BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has not upheld complaints about three broadcasts concerning Kellie-Jay Keen-Minshull’s (also known as Posie Parker) entry into New Zealand for her ‘Let Women Speak’ events. The complainant was concerned the broadcasts were unfair towards Parker, homosexual people (by grouping them with transgender people) and women, and that the broadcasts misrepresented Parker and the Let Women Speak events. The Authority declined to determine aspects of the complaints, given similar findings in recent decisions, and otherwise found the broadcasts did not breach the applicable broadcasting standards.

Not Upheld: Discrimination and Denigration, Balance, Accuracy, Fairness; Declined to Determine: Discrimination and Denigration, Balance, Accuracy, Fairness (section 11(b) of the Broadcasting Act 1989 – in all of the circumstances)

Background¹

[1]  On 9 January 2023, Kellie-Jay Keen-Minshull (also known as Posie Parker, a public figure and activist based in the United Kingdom) publicly announced her intention to travel to Aotearoa New Zealand as part of her ‘Let Women Speak’ tour. She said she would host public events in Auckland | Tāmaki Makaurau and Wellington | Te Whanganui-a-Tara on 25 and 26 March 2023 respectively, at which she would speak, and provide an opportunity for others to speak.

[2]  Prior to arriving in New Zealand, Parker hosted similar events in the United States of America and Australia. Previous events overseas related to the tour resulted in violence and arrests of both attendees and counter-protesters (including in Melbourne on 18 March 2023).

[3]  The proposed New Zealand events raised concerns for some communities, resulting in various submissions to Immigration New Zealand (INZ) / the Minister of Immigration, asking for the denial or revocation of any visa already granted to Parker. Members of the community also organised counter protests at the time and place of the New Zealand events.

[4]  On 21 March 2023, INZ considered Parker’s circumstances did not meet the statutory threshold required to ‘make her an excluded person and therefore ineligible for a visa or entry’. This was because the decision maker was not satisfied there was reason to believe, based on available evidence at the time, that Parker was likely to pose a threat or risk to security, public order, or the public interest. The Minister was provided with the relevant advice and information at this time and declined to intervene on 22 March 2023. This information included advice from New Zealand Police | Ngā Pirihimana o Aotearoa the events would go ahead regardless of whether Parker entered New Zealand (based on events overseas) and that the events were unlikely to result in violence as counter protest organisers were encouraging no interaction with event attendees.

[5]  On 23 March 2023, several organisations representing rainbow communities applied to the High Court for interim orders preventing Parker from entering New Zealand. The Court held an urgent hearing the following morning on 24 March 2023 but declined to grant the relief sought, issuing reasons for its judgment on 5 April 2023.

[6]  Parker therefore entered New Zealand on 24 March 2023 and attempted to complete her Auckland event on 25 March 2023. This was met by a large number of pro-transgender activists and the event was halted. Parker left the country the same day without travelling to Wellington as planned. Although her event did not occur on 26 March 2023, a large pro-transgender rally occurred in Wellington that day.

The broadcasts

1 News, 20 March 2023

[7]  An item on 1 News, broadcast on 20 March 2023, reported on INZ’s decision to review whether Parker would be allowed into New Zealand. The teaser at the beginning of the programme stated:

Tonight on 1 News, Immigration New Zealand's now reviewing whether a controversial anti-trans rights speaker can enter the country. So, who is Posie Parker and why her supporters’ actions on the streets of Melbourne over the weekend have sparked concerns on this side of the Tasman.

[8]  The item itself was introduced by the host, Simon Dallow, as follows:

An anti-transgender rights speaker may be denied entry into New Zealand after a group used Nazi salutes at an event in Melbourne over the weekend. And a warning, our story tonight includes that footage. Immigration New Zealand is now reviewing whether Kellie‑Jay Keen‑Minshull, also known as Posie Parker, will be allowed to cross the Tasman for two planned events in Auckland and Wellington this weekend.

[9]  The item reported on Parker’s event in Melbourne, including footage of ‘protesters [performing] the Nazi salute on the steps of Parliament House’ noting they had ‘gathered to support British anti-trans activist’ Parker, and clashes between supporters and ‘those rallying in favour of trans rights’.

