Day & Moss and NZME Radio Ltd - 2018-090 (2 April 2019)
- Judge Bill Hastings (Chair)
- Paula Rose QSO
- Susie Staley MNZM
- Wendy Palmer
- Caleb Day & Rochelle Moss
BroadcasterNew Zealand Media and Entertainment
[This summary does not form part of the decision.]
Two complaints about Heather du Plessis-Allan’s use of the term ‘leeches’ to describe the Pacific Islands during Wellington Mornings with Heather du Plessis-Allan were upheld, under both the good taste and decency and discrimination and denigration standards. The Authority recognised the important role talkback radio plays in fostering open discourse and debate in society. However, the Authority found Ms du Plessis-Allan’s comments went beyond what is acceptable in a talkback environment, considering the use of language that was inflammatory, devalued the reputation of Pasifika people within New Zealand and had the potential to cause widespread offence and distress.
Upheld: Good Taste and Decency, Discrimination and Denigration
Not Upheld: Children’s Interests, Law and Order, Balance, Accuracy, Fairness
Orders: Section 13(1)(a) broadcast statement; Section16(4) – $3,000 costs to the Crown
 A segment of Wellington Mornings with Heather du Plessis-Allan, broadcast on Newstalk ZB on 4 September 2018 at 8.40am, featured Ms du Plessis-Allan giving her opinion on why the Prime Minister should not have commissioned a return flight in a private plane to Nauru to attend the Pacific Islands Forum. During the segment Ms du Plessis-Allan made the following statement:
I don’t know that we need to send the Prime Minister. I mean, it’s the Pacific Islands. What are we going to get out of them? They are nothing but leeches on us. I mean, the Pacific Islands want money from us. We don’t need money from them. [Emphasis added]
 The following week on 11 September 2018 at 10.08am, Ms du Plessis-Allan addressed the above statement on her show after public backlash, saying:
…What I said was ‘Nauru is a hellhole’. Factually correct. And I also said the Pacific Islands don’t matter because they are leeches who want our money. Well, Twitter has blown up… They are furious… Some chap… from the Green Party said I ‘casually dehumanised our Pacific peoples’. Oh my gosh. Did I? Or did I say the Pacific Islands? I don’t know, confusing people with islands? [Emphasis added]
 NZME submitted the complaints from Caleb Day and Rochelle Moss should not be accepted as formal complaints because they were made after the complainants saw other media reporting on Ms du Plessis-Allan’s comments or read about them, removing the context.
 Under s6(1)(a) of the Broadcasting Act 1989 (the Act), broadcasters are required to ‘receive and consider formal complaints about any programme broadcast’. There is no explicit requirement in the Act for the complainant to have viewed or listened to the broadcast first-hand. Accordingly, the Authority’s position has previously been that if the complainant can identify the relevant broadcast then it may be subject to a formal complaint and can be referred to the Authority. NZME’s primary concern is that the complainants have taken the statement complained about out of context. However, the Authority’s role has always been, and will be in this case, to consider the broadcast in the context of the items as a whole.
 We have therefore determined that we have jurisdiction to consider this complaint and proceed on that basis.
 Caleb Day complained that the broadcast breached the good taste and decency, children’s interests, law and order, discrimination and denigration, balance, accuracy and fairness standards of the Radio Code of Broadcasting Practice, for the following reasons:
- Ms du Plessis-Allan’s comments that the Pacific Islands are ‘leeches’ that ‘don’t matter’ are insulting.
- While Ms du Plessis-Allan asserted the comments were only about the nations, she also referred to individual people, such as people who live in New Zealand and then move back to NZ territories with pension portability.
- The insult ‘leeches’ is typically used to refer to people rather than countries.
- It is possible Pasifika people listening to the broadcast would take the comments as personal attacks.
- Pasifika children were likely to have listened to this broadcast and were likely to have been harmed by her comments.
