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 about comments made by Jack Tame during his morning show including the statement ‘Māori don’t just deserve special treatment, but are contractually guaranteed a form of special treatment under the Treaty’. The Authority found, in context, the comment amounted to analysis to which the accuracy standard does not apply. The comment was not the focus of the discussion, and an opinion-based segment such as this is not required to provide alternate perspectives under the balance standard. The remaining standards did not apply.

Not Upheld: Accuracy, Balance, Discrimination and Denigration, Fairness

The broadcast

[1]  During an episode of Saturday Morning with Jack Tame, broadcast on Newstalk ZB on 13 February 2021, host Jack Tame discussed a possible law change regarding Māori wards on local councils, explaining if it passed, ‘it'll mean that any local councils that choose to establish Māori wards won't be able to scrap those Māori wards for at least two elections’. He commented:

At just two days, the submission period for the law change was unreasonably and unnecessarily short. But given how few people care enough about local body politics to actually vote in local body elections, it seems extraordinary there is much opposition to the law change itself. Except, of course, that this issue involves something Māori and the perception for some people that Māori might be getting special treatment. Of course, both of those points are 100 per cent right. The issue does concern Māori and Māori don't just deserve special treatment, but are contractually guaranteed a form of special treatment under the Treaty.

The complaint

[2]  Rod Kane complained the item was in breach of the accuracy, balance, fairness and discrimination and denigration standards for the following reasons:

• Saying ‘under the terms of the Treaty Māori were 'guaranteed' special treatment…is a gross distortion of the truth…nowhere does it mention co-governance or “special” treatment’.
• ‘…what the treaty guarantees is EQUAL treatment and protection for all. It is three very simple clauses’.
• ‘Myself and many others strongly object to this blatant distortion of the facts and in the position that he has, it is expected of him to show accuracy and present a balanced view.’
• ‘My objection in reality is to the manner in which the general media, and some commentators in particular, are reorganising the facts to suit a socialist and Māori activist agenda.’

The broadcaster’s response

[3]  NZME did not uphold the complaint for the following reasons:

Accuracy

• The statement ‘Māori don’t just deserve special treatment but are contractually guaranteed a form of special treatment under the Treaty’ was accurate:
  • ‘…the Treaty promised to protect Māori culture and to enable Māori to continue to live in New Zealand as Māori’¹
  • ‘…the English text of Article 1 of the Treaty purported to cede ‘sovereignty’ over the land to the Crown, the Māori text of the same Article provides that the chiefs cede governorship (kawanatanga) of their lands. Article 1 is subject to the other Treaty articles: the Crown’s right to govern granted by this Article is qualified by an obligation to actively protect Māori interests’.
  • ‘Article 2 of the Māori text of the Treaty states that the Crown gives to the Chiefs, hapū and all the people of New Zealand the full chieftainship (tino rangatiratanga) of all their lands, their villages and all their possessions (taonga) and in return the chiefs give to the Crown the right to purchase land they wish to sell. Article 2 therefore provides for iwi to exercise authority in respect of their own affairs by reference to pre-existing Māori norms and customs (tikanga Māori). This special status has been recognised by legislation and the courts.’²
  • ‘Article 3 provides that the Crown will protect all the Māori people of New Zealand, and give them all the same rights (and duties) as those of the people of England. However, so long as socio-economic disparities between Māori and other New Zealanders remain, it can be argued that this provision has not been fulfilled and consequently preferential treatment of Māori by the Government may be required.’
  • ‘…under the Treaty settlement process Māori are entitled to bring claims before the Waitangi Tribunal for breaches of the principles of the Treaty and seek compensation for historical acts and omissions of the Crown…the Treaty is a tool that allows Māori to seek redress for past wrongs’.
• The rest of Mr Tame’s comments ‘fall into the category of comment, analysis and opinion, rather than statements of fact’ so the standard does not apply to them.

Balance

• The balance standard did not apply, as the standard does not apply to talkback segments like this one.
• ‘This is a regular programme segment during which Mr Tame gives his views on a chosen topic.’ Previous BSA decisions have found similar segments not subject to the balance standard.³

Discrimination and denigration

• The complainant did not identify a segment of the community who was discriminated against.
• ‘If it is New Zealanders who are not of Māori descent, then…the comments complained of can [not] be viewed as encouraging discrimination against or denigration of this section of the community’.
• ‘In any event, the host’s comments do not contain the required level of invective to constitute a breach of this standard.’

Fairness

• The standard only applies to people or organisations taking part or referred to in a broadcast, so does not apply to this broadcast.

The standards

[4]  The purpose of the accuracy standard⁴ is to protect the public from being significantly misinformed.⁵ It states broadcasters should make reasonable efforts to ensure that any news, current affairs or factual programme is accurate in relation to all material points of fact, and does not mislead.

[5]  The balance standard⁶ states when controversial issues of public importance are discussed in news, current affairs or factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.⁷ The standard only applies to news, current affairs and factual programmes, which discuss a controversial issue of public importance.⁸

[6]  The fairness standard⁹ requires broadcasters to deal fairly with any person or organisation taking part or referred to in any broadcast.¹⁰ It ensures individuals and organisations are dealt with justly and fairly and protected from unwarranted damage.