[10]  It noted Parker (‘as a Brit’) can enter New Zealand without applying for a visa, but New Zealand officials could turn her away at the border. It also included comments from:

• Prime Minister Chris Hipkins who cautioned people exercising their right to free speech to be mindful of not inciting hateful behaviour or violence (which is illegal). Hipkins did ‘not want to interfere’ in INZ’s review.
• A transgender advocate who noted it was quite stressful and worrying, particularly given events in Melbourne ‘with the neo-Nazis, that’s actually quite terrifying’. She also stated ‘the worry is that we might start moving backwards like we're seeing in other countries like the US, the UK is just a [bleeped] of transphobia.’
• Green Party Immigration spokesperson Ricardo Menéndez March who considered there were ‘pretty serious grounds on public safety’ to bar Parker’s entry.
• An immigration lawyer noting the events in Melbourne would mean the Immigration Minister would ‘have to take that risk very seriously’.
• Wellington Mayor Tory Whanau: ‘As a council, we're quite protective about our rainbow community. We understand there might be a counter‑protest being organised and that's something that we'd certainly support.’

Breakfast, 23 March 2023

[11]  Throughout the broadcast, the presenters discussed Parker’s arrival into New Zealand ahead of her planned event. The conversation occurred over three segments: the first indicated the issue would be discussed later and included a brief discussion among the presenters; the second segment was an interview with rainbow advocate Shaneel Lal; and the third segment considered viewers’ feedback on the issue.

[12]  In the first segment, co-host Matty McLean referred to Parker as ‘the anti‑trans activist who's been making waves in Australia with her protests over there which have included some very far‑right people coming and making Nazi salutes’ (to which co-host Anna Burns-Francis responded ‘oh straight out Nazis’). After outlining the current context (that INZ was not excluding Parker from entering New Zealand), McLean invited viewer feedback on the ‘distinction between free speech and hate speech?’ Towards the end of this segment, McLean noted:

… we are a free and liberal democracy and we cannot be stopping people from saying what they want to say. But this is a perfect opportunity for people to counter that with their own free speech. And so I guess that's the question right. Should we be allowing people to come into this country who clearly have an agenda to speak out against a community who is already marginalised, who already feel unsafe, and should we be giving them a platform to be able to do that?

[13]  McLean interviewed Lal in the second segment, asking them about Parker, the forthcoming event, and their views on how the right to free speech applies here. The interview included statements to the following effect:

• Lal considered the broader context of ‘queer hatred’ being at an ‘all time high’ was relevant when discussing Parker’s event, referring to a Rainbow Youth centre being burnt down by arson; the vandalism of a pink queer church in Greymouth | Māwhera; and protests of drag story time events (where a drag performer reads to children and parents in a library).² Lal stated having Parker in the country ‘normalises a hatred towards queer people and it emboldens people to act on their hate speech’ (being a ‘flow on effect’ from her entry).
• While presenting herself as a ‘women’s rights activist’, Lal considered Parker is ‘an insular transphobic bigot who masquerades as a women’s rights activist.’
• In supporting their view that being anti-trans and pro-women were not mutually exclusive, Lal noted they could find no criminal convictions of drag queens hurting children in Aotearoa, but found at least 20 Christian leaders having such convictions since 1990. Lal then noted they didn’t ‘understand why people like Posie Parker are not standing outside churches and protesting for the safety of women and children.'
• In response to the position that our free democracy means we should not stop people entering New Zealand just because we find their views abhorrent, Lal noted the right to freedom of expression was not absolute, and referred to an instance Parker herself excluded a woman from speaking at one of her ‘Let Women Speak’ events.
• Parker’s event will be the first time Lal ‘feared for [their] own safety.’

[14]  In the third segment, McLean read out viewer feedback on the issue. The first comment was from a trans woman who supported the right to freedom of expression but felt Parker’s entry into New Zealand was ‘only going to encourage hate speech and instigate negative or abusive behaviour towards people like me.’

[15]  Another viewer noted ‘no one’s exercise of free speech should make another feel less free.’ Burns‑Francis agreed, noting that while people have the right to free speech, people ‘need to accept also that they will be offensive and that people don't like them, or that society as a whole has moved on from your antiquated views.’

