BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

[This summary does not form part of the decision.]

The Authority has not upheld a complaint that a comment made by the Hon. Debbie Ngarewa-Packer about the BMI test being ‘crafted by white supremacists’ breached the discrimination and denigration standard. Ms Ngarewa-Packer’s comment was a genuine expression of her opinion on a matter of public interest – possible discrimination in access to public funding for IVF treatment. The standard, which has a high threshold, was not intended to prevent the broadcast of such opinions, the Authority found.

Not Upheld: Discrimination and Denigration

The broadcast

[1]  On 20 March 2021, Newshub Live at 6pm featured an item about the costs of In-Vitro Fertilisation (IVF). The introduction to the item follows:

Melissa Chan-Green              With more and more people seeking help to have babies, the pregnancy business is booming.

Samantha Hayes                    But experts are concerned that people are paying thousands of dollars for optional extras that won't necessarily increase their chances…

[2]  The item also discussed the body-mass index (BMI) as a criteria for public funding:

Anna Bracewell-Worrall          … Advocates say a lack of public funding is leaving people behind, especially a body mass index limit. That BMI criteria is disproportionately shutting Māori and Pasifika women out.

Interviewee                             For the same BMI. Māori and Pacific have more muscle and less fat than Europeans.

Debbie Ngarewa-Packer        BMI has been crafted by, you know, I hate to say it, but it's been crafted by white supremacists who actually don't want to see any other body shapes.

Anna Bracewell-Worrall          There are other ways health to carry a baby could be measured, like height to weight ratios, blood tests or fitness. Addressing that could mean more families get to spend hours reading and rereading sleepy Kiwi to the next generation.

The complaint

[3]  Brett Connolly complained the broadcast breached the discrimination and denigration standard for the following reason:

Debbie Ngarewa-Packer’s response to a clip about Body Mass Index was both offensive and racist.

The broadcaster’s response

[4]  Discovery NZ did not uphold Mr Connolly’s complaint for the following reasons:

• Ms Ngarewa-Packer was describing the way the BMI limit discriminated against Māori and Pasifika women seeking fertility treatment. Her comment was her genuinely held belief and personal opinion about the subject.
• While the comment may be provocative, it is important audiences hear views held by political leaders on the issue.
• The comment was not a ‘sustained attack on a particular group in society which is what is required to find a breach of this standard’.

The standard

[5]  The discrimination and denigration standard¹ states broadcasters should not encourage discrimination and 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.

[6]  The standard is not intended to prevent the broadcast of material that is factual, a genuine expression of serious comment, analysis or opinion, or legitimate humour, drama or satire.²

Our analysis

[7]  We have watched the broadcast and read the correspondence listed in the Appendix.

[8]  As a starting point, we considered the right to freedom of expression. As we may only intervene when the limitation on the right to freedom of expression is reasonable and justified, we weigh the right to freedom of expression against any harm potentially caused by the broadcast.³

Discrimination and Denigration

[9]  The discrimination and denigration standard applies only to ‘recognised sections of the community’, which is consistent with the grounds for discrimination listed in the Human Rights Act 1993.⁴ Mr Connolly did not identify the section of the community he considered was affected by the broadcast. The relevant comment was, on its face, directed at the creators of the BMI test (who are not a relevant section of the community for these purposes). However, it was provocative language, which we acknowledge some may find offensive.

[10]  Ms Ngarewa-Packer’s comment was a genuine expression of her opinion on the issue as the co-leader of the Māori Party. There was significant public interest value in the item which raised possible discrimination in access to public funding for IVF treatment. The standard is not intended to prevent the broadcast of such opinions.⁵ Allowing the free and frank expression of a wide range of views is a necessary part of living in a democracy.⁶

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

11 August 2021

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:

1  Brett Connolly’s original complaint to Discovery NZ – 22 March 2021

2  Discovery NZ’s response to Mr Connolly – 14 April 2021

3  Mr Connolly’s referral to the Authority – 15 April 2021

4  Discovery NZ’s confirmation of no further comments – 19 April 2021

¹ Standard 6 of the Free-to-Air Television Code of Broadcasting Practice
² Guideline 6c
³ Freedom of Expression: Broadcasting Standards in New Zealand Codebook, page 6
⁴ Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
⁵ Guideline 6c
⁶ Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16