BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has not upheld complaints an item on 1 News reporting on Immigration New Zealand’s decision to review Kellie-Jay Keen-Minshull’s (also known as Posie Parker) entry into New Zealand breached broadcasting standards. The complainants were concerned with: the report’s description of Parker as ‘anti-trans’ and of neo-Nazis ‘supporting’ Parker; the lack of interviewees supporting Parker in the reports; and the unfair treatment of Parker. The Authority found the items were sufficiently balanced by significant perspectives included both within the broadcast and in other coverage within the period of current interest; any criticism of Parker did not exceed the robust scrutiny expected of public figures; and it did not breach standards to describe Parker as ‘anti‑trans’ (given her views) or to state that neo-Nazis ‘supported’ her at a previous rally.

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

Background¹

[1]  On 9 January 2023, Kellie-Jay Keen-Minshull (also known as Posie Parker, a public figure and activist based in the United Kingdom) publicly announced her intention to travel to Aotearoa New Zealand as part of her ‘Let Women Speak’ tour. She said she would host public events in Auckland | Tāmaki Makaurau and Wellington | Te Whanganui-a-Tara on 25 and 26 March 2023 respectively, at which she would speak, and provide an opportunity for others to speak.

[2]  Prior to arriving in New Zealand, Parker hosted similar events in the United States of America and Australia. Previous events overseas related to the tour resulted in violence and arrests of both attendees and counter-protesters (including in Melbourne on 18 March 2023).

[3]  The proposed New Zealand events raised concerns for some communities, resulting in various submissions to Immigration New Zealand (INZ) / the Minister of Immigration, asking for the denial or revocation of any visa already granted to Parker. Members of the community also organised counter‑protests at the time and place of the New Zealand events.

[4]  On 21 March 2023, INZ considered Parker’s circumstances did not meet the statutory threshold required to ‘make her an excluded person and therefore ineligible for a visa or entry’. This was because the decision maker was not satisfied there was reason to believe, based on available evidence at the time, that Parker was likely to pose a threat or risk to security, public order, or the public interest. The Minister was provided with the relevant advice and information at this time and declined to intervene on 22 March 2023. This information included advice from New Zealand Police | Ngā Pirihimana o Aotearoa the events would go ahead regardless of whether Parker entered New Zealand (based on events overseas) and that the events were unlikely to result in violence as counter‑protest organisers were encouraging no interaction with event attendees.

[5]  On 23 March 2023, several organisations representing rainbow communities applied to the High Court for interim orders preventing Parker from entering New Zealand. The Court held an urgent hearing the following morning on 24 March 2023 but declined to grant the relief sought, issuing reasons for its judgment on 5 April 2023.

[6]  Parker therefore entered New Zealand on 24 March 2023 and attempted to complete her Auckland event on 25 March 2023. This was met by a large number of pro-transgender activists and the event was halted. Parker left the country the same day without travelling to Wellington as planned. Although her event did not occur on 26 March 2023, a large pro-transgender rally occurred in Wellington that day.

The broadcast

[7]  An item on 1 News, broadcast on 20 March 2023 reported on INZ’s decision to review whether Parker would be allowed into New Zealand. The teaser at the beginning of the programme stated:

Tonight on 1 News, Immigration New Zealand's now reviewing whether a controversial anti-trans rights speaker can enter the country. So, who is Posie Parker and why her supporters’ actions on the streets of Melbourne over the weekend have sparked concerns on this side of the Tasman.

[8]  The item itself was introduced by the host, Simon Dallow, as follows:

An anti-transgender rights speaker may be denied entry into New Zealand after a group used Nazi salutes at an event in Melbourne over the weekend. And a warning, our story tonight includes that footage. Immigration New Zealand is now reviewing whether Kellie‑Jay Keen‑Minshull, also known as Posie Parker, will be allowed to cross the Tasman for two planned events in Auckland and Wellington this weekend.

[9]  The item reported on Parker’s event in Melbourne, including footage of ‘protesters [performing] the Nazi salute on the steps of Parliament House’ noting they had ‘gathered to support British anti-trans activist’ Parker, and clashes between supporters and ‘those rallying in favour of trans rights’.

