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 concerning an election programme for the New Conservative Party. The complainant argued the Party’s policy to remove ‘gender ideology’ from schools, as referred to in the programme, amounted to discrimination against the transgender community. While acknowledging some may consider the policy to be discriminatory and offensive, the Authority found the party’s statement highlighting its policy to remove gender ideology from schools did not reach the high threshold necessary for a finding of discrimination against the transgender community in the context of an election programme. In making its finding, the Authority took into account the significant public interest in election programmes in informing voters of party policies, and the robust political environment in the lead-up to the general election.

Not Upheld: E1: Election Programmes Subject to Other Code (Discrimination and Denigration)

The broadcast

[1]  A New Conservative Party election programme was broadcast on 9 October 2023 on TVNZ 1. The broadcast featured New Conservative Party Leader Helen Houghton, who stated:

Do you want to remove gender ideology from schools? Hi, I’m Helen Houghton, and as a teacher I know how impressionable our children are. As the leader of the New Conservatives, we will ban gender ideology. Party vote New Conservatives, and let’s smile again.  

Overview – Election Programmes

[2]  During the election period, the Election Programmes Code of Broadcasting Practice applies to election programmes which are broadcast for a political party or candidate. This year, the election period runs from 10 September 2023 to midnight on 13 October 2023. This is a complaint about an election programme broadcast for the New Conservative Party on TVNZ 1.

[3]  Generally, broadcasting complaints will first be determined by the broadcaster. However, the Broadcasting Act 1989 requires that complaints about election programmes must come directly to the Authority for determination. This is so that any concerns about programmes that may influence voters can be determined swiftly.

[4]  When we receive a complaint about an election programme, we seek submissions from the complainant, the broadcaster and also the political party. We also seek to determine the complaint under a fast-track process. We thank the parties involved in this matter for their timely and concise responses to our request for submissions.

The parties’ submissions

The complaint

[5]  Asha Statham complained the programme breached Standard E3 – Denigration, of the Election Programmes Code of Broadcasting Practice. This was on the basis the New Conservative Party’s policy to remove ‘gender ideology’ from schools amounted to discrimination against the transgender community. Statham added:

• While acknowledging the important right to freedom of speech, ‘the Bill of Rights Act was passed into law more than thirty years ago and, given how much the general views on issues such as sexuality, gender identity, and race have changed in the intervening time it could be easily argued that the Bill is outdated and in need of revision.’
• ‘…what really is the difference between saying “We intend to ban gender ideology” and “We hate transgender people and intend to discriminate and persecute them”? Surely if the New Conservatives said the latter they would be censored without hesitation.’
• ‘…the transgender community is not afforded the same protections as other groups who differ from the Pākehā, Christian or irreligious, heterosexual, cisgender norm.’
• ‘…tolerance should not tolerate intolerance. The moment someone stands up and starts encouraging discrimination against a specific section of society – especially if their target is a vulnerable one – the rest of us should rebuke them and shut down their platform.’

The New Conservative Party’s response

[6]  In response to the complaint, the New Conservative Party stated:

• ‘The complaint refers to "denigration" or "discrimination". Our ad simply states our policy to remove the teaching of gender ideology from schools. An ideology is not a protected class and our ad contains no denigration towards a group of people or community.’
• ‘The complainant simply seems offended at our policy, which we have a right to impart as part of our election campaign, as much as she/he has a right to disagree with it.’

TVNZ’s response

[7]  TVNZ responded:

• ‘Standard 4 [discrimination and denigration] recognises the importance of freedom of expression rights and states that the standard is not designed to prevent the broadcast of material that is a genuine expression of serious comment, analysis or opinion (guideline 4.2).’
• ‘Section 14 of the Bill of Rights Act 1990 allows that Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form, and it is established that the Authority should only intervene in broadcasts when the limitation on the right to freedom of expression is demonstrably justified in a free and democratic society.’
• ‘In this case, during an election period, it is in the public interest for the policies of parties to be made known so that voters are properly informed. While TVNZ recognises that the New Conservative policy may be considered to be discriminatory by some, the public interest in knowing the party has this policy outweighs any standards concerns in our view.’
• ‘If the Authority were to consider that the phrases and the beliefs expressed in the election programme such as, remove gender ideology from schools and ban gender ideology are transphobic or anti-trans, TVNZ considers that the expression of these types of ideas is permitted in a free and open society. While certainly they are viewpoints that may be considered unpalatable or even offensive by some viewers, such speech is protected by the Bill of Rights Act, and valuable for voters to know about the party in the election period.’