[7]  The discrimination and denigration standard¹¹ states 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. It protects sections of the community from verbal and other attacks, and fosters a community commitment to equality.¹²

Our analysis

[8]  The right to freedom of expression is an important right in a democracy and it is important that we weigh the right to freedom of expression against the harm that may have potentially been caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified.

[9]  We have listened to the broadcast and read the correspondence listed in the Appendix.

Accuracy

[10]  We first considered whether the statement ‘Māori don’t just deserve special treatment but are contractually guaranteed a form of special treatment under the Treaty’ was a statement of fact, or a statement of analysis, comment or opinion. If it was analysis, comment or opinion, the accuracy standard does not apply.

[11]  The key question is how a reasonable listener would likely perceive the statement.¹³ The following factors are relevant:¹⁴

• whether the statement is verifiable (can be proved right or wrong)
• the language used in the particular statement and in the rest of the item
• the nature of the programme, and the role and reputation of the person speaking
• the subject matter, with statements about notoriously controversial issues more likely to be opinion
• whether evidence or proof was provided to support the statements
• whether the statements were clearly attributed to anyone.

[12]  We found the nature of the programme, Saturday Mornings with Jack Tame, on Newstalk ZB, promoted for the host’s ‘crisp perspective’¹⁵ means listeners would be well aware Mr Tame would provide his view on current affairs discussed on his show.

[13]  Looking at the statement itself, in isolation, it does present like a statement of fact. However, Mr Tame has stated a conclusion based on an interpretation of the Treaty of Waitangi and the various, complex legal applications of the Treaty. Given the ongoing debate around the Treaty, the way it is discussed in New Zealand society and the continuing interpretation of what obligations it bestows on the Crown in relation to Maori,¹⁶ it is unlikely a reasonable listener would take this statement as anything other than Mr Tame’s own analysis of Treaty rights.

[14]  On the basis we consider the statement to be distinguishable as commentary, opinion and analysis, the accuracy standard does not apply.

Balance

[15]  The balance standard applies to news, current affairs and factual programmes which discuss controversial issues of public importance. As the segment discussed news and current affairs, it falls within that category.¹⁷ For the balance standard to apply, the subject matter of the broadcast must be an issue of ‘public importance’, it must be ‘controversial’ and it must be ‘discussed’. An issue of public importance is something that would have a significant potential impact on, or be of concern to, members of the New Zealand public. A controversial issue is one which has topical currency, and excites conflicting opinion or about which there has been ongoing public debate.¹⁸

[16]  The complainant identified a remark about Māori rights under the Treaty. While this may be a controversial issue of public importance, we considered the broadcast was discussing a different issue, legislation around the creation of Māori wards by local councils. The comment complained about was made in passing in the discussion about Māori wards. It was not the focus of the discussion itself.

[17]  In any event, we do not consider it was necessary for this item to include further perspectives for the following reasons:¹⁹

• This is a talkback show where topics are presented from the host’s perspective.
• A reasonable listener is likely to have interpreted the content as commentary and statements of opinion.
• Listeners can be expected to have been aware of other views and news items around the issue given its topicality and importance.

[18]  Given the above, listeners were unlikely to have been misled by the omission of any other views. We therefore do not uphold the balance complaint.

The remaining standards

[19]  The remaining standards do not apply:

• Discrimination and denigration: This standard only applies to recognised sections of the community.²⁰ The complainant did not identify any such section referred to in the broadcast. 
• Fairness: This standard only applies to individuals or organisations referred to or taking part in a broadcast.²¹ The broadcast did not refer to any individuals or organisations.

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

Judge Bill Hastings

Chair

21 July 2021    

Appendix

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

1  Rod Kane’s complaint to NZME – 13 February 2021

2  NZME’s decision on the complaint – 16 March 2021

3  Mr Kane’s referral to the Authority – 6 April 2021

4  NZME’s comments on the referral – 20 April 2021

5  Mr Kane’s final comments – 5 May 2021

¹ Ministry of Justice, “Learn about the Justice System: The Treaty of Waitangi” <www.justice.govt.nz>
² The Marine and Coastal Area (Takutai Moana) Act 2011 provides for iwi, hapū and whānau to have their customary rights in the common marine and coastal area determined and recognised.
³ Haines and NZME Radio Ltd, Decision No. 2017-039 at [27]; and Woolrych and Glennie and NZME Radio Ltd, Decision No. 2019-100 at [24]
⁴ Standard 9 of the Radio Code of Broadcasting Practice
⁵ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
⁶ Standard 8 of the Radio Code of Broadcasting Practice
⁷ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁸ As above
⁹ Standard 11 of the Radio Code of Broadcasting Practice
¹⁰ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
¹¹ Standard 6 of the Radio Code of Broadcasting Practice
¹² Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
¹³ Guidance: Accuracy – Distinguishing Fact and Analysis, Comment or Opinion, Broadcasting Standards in New Zealand Codebook, page 64
¹⁴ As above
¹⁵ See Newstalk ZB “Saturday Morning with Jack Tame” <www.newstalkzb.co.nz>
¹⁶ See, for example, Stuart Smith & Arena Williams “We need to talk about how the Crown can really start to honour the Treaty” Stuff (online ed, 26 May 2021); Talk Treaty <www.talktreaty.org.nz>
¹⁷ See Godinet & Kay and NZME Radio, Decision No. 2020-101 at [15]
¹⁸ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
¹⁹ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
²⁰ Guideline 6a
²¹ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21