BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

Peter Mwai "should be swinging in trees in the Congo" was an observation in a letter

read aloud by the host (Hon John Banks MP) on Radio Pacific's talk back programme

Banksie on Sunday broadcast between 10.00am and 2.00pm on 26 May 1996. The

letter identified Mr Mwai as a foreign national in a New Zealand jail.

Mr Keir complained to Radio Pacific Ltd, the broadcaster, that the observation was

offensive and racist. As it was a slur against black people, he said it encouraged

denigration and discrimination against them.

On the basis that the comment referred to a specific individual and not to a group,

Radio Pacific declined to uphold the complaint. As it involved the expression of a

strong but justified opinion about the individual concerned, it maintained that Mr

Mwai had not been referred to unfairly.

Dissatisfied with Radio Pacific's decision, Mr Keir referred the complaint to the

Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, a majority of the Authority upholds the complaint.

Decision

The members of the Authority have viewed the item complained about and have read

the correspondence (summarised in the Appendix). As is its practice, the Authority

determines the complaint without a formal hearing.

Peter Mwai, an African, is serving a sentence of imprisonment in New Zealand

following a conviction for intentionally infecting at least two New Zealand women

with the HIV virus. During his trial, there was evidence that despite knowing that he

had HIV, he had had unprotected sex with a number of women. His specific country

of birth is unknown.

The host of the talkback programme Banksie on Sunday (Hon John Banks MP) on 26

May 1996 read a letter apparently from a prison officer to the effect that Peter Mwai

should be "swinging in trees in the Congo". It is not entirely clear whether that

observation was included in the letter in that form. However, as it was broadcast, it is

a remark for which the broadcaster, Radio Pacific, took responsibility.

Mr Keir complained to Radio Pacific that the comment was "deeply offensive and

racist" and implied that black people were no better than monkeys. He alleged a

breach of standard R14 of the Radio Code of Broadcasting Practice. It requires

broadcasters:

            R14      To avoid portraying people in a manner that encourages denigration of or

                        discrimination against any section of the community on account of gender,

                        race, age, disability, occupational status, sexual orientation or as the   

                        consequence of legitimate expression of religious, cultural or political  

                        beliefs. This requirement is not intended to prevent the broadcast of  

                        material which is

                        a)         factual, or

                        b)         the expression of serious opinion, or

                        c)         in the legitimate use of humour or satire.

On the basis that standard R14 refers to groups, and as the comment dealt with an

individual, Radio Pacific considered that standard R14 was not appropriate. It decided

to assess the complaint under standard R5. It requires broadcasters:

            R5        To deal justly and fairly with any person taking part or referred to in any

                        programme.

Because of the actions for which Peter Mwai was sentenced to imprisonment, and

because of his activities disclosed at the trial, Radio Pacific said that the opinion

expressed was neither unjust nor unfair.

In subsequent correspondence, Mr Keir maintained that the comment was racist. It

equated, he wrote, with the ape-like noises and gestures often directed at black players

at sporting events. Radio Pacific argued that it was directed at Peter Mwai as an

individual, and was a justified opinion in view of his past behaviour.

The Authority accepts that Radio Pacific as the broadcaster must take responsibility

for the remark. However, it is divided as to its meaning.

The majority of the Authority agrees with Mr Keir that the reference to "swinging in

trees in the Congo" could allude to racist stereotypes which hold that Africans are

ape-like or uncivilised. Accordingly, it agrees with Mr Keir that the comment

portrays Africans in a manner which encourages denigration of them and, thus, is in

breach of standard R14. In response to the minority's opinion recorded below, the

majority accepts that robust, even abusive, comments made spontaneously on

talkback radio may be dealt with in a different manner to broadcasts of more

considered current affairs nature. However, as the host on this occasion was reading a

letter, the majority does not accept that any allowance can be made for spontaneity.

Indeed, the host had the opportunity to distance himself from any racist overtones,

but failed to do so.

The Authority applies the exemptions listed in standard R14 only to the extent that

the comment does not breach the overriding provision in s.4(1)(a) of the Broadcasting

Act 1989. That provision requires a broadcaster to maintain, in all its programmes,

standards which are consistent with the observance of good taste and decency. In the

present circumstances, the majority does not accept that an expression of serious

opinion, permitted as an exemption to standard R14, applies when the opinion

expressed is one of racial discrimination. It is an opinion which in itself, contravenes

the statutory requirement for good taste and decency. The majority concludes that the

observation breaches standard R14.

