legislation will really come into its own as the destructive long term effects of Sue Bradford’s successful campaign to demonise good parenting manifest themselves in future generations who are even now growing up with no boundaries and no respect for anything. Yes, we will need to build more jails no doubt, but I am happy to fund them out of my already overly taxed tax dollar so I can continue going about my lawful business

    Quin Jim’s laughably immature and explosive diatribe above says it all: leafy suburb, privileged upbringing, civil service or academic. I’d bet on it.

    This bit was the funniest: “But anything so the corporates and the rich can dodge paying any more tax and funding the schools and support networks properly ay?”

    Quin Jim, you’re parroting other people’s made up catch phrases – (poorly) and I don’t think many on here especially DG will find your intellect worthy of debate today. It may have escaped your notice but random acts of violence, thuggery, armed robberies, murder etc are a daily occurrence now.

    In the last 24 hours; three teens carjack and abduct two other teens in Wellington for hours (didn’t even make One News), man has neck broken during random attack in Auckland, guy shoots other guy in leg with a shotgun in P. North, homicide investigation in Johnsonville after woman’s body found overnight.

    What does that say to you? Is that not a problem? Is it just a crazy coincidence? Would it all have been avoided if we had cracked down on these so called evil corporates? Lets just give all the offenders cuddles, ‘education’ and hope for the best.

    Anyway.

    National Radio is as much a haven for the left (read: extreme left, left is the new right) as IZB is a platform for National / ACT ideology. Doesn’t bother me too much as I know this but with this BSA complaint upheld I think National should put the screws on National Radio and ask them to include advertising content if they want to continue using their fully funded platform. It’s only fair – isn’t it?

    The left do go on about ‘fairness and equality’ after all, don’t they?

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  30. david (2,557 comments) says:

    C’mon quinnjin, don’t beat around the bush, tell us what you really think!

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  31. David Garrett (7,318 comments) says:

    Judging by the time of posting of young Quinn’s comment I would say it’s a fair bet that substances had been consumed before he wrote it…God, one would hope so!! If he wrote that while entirely sober he’s got real problems…

    I was going to rebut this guy, but what’s the point? Suffice perhaps to say that he clearly hasn’t READ the BSA’s decision, and he certainly hasn’t read my “whiney letter” which led to the BSA issuing a 9 page detailed thrashing to RNZ for it’s lack of balance, and numerous inaccuracies. But then even if he had read the thing, his opinion would no doubt remain unchanged. That is the nature of your modern leftie, sadly.

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  32. NK (1,244 comments) says:

    Well done David. Good chatting to you last night (at the AGM of the VRWC where he was elected Patron).

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  33. jcuk (693 comments) says:

    The trouble with getting rid of RNZ is that likely the concert programme would go with it, though sometimes I wish it was still the classical station rather than concert which lets in a lot of ????

    The plain agression which currently goes for tough questioning on RNZ programmes causes me to simply turn it off.

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  34. Tinshed (170 comments) says:

    quinnjin You’ve stopping taking your meds again, haven’t you?

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  35. Longknives (4,767 comments) says:

    “Ridiculous, right wing thinking is the preserve of the racist, the bigoted, the vengeful, the greedy and the selfish. The right are to be despised as the criminally self centred greedy, retrograde. failed ideology worshipping, intellectually and spiritually inferior scum that they are.”

    Yep- That pretty much sums me up.
    Still better than being a batshit insane ‘Crim-Hugging’ Lefty though…

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  36. Longknives (4,767 comments) says:

    And well written David Garrett…Top work mate!

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