[10]  It noted Parker (‘as a Brit’) can enter New Zealand without applying for a visa, but New Zealand officials could turn her away at the border. It also included comments from:

• Prime Minister Chris Hipkins who cautioned people exercising their right to free speech to be mindful of not inciting hateful behaviour or violence (which is illegal). Hipkins did ‘not want to interfere’ in INZ’s review.
• A transgender advocate who noted it was quite stressful and worrying, particularly given events in Melbourne ‘with the neo-Nazis, that’s actually quite terrifying’. She also stated ‘the worry is that we might start moving backwards like we're seeing in other countries like the US, the UK is just a [bleeped] of transphobia.’
• Green Party Immigration spokesperson Ricardo Menéndez March who considered there were ‘pretty serious grounds on public safety’ to bar Parker’s entry.
• An immigration lawyer noting the events in Melbourne would mean the Immigration Minister would ‘have to take that risk very seriously’.
• Wellington Mayor Tory Whanau: ‘As a council, we're quite protective about our rainbow community. We understand there might be a counter-protest being organised and that's something that we would certainly support.’

The complaints

[11]  Paul Owen and Ron Healing complained the broadcast breached the balance, accuracy and fairness standards of the Code of Broadcasting Standards in New Zealand. (Owen also complained the broadcast breached the discrimination and denigration standard but, for the reasons outlined in paragraph [36] of this decision, we do not consider that standard applies.)

[12]  The main points of the complaints can be summarised as follows:

• Owen and Healing were generally concerned with TVNZ’s description of Parker as an ‘anti-trans activist’ when she represents ‘Standing for Women’ and was in New Zealand as part of her ‘Let Women Speak’ tour.

Balance (Healing)

• Healing expressed concerns the coverage was ‘biased’ and did not include interviews with people supporting Parker (or Parker herself) in these broadcasts. 
• ‘New Zealanders like to hear both sides of the issue and especially in a controversial issue. I consider we were denied that right in the broadcast’. ‘Nowhere in the report is there any attempt to present an opinion supporting Ms K-M in contrast to the high profile public figures whose tenor was in general to bar her from speaking in New Zealand.’
• No one has ‘been barred from New Zealand on the grounds of public safety’, this would set a ‘dangerous precedent’.

Accuracy (Owen)

• The item was ‘highly inaccurate’, claimed Parker is an ‘anti trans rights speaker with no evidence’, was a ‘complete script of fiction’, and ‘also claimed that [Parker] invited the support of neo-Nazis protest without any supportive evidence’.
• The broadcast misinformed the general public by ‘aligning the “attendance” of the Neo-Nazi group as support’ for Parker; attendance at a public event does not mean support, or even association, with the group.

Fairness

• The lack of comment in support of Parker’s visit meant the item lacked both balance and fairness. (Healing)
• Parker had ‘no control over the people who attend the meeting, many with a different and often radical agenda.’ Further, she ‘openly denied any links with any extremist groups’. (Healing)
• Owen did not initially make any specific arguments under the fairness standard, beyond alleging the coverage was biased and inaccurate (as above). On referral, Owen alleged Parker was treated unfairly as there was no attempt to produce evidence for the claims made, or to interview Parker or anyone associated with her. The source and content provided was unfair as it only took coverage from a selected few media outlets.
• Parker was ‘maligned’ as an ‘anti-trans’ activist, which she has never claimed to be, and ‘accused of guilt by association with Far-right and neo-Nazi groups which [is] completely unfounded’. (Healing) 

The broadcaster’s response

[13]  TVNZ did not uphold the complaints, noting:

