BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

Several weeks before Waitangi Day, during Mike’s Minute on Newstalk ZB, host Mike Hosking made comments critical of Ngāpuhi leader Kingi Taurua and his stance on the Trans-Pacific Partnership. Mr Hosking also suggested that the Prime Minister should ‘flag Waitangi’ because it is an ‘annual ritual of abuse and anger and ignorance’. The Authority did not uphold a complaint alleging that the item encouraged discrimination against Māori and Ngāpuhi and was unbalanced. While the Authority recognised that Mr Hosking’s comments could be considered by some to be insensitive, they were clearly his opinion and protected under the right to freedom of expression. The comments were not framed as reflecting on Māori generally and did not reach the high threshold necessary to encourage discrimination or denigration. Additionally, the item did not contain a ‘discussion’ of controversial issues but rather was clearly presented as an opinion piece. Therefore the broadcaster was not required to present alternative viewpoints. In any event, the host did make reference to countering views, such as those of Kingi Taurua.

Not Upheld: Discrimination and Denigration, Controversial Issues

Introduction

[1]  Several weeks before Waitangi Day, during Mike’s Minute on Newstalk ZB, host Mike Hosking made comments critical of Ngāpuhi leader Kingi Taurua and his stance on the Trans-Pacific Partnership (TPP). Mr Hosking also suggested that the Prime Minister should ‘flag Waitangi’ because it is an ‘annual ritual of abuse and anger and ignorance’.

[2]  Ataria Sharman complained that the broadcast ‘actively encourage[d] discrimination of Māori and Māori views and opinions within New Zealand’ and failed to present significant points of view.

[3]  The issue is whether the broadcast breached the discrimination and denigration standards and controversial issues standards of the Radio Code of Broadcasting Practice.¹

[4]  The item was broadcast on 21 January 2016. The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

The programme

[5]  The content of the Mike’s Minute segment was as follows:

From our ‘Why do we get sucked into it every year?’ file comes this year’s version of the media falling all over themselves in dealing with Waitangi Day. Now this year with the added frisson of the TPP. Kingi Taurua, who is Ngāpuhi’s version of a broken record, is threatening to block the Prime Minister from entering Te Tii Marae.

He drums this sort of crap up most years, and one of the great hopes, one of my great hopes, is that the media who bring all this nonsense to our attention just once go, ‘You know what? We’ve heard all this before. We’ve heard it last year, heard it the year before’. It isn’t news, it’s an attention-seeker, it’s depressing, don’t you think? It’s depressing that all you have to do in this country to get a headline is repeat the same material year in and year out.

What’s made this year particularly galling and boring is that his complaint was that the Government hadn’t consulted him over the TPP and that the TPP was going to wreck the Treaty. Todd McClay, the Minister, was rolled out yesterday afternoon with a very very specific explanation reminding us that the Treaty is exempt from the TPP so therefore there is no story. That should have been the end of it. Kingi’s worries, woes and concerns were addressed. But no, no, no. Kingi needed to be interviewed, opposition MPs needed to be interviewed, the Government got to be quoted as well.

And by the end of the day, you were reminded of just why this country’s so-called ‘national day’ is such a mess, such an embarrassment, and one of those days that gets treated really by most of us as nothing more than a day off, as opposed to a proper day of recognition.
Adding insult to injury is not just the fact that there was no story, given the Treaty isn’t part of the TPP, but that the Government apparently hadn’t talked or consulted on the issue. Are you for real? The TPP as a subject got the living daylights thrashed out of it last year. That, along with Auckland housing, was basically all we talked about in 2015. If you hadn’t heard the chat about the TPP, you’re under a rock.

You know what? If I was Prime Minister I would be seriously tempted to simply flag Waitangi. What’s the point? It’s an annual ritual of abuse and anger and ignorance, and the media can play its part by spotting the attention-seekers and giving them the airtime they deserve, which of course is none.

Did the broadcast encourage the denigration of, or discrimination against, Māori and/or Ngāpuhi as a section of the community?

[6]  The discrimination and denigration standard (Standard 7) 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.

[7]  Ms Sharman argued that the host’s statements ‘[put] iwi Ngāpuhi in a negative light’ and thus ‘encourage[d] discrimination against iwi Ngāpuhi as a community of Māori people’.

[8]  NZME argued that the host was ‘not denigrating or encouraging discrimination of any group’, but was ‘criticising particular individuals, some may be Māori and some may not be, who he believes dictate the dialogue around Waitangi Day’. It said the complainant ‘may not agree with his view and we understand some people may be highly offended by his comments’, but that ‘it is within the host’s right to hold this position and express it’.