[16]  The third viewer whose feedback was read out expressed their disappointment in the programme’s inclusion of Lal and not any supporter of Parker. The viewer noted ‘like Parker, most females I know don’t want unsafe spaces for females.’ To which the presenters responded:

McLean:      Kathy Listen to me. You are being hoodwinked. You are being hoodwinked by people who want you to feel unsafe and they are preying on your fear. And that fear is unfounded. Listen to this, in the US, there is not a single reported instance of this kind of voyeurism occurring in states with legal protections for trans people. In 17 school districts around the country with protection for trans people, they had no problems, not one with harassment in bathrooms or locker rooms after implementing their policies. You are being made to feel unsafe by people who want you to feel that fear. It's not there, Kathy. It's not there. You don't need to fear these people. You don't need to fear trans people. They are wonderful people who just want to live their lives as they are. Listen to that. Kathy, please, I implore you.

Burns-Francis:    Yeah. Trans rights don't take away from women's rights.

Breakfast, 24 March 2023

[17]  The broadcast discussed concerns around Parker’s entry into New Zealand and her planned events that weekend. The broadcast included an interview with Police Minister Ginny Andersen regarding her concerns around ‘potential unrest as two anti-trans events’ were planned for the weekend, and a discussion with Max Tweedie (from Auckland Pride) and Professor Paul Spoonley about the decision to judicially review the Immigration Minister’s decision.

[18]  The interview with Minister Andersen included the following:

• Minister Andersen talked about advice she had received from police about the risk of violence at Parker’s event and comments from Parker’s private security (that risks will be assessed and managed appropriately in order to maintain law and order).
• Minister Andersen stated ‘it does concern me that, that particular individual [Posie Parker] does court the far right and I think that does present certain risks. I've been reassured by police that those risks have been adequately assessed, and an operational plan is in place to mitigate those.’
• In response to a question on whether Minister Andersen was concerned police would be put in a position where ‘they look like they are shielding’ people doing the Nazi salute, she noted she ‘backs the Police’ who have done ‘an excellent job’ in similarly tough situations in the past. She also stated ‘it is my expectation that they maintain law and order, and I expect that to happen.’

[19]  McLean introduced the discussion with Tweedie and Professor Spoonley as follows:

… there's fears of what could go down at a rally planned by anti‑trans activist Kellie-Jay Keen-Minshull also known as Posie Parker after seeing violence from her Melbourne events. But Auckland Council's approved a permit for an Auckland event to go ahead. A Council spokesperson told us that organisers have the primary responsibility to ensure they run a safe and secure event and that they've organised their own security for it. They went on to say applications are assessed on a case by case basis, but it does not mean Council endorses it. This news comes as rainbow groups take the Immigration Minister to court over the decision to allow Posie Parker into the country. For more on why we're seeing more and more events like this, we're joined by distinguished Professor Paul Spoonley alongside Auckland Pride's Max Tweedie.

[20]  The segment included the following relevant points for this complaint:

• In response to whether there was a risk to the trans community with Parker’s entry, Tweedie referred to previous events involving counter-protests which resulted in violence to the trans community.
• Tweedie noted:
  
  But I think there is a potential for violence from [Parker’s supporters]. And, you know, whatever tensions escalate, I mean, things change very drastically in Melbourne when the neo-Nazis showed up and started pulling Nazi salutes, the far right groups in this country were very excited she was allowed to get in the country based on the telegram messages we've seen, so this is not unlikely.

• Professor Spoonley affirmed free speech, being ‘fundamental to our society’, but ‘there comes a point when we need to protect the rights of minorities, whatever those minorities are, whether they're faith minorities, ethnic minorities, trans or rainbow community minorities.’
• Spoonley expressed disappointment with the Immigration Minister’s decision, given the precedent of excluding Odd Future and David Irving, noting the need to protect communities from hate in this country. Spoonley indicated the Minister should have exercised his prerogative under the ‘good character requirements of the Act to not allow somebody to come in and abuse people in this country.’
• In response to the question of ‘how do we know that this isn't just going to be a peaceful protest by Posie Parker’, Spoonley referred to ‘her behaviour in Melbourne’ and that ‘she's not simply anti‑trans, there's a history of being racist, of being anti-Muslim, there's Islamophobia there as well. So this is somebody who is coming, who is not prepared to listen, who is not prepared to act respectfully. Who is going to shout at people, and is going to perpetuate the anti-trans [sentiment] that we're seeing around the world and in New Zealand.’
• Tweedie referred to seeing a rise in hostility towards the rainbow community, and to that being driven by people like Parker and far right groups.