- The programme actively promoted resentment towards Pacific Island nations as being nothing but ‘leeches’ who ‘do not matter’ and are a burden on New Zealand’s resources.
- Ms du Plessis-Allan encouraged discrimination against a particular section of New Zealand citizens, namely Niuean, Cook Island and Tokelauan New Zealanders who have moved from Aotearoa back to one of these three New Zealand territories. She devalued the reputation of this section of the community by saying they do not matter and that New Zealand does not get any benefit from them.
- Ms du Plessis-Allan’s comments were inaccurate as New Zealand clearly receives benefit from our relationships with the Pacific nations. While her comments could be interpreted as statements of comment, analysis or opinion, in the latter broadcast she insisted that the ‘hellhole’ description of Nauru was ‘factually correct’.
- Ms du Plessis-Allan did not deal fairly with the Pacific Island nations (both nation-states and territories of New Zealand), their governments, and their people, when referring to them as ‘leeches’ and saying they ‘do not matter’, saying that Niue is entirely funded by New Zealand and saying Nauru is a ‘hellhole’.
 Rochelle Moss complained that the broadcast breached the discrimination and denigration standard of the Radio Code of Broadcasting Practice for the following reasons:
- Ms du Plessis-Allan’s comments were discriminatory, ‘racist and ignorant’.
- Ms du Plessis-Allan devalued the reputation of and encouraged discrimination against Niuean, Cook Island and Tokelauan New Zealanders who have moved back to New Zealand. Ms du Plessis-Allan opposes their right to receive New Zealand superannuation, whereas she does not oppose this right for other New Zealand citizens who also qualify for superannuation by living in New Zealand for the requisite number of years.
- Any negative, racially driven statements were inexcusable despite context.
The broadcaster’s response
 NZME’s response was that:
- The host’s comments were not about specific individuals or organisations. Government bodies should be open to free and public criticism, as public bodies.
- Newstalk ZB is an adult-targeted radio station for 30-64 year olds. The show in question is a talkback show which has been recognised as a special category of radio by the Authority.
- The host is known as an ex-political journalist. Audiences expect that ‘she can have a forthright manner when it comes to her opinion – particularly regarding political matters’. Her opinion is in line with the robust opinions offered in talkback.
- Children would only be listening with parental guidance. Both broadcasts occurred while children were likely to be at school. As such, it was open to parents to discuss with their children that they do not share that opinion.
- The host’s statements did not encourage breaking the law or antisocial behaviour.
- The host referred to Nauru as an island (not the people of Nauru) as a ‘hellhole’. She also queried the importance of Pacific relationships against the high cost of sending the Prime Minister to a conference for a day and various Pacific government’s reliance on, and use of, New Zealand foreign aid.
- Talkback hosts often seek to provoke a response from listeners. While many may not share her opinions, they did not cross the line into vitriol or hate speech.
- The balance and accuracy standards only apply to news and current affairs programmes. The Authority has previously stated that talkback radio was analogous to ‘programmes which are wholly based on opinions or ideas’, which are generally not considered news or current affairs. While the host and callers discussed topical issues, listeners would not have expected a balanced or authoritative examination of these issues in the context of the talkback environment.
- NZME apologised for the offence caused and noted Ms du Plessis-Allan has been the subject of considerable widespread and public criticism for her views.
The relevant standards
 The good taste and decency standard (Standard 1) is primarily aimed at broadcasts containing sexual material, nudity, coarse language or violence. The Authority will also consider the standard in relation to any broadcast that portrays or discusses material in a way that is likely to cause widespread undue offence or distress. Context is crucial and a broadcast’s context may justify the inclusion of distasteful material. Audience expectations are also crucial.
