BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has upheld a complaint that comments made by Kate Hawkesby on Early Edition with Kate Hawkesby, about the newly introduced Equity Adjustor Score in the Auckland region, were misleading. The Equity Adjustor Score is a system which uses five categories to place patients on the non-urgent surgical waitlist, including clinical priority, time spent waiting, location, deprivation level and ethnicity. Hawkesby made statements to the effect that the Score meant Māori and Pacific Peoples were being ‘moved to the top of surgery waitlists’. The Authority found the comments to be materially misleading in relation to the nature and impact of the Score, as they gave the impression that ethnicity was the only, or the key factor, involved in the assessment, and that Māori and Pacific patients would be given immediate precedence on the surgical waitlist as a result, when this was not the case. It also found the comments breached the discrimination and denigration standard, by reinforcing the stereotype that Māori and Pacific Peoples disproportionately take up resources and are given undeserved special treatment in Aotearoa New Zealand’s society, at the expense of other ethnicities.

Upheld: Accuracy, Discrimination and Denigration

Orders: Section 13(1)(a) broadcast statement; Section 16(4) - $1,500 costs to the Crown

The broadcast

[1]  The 19 June 2023 broadcast of Kate Hawkesby Early Edition on Newstalk ZB reported on Te Whatu Ora | Health New Zealand’s introduction of an ‘Equity Adjustor Score’ system to the Auckland region. An initial news bulletin in the programme (5am) stated:

Auckland surgeons are sounding the alarm over a new equity index-based waiting list that critics are labelling divisive. The new system uses five categories to place patients on a medical waitlist, including clinical priority, time spent waiting, location and deprivation level. But it’s the fifth category, ethnicity, that’s raised concerns. Newstalk ZB has spoken to surgeons who say that this is medically indefensible and patients should only be prioritised by how urgently they need treatment. But Health Minister Ayesha Verrall says the new system seeks to address inequities for Māori and Pacific people who historically have a lower life expectancy and poor health outcomes.

[2]  In introducing the discussions to come on her programme (right after the news bulletin), Hawkesby made the following comments:

Hawkesby:  New prioritisation of surgeries. Māori and Pacific patients to go first, this is due to the Equity Adjustor Score. It's got some doctors conflicted over whether that's actually fair. We'll look at this before six. 

                                             …

Hawkesby:  It is Monday the 19th of June and a Māori health expert is backing the Government's moves to include ethnicity in the Health Ministry's new adjustor waitlist tool. Te Whatu Ora - Health New Zealand now includes ethnicity as a factor in a new medical waitlist criteria, alongside clinical priority, time already spent on the waitlist, location and deprivation level. Waikato University Senior Research Fellow Rawiri Keenan says there are still health inequities that exist in New Zealand.

Keenan:      No matter which way you cut them, deprivation, rural, whatever clinical factor you choose, even when you adjust all of those things, ethnicity still comes out as a key factor, if not a driving factor.

[3]  Hawkesby discussed the story as follows (at approximately 5.10am):

So this new Equity Adjustor Score. Auckland surgeons are now being dictated to on ethnicity grounds over who should get surgery first. Māori and Pacific Islanders waiting for surgery, they're being moved to the top of the very lengthy hospital waiting lists, and they're giving - the system is going to give patients numbers on the list, so choosing to prioritise them in terms of when they'll be operated on. And this has got surgeons up in arms apparently about being expected to give preference to patients based on their ethnicity. So this has been introduced by Te Whatu Ora - Health New Zealand, and it's going to rank patients, putting Māori and Pasifika at the top of the list. European New Zealanders and other ethnicities like Indian, Chinese, et cetera, being left to wait. Some surgeons say it's medically indefensible. They say patients should be prioritised on how sick they are, how urgently they need treatment and how long they've been waiting for it, and certainly not on their ethnicity. Barry Soper did this story for ZB and he contacted the Te Whatu Ora Business Support Manager, … and he claimed he didn't know - he'd never heard of ZB or Barry or didn't - I think he thought the whole thing was a prank and he didn't want to talk about it - but he was the one who sent an e-mail saying, ‘Hey team, heads up. This is a new criteria that you'll be, you know, lining up your patients accordingly.’ So, basically telling them, ‘Māori and Pacific patients first, okay, ngā mihi!’ And anyway, he didn't want to talk about it when they approached him. I'd love to know your thoughts and we'll look at this before six, but that's basically we're at with our health system now if you can believe it, 9292 is the text.

[4]  Hawkesby made the following comment (at around 5.29am) further signposting the story:

Right, this Equity Adjustor Score where Te Whatu Ora now wants surgeons to push Māori and Pasifika to the top of waiting lists based on ethnicity, basically, not on urgency or illness but ethnicity. Some surgeons say it’s grossly unfair, and they don’t want to prioritise patients that way but basically they’ve been told they have to, so we’re going to look at this after the news.

