Smith and 9 Others and The Radio Network Ltd - 2003-174–2003-183
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- R Bryant
- Brian Stephenson
- Colin McGregor
- Denise Hesson
- John Lee
- Kathryn Walls
- Nga Aho Whakaari
- Sam Reddy
- Sarah Smith
- Terry Evans
- Walter Freitag
- Maori in Film Video & Television Inc
ProgrammePaul Holmes Breakfast
BroadcasterThe Radio Network Ltd # 2
Newstalk ZB – Paul Holmes Breakfast – derogatory comments about United Nations Secretary-General Kofi Annan – including reference to Mr Annan as “cheeky darkie” – racist – offensive – breach of law and order – unbalanced – unfair – inaccurate – broadcaster upheld complaints – breach of good taste and racist – apologies – dissatisfied with action taken on aspects upheld – dissatisfied with aspects not upheld; interview with Dr Brian Edwards about women in journalism – host’s references to female journalists – sexist
(1) Action taken on Principles 1 and 7 regarding comments about Mr Annan – action taken sufficient – no uphold
(2) Principle 2 – appropriately considered under Principle 7 – no uphold
Principle 4 – editorial opinion – not applicable – no uphold
Principle 5 – appropriately considered under Principle 7 – no uphold
Principle 6 – no inaccuracies – no uphold
Principle 7 – comments about female journalists – threshold not reached – no uphold
This headnote does not form part of the decision.
 Paul Holmes, as the host of Paul Holmes Breakfast on Newstalk ZB, was highly critical of the Secretary-General of the United Nations, Kofi Annan. The comments, including references to Mr Annan as a “cheeky darkie”, were broadcast at approximately 7.45am on 24 September 2003. On the same programme, at approximately 8.15am, the host interviewed Dr Brian Edwards about the dominance of women in journalism. The host made two disparaging remarks about female journalists.
 Sarah Smith, John Lee, Sam Reddy, Terry Evans, Walter Freitag, Kathryn Walls, Rawiri Eriksen on behalf of Nga Aho Whakaari, Denise Hesson, Colin McGregor and Brian Stephenson each complained to The Radio Network Ltd (TRN), the broadcaster, that the host’s comments about Mr Annan were offensive and racist. Some also complained that the comments breached standards of law and order, were unbalanced, unfair and inaccurate. Ms Hesson also complained about the “sexist” references to female journalists.
 TRN upheld the complaints that the comments regarding Mr Annan were racist and a breach of good taste. A broadcast apology was made and further action was proposed to be taken by both the host and the broadcaster. TRN declined to uphold any other aspect of the complaints regarding the comments about Mr Annan. TRN also declined to uphold the complaint in relation to the host’s remarks about female journalists.
 Dissatisfied with TRN’s decision regarding those aspects of their complaints not upheld and with TRN’s actions upon the upheld complaints, each of the complainants referred their complaints to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons below, the Authority finds that TRN’s action upon the upheld complaints was sufficient. It also declines to uphold all other aspects of the complaints.
 The members have listened to an audio tape of the comments complained about and the broadcast apology, and have read the correspondence listed in the Appendices. The Authority determines the complaints without a formal hearing.
 The programme Paul Holmes Breakfast has been broadcast by TRN on Newstalk ZB for 16 years. According to TRN, it is an “issues driven programme” which features:
interviews with newsmakers and has plenty of Paul Holmes opinionated comment pieces, a high proportion delivered as satire or parody. These pieces are a long-standing part of the programme.
 In a broadcast at approximately 7.45am on 24 September 2003, the host expressed opinions about the United Nations and its Secretary-General Kofi Annan. The host said:
Yes the Secretary-General of the United Nations, Mr Kofi Annan has had his day of glory or his night of glory, his day of I told you so 'cause he was dreadfully humiliated, wasn't he, by the Americans, I guess, a year ago when it became clear that he could do nothing really to stop the United States going into Iraq unilaterally.
Well he's had his day of I told you so and Mr Chirac, old rubber face, he's had his day of I told you so too at the General Assembly of the United Nations in New York city and they've both told George W Bush that no nation can any longer act alone and of course they say these words with Iraq descending into a Vietnam-like mire and with Bush's ratings going down the toilet and with and ex-general Wesley Clark retired looking like he might just be able to sweep the Republicans away next November.
Well look, you know, it is true, Mr Bush doesn't really have the Clinton brain, you know he doesn't really weave the spells, weave the policy thoughts like Bill Clinton and talking about the evil doers doesn't really do it for us does it? You know, we're not quite that simple, I suppose, are we? Evil doers, it doesn't convince us. We know about the Palestinians and Vietnam don't we? Mr Bush doesn't excite the world or inspire confidence in the peoples of the world. As one Frenchman said recently, since September 11th it seems Americans have been kinder to each other and meaner to everyone else, but hang on a minute, hang on a minute, how many resolutions of the United Nations were actually passed telling Iraq to comply and open everything up and let the inspectors come in, telling the Iraqis to come clean, how many resolutions were there actually passed by the United Nations and still nothing was done? 13 wasn't it?
Actually, through the '90’s, actually when did the United Nations, when did the United Nations actually do anything? When did they actually do anything except get paid well, go to the commissary for the fresh Argentinian beef straight off the plane and sit on their jacksees, these United Nations officials. The greatest bloody perk job in the world would be a job at the UN. Greatest, perk, do-nothing job. Because one little thing about the United Nations is it's such a Babel, a Tower of Babel, nothing can ever get done. Getting rid of Saddam was worth it, let us not forget this we've taken the dirty, filthy boot of Qusay and Uday and Saddam and Chemical Ali and Comical Ali off the throats of the Iraqi people. Remember the World Trade Centre, remember what that was like, that morning, remember what they did, not the Iraqis I know that, it's difficult that one, but they're terrorists, remember what happened to America.
