Cage and Television New Zealand Ltd - 2009-125
- Peter Radich (Chair)
- Leigh Pearson
- Tapu Misa
- Mary Anne Shanahan
- Ken Cage
BroadcasterTelevision New Zealand Ltd
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Breakfast – discussion about proposed changes to adoption laws to allow homosexual couples to adopt – host said he was “iffy” about the changes and that homosexuality was “unnatural” – co-host and some viewers disagreed with his views – allegedly in breach of discrimination and denigration
Standard 7 (discrimination and denigration) – host’s comments were provocative but encouraged debate – host’s views were countered by co-host and viewer feedback – tone was not sufficiently malicious to encourage discrimination or denigration – not upheld
This headnote does not form part of the decision.
 During an episode of Breakfast, broadcast on TV One between 6.30am and 9am on Thursday 20 August 2009, a proposed change to New Zealand adoption laws was discussed following the Chief Family Court Judge’s comments to the media that the Adoption Act needed to be changed to allow homosexual couples to adopt children.
 At approximately 6.40am, one of the programme’s hosts, Paul Henry, introduced the discussion and had the following exchange with his co-host Alison Mau:
Henry: ...a little bit later in the morning I thought we might talk about the Acting Principal
Family Court Judge’s call that it’s time the adoption laws were updated to reflect
society. What he’s effectively saying, I think, is that you shouldn’t discriminate
against homosexual couples when it comes to adopting. I’m a little bit iffy on that...
Mau: Why? Why shouldn’t same sex couples raise children just as well as mixed sex
Henry: It’s not natural, is it?
Mau: Oh don’t start that.
Henry: Well it’s not natural, is it? It’s obviously not natural.
Mau: Not your sort of natural, no.
Henry: It’s not God’s sort of natural and I’m not even religious, but it can’t be, it’s not,
like, natural, is it? Like you don’t get a whole clan of cave bears that are all male
because that just couldn’t happen. It’s not natural.
Mau: You’re just determined to open a big can of whoop-ass aren’t you?
Henry: I’m not trying to do it... I’m merely...
Mau: Raising a talking point? That’s fine.
Henry: Because I mean people will... it smacks of the sort of thing the Labour
Government did of course, doesn’t it? I just think you know I’m iffy on it, ‘cause
we’re talking adoption aren’t we? I’m just iffy on it.
Mau: Yes goodness me, iffy – it smacks of human rights. How outrageous!
Henry: Yes human rights. A lot of bad things have been done under the... guise of
human rights, haven’t they?
 At 7.25am, Ms Mau interviewed two MPs and asked them their opinion on the issue. They both offered the opinion that there were some serious anomalies in the current legislation and that they considered it should be reviewed and updated.
 At 7.40am, the programme’s hosts discussed viewers’ feedback. Ms Mau read out a text from a viewer, which said, “Good on you, Paul. It’s not natural. Same sex [couples] couldn’t have children naturally so they shouldn’t be allowed to adopt them”. Ms Mau commented, “gosh, there’s so many holes in that argument. Plenty of heterosexual couples can’t have children, that’s why they adopt. So your argument’s just been blown out of the water”.
 The next feedback read out stated, “The gender and/or sexuality of a parent has nothing to do with parental success. Ask any children’s advocacy and welfare agencies”. Ms Mau responded, “Thank you, Jason. I am reading out a couple that I agree with, of course.” She read more feedback, stating, “Come on Ali, get your feet back on the ground. Children need role models of both sexes to give them a decent upbringing.” Ms Mau commented, “Those role models don’t have to be the parents, Phillip. It is up to gay couples, if they’re allowed to adopt, to fill their children’s lives with carefully selected role models of both genders surely? And you let yourself down, Phillip, with your next sentence – ‘[the host] is quite right. Homosexuality is unnatural.’ – oh dear.”
 The following exchange then took place between the presenters:
Henry: Well, it is. It is unnatural, homosexuality...
Mau: No, it’s not.
Henry: ...But is it wrong?
Mau: [reading feedback] “To call this unnatural is ludicrous and narrow-minded.
Gay couples are great parents and are more than qualified to raise children. In
short, it’s about accepting that society is diverse.”
Henry: I mean, it is unnatural though. We shouldn’t be frightened of saying that it’s
unnatural. It is unnatural. Although homosexuality is through all species. I don’t
know if it’s through all species but many, many species. A lot of monkeys are
Mau: Actually... we had one text that said that somebody’s aunt had a homosexual pair
of magpies who tried to, who were sitting on eggs to try and hatch them.
Henry: Extraordinary. And they didn’t, did they, hatch? Where did they get eggs from?
They stole the eggs, thieving homosexual magpies. The thing is, though, if you go
to any animal park, and I’ve got to be careful what I say here, but if you go to any
animal park, you will find monkeys being filthy with each other.
Mau: That is completely beside the point.
 Ken Cage made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the host had made offensive statements about homosexual people, including that they were “unnatural” and “likening their behaviour to homosexual monkeys doing ‘filthy things with each other’”. He considered that the message conveyed justified “bullying others on the basis of their perceived sexual orientation, but also children who are trying to come to terms with their own sexual orientation”. He said, “the damage that this type of homophobia does to these children is incalculable”.
 Mr Cage said that, while he supported free speech, “limits must be put on free speech when what is said hurts and denigrates others, and starts to border on hate speech”.
 Standard 7 of the Free-to-Air Television Code of Broadcasting Practice is relevant to the determination of this complaint. It provides:
Standard 7 Discrimination and Denigration
Broadcasters should not encourage discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status, or as a consequence of legitimate expression of religion, culture or political belief.
