Andrews and NZME Radio Ltd - 2019-060 (16 December 2019)
- Judge Bill Hastings (Chair)
- Paula Rose QSO
- Susie Staley MNZM
- Jane Andrews
ProgrammeAfternoons with Andrew Dickens
BroadcasterNew Zealand Media and Entertainment
Channel/StationNewstalk ZB # 2
[This summary does not form part of the decision.]
A complaint that a radio host asking a caller ‘how Māori are you?’ breached the discrimination and denigration standard has not been upheld. A broadcast of Afternoons with Andrew Dickens featured a discussion between Mr Dickens and a caller about Māori sovereignty, the Treaty of Waitangi and racism. During the discussion Mr Dickens asked the caller ‘how Māori are you?’ The Authority found that while the comment was patronising, misinformed and likely to offend some listeners, it did not contain the level of condemnation required to constitute a breach of the discrimination and denigration standard and therefore any restriction on the broadcaster’s right to freedom of expression would be unjustified.
Not Upheld: Discrimination and Denigration
 A broadcast of Afternoons with Andrew Dickens hosted by Andrew Dickens featured a discussion between Mr Dickens and a caller about Māori sovereignty, the Treaty of Waitangi and racism. During this discussion the following exchange took place:
Dickens: How Māori are you?
Caller: I’m 25 at the moment….I didn’t hear you sorry.
Dickens: I said how Māori are you because unfortunately we actually put a numerical value on it, whether you’re you know, umm a half, a quarter, an eighth, a sixteenth, a thirty-second.
Caller: Well I was born full Māori, but when I inherited land that was not signed under the Treaty [of Waitangi] I became, I’m still a [sic] illegal alien today.
Dickens: How do you experience racism every day?
 The interview was broadcast on 8 July 2019 on Newstalk ZB. As part of our consideration of this complaint, we have listened to a recording of the broadcast and read the correspondence listed in the Appendix.
 In our determination of this complaint, we have been assisted by an independent cultural advisor, engaged to provide te ao Māori perspective on the issues raised. We co-opted the independent advisor under section 26(4) of the Broadcasting Act 1989 to provide this assistance. While an advisor co-opted to the Authority does not have voting power, they are permitted to participate in the Authority’s deliberations. We are grateful for the assistance provided to us in this case.
 Jane Andrews submitted the broadcast breached the discrimination and denigration standard of the Radio Code of Broadcasting Standards for the following reasons:
- Mr Dickens’ questioning denigrated all Māori and the repetition of the question amounted to a sustained attack on Māori.
- Mr Dickens’ questions were racist and hurtful to all tangata whenua.
- ‘Blood quantum is a measure the New Zealand government once used to decide what electoral roll you could be on. That stopped in 1975. It has only ever been used by colonial governments to categorise and control indigenous populations. From a Māori worldview, your ancestors are part of you, and you are linked to the mountains, rivers, seas and lands of Aotearoa through them. You can’t have a fraction of that connection, it exists no matter what.’
- It is not acceptable to ask ‘how Māori someone is’. It is not acceptable to attempt to classify or qualify a race of people.
- The broadcast ‘went too far’ in light of the factors identified in the Broadcasting Standards in New Zealand Codebook.1
- It was a particular ‘blow’ that Mr Dickens asked such a question after:
- identifying himself as a New Zealand history expert through comments made earlier in the programme and a Facebook post
- having ‘watched and reviewed an hour of content on racism where people talked openly about how hurtful it is to be classified and judged for their race’ (ie the subject matter of the broadcast).
The broadcaster’s response
 NZME acknowledged the questions were ‘rude and absolutely misinformed’ but did not uphold the complaint for the following reasons:
- Mr Dickens did not ridicule the caller.
- Mr Dickens asked the caller what ‘tribe’ he belonged to and how he experienced racism every day.
- There were technical difficulties where the caller could not hear Mr Dickens.
- There was no malice in the questions.
 NZME also submitted that, while they did not find a breach, they spoke to Mr Dickens about ‘his error and how this question could offend.’