 Talkback radio is recognised as a separate category of broadcasting due to its robust and sometimes challenging nature, and the Authority acknowledges that different standards often apply to programmes of this kind. The purpose of the good taste and decency standard is not to prohibit challenging material, or material that some people may find offensive. Its purpose is to ensure sufficient care is taken so that challenging material is included only in an appropriate context, and that the challenges are not so offensive that they are unacceptable regardless of context.1
 The discrimination and denigration standard (Standard 6) 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. ‘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. A high level of condemnation, often with an element of malice or nastiness, will be necessary to find that a broadcast encouraged discrimination or denigration in breach of the standard.2
 We have carefully considered these issues and have considered both the broadcaster’s and the complainants’ submissions. We have allowed time for reflection and debate amongst us.
 Our opinion is that the complaints should be upheld under the good taste and decency and discrimination and denigration standards.
Freedom of expression and public interest
 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. We may only interfere and uphold complaints where the resulting limitation on the right to freedom of expression is reasonable and justified. Our task is to weigh the value of the programme and the importance of the expression against the level of actual or potential harm that may be caused by the broadcast.
 The right to freedom of expression allows broadcasters to voice opinions that might be controversial or unpopular, provided they do not cause undue harm. In this case, the harm alleged to have been caused by the complainants is denigration of Pacific peoples and widespread offence.
 We recognise that talkback radio is a robust, opinionated environment designed to cultivate discussion and debate of controversial ideas and opinions. The guidelines to the good taste and decency standard acknowledge that talkback is ‘granted some latitude to be provocative and edgy in the interests of robust debate’ (our emphasis).3 We also recognise the important role open discourse and debate plays in a free and democratic society.
 However, the complainants have alleged Ms du Plessis-Allan’s comments had the potential to cause significant harm to our society, and specifically to Pasifika people, through Ms du Plessis-Allan’s high level of condemnation and her use of dehumanising language. The question for the Authority is whether these comments went beyond what is acceptable, taking into account the talkback radio environment.
 In our view Ms du Plessis-Allan’s comments were not justified and went beyond what is acceptable in a talkback environment. After extensive discussion amongst the Authority, on this occasion we found the severity of the comments and their significant potential to cause harm, through distress and denigration, justified the upholding of these complaints and the restriction of the broadcaster’s right to freedom of expression. We consider that even in the talkback context these statements went too far.
 We found the good taste and decency and discrimination and denigration standards to be the most relevant to these broadcasts. We have therefore focused our analysis below on these standards.
Good Taste and Decency
 The key question the Authority considered under the good taste and decency standard was whether Ms du Plessis-Allan’s comments caused widespread undue offence or distress, or undermined widely shared community standards.4
 Context will always be relevant when determining a complaint under the good taste and decency standard.5 We found the following contextual factors to be relevant in our assessment of Ms du Plessis-Allan’s comments:
- It is well established that talkback radio is a robust environment that will often feature provocative debate.
- Ms du Plessis-Allan is renowned for having provocative, controversial opinions.
- Audiences expect that Newstalk ZB will often feature controversial and conservative opinions.
- Newstalk ZB and the programme both have an adult target audience.
- Both segments were broadcast on weekday mornings when children were likely to be in school.
- There was significant public interest in Ms du Plessis-Allan’s comments and a largely negative response in the ensuing media.6
 The robust nature of talkback radio and audience expectations surrounding Newstalk ZB and Ms du Plessis-Allan mean that the threshold for finding a breach under these standards is high. However, while talkback radio may be granted 'some’ latitude to be provocative and edgy in the interests of robust debate,7 it does not mean that anything goes or that the host is able to offend without censure. Where there is a clear risk of actual or potential harm, a breach may be found.
 In this case, we found Ms du Plessis-Allan’s comments to be offensive and derogatory towards people from the Pacific Islands or of Pacific descent. The term ‘leeches’ in particular was used in an inflammatory manner. It is a word with clearly negative connotations. In this context, a leech is defined as ‘a person who extorts profit from or sponges on others’8 or ‘one who constantly takes from others without giving anything in return’.9 Ms du Plessis-Allan could have said ‘takes’ or talked about a low return on aid investment. But she did not. She was deliberate in her choice of words and in her decision to repeat the term during the second broadcast.