Broadcaster's Response to the Complainant
 TVNZ noted that the Authority had, since 1992, consistently defined denigration as blackening the reputation of a class of people, and that a high threshold must be crossed to find a breach, in light of the Bill of Rights Act and the right to free speech. It contended that the Authority had found that a broadcast encourages denigration when it:
- contains a high level of invective directed against a section of the community
- portrays a section of the community as inherently inferior, or as having inherent negative characteristics
- portrays a section of the community in a highly offensive way
- encourages negative racist stereotypes
- amounts to hate speech or vitriol.
 TVNZ maintained that comments would not breach the standard “simply because they are critical of a particular group, because they offend people, or because they are rude; the [Authority] recognises that allowing the free and frank expression of a wide range of views is a necessary part of living in a democracy”.
 The broadcaster asserted that, in assessing whether a broadcast had breached the denigration standard, the Authority would consider a number of factors, including:
- the language used
- the tone of the person making the comments
- the forum in which the comments were made, for example talkback radio is recognised as a “robust” forum
- whether the comments appeared intended to be taken seriously, or whether they were clearly exaggerated hyperbole
- whether the comments were repeated or sustained
- whether the comments made a legitimate contribution to a wider debate, or were gratuitous and calculated to hurt or offend.
 TVNZ contended that encouraging discrimination meant to encourage the different treatment of members of a particular group, to their detriment. It argued that several factors should be considered in determining whether Standard 7 had been breached.
 TVNZ noted that Breakfast was targeted at an adult audience. It said that Paul Henry was well-known for his tone and this type of banter, as well as for voicing his opinions which often offended sections of society. TVNZ considered that the discussions on Breakfast were “robust”, particularly as Mr Henry’s co-host tended to disagree with his sentiments, “as befits the expectation of a ‘robust’ debate”.
 The broadcaster said that, while Mr Henry’s comments about homosexuality being “unnatural” and about him being “iffy” on the subject of homosexual couples being allowed to adopt would have upset some viewers, they did not amount to hate speech and in the context of the programme his points were “clearly and definitively answered and rebutted”. TVNZ maintained that his remark about monkeys “being filthy with each other” was “just a general comment about monkeys”.
 TVNZ considered that Mr Henry was entitled to voice his opinion, which was expressly excluded in Standard 7 as “the expression of genuinely held opinion in news, current affairs or other factual programmes”. Taking into account the fact that Mr Henry’s co-host and some viewer feedback had clearly disagreed with his perspective, TVNZ found that his comments had not breached the standard. It considered that the programme had provided an avenue for a range of opinions on the subject of changing adoption legislation. TVNZ also was of the view that Mr Henry’s comments were not intended to be denigratory, but were his opinion.
 The broadcaster concluded that, while the comments would have offended some viewers, “the Breakfast broadcast would not have led to the denigration of homosexuals”. It declined to uphold the Standard 7 complaint.
Referral to the Authority
 Dissatisfied with TVNZ’s response, Mr Cage referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. He reiterated his view that Mr Henry’s comments denigrated homosexuals.
 Mr Cage disagreed with the broadcaster’s argument that Mr Henry had been commenting about “monkeys in general”. The entire conversation was about homosexuality in the animal kingdom he said, and the comment “monkeys being filthy with each other” was preceded by “a lot of monkeys are homosexual”. Mr Cage considered this conveyed the message that “because they are homosexual, they are ‘filthy’”.
 The complainant maintained that Mr Henry blackened the reputation of a class of people, by continuously stating that homosexuality was “unnatural” between 6.40am and 7.45am. He considered that this type of speech dehumanised homosexuals, denied them human rights, and made them second-class citizens. Mr Cage argued that a “sustained attack” on people as being unnatural did portray the section of the community as inherently inferior, and not worthy of the right to adopt children. Further, the link made between homosexuality and “filthy” acts imbued all homosexuals with inherent negative characteristics, he said.
 The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 Standard 7 protects against broadcasts which encourage denigration of, or discrimination against, a section of the community. "Denigration" has consistently been defined by the Authority as blackening the reputation of a class of people (see for example Mental Health Commission and CanWest RadioWorks1). The term “discrimination” has been consistently defined as encouraging the different treatment of the members of a particular group, to their detriment (for example Teoh and TVNZ2).
 In the Authority’s view, while the host’s comments about homosexuality were clearly designed to be provocative and would have offended some viewers, they were framed in a way that provided a forum for discussion and encouraged public debate about the proposed legislation reform. Opposing views were clearly presented by his co-host, the two MPs interviewed, and in some of the viewer feedback.
 It is well-established that in light of the requirements of the Bill of Rights Act 1990, a high level of invective is necessary for the Authority to conclude that a broadcast encourages denigration or discrimination in contravention of the standard (see for example McCartain and Angus and The Radio Network3). The Authority considers that on this occasion, particularly in the context of the entire discussion, the host’s comments were not sufficiently vitriolic and lacked the necessary invective to reach the threshold for encouraging discrimination against, or denigration of homosexuals for the purposes of the standard.
 The Authority therefore declines to uphold the Standard 7 complaint.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
15 February 2010
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Ken Cage’s formal complaint – 20 August 2009
2. TVNZ’s response to the complaint – 21 September 2009
3. Mr Cage’s referral to the Authority – 24 September 2009
4. TVNZ’s response to the Authority – 1 December 2009
1Decision No. 2006-030
2Decision No. 2008-091
3Decision No. 2002-152