[5]  Another news item substantially similar to the 5am bulletin (see paragraph [1]) was then broadcast at 5.30am, stating ‘The new system uses five categories to place patients on a medical waitlist, including clinical priority, time spent waiting, location and deprivation level. But Political Editor Jason Walls says it’s the fifth category, ethnicity, that’s raised concerns…’

[6]  Just after the news bulletin, Hawkesby stated:

In the next half hour, prioritising surgeries for Māori and Pasifika – is this fair? Many surgeons say it’s not. This is the new Equity Adjustor Score brought in by Te Whatu Ora and leaked to the media. It basically dictates that doctors must give priority to surgeries to Māori and Pasifika patients over and above everybody else. So is it fair? We’re going to look at it shortly.

[7]  Hawkesby spoke with Dr Bryan Betty, Chair of General Practice New Zealand, on this issue (approximately 5.49am):

Hawkesby:  Māori and Pacific patients are being moved to the top of surgery waitlists. The reasoning is based on a new algorithm that prioritises on urgency and ethnicity. Healthcare professionals are conflicted over the Equity Adjustor Score that is seeing some patients pushed back two years or more. With me now is Chair of General Practice New Zealand, Dr Bryan Betty. Morning to you, Bryan, is this score system fair and is it actually even needed? 

Dr Betty:     Good morning, Kate. Oh we've known for 20-30 years that we have dreadful health outcomes in a lot of areas for Māori and Pacific. So this is an attempt by the system to try and even up the playing field a bit. And we do need to address this issue in some way, and this is one of the ways that the system has responded.

Hawkesby:  It feels contentious and racist though doesn’t it? Doesn’t it make race an issue for everybody else – for the people that’ve waited years and years for surgeries and are continuing to be pushed back and pushed back, surely that’s not fair on them?

Dr Betty:      I think we're in a situation at the moment where we do need to do something about our Māori and Pacific health outcomes, there is absolutely no doubt about it. I mean part of the issue we have at the moment in my thinking - we actually have a capacity issue here. That's more the issue, that we have long waiting lists. We have shortages in workforce, shortages in investment in health and as a result we have constrained capacity and I think that is more the issue that we've got in the system that we can't open up the system entirely so that everyone gets through in a timely way, and that's one of the issues we're facing in New Zealand.

…

Hawkesby:  It feels a bit like taking a hammer to crack a nut though, doesn’t it? I mean what other ways could we do it, because obviously change is needed isn’t it.

Dr Betty:     Change is absolutely needed in terms of the way we approach this issue. It’s been hidden under the covers for such a long time. For instance, something like diabetes in New Zealand, Māori and Pacific have 2-3 times the rate of diabetes, and actually get diabetes 10-15 years earlier, which leads to absolutely poor, poor outcomes as we go forward. So this is a really, really difficult problem for New Zealand, especially in a resource constrained environment which is what we have here. We don’t have enough capacity, we don’t have enough investment in health in the country, and that actually leads to problems in our delivery of healthcare. But we have this underlying problem which has been here for generations, and it has to be addressed.

[8]  At the end of the programme, when transitioning to Mike Hosking Breakfast at 6am, Hawkesby and Hosking discussed the topic further:

Hawkesby: Mike Hosking, good morning. This Equity Adjustor thing has gone off, like I literally can’t keep up with all the texts, but I think the tenor of what I’m getting is that the Government and Te Whatu Ora have made an issue out of something they think, and know, is an issue statistically but they have waved the race card in our faces for people that didn’t, we weren’t thinking about it that way but now everyone’s claiming it’s racist, do you know what I’m saying? 

Hosking:     Well it is racist.

Hawkesby:  It’s backfired is what I’m saying.

Hosking:     There’s no question it’s racist. You’re making a decision based on race, that’s an irrefutable… The difficulty with this subject is everyone’s correct. Because the Māori outcome health wise is dreadful. But for every person they make – well they live in rural parts of the world where you can’t get access to health – well so does every non-Māori who lives in the same area, and so it goes. And for every time you help Māori out, disproportionately based on race, you are not helping somebody else out who should be getting that help. That’s the madness of this. The thing I want to know is why isn’t it nationwide? This thing seems to have come out of Auckland, and it seems to be in Auckland alone. And whether that’s a top-down Ayesha Verrall decision, or whether it’s somehow the local board in Auckland that’s decided to do this, so anyway we’ll get to the bottom of this ….

[9]  Throughout the programme, Hawkesby read out texts from members of the audience in response to the Equity Adjustor Score story, noting the text machine had been ‘lit up’ by the news, and that she would try to get through as many texts as she could. Some of the texts read out over the course of the broadcast included:

