BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Te Raumawhitu Kupenga declared a conflict of interest and did not participate in determination of this complaint.

Summary

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

An episode of The AM Show featured an interview with Hon. Kelvin Davis regarding the Government’s scheduled series of nationwide Hui with Māori. The programme also discussed legal action taken by prisoners against the Department of Corrections over strip searches, and a short clip of comments by host Duncan Garner on this issue was included in a promo for The AM Show broadcast that evening. A complaint was made that Mr Garner’s comments in relation to the first topic amounted to racist ‘slurs’ against Māori and were dismissive of the Crown’s efforts to fulfil its Treaty obligations, and that the discussion of the second topic trivialised prisoners’ ‘serious abusive treatment’. The Authority did not uphold either aspect of the complaint. The Authority found that, while some of the comments made by Mr Garner could be considered controversial and provocative, this was robust political discourse which carried public interest, and did not go beyond audience expectations. Comments were also made by the other hosts and panel guests which gave a countering view. In this context upholding the complaint would unreasonably restrict the right to freedom of expression.

Not Upheld: Good Taste and Decency, Law and Order, Discrimination and Denigration, Accuracy, Balance 

The broadcasts

[1]  Nicholas Reekie complained about segments of an episode of The AM Show and a promo for The AM Show, both broadcast on 20 March 2018. These dealt with two distinct topics, which we have addressed separately in this decision.

[2]  The first segment complained about included comments made by host Duncan Garner after an interview with Hon. Kelvin Davis about the Government’s scheduled series of nationwide Hui to ‘rejuvenate the relationship’ between the Crown and Māori. Among other things Mr Garner said:

This is about one thing. Labour owns the Māori seats. They want to own them forever. This is about going out there, saying ‘thank you very much, here’s some free tucker, and can you please vote for us for the rest of your lives’.

[3]  Mr Reekie’s second complaint was about a segment titled ‘5 things you should know’, where Mr Garner discussed legal action taken by prisoners against the Department of Corrections over strip searches. Mr Garner said, ‘diddums lads. What are you embarrassed about? It’s a waste of court time.’ A promo for The AM Show broadcast that evening contained the following comment from Mr Garner on the same subject:

What about these prisoners who have gone to Court to moan about the strip search? Toughen up, harden up and get with it. I mean if you’re gonna have a riot, then there is a right to strip-search you and that’s going to happen every single time. What are you scared of showing?

The complaint

First segment: Labour Party Hui

[4]  Mr Reekie submitted that Mr Garner’s comments after his interview with Hon. Kelvin Davis breached the good taste and decency, law and order and discrimination and denigrations standards because they:

• amounted to racist slurs and were nasty and discriminatory towards Māori
• cast aspersions over the Crown’s attempts to fulfil its Treaty obligations and improve its relationship with Māori
• have a negative impact on society and encourage racist attitudes.

[5]  MediaWorks responded that Mr Garner’s comments, while critical of Labour’s plans to hold nationwide Hui, amounted to robust political criticism. They were unlikely to cause widespread undue offence or distress, and did not carry a high level of condemnation of Māori as a section of the community.

Second segment: Prisoners’ legal action

[6]  Mr Reekie believed Mr Garner’s comments about the legal action being taken by prisoners, in the episode and in the later promo, breached the good taste and decency, law and order, discrimination and denigration, balance and accuracy standards because:

• Mr Garner’s comments made light of and trivialised prisoners’ ‘serious abusive treatment’, and he ridiculed the legal action.
• Mr Garner’s comments sought to ‘encourage, allow and normalise’ human rights abuses in New Zealand.
• Mr Garner’s comments were discriminatory towards Māori, who make up a significant portion of the prison population.
• The other hosts’ comments about rights and entitlements were not enough to balance the segment and Mr Garner’s comments.
• The segment was presented as factual but the audience was not properly informed on the issue.
• Mr Garner’s comments during the promo were akin to ‘hate speech’ and were not appropriate to broadcast, particularly at 6.30pm when children were watching television.

[7]  MediaWorks responded that:

• Mr Garner’s comments were robust political analysis.
• They were unlikely to have caused widespread undue offence or distress.
• The broadcast did not actively encourage viewers to break the law.
• Mr Garner’s comments were primarily directed at two prisoners (but also made observations about the rights of prisoners in general).
• Nothing in the discussion discriminated against or denigrated Māori.
• While strip-searching in prisons could be a controversial issue of public importance, this was not an in-depth examination of that issue. In any event, the hosts acknowledged prisoners’ rights. The discussion would not have prevented the audience arriving at an informed and reasoned opinion on the topic.
• The comments were identifiable as the hosts’ analysis, comment or opinion so the accuracy standard did not apply.
• The promo was acceptable to screen during Newshub, which has an adult target audience.

[8]  In considering the complaint, the members of the Authority have viewed recordings of The AM Show and the promo and have read the correspondence listed in the Appendix.