The complaints

[21]  Hilary Oxley complained the broadcasts breached the discrimination and denigration, balance, accuracy and fairness standards of the Code of Broadcasting Standards in New Zealand.

[22]  From the outset, we note much of the submissions, from both the complainant and the broadcaster, dealt with issues that were not the subject of the broadcasts. Our jurisdiction is broadcast specific, and we therefore focus our analysis on concerns relating directly to the broadcasts.

[23]  Turning to the complaints, we consider Oxley’s key concerns are:

General concerns

• It was misleading and defamatory to refer to Posie Parker as an ‘anti‑trans’ activist rather than ‘using her own descriptor of her intentions’, a ‘women’s rights campaigner’.
• It was ‘unfair’ and discriminatory to group all ‘queer’ people together (ie homosexual and trans people) as this does not acknowledge or respect each particular community.
• The broadcasts were unbalanced, omitting competing points of views such as from organisations supporting the rallies (eg Let Women Speak NZ or Speak up for Women), attendees of Parker’s previous rallies, or Parker herself.
• Parker’s views were misrepresented and may not currently reflect Parker’s position.
• Contrary to TVNZ’s submission, balance was not achieved in any of the broadcasts or over the relevant period of interest (being the week leading up to Parker’s events) as other reports presented the same perspective – there were no competing points of view.
• It was inaccurate to note ‘Nazis joined [Parker’s] Melbourne rally’, or that Parker ‘courts the far right’, when they were separate to the event and Parker herself refuted any association with them (which was not included in the broadcast). The group also held a sign opposing paedophilia, rather than trans people. Further, Parker was invited by, among others, a Māori women’s group (Mana Wāhine Kōrero), and ‘any indigenous group is unlikely to welcome a white supremacist.’

Breakfast, 23 March 2023

• Contrary to Lal’s assertion, the current climate ‘is not as anti-queer as it was’ and the current danger is within the queer community.
• McLean was not in a position to comment on the safety of women in women-only spaces.
• McLean did not challenge Lal regarding their fears about the rally.
• Lal’s point that Church leaders have been convicted of sexual offences without similar protests against them omitted context that people have ‘spoken up about that for many decades’. Further, a response to this query was not sought from Parker.
• The presenters did not provide any support for the argument that ‘women warrant single sex services, spaces or sports.’
• The presenters’ response to viewer feedback was ‘misleading and sounded like a shaming tactic to silence women who are talking about their needs’ and was contradictory to a statement made by the UN’s Special Rapporteur on violence against women and girls.

The broadcaster’s responses

[24]  TVNZ did not uphold the complaints for the following key reasons:

Balance

• Significant ‘viewpoints on the issue of Ms Parker's arrival and her right to freedom of expression were heard throughout the period of interest, both on TVNZ and other news providers.’ Further, the 23 March Breakfast broadcast ‘discussion acknowledged the issue of Ms Parker’s freedom of expression rights’.
• Comments from Parker herself have been included in a range of broadcasts.³
• The presenters were entitled to provide their opinions on the issue, which was clearly signalled as such, and it was ‘reasonable to expect that viewers would be aware of alternative viewpoints that existed as this issue was widely reported within the period of current interest.’

Accuracy

• It was not inaccurate to describe the neo-Nazi groups at Parker’s events as ‘being gathered to support’ Parker.
• Lal’s query around church abuse ‘is clearly opinion’ which is not captured by the standard.
• Similarly, other statements expressly referred to by the complainant represented each speaker’s opinion (for example, Minister Woods’s statement that he condemns Parker’s views).