 Based on the above definitions, ‘leeches’ is also a word more readily applicable to people than islands. The Authority consider Ms du Plessis-Allan was disingenuous in subsequently arguing that she had been referring to the ‘Pacific Islands’ as leeches, rather than the people themselves. Countries are not just plots of land. They are the land and their people. Finally, we consider there was at least significant ambiguity in the comments and that it would be reasonable for the audience to assume Ms du Plessis-Allan was referring to Pasifika people.
 Accordingly, we also do not consider Ms du Plessis-Allan’s clarification on 11 September 2018 remedied the breach or mitigated the harm caused by the initial broadcast. To an extent we consider that Ms du Plessis-Allan’s second statement further inflamed her earlier comments.
 The role of the Authority is to reflect the values and attitudes of New Zealand society. Attitudes towards good taste and decency differ widely and continue to evolve in a diverse society such as ours.10 As mentioned above, there was significant public backlash to Ms du Plessis-Allan’s use of the term ‘leeches’. The public condemnation of Ms du Plessis-Allan, which was widely covered by other media, outweighed those who came out in her support. We consider the public’s response to be indicative of widespread offence and distress caused by the statements.11 The widespread criticism of Ms du Plessis-Allan indicates that her comments were perceived by many members of the public and many other broadcasters as being offensive to Pasifika people and going beyond current community norms.12
 The comments did fuel debate across many media platforms, arguably the intent of talkback radio as a medium. The ensuing public condemnation also demonstrated the power of the community and other media to offer balance in these sorts of situations and to censure a misuse of the power which media may have. However, the Authority is the public watchdog on such matters and we cannot dismiss a complaint on the basis that others may have performed our function in a de facto way. In light of this complaint, it is critical that we censure this conduct.
 Accordingly we uphold the complaint under the good taste and decency standard.
Discrimination and Denigration
 With regard to the discrimination and denigration standard, we first note that both ‘race’ (s 21(1)(f)) and ‘national origins’ (s 21(1)(g)) are ‘prohibited grounds for discrimination’ under the Human Rights Act 1993. People from Pacific Islands referred to in the broadcast therefore fall under the ‘recognised sections of the community’ to which the standard applies.13
 The key question for the Authority was whether Ms du Plessis-Allan’s comments carried the level of condemnation required to find a breach under the discrimination and denigration standard. Comments will not breach the standard simply because they are critical of a particular group, because they offend people or because they are rude.14 The contextual factors listed in paragraph  are also relevant to determining whether Ms du Plessis-Allan’s comments breached the discrimination and denigration standard.15
 We consider that Ms du Plessis-Allan’s dismissive tone, deliberate choice of language (‘The Pacific Islands don’t matter’, ‘They are nothing but leeches on us’) and the reiteration of her sentiment during the second broadcast, reflected a high level of condemnation towards the Pacific Islands. In our view these comments were said with an element of malice and nastiness and went beyond responsible broadcasting, resulting in a breach of the standard.
 We accept that New Zealand’s political and economic relationship with other Pacific Island nations may be a genuine subject that requires public discourse. We also note that the discrimination and denigration standard is not intended to prevent the genuine expression of serious comment, analysis or opinion.16
 However, this was a highly inflammatory way to spark discussion about a political issue. Ms du Plessis-Allan’s comments, particularly her use of the term ‘leeches’, went beyond simply being critical of the Pacific nations or being a genuine expression of political opinion. The deliberate use of the inflammatory term ‘leeches’ had the potential to devalue the reputation of people from those nations within New Zealand, because of their race or national origin. The comments promulgated the idea that Pacific nations are draining New Zealand resources without providing any value to New Zealand society in return. The use of this language could be interpreted by listeners as encouraging the different treatment of Pasifika people, by creating the impression they and their nations provide no value to New Zealand. We consider these comments contradict the purpose of this standard, which is to foster a community commitment to equality in our society.17
 Accordingly we uphold the complaint under the discrimination and denigration standard.