• ‘The attendance of neo-Nazis at this event is not disputed, and their support is also widely and commonly known and reported. The neo‑Nazi group shown doing the Nazi salute at Ms Parker's Melbourne speaking event had clearly organised to attend the event. In view of the abusive behaviour the group directed toward the LGBTQI+ counter protesters who were also present, it was reasonable to conclude that the group aligned itself with Ms Parker and her views.’ TVNZ noted many other organisations referred to these attendees as ‘supporters’ of Parker.² Further, ‘The 1 News item made no claim that the men had been invited to the event by Ms Parker.’
• Significant ‘viewpoints on the Posie Parker immigration issue were included in the report including from’ the Prime Minister, a transgender advocate, the Greens immigration spokesperson, an immigration lawyer, and Wellington’s mayor.
• TVNZ noted significant viewpoints on these issues more broadly ‘have been canvassed in the media throughout the period of interest so it is reasonable to expect that viewers would be well aware of alternative viewpoints that existed.’
• ‘Ms Keen-Minshull is commonly known to be a British anti-transgender rights activist and founder of the group Standing for Women.’³
• Although Parker describes herself as a women’s rights activist, her views are anti-trans, not pro-women, as noted in her quoted position on trans people: ‘trans women are sexual predators who pose a safety threat to girls in female bathrooms, and describing being a transgender woman as a "fetish"’.⁴ In responding to the referrals, TVNZ also pointed to a later YouTube video where Parker made other ‘anti-trans’ comments.⁵

The relevant standards

[14]  The balance standard⁶ states that 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 viewpoints either in the same broadcast or in other broadcasts within the period of current interest, unless the audience can reasonably be expected to be aware of significant viewpoints from other media coverage. The standard ensures competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.⁷

[15]  The purpose of the accuracy standard⁸ is to protect the public from being significantly misinformed.⁹ It states broadcasters should make reasonable efforts to ensure news, current affairs or factual content is accurate in relation to all material points of fact, and does not mislead.

[16]  The fairness standard¹⁰ protects the dignity and reputation of those featured in programmes.¹¹ It ensures individuals and organisations taking part or referred to in broadcasts are dealt with justly and fairly and protected from unwarranted damage.

Our analysis

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

[18]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression and the value and public interest in the broadcasts, against any harm potentially caused by the broadcasts. We may only intervene where the level of harm means limiting the right to freedom of expression is reasonable and justified.¹²

Balance

[19]  A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The standard applies only to ‘news, current affairs and factual programmes’ which discuss a controversial issue of public importance. The subject matter must be an issue ‘of public importance’, it must be ‘controversial’, and it must be ‘discussed’.¹³

[20]  The Authority has typically defined an issue of public importance as something that would have a ‘significant potential impact on, or be of concern to, members of the New Zealand public’.¹⁴ A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.¹⁵

[21]  The item reported on INZ’s decision to review Parker’s entry to New Zealand in light of events in Melbourne. As we have previously found,¹⁶ given the public response surrounding Parker’s entry into New Zealand (outlined in the ‘background’ section above), it is arguable INZ’s decision was a controversial issue of public importance which was ‘discussed’ for the purposes of the standard. Accordingly, we have proceeded on the basis the balance standard applies. 

[22]  The next question is whether the broadcaster adequately presented significant viewpoints either within this broadcast or in other broadcasts within the period of current interest. We are satisfied the broadcaster met its obligations in this respect, taking into account the following:

• The standard allows for balance to be achieved over time, within the period of current interest.¹⁷ As our ‘background’ section notes, the broader issue of Parker’s arrival in New Zealand was the subject of considerable media coverage.¹⁸ Viewers could reasonably be expected to be aware of relevant alternative perspectives on the issue, particularly by the time of the 25 March broadcast (the story having been covered in the preceding days as well, both by TVNZ and other media).
• The standard does not require equal time to be given to each significant viewpoint, but rather that broadcasters make reasonable efforts, or give reasonable opportunities, to present alternative significant viewpoints.¹⁹
• The broadcast reported on one aspect/development (INZ’s decision to review Parker’s entry) of a broader news story (outlined in the ‘background’ section).
• The reporter noted Parker was able to enter New Zealand without applying for a visa.
• A number of perspectives were provided in the broadcast through the various interviewees. Although the complainants may consider these perspectives were similar, the standard does not require balance to be achieved within a single broadcast. We also note the Prime Minister’s caution of exercising the right to free speech in a general manner, and that an immigration lawyer was interviewed who considered the events in Melbourne were relevant to INZ’s decision (neither interviewee directly supported, nor opposed Parker’s entry).
• Regarding Owen’s suggestion that no one has ‘been barred from New Zealand on the grounds of public safety’, we do not consider that was the focus of the item or that alternative views on that point were required in the interests of balance. (We note in any case that news outlets reported during this period that this had in fact occurred previously in 2014 concerning the hip hop collective Odd Future.²⁰)
• Regarding the complainants’ concerns the coverage generally was ‘biased’, we note the balance standard is not directed at bias in and of itself.²¹ Broadcasters, as a matter of freedom of expression and editorial discretion, are entitled to present matters from particular perspectives or with a particular focus.²²

