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 under the discrimination and denigration standard about comments and behaviour during a Heather du Plessis-Allan Drive broadcast about former Green MP Benjamin Doyle. While recognising the important role talkback radio plays in fostering open discourse and debate in society, the Authority considered the comments extended beyond what was necessary to offer a genuine expression of serious comment, analysis or opinion. The tone, choice of language and sustained nature of the comments reflected the high level of condemnation necessary to encourage the different treatment of non-binary people, to their detriment. The Authority did not uphold other aspects of the complaint relating to a different segment in the same broadcast, suggesting it breached the promotion of illegal or antisocial behaviour standard. As the relevant comments were unlikely to incite others to break the law, the Authority found the standard was not breached.

Upheld: Discrimination and Denigration

Not Upheld: Promotion of Illegal or Antisocial Behaviour

Order: Section 13(1)(a) – broadcast statement

The broadcast

[1]  The 5 September 2025 broadcast of Heather du Plessis-Allan Drive featured two unrelated segments which together are the subjects of this complaint.

[2]  The first segment consisted of host Heather du Plessis-Allan and Senior Political Correspondent Barry Soper discussing the resignation of then-Green Party MP Benjamin Doyle from Aotearoa New Zealand Parliament:

du Plessis-Allan:       So Bussy's gone?

Soper:                         Ah yes, he is [chuckles]. He's not a great contribution to politics, I must say.

du Plessis-Allan:       What has Bussy done?

Soper:                         Well, the only thing they've done is being the first non-binary person that's entered the corridors of power in Parliament and that's about it because if you look at anything else, there's no– there's nothing. There's nothing that he has– or she–  sorry, it– um, they have done, and only to confuse us [laughing] about what you can call them.

du Plessis-Allan:       [Laughs] You are not trying to be funny. You are literally just being a boomer right now.

Soper:                         No, I'm not! I'm serious! Absolutely serious.

du Plessis-Allan:       Just before the BSA comes in–

Soper:                         You know, I've never heard the likes, honestly.

du Plessis-Allan:       Just before the BSA comes in. That wasn't a joke, that was a senior moment.

Soper:                         No, no, it was sincere. Yes, exactly. I mean, totally confused [du Plessis-Allan chuckles] about what you call them. So, they are going to give their final…

du Plessis-Allan:       Valedictory.

Soper:                         Valedictory on September the 18th.

du Plessis-Allan:       [Laughing] I feel like I've really got to help you out now.

Soper:                         Yes, exactly. Which I must really tune in for because it'll be absolutely fascinating, and thank goodness we've passed that era and let's hope nothing more comes of it or into Parliament as a result of it.

Anyway, the next person that’ll come in on the list for Greens is a chap called Mike Davidson from Christchurch. Now, he was a city councillor in Christchurch for six years. He’s not non-binary, he’s normal– seems quite a normal fellow. He’s got an environmental science degree so he’s well-suited to the Greens, and he’ll be the next to be sworn in.

du Plessis-Allan:       He looks actually quite boring for the Greens.

Soper:                         Well, after Darleen Tana that Benjamin took over from, you know, now you’ve got this Mike Davidson.

du Plessis-Allan:       Now, look, it appears to me quite clear that the Greens have told Bussy to go, right?

Soper:                         Oh, I think probably, yes. Because he has been very embarrassing. Not just the fact that he’s really done nothing since he’s been there, other than stood looking rather flamboyant in the outfits that he tends to wear to Parliament.

du Plessis-Allan:       Well, I guess he did have good hats.

[3]  In the second segment, du Plessis-Allan discussed a recent Reddit post about Deputy Prime Minister David Seymour:

So, a guy has posted on Reddit that he was driving on State Highway 1 in Auckland, the motorway, and he had a loon tailgating him. And he sort of, you know, gave it a tap of the jandal to give the loon a bit of space. No, the loon kept on tail– you know the loon is David [Seymour] in this story, eh? The loon keeps on tailgating him. 

So, finally at the first opportunity – and this chap's sitting in the right-hand lane – the loon gets the chance, goes into the left-hand line, takes off. Unfortunately, it's the ACT Party car. It's branded with all the pink and stuff. It is David Seymour. And then, the chap says then the loon – being David – then starts, you know, tailgating other people up the road and stuff as well. Anyway [...] this chap is filming, he films that he's going at 110. So, which is to say David's doing like, I reckon, a good 130. He's definitely breaking the […] rules there. 

Anyway, problem for this chap is, yeah, he's filming in the car. He's filming in– you're not allowed to do that, mate! So now we have to choose who's worse. Is it–  and also, you're sitting in the right-hand lane. Nobody likes you. Like, David's irritating for breaking the rules, but you are worse for sitting in the- yeah, no, I think I've decided. Nah, this guy's worse than David, isn't he? Like, David's goin' 130. Look, I'm not saying it's okay, but sitting in the right-hand lane and filming is a thousand times worse, eh? Yes? I think so.