• ‘Kate, more racism, the funny thing is the hardworking taxpayer just goes to the back of the waiting room, disgusting.’
• ‘Kate, I think the Human Rights Commission might have something to say on prioritising people for surgery based on ethnicity, surely we can’t tolerate this.’
• ‘Kate, what a disgrace, New Zealand is honestly a joke, we’re never going to move forward.’
• ‘Kate, definitely racist, if he’s not counting his money Meng Foon would have sorted it out.’
• ‘Morning, any surgeon with any respect should refuse to operate on the patient.’
• ‘Kate, if your medical form didn’t have an ethnicity section to fill out, then wouldn’t it make more sense to treat the people that actually need the treatment first regardless of race?’
• ‘Kate, more racist BS as regards this Equity Score, Ginny’s Māori jail comments and now the panel comprising 50% Māori balanced while the rest of us lumped in one group. Continual racist BS from this trash Government.’
• ‘Kate, the person who leaked the medical apartheid should get a medal. What else is this racist government hiding in all areas?’
• ‘Kate, I registered as Māori with the health system even though I’m not. No questions asked, if you can’t beat them, join them.’
• ‘Kate, outrageous that New Zealand health’s now prioritised for Māori ahead of urgent need. Preposterous to have an apartheid system based on race, surely this is New Zealand democracy dismantled.’
• ‘Absolutely disgusting Kate, those who need it the most should be at the top of the list regardless of what colour their skin is. Decision made, I’ll now definitely vote National.’
• ‘Kate, here we go again, I wake up this morning only to hear more race-based privileges for a group of people based on race. When’s this madness going to stop? Hopefully October.’
• ‘Kate, sickness does not discriminate and neither should the health system. What about medical ethics and the Hippocratic Oath of ‘do no harm’?’
• ‘Kate, they can also access mental health faster, I don’t believe any of this is fair.’

The complaint

[10]  Chris Wilson complained that Hawkesby’s statements to the effect that the Equity Adjustor Score meant that Māori and Pacific patients were being ‘moved to the top of surgery waitlists’ breached the accuracy and discrimination and denigration standards of the Code of Broadcasting Standards in New Zealand on the basis:

Accuracy

• The comments were inaccurate and ‘materially misled the audience into thinking that Māori and Pasifika patients would be lined up first on the surgery waiting list.’
• ‘Kate Hawkesby said this as an unqualified statement of fact not analysis. The email from [Te Whatu Ora Business Support Manager] did inform about the new criteria but did not say that Te Whatu Ora would be lining up Māori and Pasifika patients first for surgery.’
• ‘This story is about the Equity [Adjustor] Score which does not move patients to the top of the waiting list based on ethnicity. Ethnicity is one of five criteria used to make these decisions.’

Discrimination and Denigration

• Hawkesby’s comments also constituted discrimination and denigration of Māori and Pacific Peoples on account of their race.
• Listeners ‘were encouraged to treat Māori and Pasifika people different by Kate Hawkesby telling them these two races would be lined up first in the surgery waiting list. Kate Hawkesby’s statements are ‘denigration’ because they devalued the reputation of a particular section of the community, namely Māori and Pasifika.’

The broadcaster’s response

[11]  NZME did not uphold Wilson’s complaint for the following reasons:

Accuracy

• The views expressed by the host during the programme relating to Te Whatu Ora’s Equity Adjustor Score were her own analysis, which is not subject to the accuracy standard.¹
• ‘Specifically the host’s statement, “Māori and Pacific Islanders waiting for surgery, they're being moved to the top of the very lengthy hospital waiting lists”, is her analysis of what was an emerging news story rather than a statement of fact and therefore this standard does not apply to it.’
• ‘It is worth noting that later the same day, the Herald published an article explaining in more detail how the Equity Adjustor Score works and noting that Māori and Pasifika are top of the list in the ethnicity category.’²
• ‘Importantly, …the host specifically referred to the other factors included in this scoring system and this was reiterated during the 5.30am news bulletin. In addition, the programme included commentary from a respected academic, the Health Minister and GPNZ Chair explaining why the inclusion of ethnicity as a factor in this scoring system was needed given the longstanding health inequities faced by Māori and Pasifika communities.’

Discrimination and Denigration

• ‘Although people of Māori and [Pasifika] descent are recognised sections of the community to which this standard may apply, the statements of the host complained of do not amount to discrimination or denigration within the meaning of this standard. It is worth noting that the rationale for including ethnicity as a relevant factor was explained to listeners with the inclusion of commentary from University of Waikato Senior Research Fellow Rawiri Keenan, the Health Minister Dr Verrall and GPNZ Chair Dr Bryan Betty.’

The standards

[12]  The purpose of the accuracy standard³ is to protect the public from being significantly misinformed.⁴ It states broadcasters should make reasonable efforts to ensure news, current affairs or factual content is accurate in relation to all material points of fact and does not mislead. Where a material error of fact has occurred, broadcasters should correct it within a reasonable period after they have been put on notice.

[13]  The discrimination and denigration standard⁵ protects against broadcasts which encourage the discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status or because of legitimate expression of religion, culture or political belief.

Overview of outcome: freedom of expression weighed against harm

[14]  The right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, is our starting point. Our task is to weigh the value and public interest in the broadcast complained about, against the level of actual or potential harm that may have been caused by the broadcast, with reference to the objectives of the standards described above. We may only intervene and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.⁶

[15]  We recognise there is value and public interest in scrutinising government health policies. We also acknowledge that talk radio hosts such as Hawkesby are well known for offering strong or provocative opinions, and there is value in this approach for the purpose of generating discussion and public discourse. The free and frank expression of opinions, particularly on a topic of high public interest, is protected by the right to free speech, so long as standards are maintained.

[16]  In this case, considering the potential harm caused by the broadcast, we were not satisfied the approach taken by Hawkesby was justified in the public interest or that it added value to the discourse surrounding the implementation of the Equity Adjustor Score in Auckland. In our view, many of Hawkesby’s comments were significantly misleading as to the nature and impact of the Score, and we consider this misleading impression served to promote negative stereotypes about, and encourage hostility towards, Māori and Pacific Peoples. We therefore concluded that upholding the complaint would place a reasonable and justified limit on freedom of expression.