[23]  In light of the above factors, and the widespread media coverage over the relevant period of interest by TVNZ and other outlets, we do not consider the broadcasts breached the balance standard.

Accuracy

[24]  Owen’s key concerns under this standard relate to the description of Parker as ‘anti-trans’ (which we consider is appropriately dealt with under fairness below); claims of neo-Nazi supporters at Parker’s events – specifically, arguing the item claimed Parker ‘invited the support of neo‑Nazis’ at her event when there is no evidence to suggest Parker has any association with neo‑Nazis; and misinforming the public by equating ‘attendance’ with ‘support’.

[25]  The relevant statements in the broadcast were:

• INZ were reviewing whether to allow Parker into the country after ‘…a group used Nazi salutes at an event in Melbourne over the weekend.’
• ‘Behind police lines, protesters performed the Nazi salute on the steps of Parliament House in Melbourne. They’d gathered to support… [Parker]’.
• One interviewee stated the events were ‘quite stressful, especially worrying with the stuff happening in Melbourne with the neo-Nazis, that's actually quite terrifying.’

[26]  The accuracy standard is concerned only with material inaccuracies. Technical or other points unlikely to significantly affect viewers’ understanding of the programme as a whole are not considered material.²³

[27]  We are satisfied the broadcast was materially accurate in making the above statements.

[28]  The broadcast did not state Parker ‘invited’ support from these groups, but rather that these groups attended and supported Parker. As we have previously found,²⁴ their attendance, and performance of Nazi salutes, were demonstrated in footage which viewers were able to see first-hand.

[29]  Concerning whether the group ‘supported’ Parker, we have previously found it is not reasonable (as far as making ‘reasonable efforts’ to ensure accuracy), to expect a broadcaster to identify and understand the motivation for each person attending or participating in a protest.²⁵ We consider it was open for the reporter to describe the group in this manner, particularly as they were clearly not counter‑protesters, and they carried large anti-trans signage, indicating support of, or alignment with, Parker’s anti-trans rhetoric.²⁶ Largely, their presence and actions at the Melbourne event were stated as fact, demonstrated in the accompanying footage for viewers to see for themselves. The group’s presence at Parker’s Melbourne event was clearly considered relevant to INZ’s review of Parker’s entry into the country (as noted by the lawyer interviewed), and therefore carried public interest.

[30]  Accordingly, we find no breach of the accuracy standard.

Fairness

[31]  A consideration of what is fair will depend on the nature of the programme and the context, including the public significance of the broadcast. We also take into account the nature of the individual (for example, whether they are a public figure familiar with the media, as opposed to an ordinary person with no media experience), and whether any critical comments were aimed at them in their professional or personal lives.²⁷

[32]  It is well established the threshold for finding unfairness is higher for a public figure used to being the subject of robust scrutiny and regular media coverage. It is also commonplace for public figures to be criticised without it giving rise to an expectation of participation in every broadcast.²⁸

[33]  The complainants submit Parker was treated unfairly in that she was misrepresented as an anti‑trans activist (rather than a pro-women’s advocate) and linked to neo‑Nazis when she has ‘openly denied any links with any extremist groups’.