The complaint

[4]  Chiu Tang complained the broadcast breached the discrimination and denigration and promotion of illegal and antisocial behaviour standards of the Code of Broadcasting Standards in New Zealand for the following reasons.

Discrimination and denigration

[5]  When Soper ‘stumbled on stating Benjamin Doyle’s gender’, he and du Plessis-Allan started laughing – despite saying they were “serious”’. LGBTQ+ people are regularly discriminated against, and their laughing was an example of this – ‘I would say [du Plessis-Allan] and Soper were sniggering at Doyle.’

[6]  Doyle was also repeatedly referred to as ‘Bussy’. ‘What makes [du Plessis-Allan] think it’s okay to call people by their nicknames on a national radio station?’

Promotion of illegal or antisocial behaviour

[7]  When asking herself which is worse between ‘lane-hogging and tailgating’, Heather du Plessis-Allan chose lane-hogging – ‘which is quite a shock to hear, because she openly condones aggressive and dangerous driving behaviour’. Both lane-hogging and tailgating ‘are not socially acceptable behaviour’ but one – tailgating – constitutes dangerous driving. Through this segment, du Plessis-Allan ‘potentially [encouraged] others to engage in aggressive and dangerous driving behaviour’.

[8]  In further submissions, the complainant acknowledged ‘du Plessis-Allan did say David Seymour broke the rules for speeding’ and ‘did not in any way explicitly encourage criminal behaviour’. However:

a)  Both speeding and filming while driving are illegal and anti-social behaviour. As such, there is no need ‘to compare the two and decide which is worse’.

b)  ‘Though not illegal, tailgating is dangerous driving behaviour and increases the chance of an accident.’

c)  By comparing tailgating and speeding with filming while driving in the right-hand lane, listeners would have thought the former acts were ‘less unacceptable’ than the latter, ‘thereby leaving some to think it is somewhat an okay behaviour’.

The broadcaster’s response

[9]  NZME Radio Ltd (NZME) did not uphold the complaint. Although some listeners ‘may find Heather’s opinions offensive’, NZME considered ‘[t]he remark did not seriously violate community standards of taste and decency’ and ‘was unlikely to cause widespread disproportionate offence and distress’.

[10]  NZME considered the following contextual factors to be relevant:

a)  ‘Newstalk ZB is a radio station focussed on news and talkback programming and is targeted at adults aged 40 to 59 years old.’

b)  ‘Heather du Plessis-Allan Drive is a live show focused on news and current affairs, and broadcasting the host’s opinions on current events.’

c)  ‘Heather du Plessis-Allan herself is known for holding strong, provocative opinions, and is described as “assertive, direct and opinionated” with a “straight down the middle approach”.’

d)  ‘…[L]isteners of Newstalk ZB expect to be exposed to controversial or unpopular points of view […] and are accustomed to each of the presenter’s style of broadcasting.’

[11]  On referral to the Authority, NZME said it could not locate the relevant interaction between du Plessis-Allan and Soper. Regardless, NZME said it did not consider ‘the exchange complained of would reach a threshold that would justify regulatory intervention – particularly given that on its face, there is unlikely to have been any malicious intent behind Heather’s response to Barry.’ 

[12]  Once directed to the segment’s location on its Newstalk ZB website, NZME provided a recording of the broadcast and offered the following comments:

a)  ‘Barry’s comments stumbling over Benjamin’s gender were immediately addressed by Heather: You are not trying to be funny, you are literally being a boomer right now. Just before the BSA comes in, that wasn’t a joke, that was a senior moment.’ (NZME’s emphasis)

b)  ‘While NZME acknowledges that Barry’s comments misgendering Benjamin were unfortunate and missed the mark from an editorial standards perspective, we confirm that the comments were completely accidental [in] nature – and in no way intentional.’

c)  ‘…[T]he comments complained of […] do not constitute a high level of condemnation and were in no way nasty or malicious (as required for an uphold under Standard 4).’

d)  ‘Given these factors, it is NZME’s firm position that these comments do not reach the threshold required for an uphold under Standard 4.’

e)  Beyond ‘the comments complained of’, ‘Barry continues to “stumble” over Benjamin’s pronouns throughout the segment, which in NZME’s view supports its position that the comments complained of were accidental in nature.’

f)  Noting ‘Standard 4 does not apply to individuals’, NZME did not consider references to ‘Benjamin as “Bussy” warrant an uphold under any standard’. This is because of ‘the controversy surrounding Benjamin’s exit from parliament (ie Benjamin’s social media use), the relevant news context to [their] departure, and the fact that MPs are subject to a greater level of scrutiny’. Additionally, ‘[a]s the Authority will be aware, Heather often refers to politicians by various nicknames (eg “Chippy” for Chris Hipkins, “Bish” for Chris Bishop).’