[17]  We expand on our reasoning below.

Accuracy

[18]  Determination of a complaint under the accuracy standard occurs in two steps. The first step is to consider whether the programme was inaccurate or misleading. The second step is to consider whether the broadcaster made reasonable efforts to ensure that the programme was accurate and did not mislead.

[19]  The complaint under this standard is that Hawkesby’s statements to the effect that the Equity Adjustor Score meant that Māori and Pacific patients were being ‘moved to the top of surgery waitlists’ were materially misleading. Hawkesby made a number of comments to this effect during the broadcast [emphasis added]:

• ‘Auckland surgeons are now being dictated to on ethnicity grounds over who should get surgery first. Māori and Pacific Islanders waiting for surgery, they're being moved to the top of the very lengthy hospital waiting lists, and they're giving - the system is going to give patients numbers on the list, so choosing to prioritise them in terms of when they'll be operated on. And this has got surgeons up in arms apparently about being expected to give preference to patients based on their ethnicity. So this has been introduced by Te Whatu Ora - Health New Zealand, and it's going to rank patients, putting Māori and Pasifika at the top of the list. European New Zealanders and other ethnicities like Indian, Chinese, et cetera, being left to wait. Some surgeons say it's medically indefensible. They say patients should be prioritised on how sick they are, how urgently they need treatment and how long they've been waiting for it, and certainly not on their ethnicity. Barry Soper did this story for ZB and he contacted the Te Whatu Ora Business Support Manager, … and he claimed he didn't know - he'd never heard of ZB or Barry or didn't - I think he thought the whole thing was a prank and he didn't want to talk about it - but he was the one who sent an e-mail saying, “Hey team, heads up. This is a new criteria that you'll be, you know, lining up your patients accordingly.” So, basically telling them, “Māori and Pacific patients first, okay, ngā mihi!”’
• [Introducing the programme ahead]: ‘New prioritisation of surgeries. Māori and Pacific patients to go first, this is due to the Equity Adjustor Score. It's got some doctors conflicted over whether that's actually fair. We'll look at this before six.’
• ‘Right, this Equity Adjustor Score where Te Whatu Ora now wants surgeons to push Māori and Pasifika to the top of waiting lists based on ethnicity, basically, not on urgency or illness but ethnicity. Some surgeons say it’s grossly unfair, and they don’t want to prioritise patients that way but basically they’ve been told they have to, so we’re going to look at this after the news.’
• ‘In the next half hour, prioritising surgeries for Māori and Pasifika – is this fair? Many surgeons say it’s not. This is the new Equity Adjustor Score brought in by Te Whatu Ora and leaked to the media. It basically dictates that doctors must give priority to surgeries to Māori and Pasifika patients over and above everybody else. So is it fair? We’re going to look at it shortly.’
• [In advance of introducing Dr Bryan Betty]: ‘Māori and Pacific patients are being moved to the top of surgery waitlists. The reasoning is based on a new algorithm that prioritises on urgency and ethnicity.’

[20]  The requirement for factual accuracy does not apply to statements which are clearly distinguishable as analysis, comment, or opinion, rather than statements of fact.⁷ However, broadcasters should still make reasonable efforts to ensure analysis, comment or opinion is not materially misleading with respect to facts referred to, or upon which the analysis, comment or opinion is based.

Were Hawkesby’s comments statements of fact or analysis?

[21]  When assessing whether statements are analysis, comment or opinion, the following factors may be relevant:⁸

• the language used
• the type of programme (eg some types of programme can involve discussion of factual matters yet be generally recognised as robust environments focused on the exchange of opinions)
• the role or reputation of the person speaking
• the subject matter
• whether the statement is attributed to someone
• whether evidence or proof is provided.

[22]  We consider Hawkesby’s comments in bold above represent unqualified statements of fact. Her statements were definitive and were not prefaced by any language indicating comments in the nature of analysis or opinion (such as ‘I think,’ ‘it seems’ or ‘it is possible’). While two of Hawkesby’s comments noted that the effect of the Score was ‘basically’ that Māori and Pacific patients were being moved to the top of the waitlist and given priority over everyone else, we consider these were also definitive statements about the overall effect of the Score. 

[23]  While we acknowledge Early Edition (of which one of the taglines aired in the broadcast was ‘hard facts, hard opinion, hard-hitting’) could be expected to contain opinion from the host on matters of topical currency, in our view these comments were expressed in the nature of fact. The overarching message of the statements was that, due to the implementation of the Equity Adjustor Score in Auckland, Māori and Pacific patients were being moved to the top of surgical waitlists based on their ethnicity.

[24]  The accuracy standard therefore applies to the comments at issue.

Were the comments materially inaccurate or misleading?

[25]  The Equity Adjustor Score is a system introduced in Auckland which uses five categories to place patients on the non-urgent surgical waitlist, including clinical priority, time spent waiting, location, deprivation level and ethnicity.⁹

[26]  Te Whatu Ora has stated:¹⁰

Patients are first prioritised according to their clinical need and placed into a clinical category. The equity tool is then used to help determine the order in which patients are booked for surgery within each clinical category. Factors taken into consideration include the length of time someone has been waiting, Māori or Pacific ethnicity, patients from low socio-economic areas and those living in rural areas.