Remaining standards raised
 Upon consideration of the contextual factors listed at paragraph  we do not consider the children’s interests standard was breached. Children were unlikely to be listening to the broadcasts, considering their timing and the adult target audience of Newstalk ZB. We also note that while it is not exhaustive, Ms du Plessis-Allan’s comments do not fall under the list of material likely to be considered under this standard.18
 The balance and accuracy standards apply only to news, current affairs and factual programming. The Authority has previously held that talkback radio does not fall within these genres.19
 With regard to the law and order standard, Ms du Plessis-Allan’s comments did not actively promote serious anti-social or illegal behaviour.
 Finally, the fairness standard applies only to organisations and individuals referred to (ie specifically identified) in the broadcast. The Authority has previously found a country does not amount to an organisation for the purposes of this standard.20
For the above reasons the Authority upholds the complaint that the broadcast by NZME Radio Ltd of Wellington Mornings with Heather du Plessis-Allan on 4 and 11 September 2018 breached Standards 1 and 6 of the Radio Code of Broadcasting Practice.
 Having upheld these complaints under the good taste and decency 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 parties.
The complainants’ submissions
 Mr Day requested the following orders:
- The broadcast of a statement summarising the decision and the reasons why it was upheld to be broadcast on-air.
- Costs to the Crown for the full amount of $5,000. Mr Day hoped the costs awarded will be passed on to charitable organisations serving the Pacific Islands or Pasifika people.
 Rochelle Moss requested the following orders:
- A public apology to the people of the Pacific Islands. Ms Moss raised the possibility this should be determined through consultation with Pasifika representatives.
- A broadcasting suspension for 24 hours ‘to allow time for NZME and Mrs du Plessis-Allan to truly reflect on their actions and contribution to the racism that exists within Aotearoa.’
The broadcaster’s submissions
 NZME submitted:
- While NZME had submitted the relevant standards had not been breached in the response to the complainants, an apology was made and the complainants were assured NZME had been proactive in discussing the widespread criticism with Ms du Plessis-Allan. She continues to be counselled.
- A broadcast statement ordered under s13(1)(a) of the Act was appropriate, to be broadcast at the commencement of Wellington Mornings. NZME set out a draft statement in their submissions.
- If costs are deemed appropriate the Authority should consider relevant and comparable previous cases in determining the level of costs. The Authority should also consider Newstalk ZB’s generally high compliance with broadcasting standards.
Our decision on orders
[43 ] In determining whether orders are warranted, the factors we take into consideration are:21
- the seriousness of the breach, and the number of upheld aspects of the complaint
- the degree of harm caused to any individual, or to 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 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.
 The breach of standards in this case had the potential to cause significant harm to the reputation of Pasifika people within New Zealand and to cause widespread offence and distress within our society. There was an opportunity available to the broadcaster and Ms du Plessis-Allan to mitigate some of the harm caused during the first broadcast in the second broadcast. However, this opportunity was not taken and, as stated above, to an extent we consider that the second statement further inflamed the earlier statement.
 We consider a broadcast statement during Wellington Mornings with Heather du Plessis-Allan is an appropriate remedy for the harm that has been caused as a result of the breach of standards. This statement will go some way to remedying the harm caused by Ms du Plessis-Allan’s comments. The broadcaster has also submitted that the statement should include an apology from Ms du Plessis-Allan. We agree.
Costs to the Crown
 The Authority may also make an award of costs to the Crown, having regard to various factors including the conduct of the broadcaster, the seriousness of the breach of standards and previous decisions. Under section 16(4) of the Act, the maximum amount of costs to the Crown we are able to award is $5,000.
 In determining whether costs to the Crown are warranted, we have considered the following aggravating factors:
- The breach of standards is relatively serious, with two standards (the good taste and decency and discrimination and denigration standards) in breach across two separate broadcasts.