[13]  As for the segment about Seymour, NZME considered it did not breach the promotion of illegal or antisocial behaviour standard, for the following reasons:

a)  ‘While Heather discussed criminal behaviour, she at no point encouraged listeners to break the law…’ 

b)  ‘Heather considered that the video presented issues given the individual filming Mr Seymour was also breaking the law (i.e., using their phone while driving) and considered that in her opinion, the individual filming, was the worst offender of the two.’

c)  ‘…Heather also condemned Mr Seymour’s actions on two separate occasions and made clear that his actions amounted to “breaking the rules”.’

d)  ‘While Heather might have been jovial in her approach to this topic, NZME considers that listeners (particularly given their demographic and familiarity with Heather’s style) are highly unlikely to understand Heather’s comments as encouraging criminal activity, or as promoting illegal or serious antisocial behaviour.’

[14]  In later submissions, responding to the Authority’s provisional decision upholding the complaint under the discrimination and denigration standard, NZME argued the Authority’s reasoning was ‘fundamentally flawed’:

a)  The Authority considered gender non-binary people constitute a ‘section of the community’ under the discrimination and denigration standard on account of ‘sex’ – but this reasoning is ‘wrong’. ‘Sex and gender are distinct and separate concepts.’

i)  In reaching this conclusion, the Authority relied on the Te Kāhui Tika Tangata I Human Rights Commission (HRC) and Crown Law Office’s ‘interpretation of the relevant section of the Human Rights Act 1993’. (NZME’s emphasis)

ii)  This interpretation has never been confirmed by a New Zealand court. By extension, the United Kingdom Supreme Court determined ‘sex’ in the Equality Act 2010 – the UK’s equivalent to the Human Rights Act (HRA) – ‘refers to biological sex’.

iii)  In the 2025 Te Aka Matua o te Ture | Law Commission report Ia Tangata¹, the Law Commission recommended amending the HRA ‘to provide “clearer protection to people who are transgender or non-binary or have an innate variation of sex characteristics (sometimes known as intersex)”’. The Government considered this amendment was not a legislative priority. NZME submitted: ‘It is clear that the legislation as currently drafted does not capture gender identity.’

b)  ‘The inclusion of “gender identity” in the [discrimination and denigration standard] was specifically considered during the most recent review of the Codebook, over 2021/2022.’ ‘The Authority specifically turned its mind to the inclusion of gender identity […] but ultimately decided against doing so.’ The Authority is ‘empowered’ to expand the relevant ‘sections of the community’ in the standard, and it could do so by adding ‘gender’. ‘However, it has not, despite this addition being specifically considered during the Review.’

The standards

[15]  The purpose of the discrimination and denigration standard (standard 4) is to protect sections of the community from verbal and other attacks, and to foster a community commitment to equality.² The standard states:³

Broadcast content should not encourage discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status or as a consequence of legitimate expression of religion, culture or political belief.

[16]  The purpose of the promotion of illegal or antisocial behaviour standard (standard 3) is to prevent broadcasts that encourage audiences to break the law, or are otherwise likely to promote criminal or serious antisocial activity.⁴ The standard states:⁵

Broadcast content should not be likely to promote illegal or serious antisocial behaviour taking into account the context and the audience’s ability to exercise choice and control.

Our analysis

[17]  We have listened to the broadcast and read the correspondence listed in the Appendix.

Freedom of expression and public interest

[18]  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. Our task is to weigh the right to freedom of expression and the value and public interest in the broadcast, against any harm potentially caused by the broadcast. We may only intervene and uphold complaints where the resulting limitation on the right to freedom of expression is reasonable and justified.⁶

[19]  The right to freedom of expression allows broadcasters to voice opinions that might be controversial or unpopular, provided they do not cause undue harm.⁷ In this case, part of the harm alleged to have been caused is discrimination against transgender and/or gender non-binary people.

[20]  We recognise open discourse and debate plays an important role in a free and democratic society. Equally, there is value and public interest in scrutinising the actions of politicians. Talkback radio is a robust, opinionated environment designed to cultivate discussion and public discourse about controversial ideas and opinions, and Soper and du Plessis-Allan are known for offering provocative, controversial opinions.

[21]  In this case, we considered the public interest in the broadcast did not outweigh the potential harm caused by some of the comments and behaviour in this broadcast. Upholding the complaint would therefore place a reasonable and justified limit on freedom of expression. We expand on our reasoning below.

Discrimination and denigration

Are non-binary people a recognised ‘section of the community’ under the standard?

[22]  The discrimination and denigration standard applies to recognised ‘sections of the community’. The Authority has found transgender people are a ‘section of the community’ protected by the discrimination and denigration standard:⁸

…the standard protects against discrimination or denigration “on account of sex”⁹ and we interpret the term “sex” as broad enough to encompass discrimination of this nature. This is consistent with the Human Rights Commission’s and the Crown Law Office’s | Te Tari Ture o te Karauna interpretation of the relevant section in the Human Rights Act 1993.¹⁰ We also consider it to be consistent with the rights and freedoms contained in the New Zealand Bill of Rights Act [NZBORA].¹¹

[23]  The question for the Authority is whether gender non-binary people also constitute a ‘section of the community’ on account of ‘sex’ – while recognising that some (but not all) non-binary people identify as transgender. We consider they do, for the reasons that follow.