Fairness

• Concerning the attendance of neo-Nazis at Parker’s rally, ‘it was reasonable to conclude that the groups aligned themselves with Ms Parker and her views’. It was not unfair to describe them as being ‘gathered to support’ her.
• It is also not unfair to describe Parker as ‘anti-trans’.⁴

Discrimination and Denigration

• The broadcasts comprised factual information and comment, analysis or opinion, which the discrimination and denigration standard is not intended to prevent. Further, there ‘was no material in the Programme that expressed a high level of condemnation of any section of the community.’

Preliminary issues

Jurisdiction
[25]  On referral, the complainant raised the promotion of illegal or antisocial behaviour standard concerning the 24 March broadcasts on the basis the broadcasts ‘incited bigoted violence at the Let Women Speak event,’ as viewers would have attended the event on the assumption ‘they would be confronting nazis’.

[26]  TVNZ objected to the Authority considering this standard as neither the standard, nor issues captured within the standard, were raised in the initial formal complaints.

[27]  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.⁵

[28]  The original formal complaint in this instance did refer to the ‘the potential for violence’ at the event in the context of a perceived lack of comment from ‘those who would attend the Let Women Speak rally’. While the term ‘violence’ was used, we do not consider the promotion of illegal or antisocial behaviour standard can reasonably be implied into the wording of the initial complaint, which appears to be concerned more with the perceived lack of balance / misleading nature of the broadcast rather than the promotion or inciting of violence. While not conclusive, we also consider it relevant the original complaint was made after the speaking events, so the same arguments on referral (relating to events which occurred on the day of the rally) could have been made at the initial stage.

[29]  In any event, given what we consider are the complainant’s key concerns above, we do not consider it necessary to imply the standard to properly consider the complaint.

Declining to determine aspects of the complaints
[30]  Section 11(b) of the Broadcasting Act 1989 authorises the Authority to decline to determine a complaint if it considers that, in all the circumstances of the complaint, it should not be determined by the Authority.⁶

[31]  The decisions of the Authority issued over time, and the Authority’s publication of Complaints that are Unlikely to Succeed, provide guidance to broadcasters and complainants about what is acceptable under broadcasting standards.

[32]  The Authority has also considered several aspects of the reporting on Parker’s New Zealand visit in recently issued decisions, which include the following findings:

• The right to freedom of expression means broadcasters are free to describe people however they consider appropriate (provided this does not breach broadcasting standards). The Authority has found describing Parker as an ‘anti-trans’ activist, or wording to that effect, to be accurate⁷ and not unfair to Parker, in light of her publicly expressed views.⁸
• Statements to the effect that neo-Nazis attended Parker’s Melbourne rally and that they support Parker are materially accurate (whether or not Parker sought or embraced such support). This was due to their attendance at the rally and the Authority’s finding that it is unreasonable to expect broadcasters to identify and understand the motivation for each person attending or participating in a protest.⁹ It was also not a breach of broadcasting standards to include a comment from a Minister (in that case) that Parker ‘courts some of the most vile people… including white supremacists’ given it would have been clearly understood as his opinion, to which he is entitled, and does not exceed the threshold for a finding of unfairness to Parker.¹⁰ The issue of the group’s signage was also determined in that decision.
• The 20 March broadcast of 1 News was the subject of a recent Authority decision, which found the broadcast was sufficiently balanced (with significant perspectives included within the broadcast) and any criticism of Parker did not exceed the robust scrutiny expected of public figures.¹¹ Generally, we would deal with similar complaints about the same broadcast in the same decision. However, given the complainant’s concerns span three broadcasts, we considered it appropriate to deal with the complainant’s concerns in a single decision. To the extent the complainant’s concerns related to this broadcast, we consider they are addressed in that decision and there were no additional submissions justifying a revisit of that decision.

[33]  We acknowledge the complainant’s submission that an indigenous group invited Parker to New Zealand (and that ‘any indigenous group is unlikely to welcome a white supremacist.’) However, we do not consider this additional context (which was not canvassed in the broadcasts themselves) alters our findings on the broader issue concerning the reporting of neo-Nazis’ attendance at Parker’s Melbourne rally.

[34]  In light of our above findings, we consider it appropriate to exercise our section 11 power to decline to determine these aspects of the complaints.