That Kofi Annan, I've got to say to you, he's been a very cheeky darkie overnight, he's been a very cheeky darkie. It's all very well giving a darkie that Secretary-General job, we'll only take so much I'm sorry (laughter) I'm sorry we will only take so much. We're not going to be told how to live our lives by a Ghanaian and they're a model aren't they on how to live your life, on how to run a country, Mr Nkrumah, remember him, Mr Saintly Nkrumah 1957, the Prime Minister of Ghana thinks he's on the take and they're cutting his throat. In the normal African way of getting rid of a leader.
We're not going to be told by a Ghanaian too much. Mr Annan says the collectivity of the United Nations kept the peace for 58 years. That's what he said overnight. Now hang on a minute about that 58 years, the United Nations kept the peace, let's think about that. Where does Mr Annan get that idea? Where does that darkie bloke get that idea? What about the oppressed states of Eastern Europe for 50 years who endured the communist boot for 50 years, what about half of Africa, how much peace was kept there, you know what I mean? The nuclear bombs kept the peace for 58 years and states like Russia and France kept the world very nicely for themselves for 58 years with the help of the United Nations, that's the truth.
That Mr Kofi Annan, that cheeky darkie should ask the people of Rwanda how the United Nations kept the peace for 58 years, or the people of the Congo, or the people of Zimbabwe, or the oppressed people of South Africa, or the people of Mozambique, or the people of Angola, the people of Sudan, the people of Somalia, the people of Vietnam, the people of Cambodia, the people of Laos, the people of Bosnia, the people of Kosovo, they had the peace of 58 years. You've got to think about what these people say. This is nonsense. It is 9 to 8 Newstalk ZB.
A short time later, the host added:
Through the week now I've been conducting a test. Someone phoned up and said I'm Hitler. From my remarks this morning someone phoned up and said he's Hitler. Well I tell ya I'm not Hitler because I wouldn't keep records. (Laughter).
Anyway, but I've been conducting a test. You see I called Mr Kofi Annan a darkie this morning and while some of you have been phoning up and complaining and moaning and yelling about Paul this morning, you know all you've been complaining about is my position on the UN is wrong or my position on Bush is wrong or my position on Iraq is wrong, of all the calls we had only two people objected to my calling him a darkie. You have failed very, very badly. I put this on in anticipation of a complaint to the Broadcasting Standards Authority. (Laughter). Well have a very nice day, that really is it for the morning. I think we've done enough damage this morning.
Back to your tent.
I'm going back out to the tent, that's right. Or I will go and imagine that I'm Lance O'Sullivan winning the New Zealand Oaks. That might have been the best day of one's life really. The best day of last summer. Did I ever tell you about that, perhaps I didn't. Perhaps tomorrow if we remember.
 In the same programme at approximately 8.15am, the host interviewed Dr Brian Edwards about the dominance of women in journalism. The programme’s transcript reads:
Well we say good morning now to Dr Brian Edwards to review the week. Now let me see, what have we got. Yes, you are wanting to deliver a dissertation to us this morning on how journalism is becoming the domain of women.
You sort of can't really avoid seeing this can you. I mean, and I'm not complaining about it at all. You see it most, I suppose, watching the television news and you see that the vast majority of those young reporters now are women and you also notice that there are fewer men and that the men are older and that the older men are disappearing, which is, I guess part of the whole ageism of modern television.
And young ones aren't coming in because they're frightened of being called paedophiles.
Well that's entirely possible, I suppose. I don't know whether the same is true of radio or not, but it's certainly true in the newspapers. If you flick through your metropolitan daily you will see there are far more by-lines from women than there are men and there are also of course quite a few women in editorial positions in newspapers and not only in the women's magazines and this is, this is a marked change in the what you might call the gender profile of the profession. So I rang around a couple of people who were in the journalism schools and the journalism courses and one of the simplest and most obvious reasons is that far more young women are applying to be on these courses than young men and in fact in most of the journalism schools the female/male ratio is about 2 to 1 or sometimes more. The fascinating thing is if you talk to the tutors they tell you, while saying don't name me for heavens sake, which is reasonable, they say that the women are just much better than the men. The girls are superior to the men on these courses, they apply themselves better, they grow up faster, they're more mature, more confident, which I guess is just sort of biological. So it's quite an interesting development and whether it's a good development or a bad development I'm not quite sure.
Ah, well you see now if you have a look at the front page, if you have a look at the front page of the Royal New Zealand today it's all written by men, but you go inside Brian, just to have a survey on what you are proposing, Martin Johnson, Catherine Shire, Bridget Carter, Anne Beston, Ruth Berry.
It's the case right through, no doubt about it.
Is it, do you think, making our journalism ignorant and bitchy do you think?
No, I don't think so. I mean I think it's unfortunate if you have a significant imbalance in any profession. I mean I think the journalism profession ought to, as far as possible, represent the reality of the society around us and if women are outnumbering men 2 to 1 you do have some sort of imbalance there. How serious that is I'm not really sure. Both the sexes, of course, regard journalism as they do public relations and advertising and broadcasting as glamour jobs. Now whether women actually regard them even more as glamour jobs I'm also not quite sure. I don't know if there are very many conclusions here, except to state the fact of the matter that there it is. I think it is a pity in television if we start to lose the experience of older men, and I'm not pushing my own barrow here, I don't care about that. But I think it is a pity if we lose that experience and if you look at, certainly the United States and Britain, age is much more valued in television presenters is an old theme of mine. I think it's a pity if that happens and that seems to me is happening certainly in New Zealand television.
At certain times of the month do the newspapers get particularly judgemental? (laughter)
Oh, you are in trouble, you are in desperate trouble saying something like that.