The relevant standard
 The discrimination and denigration standard protects against broadcasts which encourage the denigration of, or discrimination against, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status or as a consequence of legitimate expression of religion, culture or political belief. The standard applies only to recognised ‘sections of the community’ which is consistent with the grounds for discrimination listed in section 21 of the Human Rights Act 1993.2
 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 the starting point in our consideration of complaints. Equally important is our consideration of the level of actual or potential harm that may be caused by the broadcast. We may only interfere and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified. The harm alleged on this occasion is encouraging the different treatment of, and devaluing the reputation of, Māori through Mr Dickens’ questioning.
 The discrimination and denigration standard states that ‘broadcasters should not encourage discrimination against, or denigration of, any section of the community’ on account of ‘race’, amongst other factors. The complainant has identified Māori as the relevant section of the community.3
 ‘Discrimination’ has consistently been defined as encouraging the different treatment of the members of a particular section of the community, to their detriment.4 ‘Denigration’ is defined as devaluing the reputation of a class of people.5
 The importance of freedom of expression means that a high level of condemnation, often with an element of malice or nastiness, will be necessary to conclude that a broadcast encouraged discrimination or denigration in breach of the standard.6
 We acknowledge that the notion of using blood quantum (the idea that a person's Māori blood quantum is defined as the fraction of their Māori ancestors, out of their total ancestors) is no longer used by the government as a means of measuring Māori identity7 and that it conflicts with te ao Māori worldview of identity.8 Our advisor indicated to us that there are those who are tūturu Māori regardless of their genetic realities, there are also those who are accepting of their real genetic makeup. Finally, there are those who do not acknowledge their Māori heritage. We recognise that Mr Dickens’ questioning had the potential to offend people, as it represents an outdated attitude toward Māori identity and the importance of whakapapa to te ao Māori.
 We recognise that Mr Dickens persisted with an inappropriate line of questioning, about an issue that should be treated in a respectful way. Also, we note Mr Dickens’ tone became patronising towards the end of the exchange with the caller. This may have been due to the technical difficulties leading to a fractured exchange or Mr Dickens’ opinion of the caller’s responses to his questions.
 We consider that the host’s tone was belittling, and had the potential to cause harm to the caller and other listeners in this exchange through the blood quantum questions. However, comments will not breach the standard simply because they are critical of a particular group, because they offend people, or because they are rude.9 While we find the questions belittling and patronising we do not consider that Mr Dickens’ questioning contained the high level of condemnation required to find a breach of this standard. Therefore any restriction on NZME’s right to freedom of expression on this occasion would be unjustified.
 We note that NZME acknowledged the question was ‘rude and absolutely misinformed’ and spoke to Mr Dickens about ‘his error and how this question could offend.’ We consider NZME’s actions would have gone some way to mitigating the potential harm caused and will go some way to preventing similar situations in the future.
 For the reasons provided, we do not uphold this complaint.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
Judge Bill Hastings
16 December 2019
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1. Jane Andrews’ formal complaint – 9 July 2019
2. NZME’s response to the complaint – 8 August 2019
3. Ms Andrews’ referral to the Authority – 9 August 2019
4. Ms Andrews’ suggestion regarding the broadcast – 13 August 2019
5. NZME’s further comments – 27 August 2019
6. Ms Andrew’s final comments – 11 September 2019
1 Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
2 Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 15
3 See, for example, Saunders and NZME Radio Ltd, Decision No. 2016-089 and Barry and Television New Zealand Ltd, Decision No. 2016-077
4 Guidance: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 15-16
5 As above
6 Guideline 6b
7 Review of Measurement of Ethnicity: Ethnicity Matters: Mäori Perspectives (Statistics NZ, 2001), page 4
8 See for example: Perspectives towards Māori identity by Māori heritage language learners (Awanui Te Huia Victoria University, 2015), Pita Sharples: Identity cannot be measured in parts (NZ Herald, 28 September 2006) and How to tell if you’re Māori (The Spinoff, 2 March 2018)
9 Guidance: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 15-16