[9]  The term ‘denigration’ has consistently been defined by the Authority as tarnishing the reputation of a class of people.² ‘Discrimination’ has been consistently defined as encouraging the different treatment of the members of a particular group, to their detriment.³

[10]  It is also well-established that in light of the requirements of the New Zealand Bill of Rights Act 1990, a high level of invective is necessary for the Authority to conclude that a broadcast encourages denigration or discrimination in contravention of the standard.⁴

[11]  We recognise that Mr Hosking’s apparent dismissal of Waitangi Day – a day which for many symbolises the partnership between Māori and the Crown – as a ‘mess’ and an ‘embarrassment’ would have been considered by some to be offensive and insensitive. However, the Authority has previously emphasised that comments will not breach the discrimination and denigration standard simply because they are critical of a particular group, because they offend people, or because they are rude.⁵

[12]  Allowing the free and frank expression of a wide range of views is a necessary part of living in a democracy. This is reinforced by guideline 7a(iii) to Standard 7, which states that the standard is not intended to prevent the broadcast of material that is a genuine expression of serious comment, analysis or opinion. It is only where the expression of these views goes too far that the standard will be found to have been breached.

[13]  The item did not, in our view, purport to reflect or comment on Māori or Ngāpuhi generally. As pointed out by NZME, Mr Hosking seemed more to be taking issue with the stance of certain individuals who ‘he believes dictate the dialogue’ around Waitangi Day, than with recognition of the day itself. He discussed how he believed the day had ceased to become ‘a proper day of recognition’, which suggested that he believed Waitangi Day should be celebrated, albeit in a different manner than it is currently.

[14]  We are satisfied that overall his comments did not cross the line into vitriol or hate speech, and so the opinions expressed by Mr Hosking should be afforded protection under the right to freedom of expression. This freedom, as preserved by the Bill of Rights, explicitly entitles Mr Hosking to hold and express an opinion, even if that opinion is unpopular, and even if it is expressed in language that may be considered offensive or provocative.

[15]  Accordingly, we do not uphold the complaint under Standard 7.

Did the item discuss a controversial issue of public importance which required the presentation of alternative viewpoints?

[16]  The balance standard (Standard 4) states that when controversial issues of public importance are discussed in news, current affairs and 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. The standard exists to ensure that competing arguments are presented to enable a viewer to arrive at an informed and reasoned opinion.⁶

[17]  Ms Sharman argued that the item was ‘an opinion piece from a one-sided point of view and therefore a reasonable effort should have [been] made by Newstalk ZB to present other significant points of view... I have been provided with no evidence... that this was the case’.

[18]  NZME acknowledged that ‘[t]he relevance of Waitangi Day and coverage of the event is incredibly divisive’ and that the ‘TPP has been debated extensively in the media... the topic is polarising’. However, it argued that the item was ‘clearly an opinion piece by the host concerned and not meant to be a balanced argument’. It also said, ‘Given the widespread airtime given to these topics across all media, we are also confident the public will be aware of all sides of this issue.’

[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’.⁷

[20]  While we accept that issues around Waitangi Day, as well as the TPP, are controversial issues of public importance, this segment was transparently presented as an opinion piece by one individual and as such did not amount to a ‘discussion’ of these issues. Mr Hosking is well-known for his particularly outspoken style in his role as both a radio and television presenter. Regular listeners would also understand the established format of the Mike’s Minute segment and would not have expected within this segment to receive other views or views countering those of Mr Hosking.

[21]  Mr Hosking did nevertheless make brief reference to the perspectives of others, such as Kingi Taurua. Additionally, issues surrounding Waitangi Day and Te Tii Marae were widely discussed around the time of the broadcast, so listeners were able to be informed of significant points of view presented in other coverage.

[22]  Accordingly we do not uphold the complaint under Standard 4.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
27 June 2016

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:
1      Ataria Sharman’s formal complaint – 22 January 2016
2      NZME’s response to the complaint – 17 March 2016
3      Ms Sharman’s referral to the Authority – 7 April 2016
4      NZME’s response to the referral – 12 April 2016

1 This complaint was determined under the previous Radio Code, which applied up until 31 March 2016. The new Broadcasting Standards in New Zealand Codebook took effect on 1 April 2016 and applies to any programmes broadcast on or after that date: http://bsa.govt.nz/standards/overview

² See, for example, Mental Health Commission and CanWest RadioWorks, Decision No. 2006-030

³ For example, Teoh and Television New Zealand Ltd, Decision No. 2008-091

⁴ E.g. McCartain and Angus and The Radio Network, Decision No. 2002-152

⁵ See, for example, Lochead and RadioWorks Ltd, Decision No. 2010-031 at [18]

⁶ Commerce Commission and TVWorks Ltd, Decision No. 2008-014

⁷ For further discussion of these concepts see Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Television (Broadcasting Standards Authority, June 2010) and Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Radio (Broadcasting Standards Authority, June 2009)