Jurisdiction – scope of complaint

[8]  The complainant has nominated Standard E3 – Denigration, of the Election Programmes Code of Broadcasting Practice as being breached. This standard states that while election programmes may oppose a political party or candidate, they may not include material which denigrates a political party or candidate.¹ Given the complainant’s concerns are about discrimination against the transgender community, rather than denigration of a political party or candidate, this standard does not apply.

[9]  However, we consider the wording of the complaint raises issues relevant to the discrimination and denigration standard of the general Code of Broadcasting Standards in New Zealand, which is concerned with protecting against broadcasts which encourage discrimination against a section of the community. On this basis, we consider Standard E1 – Election Programmes Subject to other Code² (and specifically Standard 4 – Discrimination and Denigration of the Code of Broadcasting Standards in New Zealand) can be reasonably implied as being raised in the complaint, and that considering this standard is reasonably necessary to properly determine the complaint.³

The standard

[10]  The discrimination and denigration standard⁴ 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.

Our analysis

Overview – the right to freedom of expression and political speech

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

[12]  The starting point in our consideration of any election programme complaint is the right to freedom of expression, and specifically the importance of political speech, which includes the right of broadcasters, political parties and candidates to impart ideas and information, and the public’s right to receive that information. This is an important right in a democratic society and is particularly important in the lead up to a general election, when political parties and candidates are seeking to influence voters, and audiences are seeking information to enable them to make informed voting decisions.⁵

[13]  Given the high value placed on political speech in the lead up to an election, a correspondingly high threshold must be reached to conclude an election programme has breached the Election Programmes Code (ie the harm caused or potentially caused by the programme must be great).⁶

Standard E1: Other standards — Discrimination and Denigration

[14]  The purpose of the discrimination and denigration standard is to protect sections of the community from verbal and other attacks, and to foster a community commitment to equality.⁷

[15]  ‘Discrimination’ is defined as encouraging the different treatment of the members of a particular section of the community, to their detriment. ‘Denigration’ is defined as devaluing the reputation of a particular section of the community.⁸

[16]  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.⁹

[17]  The complainant is concerned the New Conservative Party’s policy to remove ‘gender ideology’ from schools, as noted in the election programme, amounted to discrimination against the transgender community. As the transgender community constitute a ‘section of the community’ for the purpose of the standard,¹⁰ the standard therefore applies.

[18]  The ad can be fairly interpreted as advocating for the removal of ‘gender theory’ education in all schools, in light of the Party’s belief that ‘there are only two sexes’ and a person cannot change their gender.¹¹

[19]  We appreciate that some people, including the complainant, may find this policy to be discriminatory and offensive, and have considered whether advocacy for such a position in itself constitutes discrimination. However, considering the programme itself against the standard, we do not consider it reached the high threshold necessary for a finding of discrimination against the transgender community in the context of an election programme. This is for the following key reasons:

• The broadcast was a New Conservative Party election programme, which briefly highlighted that one of its policies was to ‘remove gender ideology from schools.’
• The programme did not contain any malice or condemnation directed at transgender people, or refer to transgender people.
• Being focused on what should be taught in schools, the statement on their policy was not, at least not overtly, directed at any relevant section of the community.

[20]  For these reasons, and taking into account the significant public interest in election programmes in informing voters of party policies, and the robust political environment in the lead-up to the general election, we do not agree the right to freedom of expression ought to be limited in this case. Viewers are able to form their own views about any given policy with reference to the broad range of media coverage and other publicly available information.¹²

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

Susie Staley
Chair
13 October 2023    

Appendix

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

1  Asha Statham’s formal complaint to the Authority – 9 October 2023

2  The New Conservative Party’s response to complaint – 9 October 2023

3  TVNZ’s response to the complaint – 10 October 2023

4  Statham’s final comments – 11 October 2023

¹ Standard E3, Election Programmes Code 2023 
² Standard E1, Election Programmes Code 2023
³ The Authority can consider standards not raised in the original complaint 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, as per Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [62]
⁴ Standard 4, Code of Broadcasting Standards in New Zealand
⁵ Introduction, Election Programmes Code 2023 at 1
⁶ Guideline G1a
⁷ Commentary, Standard 4, Code of Broadcasting Standards in New Zealand at 12
⁸ Guideline 4.1
⁹ Guideline 4.2
¹⁰ See Adam & Crawford and Radio New Zealand Ltd, Decision No. 2022-067 at [35]
¹¹ New Conservative Party “Gender” (accessed 10 October 2023) <nc.org.nz>
¹² See Allen and MediaWorks TV Ltd, Decision No. 2014-106 at [9] for a similar finding