[27]  Insofar as race is a factor, Māori and Pacific patients are given priority, while New Zealand European and other ethnicities, such as Indian, Chinese and Middle Eastern, are lower-ranked.¹¹ The Māori Health Advisory Group of the Royal Australasian College of Surgeons indicated that despite the tool, clinical priority would always take precedence, and patients with potentially life-threatening conditions would not be pushed down the list out of their allocated, urgent timeframes.¹² 

[28]  The complainant has argued Hawkesby’s comments misled the audience to think Māori and Pacific patients would be ‘lined up first’ on the surgery waiting list, when ethnicity is one of five criteria used to assess prioritisation.

[29]  We agree the comments were significantly misleading as to the nature and impact of the Score. They gave the impression that ethnicity was the only, or the key factor, involved in the assessment, and that Māori and Pacific patients would be given immediate, direct precedence on the surgical waitlist as a result. This was misleading given ethnicity is not the only, or primary, factor taken into consideration – the Score also takes into account clinical priority, time spent waiting, location, and deprivation level. Ethnicity is not the dominant or ‘trumping’ factor in calculating a patient’s position on the list. It was therefore also misleading to suggest Māori and Pacific patients would be ‘pushed to the top’ of the surgical waitlist because of the Score’s implementation, which was plainly not the case.

[30]  We note, while most of Hawkesby’s comments amounted to a variation of ‘Māori and Pacific patients would be moved to the top of surgical waitlists,’ with the implication being that ethnicity was the only, or the key factor in the score, one such comment made this point more explicitly: ‘Te Whatu Ora now wants surgeons to push Māori and Pasifika to the top of waiting lists based on ethnicity, basically, not on urgency or illness but ethnicity.’ Further comments by Hawkesby to this effect during the broadcast include: ‘Auckland surgeons are now being dictated to on ethnicity grounds over who should get surgery first’; that surgeons were ‘expected to give preference to patients based on their ethnicity’; and ‘European New Zealanders and other ethnicities like Indian, Chinese, et cetera, being left to wait.’

[31]  We do not consider the fact that Māori and Pacific patients are given priority under the Score insofar as race is a factor mitigates Hawkesby’s comments in any way. While Māori and Pacific patients are ranked higher under the ethnicity category, ethnicity is not the only, or the predominant, factor taken into account as part of the Score, as Hawkesby’s comments implied. 

[32]  In our view, the nature of many of the text messages sent in to Hawkesby indicate this was how her comments were received, including:

• ‘Kate, I think the Human Rights Commission might have something to say on prioritising people for surgery based on ethnicity, surely we can’t tolerate this.’
• ‘Kate, outrageous that New Zealand health’s now prioritised for Māori ahead of urgent need. Preposterous to have an apartheid system based on race, surely this is New Zealand democracy dismantled.’

[33]  The misleading impression created around the nature and impact of the Score was clearly material to the audience’s understanding of the topic. The implementation of the Score was the top news story as part of the broadcast, and the topic was revisited and discussed throughout. It was material to listeners’ understanding that ethnicity was one of several factors considered under the Score and was not the only or the predominant factor.

Did other information/comments contained in the broadcast amount to a ‘correction’?

[34]  If a material error of fact has occurred, the standard states broadcasters should correct it within a reasonable period after they have been put on notice.¹³ 

[35]  In this case, we considered whether the misleading impression created was ‘corrected’ by the two news bulletins over the course of the programme, and other comments during the programme, which did alert listeners to the fact there were five criteria considered under the Score (with no suggestion ethnicity was given primacy). One such comment was made by Hawkesby herself in introducing what was ahead:

It is Monday the 19th of June and a Māori health expert is backing the Government's moves to include ethnicity in the Health Ministry's new adjustor waitlist tool. Te Whatu Ora - Health New Zealand now includes ethnicity as a factor in a new medical waitlist criteria, alongside clinical priority, time already spent on the waitlist, location and deprivation level.

[36]  Despite some correct information being conveyed during the broadcast, we do not consider this served to correct the misleading impression created about the Score. In our view, any clarifying information was effectively drowned out by the overarching message that ethnicity was the only, or the key, factor in the Score, and Māori and Pacific patients would jump to the top of the surgical waitlist accordingly. The comments which created the misleading impression, specified at paragraph [19], were numerous, and repeated throughout the broadcast at regular intervals. We consider this was the dominant message the audience would have received, as was evident from many of the text messages read out.

Did the broadcast make reasonable efforts to ensure accuracy?

[37]  For similar reasons, we do not consider the broadcaster made reasonable efforts to ensure the accuracy of the programme in relation to Hawkesby’s statements. While we acknowledge this was a live broadcast, we note:¹⁴

• The accuracy of Hawkesby’s statements was reasonably capable of being determined by the broadcaster, given accurate information about the nature of the Score had been presented in news bulletins in the same programme. Hawkesby herself also described the five criteria under the Score on one occasion.
• Despite accurate information being to hand, the host put a misleading spin on the story, and was allowed to repeat misleading statements numerous times over the course of the broadcast.
• As noted above, any ‘correcting’ information was effectively cancelled out.
• The subject matter was topical and carried public interest.