A great deal of trouble this morning.
We are talking to Brian Edwards. We will be back shortly, 17 minutes past 8.
 Sarah Smith complained about the “racist insults” broadcast. In her view, the host’s comments were “overtly racist and thus deeply offensive”. Ms Smith argued that broadcasting standards of balance, fairness and accuracy had also been breached.
 John Lee complained that the reference to Mr Annan as a “cheeky darkie” was an “utterly offensive remark”. Mr Lee said that there “should be no post-facto rationalisation for the use of these words”.
 Sam Reddy described the host’s comments about Mr Annan as an “attack upon a distinguished and highly-respected world leader.”
 Terry Evans said that the host’s “derogatory racist comments” about Mr Annan should not have been broadcast.
 Walter Freitag considered the comments “totally unacceptable”. In his view, an “unqualified formal apology” was required and the host “must be barred from any and all public broadcasting forthwith”. Mr Freitag expressed his shame as a New Zealand citizen that “such irresponsible, insulting comments” were broadcast.
 Kathryn Walls contended that the broadcaster should take “decisive action” which would reflect the condemnation of the “utterly unacceptable” comments made by the host. In her view, the broadcaster should have stopped the broadcast when the host “began on his racist attack.” Dr Walls said that she was not concerned with issues of whether or not the host was a racist, or the appropriate punishment, but with the issue of the “message” that had been broadcast. Therefore, in her view, unless urgent action was taken by TRN, “racists in our society will be encouraged, while non-European New Zealanders will be hurt, and the rest of the world both offended and appalled.”
 Rawiri Eriksen, on behalf of Nga Aho Whakaari (Maori in Film Video & Television Inc), said that the host’s comments were both offensive and racist. Regardless of the apology made by the host, the complainant suggested that the appropriate action was for the host’s employment to be terminated. In its view, the failure to do so would “effectively amount to your organisation indirectly endorsing the comments and views expressed by Mr Holmes on this occasion.”
 Denise Hesson said that the comments regarding Mr Annan, a “highly respected international figure”, were offensive, breached standards of law and order and were unbalanced. Ms Hesson noted the host’s “persistent use of racist and demeaning remarks” about Mr Annan and the implication that he was “incompetent and corrupt”. The complainant expressed her concern that the host’s comments reflected badly on New Zealand internationally. Ms Hesson maintained that the “whole programme was unbalanced and intolerant”, and contended that the “racist remarks” could incite violence.
 Referring to the host’s interview with Dr Edwards about the dominance of women in journalism, Ms Hesson complained about the host’s “offensive and sexist” comments regarding women journalists.
 Colin McGregor submitted that the host “grossly insulted and denigrated Mr Annan and the office of the Secretary-General of the United Nations.” Mr McGregor considered the statements to be “racial insults” that were “very clearly premeditated” and “probably scripted in advance.” The complainant was particularly concerned that the host “repeated his insults over and over again”, and he did not consider that the comments could be regarded as in the nature of “legitimate humour or satire.” Mr McGregor claimed that the host’s “belated apology” was “altogether too glib and unconvincing.” He submitted that the comments had done “irreparable damage to the image of New Zealand society”, and sought the immediate suspension of the host from all his broadcasting posts.
 Mr McGregor, a former staff member of the United Nations, also regarded the host as “ignorant” of the way the United Nations works. He maintained that Mr Annan, as Secretary-General, has a responsibility to manage the Secretariat, and to conduct the affairs of the UN within the context of its Charter, and consistent with all previous resolutions. This is markedly different, the complainant submitted, to the comments of the host which included Mr Annan telling the world “…how to live”. Mr McGregor concluded that it is “insulting to state or imply that senior officials of the Organisation would act in any other manner (than in the interests of the Organisation).”
 Brian Stephenson complained that the host’s comments were offensive, racist and undermined standards of law and order. Mr Stephenson acknowledged that the freedom of speech allowed for the expression of “unpopular” views, but in his view the host’s comments about Mr Annan exceeded the “most generous allowance that liberal-minded people would make for freedom of speech.” The complainant said that the comments “amounted to the crudest, most mindless form of racial denigration”, and “incited racial hatred”. Mr Stephenson noted that the prohibition of racial discrimination was enshrined in New Zealand legislation, and therefore the host’s comments had undermined standards of law and order. Mr Stephenson noted that the broadcaster had not “disciplined Mr Holmes in any meaningful way.” In the complainant’s view, the broadcaster’s failure to “impose any sanction” on the host meant that there was a “lack of safeguards” against future racial denigration by hosts on-air. While Mr Stephenson acknowledged the apologies made by both the broadcaster and the host, in his view the failure to take “any disciplinary action” against the host raised questions about the “sincerity of the apologies”.
 TRN assessed the complaints under Principles 1 and 7 of the Radio Code of Broadcasting Practice. Some complainants also considered that Principles 2, 4, 5 and 6 of the Radio Code were breached by the broadcast. The Principles and relevant Guidelines read:
In programmes and their presentation, broadcasters are required to maintain standards which are consistent with the observance of good taste and decency.
1a Broadcasters will take into consideration current norms of decency and good taste in language and behaviour bearing in mind the context in which any language or behaviour occurs and the wider context of the broadcast eg time of day, target audience.
In programmes and their presentation, broadcasters are required to maintain standards which are consistent with the maintenance of law and order.
In programmes and their presentation, broadcasters are required to maintain standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.
In programmes and their presentation, broadcasters are required to deal justly and fairly with any person taking part or referred to.
In the preparation and presentation of news and current affairs programmes, broadcasters are required to be truthful and accurate on points of fact.
In programmes and their presentation, broadcasters are required to be socially responsible.