- NZME could have mitigated the harm caused by the initial broadcast during the follow up broadcast. It did not do so, rather the additional comments inflamed the distress caused.
- The broadcaster did not uphold the complaints in the first instance.
- NZME is a large and experienced broadcaster, with staff who ought to be familiar with their obligations under broadcasting standards.
 We have balanced the above factors with the following mitigating factors:
- NZME as a broadcaster has had few complaints upheld against it.
- NZME apologised to the complainants for the offence caused.
- NZME have been proactive in discussing the widespread criticism with Ms du Plessis-Allan.
 In these circumstances and having regard to previous cost decisions, we consider an order of $3,000 in costs to the Crown is appropriate.
Refrain from broadcasting
 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.
 Orders of this nature are made ‘rarely and only in exceptional circumstances’.22 While we note the significant potential for harm caused by these comments, we consider the above orders to be more proportionate to the breaches of standards on this occasion.
1. Under section 13(1)(a) of the Act, the Authority orders NZME Radio Ltd to broadcast a statement. The statement shall:
- be broadcast during Wellington Mornings with Heather du Plessis-Allan
- be broadcast at a date and time to be approved by the Authority within one month of the date of this decision
- contain a comprehensive summary of the upheld aspects of the Authority’s decision
- be approved by the Authority prior to being broadcast.
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 orders have been complied with.
2. Under section 16(4) of the Act, the Authority orders NZME Radio Ltd to pay to the Crown costs in the amount of $3,000 within one month of the date of this decision.
The order for costs is enforceable in the Wellington District Court.
Signed for and on behalf of the Authority
Judge Bill Hastings
2 April 2019
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Caleb Day’s formal complaint – 16 September 2018
2 NZME’s response to the formal complaint – 12 October 2018
3 Mr Day’s referral to the Authority – 12 October 2018
4 NZME’s further comments – 8 November 2018
5 Mr Day’s final comments - 8 November 2018
6 NZME’s confirmation of no further comment – 14 November 2018
7 Rochelle Moss’s formal complaint – 18 September 2018
8 NZME’s response to the formal complaint - 12 October 2018
9 Ms Moss’s referral to the Authority – 12 October 2018
10 NZME’s further comments - 8 November 2018
11 Ms Moss’s final comments - 8 November 2018
12 NZME’s submissions on orders – 27 February 2019
13 Mr Day’s submissions on orders – 10 March 2019
14 Ms Moss’s submissions on orders – 11 March 2019
1 Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
2 Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 15
3 Guideline 1c
4 Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
5 Guideline 1a
6 See for example: Don't let Heather du Plessis-Allan's 'Pacific leeches' ideas take us back to the 1970s (Stuff, 19 September 2018), Sam Neill denounces Heather du Plessis-Allan for calling Pacific people 'leeches' (Stuff, 17 September 2018) and Sonny Bill Williams blasts Heather Du Plessis-Allan over Pacific Islands 'leeches' remark (Newshub 19, September 2018
7 Guideline 1c
8 Oxford Dictionaries < https://en.oxforddictionaries.com/>
9 Urban Dictionary < www.urbandictionary.com >
10 Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
11 As above
12 As above
13 Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 14
14 As above
15 Guideline 6d
16 Guideline 6c
17 Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
18 Guideline 3b states that material likely to be considered under Standard 3 includes: sexual material or themes; violent content or themes; offensive language; social or domestic friction; dangerous, antisocial or illegal behaviour; material in which children or animals are humiliated or badly treated; or graphic descriptions of people in extreme pain or distress
19 Haines and NZME Radio Ltd, Decision No. 2017-039
20 Barnett and Television New Zealand Ltd, Decision No. 2018-055 at 
21 Guide to the BSA Complaints Process for Television and Radio Programmes, Broadcasting Standards in New Zealand Codebook, page 58
22 Barnes and ALT TV Ltd, Decision No. 2007-029