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 featuring Mongrel Mob gang member Harry Tam as an interviewee on Breakfast breached the discrimination and denigration and balance standards. The complainant considered the choice of interviewee was harmful to people affected by Tam and gang-related crime. The Authority found the interview did not breach the discrimination and denigration standard, noting it was not a breach of broadcasting standards to include Tam purely on the basis of his background as a gang member. It further found no breach of the balance standard as the broadcast adequately presented significant perspectives on the issue being discussed during the interview.

Not Upheld: Discrimination and Denigration, Balance

The broadcast

[1]  During the 17 June 2023 broadcast of Breakfast, an item was included concerning the National Party’s proposed policy to make gang membership an aggravating factor in sentencing hearings. The item was introduced as follows:

It wouldn't be an election year without an anti-gang policy for the National Party. But what if it already exists? Yesterday, the Party unveiled a policy promising to make membership of a gang an aggravating factor when it comes to sentencing. However, it's already a clause in the Sentencing Act. National's Justice Spokesperson Paul Goldsmith will be on with us in a moment. But first, Senior Mongrel Mob member Harry Tam joins us this morning. Harry, thanks for your time. What do you make of National's latest anti-gang policy?

[2]  The item then featured an approximately six-minute interview with Tam, in which he gave his views on flaws in National’s policy, and how the issue of gang membership should be addressed. Following this, the host interviewed National Party Justice Spokesperson Paul Goldsmith.

The complaint

[3]  PJ complained the broadcast breached the discrimination and denigration and balance standards of the Code of Broadcasting Standards in New Zealand. PJ argued Tam should not have been interviewed as gang members are participants in organised crime, and it ‘is upsetting’ for people affected by gang crime that gang members get their ‘view and opinion on how they are sentenced for the crimes they [commit]’.

[4]  On referral to the Authority, the complainant added the following key submissions:

• It was offensive to interview Tam given his previous use of a term highly offensive to the Jewish community (which he has not apologised for).¹
• It was offensive, unsettling and embarrassing for Mr Tam to be invited to speak with the state broadcaster.
• The upset to victims outweighed public interest in the interview.

[5]  On referral, the complainant also sought to raise the promotion of illegal or antisocial behaviour standard² as being breached.

The broadcaster’s response

[6]  TVNZ did not uphold the complaint for the following key reasons:

General comments

• ‘Broadcasting Standards do not prohibit news programmes from interviewing gang members.’
• ‘It is in the public interest to understand the perspective of New Zealand gangs in relation to political policies that will be on the table for voters at the forthcoming general election.’
• ‘Mr Tam did not promote gangs or condone criminal activity. Rather, he articulated an understanding of the drivers of gang membership which, in his view, the proposed policy will fail to address.’

Discrimination and Denigration

• Victims of organised crime do not constitute a ‘section of the community’ under the discrimination and denigration standard.
• In any case the broadcast did not include any material that expressed condemnation of this group of people.

Balance

• While the issue of Government policy in relation to gang membership/sentencing of gang members is a controversial issue of public importance (meaning the standard applied), the broadcast provided this balance by interviewing National Party Justice Spokesperson Paul Goldsmith straight after Tam.
• The issues discussed in the interview with Tam have been discussed widely in other media coverage and it is reasonable to assume that viewers would be aware of alternative viewpoints.

[7]  On the complainant’s referral to the Authority, TVNZ added the following key submissions:

• The promotion of illegal or antisocial behaviour standard could not be reasonably implied into the initial complaint.
• Criticism of Tam by the New Zealand Jewish Council in 2021 was not a part of the initial complaint and should not be considered by the Authority.

Jurisdiction

[8]  We must first determine whether we can consider the complaint under the promotion of illegal or antisocial behaviour standard, which the complainant has sought to raise on referral. The Authority can consider standards not raised in the original complaint to the broadcaster only where it can be reasonably implied into the wording of the initial complaint, and where it is reasonably necessary in order to properly consider the complaint.³

[9]  We do not consider this standard could be reasonably implied into the wording of the original complaint, which was concerned with Tam’s character and the distress people who have been affected by gangs may have experienced due to the choice of interviewee, rather than the effect of the broadcast being to encourage illegal or antisocial behaviour. This means we cannot consider the standard on referral.

[10]  Further, the complainant has raised an argument on referral to the Authority (regarding Tam’s previous use of a term offensive to the Jewish community) that was not raised in the original complaint. TVNZ submitted that this part of the complaint should not be considered by the Authority on that basis.

[11]  The original formal complaint establishes the broad boundaries of the issues which the Authority may consider. However, the Authority has not taken the approach that a complainant is confined by the Broadcasting Act 1989 to the arguments advanced in the original complaint.⁴ When referring a complaint to the Authority for review and investigation, complainants may debate aspects of the broadcaster’s response and elaborate on points made initially as long as they relate to the standards originally raised.