7a Broadcasters will not portray people in a manner which encourages denigration of or discrimination against any section of the community on account of gender, race, age, disability, occupational status, sexual orientation; or as the consequence of legitimate expression of religious, cultural or political beliefs. This requirement does not extend to prevent the broadcast of material which is:
i) factual; or
ii) a genuine expression of serious comment, analysis or opinion; or
iii) by way of legitimate humour or satire.
The Broadcaster’s Response to the Complainants
 TRN upheld the complaints that the comments made about Mr Annan breached Principles 1 and 7 of the Radio Code. It apologised to the complainants for the offence caused. TRN declined to uphold any other aspect of the complaints.
 In relation to Principle 1, TRN upheld the complaints about the host’s references to Mr Annan as a “cheeky darkie”. It referred to the Broadcasting Standards Authority’s research, and noted that New Zealanders considered the term “nigger” as one of the most offensive words. TRN continued:
Whilst we feel the words used do not convey the same negative connotation (and in addition in the context of satire however failed in its execution) the offence taken has been widespread all the same and must be taken note of.
Accordingly, Newstalk ZB and Holmes sincerely apologise and unreservedly withdraw the reference.
 Turning to Principle 7, TRN upheld the complaints under Guideline 7a and considered that the “possible defence” of humour or satire under 7a(iii) was “negated given the extent of the lapse of Holmes’ usual high level of satirical execution and the extent of the offence caused.” TRN maintained that the host had not intended his comments to be “discriminatory or to encourage denigration of Kofi Annan, of Ghanaians, or those members of any racial minority.”
 TRN submitted that context and the host’s well known satirical style were relevant factors to be considered. However, it acknowledged that the host’s comments on this occasion could not be justified and “as such the comments should not have been made at all.”
 TRN advised that it had released a media statement on the day of the broadcast apologising for the offence caused. The broadcaster wrote:
The impact and tragedy of that broadcast was immediately recognised and Holmes has taken ownership of it. He recognised he has inadvertently caused deep offence. Joined by Newstalk ZB he has unreservedly withdrawn the comments and with absolute sincerity apologised to all.
 TRN noted that the host had apologised on Newstalk ZB, in an interview on National Radio and on his television programme Holmes. TRN said that the host’s “contrition is palpable as he explained in his Newstalk ZB apology 24 hours after the comments.” On 25 September at 7.24am the host said:
You will have noticed I’m the centre of some attention today over comments which I made yesterday morning, particularly comments about the Secretary-General of the United Nations Kofi Annan.
I should not have said what I did. It was tongue in cheek…it was the shock end of the spectrum…It was a bit mad, probably. You pour it out on a show like this year after year, month after month, day after day, you work close to the line, people like you to work close to the line, and sometimes you might cross the line. And a lot of what I do here is humour – to entertain and provoke or to try and entertain and try to provoke. But I shouldn’t have said what I did…I shouldn’t have tried that routine. So I am sorry if I have offended you. I’m sorry if you were upset. And I know some Maori people and Samoan people were upset…and that really upsets me. I understand some immigrants were hurt and offended and upset and I’m sorry about that as well.
Because it’s not what I think. It is not what I’m like. I’m not like that. You know that. If you listened to this programme for years…looked at my work for years, you’ll know.
I do have strong feeling about the United Nations …you know that. I think we have too much of a slavish faith in the United Nations – we don’t examine its record enough…never mind that.
But I remind you, I ask you to remember my record on race. In all my years in broadcasting I have defended Maori against the bigots. I have never joined the Maori bashing brigade…I’ve never been part of that end of the market. So much racism is coded, you hear it in other broadcasters… I know the codes… I’ve never gone there either. I have never been part of that. I’ve never judged people on how or where they were born.
I celebrate difference… and I look for similarities in people. I mean I’ve lived overseas for years I’ve travelled the world. I’m delighted by people everywhere I go.
And this is why I love the variety of people and the numbers of people coming to this country to live… to find new lives… the great ethnic mix we see in New Zealand now – men and women and their children making it here, in search of a better life and a new future. So I defended… right out there on a limb… you’ll remember this when the public thought we should send them away…I defended the Tampa people, the Middle Eastern people who come here, the African people who come here. I cannot believe for example we’re still holding Mr Zaoui in solitary confinement. It’s a disgrace. Someone made a terrible mistake and won’t admit it.
So I love the colour… the vibrancy all these new peoples bring to our country, to this haven. I’ve spoken about this many times over the years, but of course, that never gets reported, does it?
So I am no racist. I am no Maori basher. I hate racism… well, in fact…more than hate it…I laugh at it. I think it’s absurd. But, by God, it’s out there.
But anyway. I’m not going to fight you on those comments yesterday. They offended some people deeply, I know and I’m very upset about that. Whatever I was trying in the full flight of a radio programme – it didn’t work, and I know it didn’t. And I’m sorry.
 TRN advised that as a result of the broadcast it had “lost one and a half hours broadcasting because of a bomb threat”. The broadcaster explained that it continued to “support” the host because it did not consider him to be a racist. In the broadcaster’s opinion, given the host’s high public profile and “the unprecedented exposure and nature of his damnation in and by other media, his punishment has been extraordinarily robust.”
 The broadcaster advised that it had taken internal action but that it was confidential between TRN and the host. It accepted that many people regarded the host’s dismissal as the only appropriate action. However, it regarded the host’s comments as a “serious error of judgement” and said that it regretted “this professional lapse”.
Further Action to be Taken
 TRN explained that it had decided to take further action in “recognition of public concern”. It noted that the host’s apologies had “been well received with support and understanding”.