The minority of the Authority agrees with the broadcaster's interpretation of the

remark.   Having considered the majority's interpretation of the comment and its

perspective advanced above, the minority nevertheless is firmly of the opinion that

the comment was an expression of abuse directed at Peter Mwai as an individual.

Given that his behaviour is utterly reprehensible, it was not unfair. The minority is of

the view, first, that standard R5 – not standard R14 – is the appropriate standard under

which to assess the complaint, and secondly, that standard R5 is not breached.

For the reasons given above, a majority of the Authority upholds the complaint

which the observation about Peter Mwai broadcast by Radio Pacific Ltd between

10.00am -2.00pm on 26 May 1996 breached standard R14 of the Radio Code of

Broadcasting Practice.

Having upheld a complaint the Authority may impose an order under s.13(1) of the

Broadcasting Act 1989. In view of the different but valid interpretations which can be

given to the remark, the Authority does not believe that it is appropriate to impose an

order.

Signed for and on behalf of the Authority.

Judith Potter
Chairperson
10 October 1996

Appendix

Mr Keir's Complaint to Radio Pacific Ltd – 29 May 1996

Alexis Keir of New Plymouth complained to Radio Pacific Ltd about a remark made

by the host (Hon John Banks MP) broadcast between 10.00am - 2.00pm during the

talkback programme Banksie on Sunday on Sunday 26 May.

Between 10.30 - 11.00am , Mr Keir wrote, the host referred to Peter Mwai who is of

African descent and who is serving a sentence of imprisonment in New Zealand. Mr

Keir said the host suggested that Peter Mwai should be sent back to Africa to enable

him to "swing in the trees" and, he continued:

I found this comment deeply offensive and racist. It harks back to one of the

oldest slurs used against Black people, that they are inhuman and no better than

monkeys and I would not expect to hear this kind of filth on a national radio

station.

Arguing that the remark breached standards R14 of the Radio Code, Mr Keir said that

it was not humorous and warranted an apology.

Radio Pacific's Response to the Complaint – 12 July 1996

Advising that the comment was broadcast between 11.00am - noon, Radio Pacific said

that the host had quoted a letter to the effect that Peter Mwai "should be swinging in

trees in the Congo".

On the basis that standard R14 applied to groups rather than individuals, Radio Pacific

said that it had considered the complaint under the requirement in standard R5 that

people referred to should be dealt with fairly.

Radio Pacific considered that the comment suggested that Peter MwaiÕs behaviour was

sub-human or that there was some link between AIDS and monkeys. It concluded:

While appreciating your concern at the comment when you heard it on the radio,

taken in context it is not in my opinion a breach of the Codes of Practice.

Mr Keir's Referral to the Broadcasting Standards Authority – 5 August 1996

Dissatisfied with Radio Pacific's response, Mr Keir referred the complaint to the

Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

Mr Keir acknowledged that the host had referred to a letter that he had received but,

he argued, the comment seemed to have been his own. In addition, he maintained that

the comment targeted both an individual and black people generally as:

.. they tie into racist ideas and myths about Black people's inferiority,

subhumanity and unworthiness to share the same rights, space and values as

White people.

Pointing out that the complaint raised a wider issue and did not refer solely to Peter

Mwai, he considered the explanation about the origin of AIDS as laughable and

unacceptable. He repeated his opinion that an apology by the host was appropriate.

Radio Pacific's Response to the Authority – 14 August 1996

Radio Pacific advised the Authority that the remark did not encourage denigration

against black people as alleged and had not dealt with Peter Mwai unfairly.

Focussing on the point that the comment was directed at Peter Mwai as an individual,

Radio Pacific acknowledged that it contained a strong opinion. It summarised the

situation:

1.         Despite being imprisoned, Peter Mwai's identity and country of origin are

            not known.

2.         He was convicted of intentionally infecting at least two NZ women with

            the HIV virus.

3.         During his trial, there was evidence that Peter Mwai, knowing that he was

            infected with the HIV virus, had unprotected sex with a series of

            unsuspecting NZ women.

On the basis that standard R4 acknowledged the right of both talkback callers and

talkback hosts to express their own opinions, and that the comment referred to Peter

Mwai the person, Radio Pacific declined to uphold the complaint.

Mr Keir's Final Comment – 21 August 1996 

Making the analogy that ape-like gestures directed at a black person at a sporting

event implied a comparison with monkeys, Mr Keir wrote:

            So whereas Radio Pacific would like me to think that it merely coincidental

            that John Banks choose to link swinging in the trees with a Black person

            from Africa, I stand by my earlier correspondence in that I view his

            comments as offensive to Black people and indeed offensive to anyone who

            rejects racism.