[34]  We do not consider the broadcasts exceeded robust scrutiny of a public figure, nor that they would have left viewers with an unfairly negative impression of Parker. The key reasons supporting this view are:

• We have recently found the use of the descriptor ‘anti-trans’ for Parker was not unfair given it is an accurate and reasonable characterisation of her publicly-expressed views.²⁹ Provided it does not breach broadcasting standards, the right to freedom of expression means broadcasters are free to describe people however they consider appropriate.
• Parker is a prominent figure in gender ideology debates and, as noted above in our ‘background’ section and at paragraph [22], was subject to significant media coverage at the time.
• As we have noted above, the references to the presence and behaviour of neo-Nazi groups were materially accurate, and therefore did not give rise to any unfairness. It remained relevant to INZ’s review of Parker’s entry, whether or not Parker disputed having ties with any such groups.
• To the extent comments might have been perceived as critical, these were made towards Parker’s professional life (in her position as the founder for ‘Standing For Women’ and an outspoken activist) rather than as an attack on her personally.³⁰

[35]  In these circumstances we do not consider any potential harm outweighed the broadcaster’s right to freedom of expression or justifies regulatory intervention.

Remaining standards / aspects raised in complaints

[36]  Responding briefly to the remaining standards and arguments raised in the complaints or in later correspondence to us:

• The discrimination and denigration standard³¹ was nominated in Owen’s original complaint, without specific arguments. On referral, Owen argued the broadcast ‘failed to produce any facts to show why the public should be led to believe that [Parker] is discriminating against any trans-gender. [1 News] discriminated and negatively called on [Parker] and anyone in support of her as being transphobic’.
  This standard protects against broadcasts which encourage the 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. As the standard is focused on harm to sections of the community, rather than particular individuals, the standard does not apply to concerns regarding the treatment of Parker. Further, the complainant has not suggested Parker’s supporters constituted a section of the community for the purposes of the standard, and in any event, the broadcast did not state Parker’s supporters were ‘transphobic’, rather that Parker was an ‘anti-trans rights speaker’. This standard therefore does not apply.
• On referral, Owen also raised the offensive and disturbing content standard, which aims to protect audiences from content likely to cause widespread disproportionate offence or distress or undermine widely shared community standards.³² We do not consider this standard could be reasonably implied into the wording of the original complaint, which was concerned with the perceived accuracy / bias of the report – meaning we cannot consider it now.³³
• There were some concerns raised in the complaints that the use of the ‘anti‑trans’ descriptor contributed to violence at the rally on 25 March. Such concerns are usually best addressed under the Promotion of Illegal and Antisocial Behaviour standard (which was not explicitly raised in either complaint). We are nevertheless satisfied the broadcast did not breach that standard or cause harm justifying the restriction of freedom of expression: in the context of an unclassified news item that carried public interest; and in the absence of evidence supporting these submissions (that this particular broadcast encouraged or contributed to violence or attacks).
• Owen objected to TVNZ’s reliance (in responding to the complaint) on a YouTube video which post-dated the broadcast. Concerning that YouTube video, Owen noted there was truth to Parker’s statement ‘trans women are sexual predators who pose a safety threat to girls in female bathrooms’ as ‘there have been reported cases of women being assaulted by other trans women’. As we have previously noted, this is a common transphobic trope, capable of embedding long‑standing prejudice, with a disputed evidential foundation.³⁴ In any event, this issue was not discussed in the broadcast so we do not comment on it further.
• Owen also commented on other excerpts from the YouTube video cited by TVNZ, which we have not addressed as our jurisdiction is limited to the particular broadcast complained about.