 TRN advised that the Human Rights Commission had ruled that the host’s comments did not breach the threshold and “incite racial disharmony”. The broadcaster also stated that its senior management and the host had travelled to Wellington to discuss the matter with the Race Relations Conciliator, Joris de Bres, and Commissioners Merimeri Penfold and Joy Liddicoat. TRN said that these “discussions were helpful in considering the Company’s response.”
 TRN decided that the following actions, “in addition to the immediate action previously carried out internally including the censure of Holmes”, would be taken:
- A letter of apology will be sent from Paul Holmes to the United Nations Secretary-General, Kofi Annan, together with a letter of explanation from Newstalk ZB.
- Paul Holmes will offer to meet with the Ghanaian Association of New Zealand to discuss their members’ particular concern.
- The Race Relations Conciliator, Mr Joris de Bres, will be invited to speak to radio hosts and producers at a codes and regulatory seminar brought forward from November to October.
- While the specifics of particular complaints to Newstalk ZB will be addressed individually, Newstalk ZB will in general uphold the complaints rather than test them before the Broadcasting Standards Authority.
- Newstalk ZB will continue to look at opportunities by which its extensive support as a Company for community activities can promote positive race relations in New Zealand.
 TRN concluded:
Newstalk ZB takes its role as a public communicator and influencer seriously and respects the fact that offence has been caused and recognises that it needs to be dealt with in a public manner.
Holmes offered to resign but this was declined. We must balance this serious mistake against the many positive contributions he has made in 16 years with Newstalk ZB, including his support for numerous humanitarian causes, much of which has been away from the public eye. However the reaction to the remarks has led us to reflect on our policies and responsibilities.
We will continue to report a wide spectrum of views and have free and open debate on air. But we are adopting a policy for staff, who were in the position to lead and shape opinion, that judgements based solely on race, colour or creed were offensive and would not be tolerated.
 TRN requested complainants to “recognise a genuine mistake has been made, that lessons have been learnt and steps taken to ensure there will be no repeat.” In addition, TRN contended that “punishment has been meted out at a level far in excess of a simple dismissal and than ever witnessed before.”
The Referrals to the Broadcasting Standards Authority
 Dissatisfied with TRN’s response, Ms Smith considered that the host’s apology and the action taken by TRN were inadequate. Ms Smith requested that the Authority “impose an additional penalty”, by imposing an order of $5,000 costs on the broadcaster or “direct Newstalk ZB to stop broadcasting for up to 24 hours.”
 Mr Lee argued that the action taken by the broadcaster was insufficient. In his opinion, the broadcaster was not justified in assuming that the apologies given were sufficient in the circumstances. Mr Lee maintained that the host had acted unprofessionally.
 Mr Reddy submitted that the programme breached standards relating to good taste and decency, balance, fairness, accuracy and social responsibility. In his view, the host’s references to Mr Annan were offensive and “provocative”, and he disagreed that the comments were “anything to do with satire, humour or tongue-in-cheek.”
 Mr Evans said that he was dissatisfied with TRN’s response and that he could not “understand why Newstalk ZB did not accept Mr Holmes’ offer of resignation.” Mr Evans disagreed with TRN that the punishment that the host had already received exceeded dismissal action. In his view, accepting the host’s offer of resignation “would have sent a clear signal that broadcasting racist comments is totally unacceptable.”
 Mr Freitag submitted that the broadcaster had failed to address the “fundamental point” of his complaint which concerned the “gross personal insult” of Mr Annan and its reflection on New Zealand and its citizens. Mr Freitag cited a number of broadcasting standards, which in his opinion had been breached. He disagreed with the broadcaster that the host’s comments could be considered a “mistake.” In Mr Freitag’s view, TRN had inappropriately focussed on whether or not the host was a “racist”, and had detracted from the issues raised by the broadcast.
 Mr Freitag did not accept that the apology to Mr Annan was sincere, given that the host had retained his position. He considered that by failing to take the host off-air, the broadcaster had condoned the host’s comments. Mr Freitag said that TRN’s comments regarding the host’s reputation were irrelevant to his complaint. Mr Freitag acknowledged that views challenging Mr Annan’s performance were acceptable, but he maintained that the host’s comments, undertaken in such a “crude, offensive manner”, were unacceptable.
 Dr Walls expressed her dissatisfaction with the broadcaster’s failure to address the point raised by her complaint. She noted that TRN had argued that the host was not a racist, and that he had been “punished enough”. These points, she said, addressed issues that she had explicitly stated she was not concerned with. Dr Walls argued that her point concerned the host’s comments and not the host personally. In the complainant’s view, the host’s employment should have been terminated. Dr Walls reiterated that the host’s comments could not be “cancelled except by extreme and decisive action.”
 Nga Aho Whakaari expressed its dissatisfaction with the “lack of action taken” by the broadcaster. The complainant noted the “international condemnation” of the comments, and the celebration by “international racist web sites”. In its view, the lack of action taken by TRN against the host “poorly reflects on New Zealand as being a racist state that allows this conduct to go on.” The complainant expressed its concern that the host had not been dismissed.
 Ms Hesson submitted that the broadcaster had failed to address the substance of her complaint and its response did not constitute an apology. Further the broadcaster had failed to address her complaint regarding the host’s comments about female journalists. Ms Hesson said that TRN had provided insufficient information to determine whether “any significant action was taken to censure Mr Holmes.”
 Mr McGregor, while noting that he was “gratified” that TRN upheld his complaint, did not accept TRN’s assertion that the comments complained about were in the nature of a “mistake”. Dissatisfied with TRN’s actions in respect of his complaint, Mr McGregor submitted that, apart from the host’s written apology to Mr Annan, the actions “reflect nothing but total support for Holmes.” Mr McGregor maintained that the comments were a “gross insult” to and denigration of Mr Annan and the Office of the Secretary-General of the United Nations, and were the result of the “personal bias and prejudice” of the host, founded upon a “negative attitude towards the United Nations.”