[24]  Commentary to the discrimination and denigration standard, outlined in the Code of Broadcasting Standards in New Zealand, notes the standard ‘will be interpreted by reference to evolving community standards and s 6 of the New Zealand Bill of Rights Act 1990 (interpretation consistent with the rights and freedoms contained in the Bill of Rights is to be preferred)’.¹² Accordingly, the discrimination and denigration standard is to be given a meaning consistent with s 19(1) of NZBORA – the right to freedom of discrimination – and, in turn, the prohibited grounds for discrimination, outlined in s 21 of the HRA.

[25]  NZME considers it is ‘clear’ that s 21 of the HRA, as currently drafted, ‘does not capture gender identity’. Gender identity is not expressly cited as a prohibited ground of discrimination in s 21. However, the HRC and government agencies treat people who are transgender, non-binary, or who have innate variations of sex characteristics as protected under the HRA through s 21(1)(a) – ‘sex’.

[26]  The HRC is an authoritative source in interpreting the HRA. Its governing act is the HRA, under which it has the authority to resolve disputes, advocate for human rights, and educate New Zealanders about their rights and responsibilities.¹³ In a formal opinion issued last year, the Chief Ombudsman considered, under the Ombudsmen Act 1975, that the HRC’s interpretation of s 21(1)(a) ‘cannot be viewed as unreasonable’.¹⁴

[27]  Ia Tangata is the Law Commission’s final report on their review into the HRA’s protections for people who are transgender, people who are non-binary, and people who have innate variations of sex characteristics.¹⁵ The report contains 27 recommendations to the Government on how the Act should be reformed.¹⁶

[28]  The Commission’s central recommendation is that s 21 of the HRA requires reforming. It should be amended to eliminate ambiguity and clarify the Act covers discrimination due to a person being transgender, non-binary, or having an innate variation of sex characteristics.¹⁷

[29]  In response to Ia Tangata, the Government said that while it recognised the Commission’s findings and recommendations, ‘progressing the Commission’s recommendations is not a priority at this time’ since the Government has ‘significant commitments and priorities in the Justice portfolio’.¹⁸

[30]  Accordingly, we must interpret the law as it stands. Therefore, in keeping with the HRC’s and Crown Law Office’s interpretation of s 21(1)(a) of the HRA, we interpret ‘sex’ in the discrimination and denigration standard as being inclusive of gender non-binary people.¹⁹

[31]  Finally, we note that in Ia Tangata, the Law Commission said it ‘[did] not accept that sex has one objective meaning across all contexts in which it is used’.²⁰ Instead, it is a ‘functional term that is used in different ways depending on the relevant context and the purpose for which the term is being used’.²¹ ‘There is no single definition of sex in New Zealand law, and it is used in different ways in different legal contexts.’²² These reasons contributed to the Commission’s rationale for not defining the term ‘sex’ at the review’s outset, and for not recommending a single statutory definition for ‘sex’ in the HRA.²³

Did the comments extend to non-binary people as a section of the community?

[32]  We must now ascertain whether non-binary people, being a section of the community, were exposed to discrimination or denigration by the broadcast, or whether Soper and du Plessis-Allan’s comments were limited to one person (Doyle). This is because the discrimination and denigration standard does not apply to individuals or organisations, which are covered by the fairness standard.²⁴

[33]  The Authority has previously found the fairness standard, rather than discrimination and denigration standard, was more appropriate in determining a complaint addressing multiple comments (including misgendering and ‘deadnaming’) made to a transgender interviewee.²⁵ This was because the interview centred on the interviewee and their lived experience, and statements made by the interviewer were not directed toward the trans/non-binary community as a whole.²⁶

[34]  In Ashurst, the Authority found:²⁷

…if a person discriminates against or denigrates a single person on account of that person’s characteristics which are common to others, then other people who have those features or characteristics are also subjected to discrimination or denigration.

[35]  We consider the approach adopted in Ashurst applies to this case. The segment was about Doyle and their resignation from Parliament. However, comments made in the broadcast ridiculed Doyle based on their gender identity — and some, whether intentionally or unintentionally, extended beyond Doyle to encompass all non-binary people. For example, when discussing Green MP Mike Davidson, Soper said, ‘He’s not non-binary, he’s normal– seems quite a normal fellow.’

[36]  The contents of the segment made a clear connection to the non-binary community and, as such, the discrimination and denigration standard applies.²⁸

Did the broadcast encourage discrimination against non-binary people?

[37]  The second question is whether the broadcast ‘encouraged’ discrimination against this section of the community. ‘Discrimination’ is defined as encouraging the different treatment of the members of a particular section of the community, to their detriment.²⁹

[38]  Comments will not breach the standard simply because they are critical of a particular group, because they offend people or because they are rude.³⁰ Instead, a high level of condemnation, often with an element of malice or nastiness, is usually necessary to find a broadcast encouraged discrimination or denigration in breach of the standard.³¹

[39]  Context is important in assessing whether comments breach the standard, including:³²

• the language and tone used
• the forum in which the comments were made
• 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.