[12]  It is arguable the additional argument falls within this category. However, in this case, we do not consider the point contributes to the complainant’s arguments under the standards raised. The relevant term was not used in the broadcast and, in the context of a discussion about policies affecting gangs, this history of Tam’s would not trigger the high threshold needed for a finding of discrimination and denigration or create inherent balance issues.  Accordingly we do not consider the argument further.

The standards

[13]  The discrimination and denigration standard⁵ 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.

[14]  The balance standard⁶ ensures competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.⁷ The standard only applies to news, current affairs and factual programmes, which discuss a controversial issue of public importance.⁸

Our analysis

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

[16]  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 against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is demonstrably justified in a free and democratic society.⁹

[17]  Upholding this complaint would effectively place a limit on an individual’s right to freedom of expression, in a context where that individual is expressing their opinion on a Party’s policy. The harm caused by the broadcast must be high in order to justify a limitation of this right in this context. We have not found that this broadcast caused such a level of harm for the reasons outlined below.

Discrimination and Denigration

[18]  The discrimination and denigration standard only applies to recognised sections of the community as identified in the standard.¹⁰ The complainant argued that interviewing someone associated with an organised criminal group would be upsetting to victims affected by them. However, people affected by gang members or victims of organised crime do not constitute a ‘section of the community’ under the standard, as they are not a homogenous group identifiable under one of the grounds listed in the standard. Accordingly the standard does not apply.

[19]  In any event, the importance of freedom of expression means that a high level of condemnation, often with an element of malice or nastiness, will usually be necessary to find a broadcast encouraged discrimination or denigration in breach of the standard.¹¹ Tam’s comments during the interview did not contain any level of invective or malice directed towards people affected by gang‑related crime (even if the standard did apply in relation to this group). Tam merely provided his views on perceived flaws in National’s policy, and how the issue of gang membership should be addressed. In our view, the interview was respectful and focused on the relevant policy issues.

[20]  While we appreciate some people may have found featuring Tam as an interviewee, in light of his background, to be offensive, we do not consider it would have resulted in harm constituting a breach of broadcasting standards in and of itself. A person’s involvement with a group associated with criminal activity does not negate their right to freedom of expression, or the broadcaster’s right to feature them in their programming. There is public interest in hearing this type of perspective when discussing matters of proposed government policy concerning gangs.

Balance

[21]  A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The balance 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’.¹²

[22]  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’.¹³ A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.¹⁴

[23]  The complainant has not clarified the specific grounds upon which they consider the balance standard to have been breached.  However, we note the broadcast included two consecutive interviews discussing the proposed National Party policy to include gang membership as an aggravating factor when sentencing people for crimes. This topic constitutes a controversial issue of public importance under the standard, and the standard therefore applies to the broadcast.

[24]  The next question is whether the broadcaster adequately presented significant viewpoints in the same broadcast or within the period of current interest. We believe it did so in the broadcast in question, by interviewing both Mongrel Mob member Harry Tam and National Party Justice Spokesperson Paul Goldsmith concerning this matter, which sufficiently conveyed the major alternative perspectives on this issue. Further, we note National’s proposed policy attracted wide coverage in other media, meaning the audience could reasonably be expected to be aware of significant perspectives on this issue.¹⁵

[25]  On this basis the standard was not breached.

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

Susie Staley
Chair
3 October 2023

Appendix

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

1  PJ’s formal complaint to TVNZ – 19 June 2023

2  TVNZ’s decision on the complaint – 13 July 2023

3  PJ’s referral to the Authority – 15 July 2023

4  PJ’s comments on standards raised – 17 July 2023

5  TVNZ’s further comments – 18 July 2023

6  PJ’s further comments – 25 July 2023

7  TVNZ confirming no further comments – 24 August 2023

¹ Ireland Hendry-Tennent “NZ Jewish Council slams video of Mongrel Mob's Harry Tam saying 'sieg heil'” Newshub (online ed, 23 July 2021)
² Standard 3, Code of Broadcasting Standards in New Zealand
³ Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [62]
⁴ Prime Minister (Rt Hon Helen Clark) & Munro and TV3 Network Services Ltd, Decision No. 2002-157, 2002-158 at [24]–[26]
⁵ Standard 4, Code of Broadcasting Standards in New Zealand
⁶ Standard 5, Code of Broadcasting Standards in New Zealand
⁷ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand at page 14
⁸ Guideline 5.1
⁹ Introduction, Code of Broadcasting Standards in New Zealand at page 4
¹⁰ Guideline 4.1
¹¹ Guideline 4.2
¹² Guideline 5.1
¹³ Guideline 5.1
¹⁴ Guideline 5.1
¹⁵ See for example: “Gang membership would be aggravating factor in sentencing under new National policy” RNZ (online ed, 18 June 2023); Anna Whyte “National pledges tougher sentences for gang members, Greens call policy ‘redundant’ and ‘long-standing’” Stuff (online ed, 18 June 2023)