[38]  Accordingly, we consider upholding the complaint, as a breach of the accuracy standard, places a reasonable and justified limit on the broadcaster’s right to freedom of expression. Recognising that Hawkesby is in a privileged and influential position as a well-known national broadcaster, we are satisfied that upholding the accuracy complaint in this case does not unreasonably limit the broadcaster’s free speech. Rather, it reasonably requires Hawkesby to express her views in a way that does not propagate misleading information that may affect listeners’ understanding of issues discussed.

Discrimination and Denigration

[39]  The complainant has argued Hawkesby’s comments to the effect that Māori and Pacific Peoples would be ‘lined up first’ on the surgical waitlist discriminated against and denigrated Māori and Pacific Peoples. Māori and Pacific Peoples amount to sections of the community for the purposes of the standard, and the standard therefore applies.

[40]  '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.¹⁵

[41]  The importance of freedom of expression means 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. Broadcast content which has the effect of reinforcing or embedding negative stereotypes may also be considered.¹⁶

[42]  We consider Hawkesby’s comments about the Equity Adjustor Score’s impact did breach the discrimination and denigration standard, by reinforcing or embedding negative stereotypes about Māori and Pacific Peoples.

[43]  In our view, Hawkesby’s comments played into the stereotype that Māori and Pacific Peoples disproportionately take up resources and are given undeserved special treatment in Aotearoa New Zealand’s society, at the expense of other ethnicities. While not said explicitly, in our view, the exaggerated and misleading nature of Hawkesby’s comments had the effect of evoking this type of prejudicial bias.

[44]  Context is an important consideration in assessing whether comments can be considered to breach the standard including:¹⁷

• the language and tone used
• whether the comments were repeated or sustained, or corrected or rebutted
• whether the comments made a legitimate contribution to a wider debate or carried public interest.

[45]  In this case, we consider the context of the relevant statements strongly coloured their impact:

• Rather than focusing the discussion on, for example, why ethnicity might be a factor in waiting lists or examining alternative ways to address the poor health outcomes of relevant communities, the nature and focus of Hawkesby’s comments carried a level of derision towards Māori and Pacific Peoples.
• Hawkesby mocked an email announcing the changes as: ‘So, basically telling them, “Māori and Pacific patients first, okay, ngā mihi!”’
• Many of the texts inspired by Hawkesby’s comments demonstrated negative attitudes to Māori and Pacific Peoples. The broadcaster chose the texts to be read out on air – emphasising and promoting negative and unproductive attitudes towards these groups. We note in particular the following text messages:
  • ‘Kate, more racism. The funny thing is, the hardworking taxpayer just goes to the back of the waiting room. Disgusting.’
  • ‘Morning, any surgeon with any respect should refuse to operate on the patient.’
  • ‘Kate, more racist BS as regards this Equity Score, Ginny’s Māori jail comments and now the panel comprising 50% Māori balanced while the rest of us lumped in one group. Continual racist BS from this trash Government.’
• Hawkesby’s comments inaccurately describing the effect of the Score were repeated and prolonged (to the extent, as we have observed under accuracy, of drowning out any more accurate or dispassionate analysis of the issue) and had the effect of undermining any public interest in the broadcast.
• During Hawkesby’s discussion with Mike Hosking at the end of the broadcast, Hosking made comments doubling down on the idea that the policy was ‘racist’ and ‘disproportionately based on race’.

[46]  Taking into account the above factors, in the context of the overall broadcast, Hawkesby’s comments had the potential to foster resentment and hostility towards members of the Māori and Pacific communities, through promoting the idea they are receiving undeserved and disproportionate special treatment. It was clear from the nature and volume of text message feedback that the comments were in fact stirring up resentment of this kind.

[47]  While there was legitimate public interest in the implementation of the Score in Auckland, this was an inflammatory way to provoke discussion of the issue. We consider Hawkesby’s tone, her misleading rhetoric and the broadcaster’s decision to read out numerous racially charged text messages distinguished the programme not as a genuine vehicle for the exchange of ideas but as a place where views harmful to Māori and Pacific Peoples would be embraced and promoted.

[48]  In this context, we consider the comments complained about reached the high threshold for a finding of discrimination and denigration, on the basis they had the effect of reinforcing or embedding negative stereotypes about Māori and Pacific Peoples.

For the above reasons the Authority upholds the complaint that the broadcast of Early Edition with Kate Hawkesby on 19 June 2023 on Newstalk ZB breached Standard 6 (Accuracy) and Standard 4 (Discrimination and Denigration) of the Code of Broadcasting Standards in New Zealand.

[49]  Having upheld the complaint under the accuracy and discrimination and denigration standards, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the complainant and the broadcaster. 

Submissions on orders

[50]  Wilson submitted a serious penalty was warranted given the Authority upheld the complaint under two standards. He submitted Newstalk ZB should be prohibited from broadcasting for 24 hours, and Hawkesby should apologise to Māori and Pacific communities.