[40]  The complaint centred around the following aspects of the broadcast:

a)  At one stage Soper appears to stumble over Doyle’s gender, saying, ‘There's nothing that he has– or she– sorry, it– um, they have done…’

b)  Afterwards, du Plessis-Allan said, ‘You are not trying to be funny. You are literally just being a boomer right now […] Just before the BSA comes in. That wasn't a joke, that was a senior moment.’ However, the hosts also chuckled during this interaction.

c)  du Plessis-Allan referred to Doyle as ‘Bussy’ on several occasions, a term referencing controversy surrounding Doyle’s private Instagram account, which made headlines in 2025.³³ At the time, Doyle said ‘Bussy’ is an ‘in-joke’ and ‘nickname’, ‘an example of the way marginalised communities often reclaim or subvert language in order to exist unapologetically’.³⁴ ‘Bussy’ is ‘a slang word used by some members of the rainbow community, commonly understood to mean a male anus’.³⁵

[41]  Other broadcast context we consider contributes to the impact of these statements, in addition to the factors outlined by NZME at [10], includes the following comments made by Soper:

a)  In reference to Doyle’s term in Parliament: ‘[T]hank goodness we've passed that era and let's hope nothing more comes of it or into Parliament as a result of it.’

b)  When discussing Davidson: ‘He’s not non-binary, he’s normal- seems quite a normal fellow.’

c)  While Soper referred to Doyle using they/them pronouns on several occasions, he predominantly used he/him pronouns. Doyle uses they/them pronouns³⁶ and as evidenced by comments made in the broadcast, both du Plessis-Allan and Soper were aware of this.

d)  On another occasion, Soper said that during their time as a MP, Doyle had ‘really done nothing’ except ‘[stand] looking rather flamboyant in the outfits that [they] … wear to Parliament’.

[42]  We consider the hosts’ tone, choice of language, and sustained comments reflected the high level of condemnation necessary to encourage discrimination against non-binary people.

[43]  The trans/non-binary community are particularly vulnerable. As we have previously found,³⁷ deliberately misgendering someone is inconsistent with the:

a)  HRC’s acknowledgment of the importance of the right to be recognised, particularly in the context of an individual’s affirmed gender

b)  United Nations’ report acknowledging the very basis of individual rights is the right of persons to be recognised as unique and distinguishable from others.³⁸

[44]  As indicated at [40] above, at one point, Soper appeared to stumble over Doyle’s gender, saying, ‘There's nothing that he has– or she– sorry, it– um, they have done…’ We consider Soper’s comments were intended as some form of joke. In our view, people do not inadvertently call other people ‘it’. Soper and du Plessis-Allan both chuckled during this interaction, and Soper’s ‘confusion’ occurred while suggesting that Doyle had done nothing in Parliament ‘…except confuse us about what you can call them’.

[45]  However, we do not consider this was legitimate humour or satire, nor could we identify any other comments or behaviour in the broadcast that could be so described.³⁹ Referring to a person as ‘it’ is insensitive, disrespectful, and dehumanising – ‘it’ classifies a human being as an object, animal or other non-human entity. Neither Soper nor du Plessis-Allan appeared apologetic or expressed remorse for any of the comments made. On the contrary, the message listeners would have received from the broadcast is that non-binary people are appropriate subjects for ridicule.⁴⁰

[46]  The discrimination and denigration standard is not intended to prevent the broadcast of material that is a genuine expression of serious comment, analysis or opinion.⁴¹ There was legitimate public interest in Doyle’s resignation from Parliament and their career in politics. However, the comments and behaviour in this broadcast – particularly of Soper – extended beyond what was necessary to offer a ‘genuine expression of serious comment, analysis or opinion’. For example:

a)  Claiming Doyle had ‘really done nothing’ during their time as an MP except look ‘flamboyant in the outfits that [they] … wear to Parliament’ and ‘confuse us about what you can call them’.

b)  When referring to Doyle’s term in Parliament: ‘…thank goodness we've passed that era and let's hope nothing more comes of it or into Parliament as a result of it’.

[47]  Soper is an experienced journalist and broadcaster. As introduced in the broadcast, he is Newstalk ZB’s senior political reporter. Soper could have critiqued Doyle’s career as an MP without ridiculing and denigrating their gender identity and, consequently, the wider non-binary community. As such, we are not satisfied the approach taken by Soper was justified in the public interest or added value to the discourse surrounding Doyle’s career and resignation from Parliament.⁴²

[48]  Notably, broadcasts do not occur in a vacuum. A relevant contextual consideration in our decision was Doyle’s rationale for leaving Parliament. Doyle announced their resignation from Parliament the same day the broadcast aired — and this announcement prompted the discussion about Doyle, with du Plessis-Allan starting the conversation with, ‘So, Bussy’s gone?’ Yet, a central reason for Doyle’s resignation was ‘an onslaught of hate, vitriol and threats of real-world violence directed at me and my whānau’.⁴³ We consider this context exacerbates the harm caused by the broadcast.