[35]  We also note the complainant had concerns with certain statements made in the broadcasts regarding the risk trans women, and specifically laws allowing trans women into women only spaces, pose to women. We have previously recognised these to be common transphobic tropes, capable of embedding long‑standing prejudice, with a disputed evidential foundation.¹² While the complainant has referred to one case in the US of a trans woman being charged with indecent exposure, a single example does not change our view regarding the relevant risk.

[36]  Some aspects of the complaint concern referring to trans women as such, rather than as ‘men’ or ‘men who identify as trans’. Using such descriptors for trans women (which does not recognise their gender identity) can be regarded as a way of denying their existence.¹³ This concern also constitutes, in effect, an expression of the complainant’s own description preferences which cannot be resolved by a complaints process.¹⁴ In the circumstances, we consider it appropriate to exercise our section 11 power to also decline to determine these portions of the complaints.

The standards

[37]  The balance standard¹⁵ states when controversial issues of public importance are discussed in news, current affairs or factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant viewpoints either in the same broadcast or in other broadcasts within the period of current interest unless the audience can reasonably be expected to be aware of significant viewpoints from other media coverage. The standard ensures competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.¹⁶

[38]  The purpose of the accuracy standard¹⁷ is to protect the public from being significantly misinformed.¹⁸ 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.

[39]  Given our decision to decline to determine portions of the complaints, we consider the remainder of the complaints adequately addressed under the above standards. However, we deal briefly with the discrimination and denigration, and fairness standards at paragraph [54].

Our analysis

[40]  We have watched the broadcasts and read the correspondence listed in the Appendix.

[41]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is demonstrably justified in a free and democratic society.¹⁹

Balance
[42]  A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The balance standard applies only to ‘news, current affairs and factual programmes’ which discuss a controversial issue of public importance. The subject matter must be an issue ‘of public importance’, it must be ‘controversial’, and it must be ‘discussed’.²⁰

[43]  The Authority has typically defined an issue of public importance as something that would have a ‘significant potential impact on, or be of concern to, members of the New Zealand public’.²¹ A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.²²

[44]  The broadcasts reported on Parker’s event in Auckland. As we have previously found,²³ given the public response surrounding Parker’s entry into New Zealand (outlined in the ‘background’ section above), it is arguable the speaking event constituted a controversial issue of public importance which was ‘discussed’ in the broadcasts for the purposes of the standard. Accordingly, the balance standard applies. 

[45]  The next question is whether the broadcaster adequately presented significant viewpoints either within the broadcast or in other broadcasts within the period of current interest.

[46]  As we have noted above, referring to our earlier decision, we consider the 1 News broadcast on 20 March 2023 was sufficiently balanced.²⁴

[47]  We are also satisfied the broadcaster met its obligations here with regards to the remaining two broadcasts, taking into account the following:

• The standard does not require equal time to be given to each significant viewpoint, but rather that broadcasters make reasonable efforts, or give reasonable opportunities, to present alternative significant viewpoints.²⁵
• The standard allows for balance to be achieved over time, within the period of current interest.²⁶ As our ‘background’ section notes, the broader issue of Parker’s arrival in New Zealand was the subject of considerable media coverage.²⁷ Viewers could reasonably be expected to be aware of relevant alternative perspectives on the issue.
• We acknowledge the complainant’s concern these broadcasts were similarly aligned without any competing point of view. However, we note alternative viewpoints were presented within the broadcasts themselves including:
  • The reporter noting Parker did not require a visa to enter into New Zealand (1 News, 20 March)
  • McLean questioning Lal from the position that our free democracy means we should not stop people entering New Zealand just because people may find their views abhorrent (Breakfast, 23 March, alerting viewers to this perspective)
  • McLean reading out, and engaging with, viewer feedback on the issue, particularly Kathy’s competing point of view (Breakfast, 23 March)
  • The 24 March broadcast referred to Auckland Council’s approval of the permit to conduct the speaking event (Breakfast, 24 March)

[48]  We also do not consider viewers would have been misinformed by the 24 March broadcast given its narrower focus, which included an interview with the Police Minister on a specific issue (police presence and potential safety concerns at Parker’s rally) and with the director of Auckland Pride (an organisation involved in judicially reviewing the Immigration Minister’s decision to decline to intervene). In this context, viewers would not have expected further discussion of alternative viewpoints.