The standards

[9]  Mr Reekie raised the good taste and decency, law and order and discrimination and denigration standards of the Free-to-Air Television Code in relation to both of the topics that concerned him:

• The purpose of the good taste and decency standard (Standard 1) is to protect the audience from material that is likely to cause widespread undue offence or distress, or undermine widely shared community standards.
• The intent behind the law and order standard (Standard 5) is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity.
• The discrimination and denigration standard (Standard 6) protects against broadcasts which encourage the denigration of, or discrimination against, 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.

[10]  Mr Reekie also raised the balance and accuracy standards in relation to Mr Garner’s comments about the prisoners’ legal action:

• The balance standard (Standard 8) aims to ensure that competing arguments are presented to enable viewers to form their own informed and reasoned opinion about controversial issues of public importance.
• The accuracy standard (Standard 9) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead.

Our findings

[11]  When determining a complaint we first recognise the importance of the right to freedom of expression – which includes both the broadcaster’s freedom to present information and ideas to the public, and the audience’s right to receive that information. We weigh the value of the broadcast item, as well as the broadcaster’s right to freedom of expression, against the level of actual or potential harm that might be caused by the broadcast either to an individual or to society or the audience generally.

[12]  Audiences expect that Mr Garner will at times make provocative statements that some people may find challenging. Controversial and provocative speech is valued in a free and democratic society and the threshold for us justifiably restricting this speech is high.

[13]  We have not identified any actual or potential harm arising from the broadcasts which justifies restricting the right to freedom of expression. Both topics discussed carried public interest. It is the responsibility of news and current affairs programmes, such as The AM Show, to not only keep the public informed on these kinds of issues, but also to challenge and examine the surrounding viewpoints in a way that encourages constructive public discourse. The AM Show did this in a way that was consistent with broadcasting standards.

First segment: Hon Kelvin Davis and planned Hui

[14]  In summary, we find Mr Garner’s comments about his interview with Hon. Kelvin Davis and the Government’s planned Hui did not breach the standards raised for the following reasons:

• Good Taste and Decency: Context is important, including audience expectations. While some viewers may have found Mr Garner’s comments controversial or dismissive of the Crown/Māori relationship, there is an audience expectation that The AM Show and Mr Garner will sometimes give provocative opinions on important issues. In the context of the broadcast as a whole, we note Hon. Kelvin Davis had ample opportunity during the interview to present his views. Ultimately, these criticisms offered robust political discourse and carried public interest considering the importance of the issue. While provocative, they were not likely to cause widespread undue offence or seriously violate community norms.
• Law and Order: Neither Mr Garner’s comments nor the discussion of this topic in general encouraged criminal behaviour or undermined law and order. 
• Discrimination and Denigration: A high level of condemnation, usually with an element of malice or nastiness, is necessary to find a breach of this standard. Mr Garner’s criticisms were focused on the Labour Party and their political engagement with Māori, not Māori as a section of the community. Again, while possibly insensitive and dismissive, the comments did not carry the level of malice required to amount to a breach of this standard.

Second segment: Prisoners’ legal action

[15]  We also find Mr Garner’s comments about the legal action being taken by prisoners, in the episode and in the later promo, did not breach the standards raised, for the reasons below:

• Good taste and decency: Our comments above in relation to the first segment also apply here. Although Mr Garner’s comments in the broadcast and in the promo were provocative, they related to an issue of social significance. Free and frank discussion about this type of issue is valuable and carries public interest. The comments did not undermine community standards of taste and decency, in the context.
• Law and order: There was nothing in the discussion that undermined law and order. Mr Garner’s co-hosts clearly acknowledged prisoners’ rights.
• Discrimination and denigration: The hosts’ comments about prisoners did not comment at all on Māori as a section of the community so could not be said to discriminate against, or denigrate, all Māori.
• Balance: Strip-searching prisoners and the rights of prisoners is a controversial issue of public importance for the purposes of this standard. However the broadcast was sufficiently balanced and allowed viewers to arrive at their own reasoned and informed opinion by presenting a range of viewpoints through the co-hosts, viewer feedback and a panel discussion. For example:
  • 'I guess they have legal rights and that is what they are fighting… They have legal rights and that is the bottom line.’ (co-host Amanda Gillies)
  • ‘Look at Norway, they treat their prisoners with basic human respect, they try to train them up. They have a 20% recidivism rate, which is the lowest in the world, because they don’t treat their prisoners like crap.’ (co-host Mark Richardson)
  • ‘The only right that a prisoner really loses is the right to freedom. The other basic human rights they maintain and I guess we have to respect them.’ (co-host Mark Richardson)
• Accuracy: Mr Garner’s statements were clearly identifiable as analysis, comment or opinion, so the accuracy standard does not apply (guideline 9a).¹

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
10 August 2018  

Appendix

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

1      Nicholas Reekie’s formal complaint – 23 March 2018
2      MediaWorks’ response to the complaint – 2 May 2018
3      Mr Reekie’s referral to the Authority – 15 May 2018
4      MediaWorks’ confirmation of no further comment – 20 June 2018

 ¹ Discrimination and Denigration Commentary, Broadcasting Standards of New Zealand Codebook, page 16.