[49]  Overall, we consider the broadcast encouraged the different treatment of non-binary people, to their detriment. The cumulative effect of the relevant comments, behaviour and other context conveyed the high level of condemnation necessary to encourage discrimination against non-binary people. We consider the broadcast had the potential to cause significant harm to a vulnerable community, justifying restriction of the broadcaster’s right to freedom of expression. Accordingly, we find the broadcast reached the high threshold for finding a breach of the discrimination and denigration standard.

[50]  Finally, noting NZME’s apparent challenges with identifying the relevant broadcast content, we find NZME’s handling of this aspect of the complaint to be unsatisfactory and remind NZME of its duties under the Broadcasting Act 1989.

Promotion of illegal or antisocial behaviour

[51]  We now turn to address the complainant’s concerns under the promotion of illegal or antisocial behaviour standard.

[52]  With regard to illegal behaviour, the standard is concerned with broadcasts that actively undermine or promote disobedience of the law or legal processes. Direct incitement to break the law is likely to breach this standard, if there is a real likelihood the audience will act on it. In some instances, broadcasts which condone criminal activity or present it as positive or humorous may have this effect of direct incitement.⁴⁴

[53]  Antisocial behaviour is broader than illegal activity. Serious antisocial activity is contrary to the laws or customs of society to such a degree that a significant number of people would find it unacceptable.⁴⁵

[54]  Road safety is undoubtedly an important issue in New Zealand and there have been concerted efforts to promote road safety, including through Waka Kotahi | New Zealand Transport Agency’s ‘Through my eyes’ anti-speeding campaign.⁴⁶

[55]  While du Plessis-Allan’s comments can be seen as condoning or making light of unsafe driving practices, we consider her comments were unlikely to incite others to break the law or ‘promote illegal or serious antisocial behaviour’ as contemplated by the standard.

[56]  She compared two illegal activities – filming while driving, and speeding – to conclude filming while driving in the right-hand lane is ‘worse’. Listeners likely understood that du Plessis-Allan’s comments were intended to be humorous, rather than a serious encouragement of speeding. Regardless, du Plessis-Allan acknowledged (twice) that speeding is ‘breaking the rules’, and that, ‘…I’m not saying it’s okay [to speed].’

[57]  For these reasons, we do not uphold this complaint under the promotion of illegal or antisocial behaviour standard.

For the above reasons the Authority upholds the complaint that the broadcast by NZME Radio Ltd of Heather du Plessis-Allan Drive on 5 September 2025 breached Standard 4 (Discrimination and Denigration) of the Code of Broadcasting Standards in New Zealand. The Authority does not uphold the complaint that the same broadcast breached Standard 3 (Promotion of Illegal or Antisocial Behaviour) of the Code of Broadcasting Standards in New Zealand.

[58]  Having upheld one aspect of the complaint, 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 provisional decision

[59]  NZME provided detailed submissions in response to the Authority’s provisional decision on this complaint, outlined above at paragraph [14]. We have amended our decision to respond to these in more detail. However, those amendments do not alter our overall finding in relation to the application of the discrimination and denigration standard to non-binary people.

[60]  The complainant felt the provisional decision was appropriate, in respect of their complaint made under the discrimination and denigration standard.

Submissions on orders

[61]  The complainant did not make a submission on orders.

[62]  NZME submitted publication of the decision would be sufficient to remedy the breach, because:

a)  Publication would publicly censure NZME and provide guidance to broadcasters on the application of the relevant standard.

b)  The broadcast ‘falls within the lower end of the spectrum’ when compared with other complaints upheld by the Authority.

c)  A broadcast statement would risk ‘drawing further negative attention to the subject of the broadcast’, and so would be inappropriate in the circumstances.⁴⁷

Authority’s decision on orders

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

a)  the seriousness of the breach and the number of upheld aspects of the complaint

b)  the degree of harm caused to any individual, section of society or the audience generally

c)  the objectives of the upheld standard

d)  the attitude and actions of the broadcaster in relation to the complaint, for example, 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

e)  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

f)  past decisions and/or orders in similar cases.

[64]  Drawing from our findings above, we consider the following factors are relevant in this case:

Aggravating factors

a)  Our decision is unanimous.

b)  The conduct sits at a medium–high level of harm. The commentary encouraged the different treatment of non-binary people, to their detriment. It was repeated and sustained, and we have found one comment in particular to be dehumanising. Further, the broadcast’s harm was exacerbated by the ‘hate, vitriol, and threats of violence’ that Doyle and their family endured – and those experiences being a central reason for Doyle’s resignation from Parliament. Accordingly, the broadcast had the potential to cause significant harm to Doyle and the non-binary community.

c)  Although there was a high level of public interest in Doyle’s resignation, and therefore value in discussing the issue, the comments and behaviour in this broadcast went beyond what was necessary to offer a ‘genuine expression of serious comment, analysis or opinion’.

d)  We have found NZME’s handling of the complaint to be unsatisfactory, given its apparent challenges with identifying the relevant broadcast content.

e)  The broadcaster had full control over the circumstances of the breach. Soper is Newstalk ZB’s senior political correspondent, and du Plessis Allan hosts Heather du Plessis-Allan Drive. The comments and behaviour that form the subject of the complaint were not, for example, from a guest or inexperienced interviewee.