Accuracy

[49]  The standard is concerned only with material inaccuracies. Technical or other points unlikely to significantly affect viewers’ understanding of the programme as a whole are not considered material.²⁸

[50]  The complainant’s concerns under this standard (which we have not declined to determine above) relate to:

• TVNZ’s representations of Parker’s views
• Statements made in the 23 March broadcast of Breakfast by Lal, McLean, and in response to a viewer’s feedback.

[51]  Concerning TVNZ’s representations of Parker’s views, we note TVNZ has referred to interviews and online posts where Parker has voiced her views towards transgender people, supporting factual representations made in the broadcasts. In the circumstances, there is some foundation for the representations made. We therefore consider the broadcaster has made reasonable efforts to ensure accuracy (as required by the standard). As our jurisdiction is limited to the subject broadcasts, we do not comment on representations made in the complaints process which were not referred to in the broadcast.

[52]  Turning to some particular alleged inaccuracies in the Breakfast broadcast:

• The requirement for factual accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion.²⁹ We consider viewers would have understood Lal was providing their opinion in the interview, such as when they referred to their perception of the current climate being ‘anti-queer’ (also referring to particular incidents supporting their position).
• The standard does not require particular questions to be asked of Lal (such as challenging Lal about their fears for attending the rally). Nor does it preclude McLean from commenting on the issue. The complainant’s concerns in these respects constitute matters of personal preference which are generally not capable of being resolved through a complaints regime.³⁰
• For completeness, we refer to the complainant’s concerns with the presenters’ responses to viewer feedback. We consider viewers would have understood these responses as representing the presenters’ own comment and opinion, to which they are entitled. The complainant also considered the responses were contradictory to a statement made by the UN’s Special Rapporteur on violence against women and girls. While that may be so, it does not change the nature of the statements from comment and opinion to matters of fact.

[53]  We have addressed what we consider to be the key allegations of inaccuracy above. With regard to the remaining allegations, we do not consider the relevant matters had the potential to significantly affect viewers’ understanding of each of the broadcasts as a whole. We therefore do not find any breach of the accuracy standard.

Remaining standards
[54]  We consider the remaining standards were not breached:

• Discrimination and Denigration:³¹ The standard protects against broadcasts which encourage the discrimination against, or denigration of, certain sections of the community. The complainant considers the broadcasts discriminated on the basis of sex (being women and transgender people) as well as sexual orientation (homosexual people) by grouping the broader rainbow community together and ignoring particular needs of cis-gender women. The importance of freedom of expression means a high level of condemnation, often with an element of malice or nastiness, is required to find a breach of the standard.³² Further, the standard is not intended to prevent the broadcast of material that is factual or a genuine expression of serious comment, analysis, or opinion.³³ We do not consider the broadcasts contained any invective towards any group of this broader rainbow community, or to cis-gender women.
• Fairness:³⁴ The standard protects the dignity and reputation of those featured in programmes.³⁵ We consider the complainant’s concerns under this standard have been addressed in our decision to decline to determine portions of the complaint (such as her concerns with the unfair treatment of Parker), or above, under the discrimination and denigration standard (in relation to her concerns about unfair treatment to homosexual people and cis-gender women).