 Mr Stephenson considered that the Authority “would be assisted by oral argument developed in a hearing” in determining the complaints and he requested that a formal hearing be held. In support of his application, Mr Stephenson referred to the “wide public interest and strong public reactions” generated by the broadcast, and issues of balance between freedom of expression and broadcasting standards raised by the complaints.
The Broadcaster’s Response to the Authority
 TRN reiterated that the host was not a racist, and detailed the host’s contribution to broadcasting and “support for humanitarian causes”. TRN described the host as “the ‘tall poppy’ of New Zealand broadcasting” and said that the host made mistakes like others, but that his were “more visible” because of his public profile.
 TRN noted that the “outrage expressed since Holmes’ comments are at unprecedented levels.” It maintained that the host had no intention to “cause hurt and offence”. TRN continued:
In the instance of Holmes’ Kofi Annan comments he brought no personal attitude to bear, he is no racist as is well evidenced by his past and indeed present works. Satire is his well-used tool to impart opinion, to promote thought and to entertain. The execution in this instance was woefully less than satisfactory and is deeply regretted but it must be clearly understood there was no racial intent.
 TRN said that its actions reflected how seriously it had taken the matter. It confirmed that the following action had been taken:
- Letters of apology were sent to Kofi Annan from both the broadcaster and the host.
- The host and Newstalk ZB management met with leaders of the New Zealand Ghanaian community. TRN said it “was a productive meeting and resulted in an on-going relationship between the Ghanaian Community and the radio station”.
- On 29 October the Race Relations Conciliator was to meet with 30 Newstalk ZB and Radio Sport hosts, producers and journalists “to advise on the responsibilities and part that radio can play on race relations”.
- Mr de Bres, the Race Relations Conciliator, had met with the broadcaster’s human resource division “to ensure appropriate staff race provisions are in place”.
- Newstalk ZB had made a “significant confidential donation to a worthwhile African cause”.
 TRN apologised for its failure to address the “sexism complaint” made by Ms Hesson about the host’s references to female journalists. Declining to uphold the complaint, the broadcaster argued that the “exchange was frivolous and satirical”. TRN maintained that the host’s comments were “made with humour and in jest, teasing guest commentator, listeners and female journalists alike”. The broadcaster argued that these features were “integral” to the host’s programme style. TRN submitted that the comments did not breach the threshold required by Guideline 7a so as to encourage denigration of, or discrimination against, women.
 The broadcaster contended that female journalists “by virtue of their profession” had the “ideal vehicle through which to make their counter viewpoint known”. TRN stated that the host had apologised for his comments in his television broadcast apology. TRN transcribed the relevant excerpt:
I apologise too for the comments about women…again…a flippant silly remark thrown away. I have worked with brilliant women all my broadcasting career. The remarks went beyond the pale.
The Complainants’ Final Comments
 Ms Smith expressed her pleasure that the broadcaster had taken some action in response to the complaints, but continued to urge the Authority to impose a further penalty. The complainant disagreed that the broadcast raised issues only under Principles 1 and 7 of the Radio Code. In her view the broadcaster should also have considered issues of balance, fairness and accuracy.
 Mr Lee argued that his complaint related to the “unprofessional conduct by a journalist”, which he considered the broadcaster had failed to address. In Mr Lee’s opinion, the broadcaster’s response to the Authority was “quite extraordinary” because it focussed on “debating the ‘trials and tribulations’ of being prominent in NZ media”, which were not relevant to the issues he had complained about.
 Mr Reddy said that “despite all the accolades heaped upon” the host, the broadcaster could not detract from the comments he had made. Mr Reddy considered that the actions taken by TRN in response to the complaints were “indeed praiseworthy.”
 Mr Evans submitted that the broadcaster’s response appeared to deny that the host had aired racist views and failed to demonstrate any remorse. In Mr Evans’ view, TRN’s response was a “quality spin to defend” the host. The complainant said that the host’s comments could not be “mitigated by any mention of previous good deeds.” Mr Evans reiterated his “genuine shock at the overtly racist comments” broadcast.
 Mr Freitag contended that if the host’s reputation was as acclaimed as portrayed by the broadcaster, “the host would recognise the clear boundary between satire or parody and gross personal insult”. In Mr Freitag’s opinion, the broadcaster “grossly over-emphasises Holmes’ past history and achievements”, which he considered irrelevant to his complaint. He maintained that the action taken by the broadcaster was “little more than ‘white wash’” and did not impose any “effective” penalty on the host. In his view, the “significant donation” referred to by the broadcaster, should have been made by the host and not TRN.
 Nga Aho Whakaari said that the broadcaster’s response was “unsatisfactory” because it had dismissed the host’s “racist comments” as “satire and a mistake”. Further, the complainant rejected the broadcaster’s submission that the host had apologised for his “mistake” and that the “jealousy of competing journalists” had resulted in the host’s undue punishment.
 Ms Hesson considered that the broadcaster’s response was unsatisfactory because it focussed on issues irrelevant to her complaint. In her view, the complaints made about the host’s comments arose from genuine concern and not because of criticism from an “envious media” as TRN had maintained, or because the host was considered a “tall poppy”. Ms Hesson said “it is a common tactic to try and deflect criticism by attacking those who make it.” She noted that the broadcaster’s reference to the host’s community work was irrelevant to her complaint. Ms Hesson said that she did not accept that the host’s comments were a “simple slip-up”, as they were repeated by the host. Ms Hesson questioned what balance had been provided in relation to the host’s comments about the United Nations. Ms Hesson submitted that there had been a “considerable delay before any action was taken” by the broadcaster and the host, and in her view the action “did seem rather low key.”