Mitigating factors

f)  Only one aspect of the complaint was upheld – noting, however, the other aspect of the complaint concerned an unrelated section of the broadcast.

g)  NZME has acknowledged the relevant comments were unfortunate and the broadcast missed the mark. It has now taken down the relevant section of the broadcast from its platforms.

h)  The Authority has previously found transgender people are a recognised ‘section of the community’. However, this is the first time gender non-binary people have been recognised under the standard. By extension, this is the Authority’s first time upholding a complaint under the standard about a broadcast’s treatment of non-binary people.

Other factors

i)  In the past five years, the Authority has upheld four complaints against NZME.

j)  In recent years, NZME has had two complaints upheld under the discrimination and denigration standard: Day & Moss⁴⁸, and Wilson⁴⁹. Both decisions included orders of a broadcast statement and costs to the Crown.

Broadcast statement – section 13(1)(a)

[65]  Taking into account the above factors, we consider a broadcast statement during Heather du Plessis-Allan Drive is the appropriate response to the harm arising in this case. A broadcast statement will publicly denounce the breach, censure the broadcaster, and help rectify the harm caused in the same forum and for a similar audience, which would not necessarily be achieved by our decision and any resulting publicity alone.

[66]  Consistent with the Authority’s usual practice, the broadcaster will draft a statement summarising the upheld aspect of our decision, for approval by the Authority. The statement should be broadcast at a similar time and on the same day of the week (Friday) as the original broadcast, to reach a similar audience.

[67]  While the conduct is at a medium-high level of harm, we consider a broadcast statement is sufficient in this case and an award of costs is not necessary, noting in particular this is the first time gender non-binary people have been recognised under the relevant standard.

Orders

Under section 13(1)(a) of the Broadcasting Act 1989, the Authority orders NZME Radio Ltd to broadcast a statement. The statement shall:

• be broadcast during Heather du Plessis-Allan Drive, on the same day of the week as the original broadcast (Friday)
• be broadcast within one month of the date of this decision
• summarise the upheld aspects of the Authority’s decision
• be drafted by the broadcaster for approval 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 order has been complied with.