[51]  NZME submitted no order should be made, for the following reasons:

• Given the likelihood of the decision attracting media attention, publication would be sufficient to publicly censure NZME and provide guidance to broadcasters.
• A broadcast statement could draw further negative attention to the subject of the broadcast.
• Previous cases where the Authority found statements reinforced or embedded negative stereotypes under the discrimination and denigration standard predominantly related to explicit statements.¹⁸ The Authority has acknowledged in this case the comments complained of did not explicitly refer to negative stereotypes.
• In the majority of recent decisions in which complaints under the accuracy standard were upheld, the Authority concluded the publication of the decision was sufficient.¹⁹
• The comments subject to the inaccuracy finding are not comparable to those in broadcasts where the Authority determined further orders were required.²⁰

[52]  NZME further submitted that an order to suspend broadcasting, as suggested by the complainant, would not be appropriate in this case.

Authority’s decision on orders

[53]  In determining whether orders are warranted and the type of order to impose, we consider the following factors:

• the seriousness of the breach and the number of upheld aspects of the complaint
• the degree of harm caused to any individual, section of society or the audience generally
• the objectives of the upheld standard(s)
• the attitude and actions of the broadcaster in relation to the complaint (eg whether the broadcaster upheld the complaint and/or took mitigating steps; or whether the broadcaster disputed the standards breach and/or aggravated the breach and any harm caused)
• whether the decision will sufficiently remedy the breach and give guidance to broadcasters, or whether something more is needed to achieve a meaningful remedy or to send a signal to broadcasters
• past decisions and/or orders in similar cases.

[54]  We consider the following factors are relevant in this case:

• Two standards were breached.
• Our decision is unanimous.
• The conduct was serious, featuring repeated and sustained inaccurate descriptions of the Score over the course of a one-hour broadcast, which in turn had the effect of embedding negative stereotypes about Māori and Pacific Peoples. This was despite having accurate information to hand.
• The framing of the issue had real potential to mislead the audience (and it is clear from audience feedback that some were misled) and to cause harm to Māori and Pacific Peoples.
• There was a high level of public interest and some controversy in the introduction of the Equity Adjustor Score at the time, meaning while there was value in discussing and generating debate about the issue, it was important for reporting on the subject to be accurate.
• NZME did not uphold the complaint in the first instance but accepted our decision to uphold the complaint.
• In the past five years, NZME has had four upheld complaints:
  • three under the accuracy standard resulting in no orders being made;²¹ and
  • one under the good taste and decency and discrimination and denigration standards, resulting in orders of a broadcast statement and $3,000 costs to the Crown.²²

[55]  Weighing these factors, we disagree that publication would be sufficient to publicly censure the broadcaster and provide guidance to other broadcasters, as the broadcaster has submitted. The broadcaster chose to frame an important news story in a misleading and inflammatory manner. The framing of the issue created an environment where potentially harmful comments from the audience were foreseeable, and the broadcaster chose to read many such comments out on air. As a result, the broadcast had the potential to cause serious harm, both to Māori and Pacific Peoples – minority groups which already experience significant disadvantages in our community – as well as the audience more generally. 

[56]  The broadcaster submitted that the comments complained of did not explicitly refer to negative stereotypes about Māori and Pacific Peoples, unlike in previous cases where the Authority made orders in response to breaches of the discrimination and denigration standard. We do not consider this to be a strongly mitigating factor. Regardless of whether a negative stereotype is communicated explicitly or implicitly, its meaning can be equally clear and harmful – and in this case clearly manifested through the listener feedback that was generated.

[57]  The broadcaster also submitted the comments subject to the inaccuracy finding were not comparable to those in broadcasts where the Authority determined further orders were required. We disagree – in our view this case has similarities to Wilberg and Radio New Zealand Ltd (Decision No. 2022-071) in which we ordered a broadcast statement, where a misleading spin was put on news story of high public interest over a series of news bulletins.

[58]  Accordingly, we consider orders are warranted in this case beyond mere publication of the decision.

Broadcast statement – section 13(1)(a)

[59]  A broadcast statement is typically ordered where we consider publication of the decision is insufficient to publicly denounce the breach of broadcasting standards, censure the broadcaster, or rectify the harm caused.

[60]  We consider a broadcast statement is appropriate in this case to publicly denounce the breach of both standards and correct the record, given the significance of the matter at the time.

[61]  Consistent with the Authority’s usual practice, the broadcaster will draft a statement summarising the upheld aspects of our decision, for approval by the Authority.

Costs to the Crown – section 16(4)

[62]  Costs to the Crown (up to $5,000) are usually ordered where a broadcaster’s conduct resulting in a breach of standards is at the medium-to-serious end of the spectrum, and the Authority determines a punitive response is required.

[63]  Having balanced the factors outlined above, we consider that in this instance, the conduct and seriousness of the breach justify an award of costs to the Crown. We consider a punitive response is required to hold the broadcaster to account, deter future non-compliance and confirm our expectations.

[64]  In considering the quantum of the costs, we have reflected upon the factors discussed above, as well as previous Authority decisions.²³ The factors that have swayed us in particular, are: the repeated propagation of misleading information despite correct information being to hand; and the encouragement of discrimination and denigration and reinforcement of negative stereotypes, including through the selection of feedback which coloured the tone of the whole broadcast and allowed negative attitudes to prevail. 