 Ms Hesson noted the broadcaster’s acknowledgement of her complaint in relation to the comments about women journalists. In her opinion, the broadcaster’s response, regarding the ability of female journalists to counter the views, was unhelpful and had missed the point. Ms Hesson said that the broadcaster had failed to address the unsatisfactory remarks broadcast and she submitted that not all female journalists would have either the ability or desire to “retaliate through the media.”
 Mr McGregor said that he was “appalled” to note that TRN “remains 100 percent behind Holmes and his attitude towards these matters.” While recognising that his complaint was upheld, Mr McGregor did not consider that TRN had taken “any meaningful steps to ensure the upholding of the required standards in their broadcasting practice.”
 Mr Stephenson disputed the broadcaster’s submission regarding the host’s previous “good record”. He referred to a previous Authority decision, involving the host, which in his view contradicted TRN’s claims about the host’s pursuit of “racial tolerance and cross-cultural understanding.” The complainant maintained that TRN had raised “vague and general” issues of fact but had failed to provide any evidence in support, and that the Authority should not consider the “broadcaster’s general assertions as to Mr Holmes’ conduct over the last 30 years as evidence.” Mr Stephenson said that such evidence had to be presented by the host, and be subject to cross-examination. Mr Stephenson submitted that as the complaint could not be “disposed of fairly and finally on the papers”, a formal hearing was required.
The Authority’s Determination
Procedural Issue – Formal Hearing
 Mr Stephenson requested a formal hearing. He considered that the Authority “would be assisted by oral argument” for a number of reasons, including the “wide public interest and strong public reaction” generated by the broadcast.
 The Authority has not acceded to Mr Stephenson’s request, on the grounds that a hearing would not assist in its determination of these complaints. It notes that there are no relevant factual issues in dispute, and it considers that all parties have had an adequate opportunity to present their views and all necessary material in their written correspondence before the Authority. Accordingly, the Authority has not departed from its usual practice of determining complaints on the papers.
Substantive Issues for Determination
 The central issues raised by the complainants concern:
- the action taken by TRN having upheld breaches of Principles 1 and 7 of the Radio Code; and
- the failure by TRN to uphold other aspects of the complaints, including the “sexism” complaint.
 The Authority notes that its jurisdiction relates only to the broadcaster, TRN. Therefore, its consideration of the issues is limited to the broadcast comments. However, the Authority acknowledges that these complaints cannot be examined without referring to the specific host, and it accepts that on this occasion certain features of the host’s work and style provide relevant contextual factors.
Action Taken – Principles 1 and 7
 TRN upheld the complaints that the host’s comments breached Principles 1 and 7 of the Radio Code. TRN accepted that the comments about Mr Annan were racist and a breach of good taste. A broadcast apology was made and further action was taken by both the host and the broadcaster.
 The Authority has been asked to consider the sufficiency of TRN’s actions with regard to its response to the upheld complaints. The Authority concludes, first, that the breach of broadcasting standards was serious, and second, that TRN’s actions in response to the complaints demonstrated sufficient appreciation of the gravity of the breaches.
Seriousness of the Breaches
 When the Authority determines a complaint under Principle 7, Guideline 7a of the Radio Code that a broadcaster must not portray people in a manner which encourages denigration or discrimination on the grounds of race, the Authority considers the context in which the comments were made, and the degree of denigration or discrimination encouraged by the comments.
 The threshold for a breach of Guideline 7a must be high to protect the right to freedom of expression enshrined in the New Zealand Bill of Rights Act 1990. Indeed, Guideline 7a makes it clear that the requirement does not prevent the broadcast of material which is factual, a genuine expression of serious comment, analysis or opinion, or by way of legitimate humour or satire.
 Turning specifically to the comments which have occasioned these complaints, the Authority makes the following observations:
§ TRN stated that “satire is [the host’s] well-used tool to impart opinion, to promote thought and to entertain” but that the host’s “execution in this instance was woefully less than satisfactory”. The Authority agrees with the broadcaster that the opinions imparted and the thoughts promoted by the lengthy commentary went beyond the limits of acceptability.
§ The host did not confine himself to legitimate criticism of the United Nations and its Secretary-General. By denigrating a public figure merely on the basis of race and colour, and reducing the UN Secretary-General to a racist caricature, the comments might have been seen to have promoted the view that a non-white person lacks the skills and qualities needed to hold such a position of authority.
§ The host in this instance is arguably the country’s leading broadcaster by virtue of hosting top rating prime time programmes on both radio and television, both of which are broadcast nationally. As such the host is someone whose views and opinions could be expected to influence, shape or reflect the views of a significant proportion of the population.
§ The programme within which the comments were made is a well-known news and current affairs programme. While it often employs humour and satire, it is nevertheless the source of news and commentary for a significant proportion of New Zealanders. It is not regarded as primarily a satirical or comedic programme in the nature of, for example, Mike King Tonight or Spin Doctors.
 Whether or not the comments were intentionally racist, the Authority considers that the comments supported a racist view of the world which the host in his apology professed to abhor. The issue for the Authority, in light of the serious breach of standards, is the sufficiency of the actions TRN took upon upholding the complaints.
Sufficiency of TRN’s Actions
 The Authority notes that the following action has been taken by TRN:
- release of a media statement on the day of the broadcast apologising for the offence caused
- broadcast of an apology by the host
- internal action taken against the host
- formal complaints upheld under Principles 1 and 7 of the Radio Code
- discussions with the Race Relations Conciliator and review of TRN’s standards and policy
- letters of apology sent to Mr Annan from the host and TRN
- meeting with the leaders of the New Zealand Ghanaian community
- education programme for TRN staff from the Race Relations Conciliator
- substantial donation to Save the Children.