Signed for and on behalf of the Authority

Susie Staley
Chair
10 June 2026

Appendix

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

1  Tang's original complaint – 12 September 2025

2  NZME's decision – 14 October 2025

3  Tang's referral to the Authority – 31 October 2025

4  NZME's response to the referral – 20 November 2025

5  Tang's further comments – 11 December 2025

6  Confirmation of scope of the complaint and NZME's confirmation of no further comment – 11-12 December 2025

7  NZME’s further comments – 6 March 2026

8  Tang’s submissions on the provisional decision and orders – 10 April 2026

9  NZME’s submissions on the provisional decision and orders – 17 April 2026

¹ Law Commission Ia Tangata (NZLC R150, 2025)
² Commentary: Discrimination and Denigration, Code of Broadcasting Standards in New Zealand, page 12
³ Standard 4: Discrimination and Denigration, Code of Broadcasting Standards in New Zealand
⁴ Commentary: Promotion of Illegal or Antisocial Behaviour, Code of Broadcasting Standards in New Zealand, page 11
⁵ Standard 3: Promotion of Illegal or Antisocial Behaviour, Code of Broadcasting Standards in New Zealand
⁶ Introduction, Code of Broadcasting Standards in New Zealand, page 4
⁷ Day & Moss and NZME Radio Ltd, Decision No. 2018-090 at [15]
⁸ Adam & Crawford and Radio New Zealand Ltd, Decision No. 2022-067 at [35]
⁹ Standard 4: Discrimination and Denigration Standard, Code of Broadcasting Standards in New Zealand
¹⁰ See Te Kāhui Tika Tangata I Human Rights Commission “The A-Z Pre-Employment Guide: T” <hrc.co.nz>; and, although using outdated terminology at times, Cheryl Gwyn “Solicitor-General’s Opinion on the Human Rights (Gender Identity) Bill” (2 August 2006) Crown Law Office | Te Tari Ture o te Karauna at [30]
¹¹ New Zealand Bill of Rights Act 1990, s 6
¹² Commentary: Discrimination and Denigration, Code of Broadcasting Standards in New Zealand, page 12
¹³ Te Kāhui Tika Tangata | Human Rights Commission “What we do” <tiktangata.org.nz>
¹⁴ John Allen Chief Ombudsman’s opinion under the Ombudsmen Act (Office of the Ombudsman, CASE-028751, September 2025) at 3
¹⁵ Law Commission Ia Tangata (NZLC R150, 2025) at [1] (Executive Summary)
¹⁶ Law Commission Ia Tangata (NZLC R150, 2025) at [1] (Executive Summary)
¹⁷ Law Commission Ia Tangata (NZLC R150, 2025) at [3] (Executive Summary)
¹⁸ Government response to Te Aka Matua o te Ture | Law Commission report on protections in the Human Rights Act 1993 (New Zealand Government, 23 February 2026) at [14]–[16]
¹⁹ Law Commission Ia Tangata (NZLC R150, 2025) at [4.107]–[4.109]; and Human Rights Commission Ia Tangata: Submission of Te Kāhui Tika Tangata | Human Rights Commission (Human Rights Commission, 5 September 2024) at [18]
²⁰ Law Commission Ia Tangata (NZLC R150, 2025) at [3.105]
²¹ Law Commission Ia Tangata (NZLC R150, 2025) at [16], [3.105], and [3.126]
²² Law Commission Ia Tangata (NZLC R150, 2025) at [16]
²³ Law Commission Ia Tangata (NZLC R150, 2025) at [16]–[17], [54]–[56], [3.127], and [7.168]
²⁴ Commentary: Discrimination and Denigration, Code of Broadcasting Standards in New Zealand, page 12
²⁵ Bell and Radio New Zealand Ltd, Decision No. 2023-016 at [8]-[9]
²⁶ As above at [9]
²⁷ Ashurst and 10 Others and Television New Zealand Ltd, Decision No. 2010-001 at [58]
²⁸ Compare with Kern and NZME Radio Ltd, Decision No. 2022-115, where the Authority did not uphold a complaint that a joke made about Sylvester Stallone breached the discrimination and denigration standard. The complainant considered the joke to be cruel and insensitive, and to make fun of Stallone’s (and by implication, others’) disability affecting his speech. The Authority found the joke was directed at Stallone as an individual and did not extend to a section of the community. At [13]: ‘The host made no reference to anyone other than Stallone. Nor did she make any comment on his specific characteristics or any disability affecting his speech, so no connection was made to any community sharing those characteristics.’
²⁹ Guideline 4.1: Discrimination and Denigration, Code of Broadcasting Standards in New Zealand, page 12
³⁰ Commentary: Discrimination and Denigration, Code of Broadcasting Standards in New Zealand, page 12
³¹ Guideline 4.2: Discrimination and Denigration, Code of Broadcasting Standards in New Zealand, page 12
³² Guideline 4.3: Discrimination and Denigration, Code of Broadcasting Standards in New Zealand, page 12
³³ David Fisher “Anatomy of a scandal - Green MP Benjamin Doyle’s case explained” The New Zealand Herald (online ed, 2 April 2025); Jenna Lynch and Bridie Witton “Green MP Benajmin Doyle facing ‘death threats and abuse’ over social media account” Stuff (online ed, 31 March 2025); RNZ Gallery “'I refuse to be disappeared by hate' - Green MP Benjamin Doyle responds to social media scrutiny” RNZ (online ed, 9 April 2025); and NZ Herald “Green MP Benjamin Doyle faces ‘immense’ death threats over social media content, Christopher Luxon calls remarks ‘inappropriate’, Winston Peters says Doyle should be investigated” The New Zealand Herald (online ed, 31 March 2025)
³⁴ RNZ Gallery “'I refuse to be disappeared by hate' - Green MP Benjamin Doyle responds to social media scrutiny” RNZ (online ed, 9 April 2025)
³⁵ As above
³⁶ Green (5 September 2025) “Green Party MP Benjamin Doyle resigns from Parliament” <greens.org.nz>
³⁷ Adam & Crawford and Radio New Zealand Ltd, Decision No. 2022-067 at [26]
³⁸ Broadcasting Standards Authority | Te Mana Whanonga Kaipāho (June 2023) “BSA Guidance: Complaints concerning gender identity issues” <bsa.govt.nz>
³⁹ Guideline 4.2: Discrimination and Denigration, Code of Broadcasting Standards in New Zealand, page 12
⁴⁰ For a similar finding, see Ashurst and 10 Others and Television New Zealand Ltd, Decision No. 2010-001 at [60]
⁴¹ Guideline 4.2: Discrimination and Denigration, Code of Broadcasting Standards in New Zealand, page 12
⁴² For a similar finding, see Wilson and NZME Radio Ltd, Decision No. 2023-085 at [16]
⁴³ Green (5 September 2025) “Green Party MP Benjamin Doyle resigns from Parliament” <greens.org.nz>
⁴⁴ Commentary, Standard 3, Code of Broadcasting Standards in New Zealand, page 11
⁴⁵ Commentary, Standard 3, Code of Broadcasting Standards in New Zealand, page 11
⁴⁶ Waka Kotahi | New Zealand Transport Agency “Speed campaign: Through my eyes” <nzta.govt.nz>
⁴⁷ Citing Greyhound Racing and Discovery NZ Ltd, Decision No. 2023-073
⁴⁸ Decision No. 2018-090
⁴⁹ Decision No. 2023-085