[65]  That said, we do not consider the conduct was as serious in this regard as the earlier Tualamali’i and McAuley decisions, in which we ordered $3,000 costs to the Crown. 

[66]  We therefore consider an order of costs in the amount of $1,500 is appropriate.

Other

[67]  The Authority’s power under s13(1)(b) of the Act to order a broadcaster to refrain from broadcasting for a period not exceeding 24 hours, is intended to respond to significant breaches of broadcasting standards.

[68]  Orders of this nature are made ‘rarely and only in exceptional circumstances’.²⁴ While we note the significant potential for harm caused by the comments in this case, we consider the above orders to be a more proportionate and effective remedy to the breaches of standards, for the reasons we have outlined.

[69]  We also note we do not have jurisdiction to order Hawkesby to apologise in person to affected communities.

Orders

1.  Under section 13(1)(a) of the Act, the Authority orders NZME Radio Ltd to broadcast a statement. The statement shall: 

• summarise the upheld aspects of the Authority’s decision
• be approved by the Authority prior to being broadcast 
• be broadcast at the end of Early Edition, just before the 6am news bulletin
• be broadcast within one month of the date of this decision. 

The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority and the complainant of the manner in which the above order has been complied with.

2.  Under section 16(4) of the Broadcasting Act 1989, the Authority orders NZME Radio Ltd to pay to the Crown costs in the amount of $1,500 within one month of the date of this decision.

The order for costs is enforceable in the District Court.

Signed for and on behalf of the Authority

Susie Staley
Chair
8 April 2024

Appendix

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

1  Chris Wilson’s formal complaint to NZME – 16 July 2023

2  NZME’s response to the complaint – 11 August 2023

3  Wilson’s referral to the Authority – 1 September 2023

4  NZME’s further comments – 20 September 2023

5  Wilson confirming no further comments – 3 October 2023

6  Wilson’s submissions on orders – 4 February 2024

7  NZME’s submissions on orders – 15 February 2024

¹ Citing: Guideline 6.1
² Citing: Nicholas Jones “Surgery wait lists: Māori, Pacific prioritised – why ethnicity is a factor” NZ Herald (online ed, 19 June 2023)
³ Standard 6, Code of Broadcasting Standards in New Zealand 
⁴ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand, page 16
⁵ Standard 4, Code of Broadcasting Standards in New Zealand
⁶ Introduction, Code of Broadcasting Standards in New Zealand, page 4
⁷ Guideline 6.1
⁸ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand, page 16
⁹ Health Information New Zealand (7 June 2023) “Auckland algorithm improves equity of waitlists”
¹⁰ Te Whatu Ora | Health New Zealand (14 September 2023) “OIA Response (OIA-HNZ00022694)”
¹¹ John Braddock and Tom Peters “New Zealand Factors Ethnicity in Prioritising Surgery Waiting Lists” Scoop (online ed, 29 June 2023)
¹² Royal Australasian College of Surgeons (21 June 2023) “Equity adjustor tool a step in the right direction: Māori surgeons group”
¹³ Standard 6, Code of Broadcasting Standards in New Zealand
¹⁴ Guideline 6.3
¹⁵ Guideline 4.1
¹⁶ Guideline 4.2
¹⁷ Guideline 4.3
¹⁸ Citing: Waxman and Television New Zealand Ltd, Decision No. 2020-042; Cant and Television New Zealand Ltd, Decision No. 2020-071; and Tualamali’I & Whittaker and MediaWorks Radio Ltd, Decision No. 2020-071
¹⁹ Citing: Greyhound Racing New Zealand and Discovery NZ Ltd, Decision No. 2023-073; Hickson and Television New Zealand Ltd, Decision No. 2023-044; Appleyard and NZME Radio Ltd, Decision No. 2023-071; New Zealand Greyhound Racing Association Inc and Discovery NZ Ltd, Decision No. 2022-084; and Jones and NZME Radio Ltd, Decision No. 2022-019
²⁰ Citing: Wilberg and Radio New Zealand Ltd, Decision No. 2022-071; Morrison & New Homes Direct Ltd and Television New Zealand Ltd, Decision No. 2021-150; Clark & Sallee and APNA Television Ltd, Decision No. 2021-081; Naughton and Mainland Television New Zealand Ltd & Daystar Television, Decision No. 2021-103
²¹ Appleyard and NZME Radio Ltd, Decision No. 2023-071; Jones and NZME Radio Ltd, Decision No. 2022-019; Burne-Field and NZME Radio Ltd, Decision No. 2020-040
²² Day & Moss and NZME Radio Ltd, Decision No. 2018-090 (decision released in 2019)
²³ Here we considered cases including Tualamali’I & Whittaker and Mediaworks Radio Ltd, Decision No. 2020-063, McAuley and MediaWorks Radio Ltd, Decision No. 2021-015, Waxman and Television New Zealand, Decision No. 2020-042, Cant and Television New Zealand Ltd, Decision No. 2020-071, and Day & Moss and NZME Radio Ltd, Decision No. 2018-090
24 Barnes and Alt TV Ltd, Decision No. 2007-029