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

Susie Staley
Chair
9 August 2023    

Appendix

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

Owen

1  Paul Owen’s formal complaint to TVNZ – 24 March 2023

2  TVNZ’s decision on complaint – 20 April 2023

3  Owen’s referral to the Authority – 8 May 2023

4  TVNZ’s response to referral – 9 May 2023

5  Owen’s final comments – 15 May 2023

6  TVNZ’s final comments – 16 May 2023

7  Owen’s additional comments – 17 May 2023

8  TVNZ confirming no further comments – 27 June 2023

Healing

9  Ron Healing’s formal complaint to TVNZ – 4 April 2023

10  TVNZ’s decision on complaint – 2 May 2023

11  Healing’s referral to the Authority – 19 May 2023

12  Healing’s response to BSA guidance on gender identity issues – 25 June 2023

13  TVNZ confirming no further comments – 27 June 2023

¹ Information for this section is adopted from the High Court’s judgment in Auckland Pride v Minister of Immigration [2023] NZHC 758
² Citing Cait Kelly and Mostafa Rachwani “What’s behind the ‘terrifying’ backlash against Australia’s queer community?” The Guardian (online ed, 24 March 2023); Simone Fox Koob and Roy Ward “Neo-Nazi salutes at protest could prompt changes to anti-vilification laws” The Sydney Morning Herald (online ed, 19 March 2023); “Let anti-transgender activist in, National says, while Greens hold concerns for public safety” RNZ (online ed, 21 March 2023)
³ Citing Tim Fitzsimons “Prominent transgender advocate harassed by anti-trans feminists, video shows” NBC News (online ed, 2 February 2019)
⁴ Citing Patricia Karvelas “Kellie-Jay Keen-Minshull's anti-trans rights campaign has become a headache for the Liberal Party. But the issue runs deeper than one MP” ABC (online ed, 26 March 2023)
⁵ This submission reflects that made in Cross and Television New Zealand Ltd, Decision No. 2023-035 at [16]–[17]
⁶ Standard 5, Code of Broadcasting Standards in New Zealand
⁷ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand at 14
⁸ Standard 6, Code of Broadcasting Standards in New Zealand
⁹ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand at 16
¹⁰ Standard 8, Code of Broadcasting Standards in New Zealand
¹¹ Commentary, Standard 8, Code of Broadcasting Standards in New Zealand at 20
¹² Introduction, Code of Broadcasting Standards in New Zealand at 4
¹³ Guideline 5.1
¹⁴ Guideline 5.1
¹⁵ Guideline 5.1
¹⁶ See Cross and Television New Zealand, Decision No. 2023-035 at [25]
¹⁷ Guideline 5.2
¹⁸ For examples within the week of these broadcasts, see: Stewart Sowman-Lund “What you need to know about the anti-trans campaigner heading to New Zealand” The Spinoff (21 March 2023); “What are Posie Parker's views and why are they so controversial?” 1 News (online ed, 24 March 2023); Raphael Franks “Posie Parker tour of NZ: Anti-trans activist Kellie-Jay Keen-Minshull arrives in Auckland” NZ Herald (online ed, 24 March 2023); “Posie Parker departs New Zealand; JK Rowling blasts protest as 'repellent'” RNZ (online ed, 26 March 2023); Tess McClure “Anti-trans activist Posie Parker leaves New Zealand after chaotic protests” The Guardian (online ed, 26 March 2023)
¹⁹ Guideline 5.3
²⁰ See Kevin Veale “Posie Parker NZ visit: There is a case for banning the anti-trans activist from NZ” NZ Herald (online ed, 22 March 2023)
²¹ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand at page 15 and see Judge and Discovery NZ Ltd, Decision No. 2023-021 at [13]
²² As above
²³ Guideline 6.2
²⁴ See Cross and Television New Zealand, Decision No. 2023-035 at [31]
²⁵ See Shields and Discovery NZ Ltd, Decision No. 2022-046 at [16]
²⁶ See “Activists expose disturbing past of young Aussie neo-Nazi” News.com.au (20 March 2023)
²⁷ Guideline 8.1
²⁸ See Clough and Television New Zealand Ltd, Decision No. 2022-053 at [19]
²⁹ See Cross and Television New Zealand, Decision No. 2023-035 at [31]
³⁰ Guideline 8.1
³¹ Standard 4, Code of Broadcasting Standards in New Zealand
³² Commentary, Standard 1, Code of Broadcasting Standards in New Zealand
³³ Our ability to imply standards into complaints is outlined in Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [62]
³⁴ See Adam & Crawford and Radio New Zealand Ltd, Decision No. 2022-067 at [42] regarding the importance of recognising all people.