 The Authority acknowledges the actions taken by the broadcaster to redress the situation. In its view TRN’s actions were swift, comprehensive, and reflected the seriousness of the complaints. The Authority notes that the broadcaster has voluntarily taken a number of actions that, under the Broadcasting Act, are not available to the Authority to impose. In particular, the Authority acknowledges the meetings with the Ghanaian community, the review of TRN’s standards and policies with the Race Relations Conciliator, and its subsequent changes to its staff policy.
 The Authority commends the actions TRN has taken in terms of its internal training of staff, including the Race Relations Conciliator meeting with its on-air staff “to advise on the responsibilities and part that radio can play on race relations”. The Authority notes the broadcaster’s comments:
The reaction to the remarks has led us to reflect on our policies and responsibilities…We will continue to report a wide spectrum of views and have free and open debate on air. But we are adopting a policy for staff who [are] in a position to lead and shape opinions, that judgements based solely on race, colour or creed, were offensive and would not be tolerated.
 When assessing whether to impose an order, and the type of order to impose, the Authority considers such factors as the extent of the breach, the broadcaster’s attitude and action, and any repetition of the breach. While many of the complainants sought the dismissal of the host, or disciplinary action against him, the Authority’s powers are limited to action against the broadcaster only. Action against the host is not within the Authority’s jurisdiction. If the Authority decides to take further action, its powers in this case are confined to orders relating to:
- the imposition of costs
- refraining from broadcasting advertising programmes for a specified period
- refraining from broadcasting for a specified period.
 The Authority, having weighed the matter, believes that the imposition of costs would be unnecessarily punitive. Similarly, the Authority considers that orders resulting in a financial penalty (through a temporary prohibition on advertising or broadcasting) would also be unnecessarily punitive. Rather, the Authority is more concerned with ensuring that broadcasters understand their responsibilities and act accordingly when a breach has been admitted.
 In the Authority’s view, the broadcaster has treated these complaints as a serious breach of the standards, has acted responsibly by taking a range of relevant actions, and has shown genuine remorse and awareness. The Authority accepts that TRN has undertaken to effect the kind of systemic change that addresses the concerns of the complainants and the Authority.
 Having regard to the total circumstances of the broadcast, the serious nature of the breaches, the broadcaster’s actions, and the complaints, the Authority finds that the action taken by the broadcaster was sufficient. Accordingly, it declines to uphold the complaints.
Aspects Not Upheld
 The referrals in regard to the standards which TRN did not uphold the complaints were Principles 2, 4, 5, 6, and the comments made about female journalists.
Principle 2 Law and Order
 Principle 2 requires broadcasters to maintain standards consistent with the maintenance of law and order. The Authority considers that Principle 7 encompasses the relevant issues raised by the complainants under Principle 2. In the Authority’s view the issues concerning the “racist” comments and contravention of legislation which prohibits racial discrimination were appropriately considered under Guideline 7a of Principle 7. Accordingly, the Authority declines to uphold this aspect of the complaint.
 The Authority notes that the Human Rights Commission considered that the comments did not “appear to breach the Human Rights Act” as they did not “reach the threshold at which it would be considered unlawful.” As a result the Commission advised that it would “take no further action on the complaints.”
Principle 4 Balance
 Principle 4 requires broadcasters to maintain standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.
 Some complainants maintained that the host’s comments were unbalanced. The Authority considers that the comments fell within the ambit of editorial opinion and commentary, which, by virtue of being opinion as opposed to fact, is not required to strictly observe the requirements of balance necessary in a factual news and current affairs presentation. Accordingly, the Authority finds that the issue of balance is irrelevant in this instance, and therefore Principle 4 is not applicable.
Principle 5 Fairness
 Principle 5 requires broadcasters to deal justly and fairly with people referred to. The Authority accepts that people in Mr Annan’s position are subject to criticism, but notes that the comments went beyond that by denigrating him on the grounds of his race. The Authority considers that these comments were appropriately dealt with under Principle 7, Guideline 7a.
Principle 6 Accuracy
 Principle 6 requires broadcasters to be truthful and accurate in news and current affairs programmes. The Authority refers to Guideline 6c of the principle which requires factual reports to be clearly distinguished from opinion, analysis and comment. As the comments were clearly editorial opinion, and none of the complainants pointed to a specific factual inaccuracy the Authority finds that Principle 6 is not applicable.
Principle 7 Female journalists
 The Authority has assessed the host’s comments about female journalists against Guideline 7a of Principle 7. The host said:
“Is it, do you think, making our journalism ignorant and bitchy?” and
“At certain times of the month do the newspapers get particularly judgemental?”
 The Authority considers that while the host’s comments were insulting and inappropriate they did not amount to an encouragement to denigrate or discriminate against female journalists. The comments were made during an exchange between the host and an interviewee, and were clearly intended to be provocative. Given the context, tone and nature of the comments, and the high level of denigration required to effect a breach of Principle 7, the Authority declines to uphold this aspect of the complaint.
For the above reasons, the Authority finds that the actions taken by The Radio Network Ltd in regard to the upheld complaints was sufficient. It also declines to uphold all other aspects of the complaints.
Signed for and on behalf of the Authority
19 December 2003
The following correspondence was received and considered by the Authority when it determined Mr Stephenson’s complaint:
1. Brian Stephenson’s Complaint to The Radio Network Ltd – 22 October 2003
2. TRN’s Response to the Formal Complaint – 23 October 2003
3. Mr Stephenson’s Response to TRN – 11 November 2003
4. Mr Stephenson’s Referral to the Broadcasting Standards Authority – 12 November 2003
5. TRN’s Response to the Authority – 19 November 2003
6. Mr Stephenson’s Final Comment – 3 December 2003