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

Susie Staley
Chair
18 October 2023

Appendix

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

1  Hilary Oxley’s formal complaint to TVNZ concerning 23 March broadcast – 9 April 2023

2  Oxley’s formal complaint to TVNZ concerning 20 and 24 March broadcasts – 12 April 2023

3  TVNZ’s decision on 23 March broadcast – 8 May 2023

4  TVNZ’s decision on 20 and 24 March broadcasts – 10 May 2023

5  Oxley’s referral of complaint concerning 23 March broadcast to the Authority – 29 May 2023

6  Oxley’s referral of complaints concerning 20 and 24 March broadcasts to the Authority – 2 June 2023

7  TVNZ’s responses to the referrals – 7 June 2023

8  Oxley’s final comments – 13 August 2023

9  TVNZ’s confirmation of no further comments – 4 October 2023

¹ Information for this section is adopted from the High Court’s judgment in Auckland Pride v Minister of Immigration [2023] NZHC 758
² Sam Brooks “Revealed: What actually happens during the library’s Drag Storytime” Stuff (10 March 2023
³ Referring to 1 News broadcasts on 24, 25 and 26 March, and on 1 April
⁴ Citing Tim Fitzsimons “Prominent transgender advocate harassed by anti-trans feminists, video shows” NBC News (online ed, 2 February 2019); and Patricia Karvelas “Kellie-Jay Keen-Minshull's anti-trans rights campaign has become a headache for the Liberal Party. But the issue runs deeper than one MP” ABC (26 March 2023)
⁵ Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [62]
⁶ See also: Broadcasting Standards Authority | Te Mana Whanonga Kaipāho “Guidance: BSA power to decline to determine a complaint” <bsa.govt.nz>
⁷ See Cross and Television New Zealand Ltd, Decision no. 2023-035 at [31]
⁸ See Owen & Healing and Television New Zealand Ltd, Decision No. 2023-037 at [34]
⁹ See Owen & Healing and Television New Zealand Ltd, Decision No. 2023-037 at [25]–[30]
¹⁰ See Cross and Television New Zealand Ltd, Decision no. 2023-035 at [31]
¹¹ See Owen & Healing and Television New Zealand Ltd, Decision No. 2023-037
¹² Cross and Television New Zealand Ltd, Decision No. 2023-035 at [33]
¹³ See New Zealand Human Rights Commission | Te Kāhui Tika Tangata Prism: Human rights issues relating to Sexual Orientation, Gender Identity and Expression, and Sex Characteristics (SOGIESC) in Aotearoa New Zealand - A report with recommendations (2020, Wellington) at 17, acknowledging comments from community leaders and citing a United Nations Report including a discussion on the harms of the negation of identities,  Victor Madrigal-Borloz Report to the General Assembly by the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity UN Doc A/73/152 (12 July 2018) at [62]. See also the Prism report at 29 for a discussion on the importance of the right to be recognised
¹⁴ Broadcasting Act 1989, s 5(c)
¹⁵ Standard 5, Code of Broadcasting Standards in New Zealand
¹⁶ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand at page 14
¹⁷ Standard 6, Code of Broadcasting Standards in New Zealand
¹⁸ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand at page 16
¹⁹ Introduction, Code of Broadcasting Standards in New Zealand at page 4
²⁰ Guideline 5.1
²¹ Guideline 5.1
²² Guideline 5.1
²³ See Cross and Television New Zealand Ltd, Decision No. 2023-035 at [25] and Owen & Healing and Television New Zealand Ltd, Decision No. 2023-037 at [21]
²⁴ See Owen & Healing and Television New Zealand Ltd, Decision No. 2023-037
²⁵ Guideline 5.3
²⁶ Guideline 5.2
²⁷ For examples within the week of these broadcasts, see: Stewart Sowman-Lund “What you need to know about the anti-trans campaigner heading to New Zealand” The Spinoff (21 March 2023); “What are Posie Parker's views and why are they so controversial?” 1 News (online ed, 24 March 2023); Raphael Franks “Posie Parker tour of NZ: Anti-trans activist Kellie-Jay Keen-Minshull arrives in Auckland” NZ Herald (online ed, 24 March 2023); “Posie Parker departs New Zealand; JK Rowling blasts protest as 'repellent'” RNZ (online ed, 26 March 2023); Tess McClure “Anti-trans activist Posie Parker leaves New Zealand after chaotic protests” The Guardian (online ed, 26 March 2023)
²⁸ Guideline 6.2
²⁹ Guideline 6.1
³⁰ Broadcasting Act 1989, s 5(c)
³¹ Standard 4, Code of Broadcasting Standards in New Zealand
³² Guideline 4.2
³³ Guideline 4.2
³⁴ Standard 8, Code of Broadcasting Standards in New Zealand
³⁵ Commentary, Standard 8, Code of Broadcasting Standards in New Zealand at page 20