BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Authority has declined to determine a complaint that an interviewee’s reference to ‘the Queen of England’, during an episode of Waka Huia, was inaccurate and discriminatory towards those in the United Kingdom who were not English. The complainant has previously referred a number of complaints about this issue to the Authority, which were either not upheld, with comprehensive reasons given for the Authority’s decision, or which the Authority declined to determine. The complainant’s appeal of a previous decision to the High Court on a similar issue was also dismissed. The Authority therefore declined to determine the complaint under section 11(a) of the Broadcasting Act 1989, on the grounds that it was trivial and vexatious.

Declined to Determine: Accuracy, Discrimination and Denigration  

The broadcast

[1]  TVNZ’s Waka Huia profiles the stories and history of Māori in New Zealand, with this particular episode focused on the life of a woman from Mōtītī Island. During the episode, an interviewee briefly referred to ‘the Queen of England’ while recounting events from the New Zealand Wars.

[2]  This episode was broadcast on TVNZ 1 on 20 May 2018.

The complaint

[3]  Archie Lowes complained that the interviewee’s reference to ‘the Queen of England’ was inaccurate and discriminatory towards those in the United Kingdom who were not English. He submitted that the armed forces of the United Kingdom were drawn from all parts of the United Kingdom, commanded by the Queen of the United Kingdom, and this exclusion of, for example, the Scottish, Irish and Welsh, was discriminatory.

[4]  TVNZ responded that it was unlikely viewers would be materially misled by the interviewee’s reference to the Queen of England. In any event, his comments were distinguishable as commentary, rather than material points of fact to which the accuracy standard applied. Further, the statement did not refer to a class of people under the discrimination and denigration standard. TVNZ also pointed to previous decisions by the Authority which addressed the issues raised by Mr Lowes’ complaint.

[5]  In considering this complaint, we have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Outcome: Declined to Determine

[6]  Section 11(a) of the Broadcasting Act 1989 authorises this Authority to decline to determine a complaint if it considers that the complaint is frivolous, vexatious, or trivial. The policy behind section 11 is that the time and resources of the Authority, which are, in the end, sustained by broadcasters and by the people of New Zealand, should not be wasted in having to deal with matters which objectively have no importance.¹

[7]  Mr Lowes has previously referred a number of complaints about this issue to the Authority. Where complaints were not upheld, comprehensive reasons for the Authority’s decision were provided,² and Mr Lowes’ appeal of one of those decisions was later dismissed in the High Court.³ The Authority has also previously declined to determine a complaint raised by Mr Lowes about the phrase ‘the Queen of England’, on the grounds that it was trivial.⁴

[8]  In our view, this complaint is also trivial. A ‘trivial’ complaint is defined as one which is of little or no importance and is at such a level not to justify it being treated as a serious complaint.⁵ The reference complained about clearlyTelevison had no bearing on the programme as a whole.

[9]  In addition, Mr Lowes’ current complaint does not raise any new issue that has not previously been addressed by the Authority. Mr Lowes continues to refer to the Authority nearly identical complaints, despite our earlier findings and the findings of the High Court on appeal. For this reason, we also consider that the referral of this complaint, raising an identical issue to one which we have previously declined to consider, was vexatious. A ‘vexatious’ complaint is one which has been instituted without sufficient justifying grounds, including where complaints are repeatedly referred about the same issue, although earlier complaints had been dismissed and comprehensive reasons given.⁶

[10]  We therefore decline to determine the complaint under section 11(a) of the Broadcasting Act 1989 on the grounds that it is trivial and vexatious.

For the above reasons the Authority declines to determine the complaint.

Signed for and on behalf of the Authority

Judge Bill Hastings
Chair
14 November 2018  

Appendix

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

1  Archie Lowes’ formal complaint – 7 June 2018
2  TVNZ’s response to the complaint – 9 July 2018
3  Mr Lowes’ referral to the Authority – 31 July 2018
4  Mr Lowes’ further comments – 12 and 14 August 2018
5  TVNZ’s response to the referral – 9 October 2018
6  Mr Lowes’ final comments – 22 October 2018

¹  Guidance: BSA power to decline to determine a complaint, Broadcasting Standards in New Zealand Codebook, pages 63-64

²  See, for example: Lowes and MediaWorks TV Ltd, Decision No. 2016-072; Lowes and MediaWorks TV Ltd, Decision No. 2014-037; Lowes and Television New Zealand Ltd, Decision No. 2005-050; Lowes and Television New Zealand Ltd, Decision No. 2005-025

³  Lowes v MediaWorks TV Ltd [2017] NZHC 1130

⁴  Lowes and Television New Zealand Ltd, Decision No. 2006-104

⁵  Guidance: BSA Power to Decline to Determine a Complaint, Broadcasting Standards in New Zealand Codebook, page 63

⁶  As above, page 64