Tualamali’i & Whittaker and MediaWorks Radio Ltd - 2020-063 (21 December 2020)
- Judge Bill Hastings (Chair)
- Paula Rose QSO
- Susie Staley MNZM
- Josiah Tualamali'i
- Nina Whittaker
- Josiah Tualamali’i and Nina Whittaker
ProgrammeMagic Talk Afternoons with Sean Plunkett
BroadcasterMediaWorks Radio Ltd
[This summary does not form part of the decision.]
Two complaints about Sean Plunket’s interview of Te Whānau ā Apanui spokesperson Louis Rapihana were upheld under the discrimination and denigration standard. The interview was about the legal basis for iwi roadblocks in the eastern Bay of Plenty under COVID-19 Alert Level 4 and what the iwi intended to do if anyone refused to comply with the travel permit requirement established under Alert Level 3. The Authority found Mr Plunket’s approach during the interview and comments made on-air afterwards had the effect of amplifying negative stereotypes about Māori and the potential to cause widespread harm.
Upheld: Discrimination and Denigration
Orders: Section 13(1)(a) – broadcast statement; Section 16(4) – $3,000 costs to the Crown
Background and the broadcast
 A network of COVID-19 community roadblocks in the eastern Bay of Plenty were set up during Alert Level 4.2 Under Level 3, the iwi Te Whānau ā Apanui required people entering the area to have travel permits it had issued. The system, which was not Government-sanctioned, was established when the Ministry for Primary Industries (MPI) removed a requirement for New Zealanders to have a letter proving they were essential workers.3 The roadblocks were lifted when the country went into Alert Level 2 on 13 May 2020.4
 On his afternoon programme on 6 May 2020 Sean Plunket questioned Te Whānau ā Apanui spokesperson Louis Rapihana about the legal basis for the roadblocks and what the iwi intended to do if anyone refused to comply with the permit requirement. After the interview, Mr Plunket read out feedback from listeners on-air.
 As part of our consideration of this complaint, we have listened to the broadcast and read the correspondence listed in the Appendix.
 We have also been assisted in our determination by the engagement of an independent cultural advisor, Dr Carwyn Jones (Ngāti Kahungunu),5 to provide a Māori perspective on the issues raised. We co-opted him under section 26(4) of the Broadcasting Act 1989.
 Josiah Tualamali’i and Nina Whittaker complained the broadcast was in breach of the discrimination and denigration standard. Mr Tualamali’i provided the following reasons for his complaint:
- Mr Plunket’s comments ‘went beyond reasonable banter’, particularly ‘the way he raised such a sensitive topic around child abuse as a terrible attempt to shut down a manuhiri [guest] on the show…’
- His comments were denigrating ‘of whānau, hapū, iwi, and also Māori generally. He most certainly spoke in a way that was devaluing the reputation of a particular section of the community’.
- ‘I would add that I completely disagree [with] the MediaWorks take on the talkback threshold for the complaints being worthy of being upheld.’
 Ms Whittaker said the segment breached the standard for the following reasons:
- Mr Plunket ‘openly accused Te Whānau-ā-Apanui of being silly, of being rogues, bullies and highwaymen, and of making stupid decisions’.
- ‘After thoroughly denigrating the iwi's actions he then derisively asked about why they weren't dealing with child abuse in the area, clearly without having a clue what the actual statistics were. This is clearly a racist assumption that just because it is a Māori community, there will be child abuse problems.’
- ‘Calling Te Whānau-ā-Apanui's actions “bullshit” and then randomly throwing child abuse into the mix because he's speaking to a Māori person encourages racist thinking and furthers lazy and harmful stereotypes.’
- Mr Plunket described the iwi’s actions as ‘separatist’ and clearly ‘encouraged discriminatory thinking against Māori methods of addressing Covid-19, mocking and calling their legitimate expression of cultural and political belief “bullshit”’.
- Mr Plunket made a joke that ‘Tasmania mustn’t have checkpoint problems since the Aboriginals had been "forced off" the island’.
 In response to MediaWorks, Ms Whittaker argued that criticising the actions of Te Whānau ā Apanui was still capable of being racist against all Māori, even if the critiques were directed at a specific group.
The broadcaster’s response
 MediaWorks submitted the programme was not in breach of the discrimination and denigration standard for the following reasons:
- Although ‘some aspects of the broadcast were troubling’, taken as a whole, it did not amount to ‘hate speech or a sustained attack, or hit the threshold for finding a breach’.
- ‘Sean Plunket has a long history as a broadcaster and is well known for his often provocative and adversarial style of broadcasting. We also note that the BSA recognises talkback generally as an opinionated environment that it is given latitude to be provocative and edgy to provoke debate.’
- ‘Mr Plunket’s questioning was robust. At times he came across as argumentative, although generally this was when Mr Rapihana would not answer a specific question to his satisfaction.’
- ‘…[I]n our view the bulk of his comments were directed at Te Whānau-ā-Apanui’s actions including its decision to set up the checkpoints…Those comments were not criticising, and certainly not denigrating the iwi, its members or Māori generally.’
- ‘The “bullies and rogues” comment was addressed at the members of Te Whānau-ā-Apanui who were manning the checkpoints. However it was clearly Mr Plunket’s opinion, and within the limits the BSA gives to talkback radio.’
- The BSA has previously found, even where listeners may find the host’s attitude dismissive of certain Māori cultural views, that does not mean it meets the high threshold necessary for a breach of this standard.
 Regarding Mr Plunket’s question about the iwi’s response to child abuse, MediaWorks commented:
It is well established that Māori children and young people are significantly over represented, and stay longer, in the care, protection and youth justice systems. It is not clear however whether child abuse is an issue within Te Whānau-ā-Apanui community as Mr Plunket appears to have assumed. Some complainants saw that assumption and the decision to introduce an issue which was otherwise unconnected to checkpoints, as ‘perpetuating a racist stereotype’ or even as ‘racist’ itself.
We think that more is required to breach this standard than lazy or even incorrect assumptions. We are satisfied there was some justification for this question. Plunket was clearly not satisfied by Mr Rapihana’s explanation of the basis for checkpoints, and was testing how the iwi responded to other issues. If Plunket had pursued this line of questioning more thoroughly than he did, his rationale here might have been better understood.
 The discrimination and denigration standard protects against broadcasts which encourage the denigration of, or discrimination against, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status or as a consequence of legitimate expression of religion, culture or political belief. ‘Discrimination’ is defined as encouraging the different treatment of the members of a particular section of the community, to their detriment; and ‘denigration’ is defined as devaluing the reputation of a particular section of the community.6
Overview of outcome: freedom of expression weighed against harm
 The right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, is our starting point. Our task is to weigh the value and public interest in the broadcast complained about, against the level of actual or potential harm that may have been caused by the broadcast, with reference to the objectives of the standard described above. We may only interfere and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.
 We recognise there is value and public interest in scrutinising, and offering critical commentary on, the COVID-19 response, whether that be the Government’s actions or community responses. We have also previously acknowledged that hosts such as Mr Plunket are well known for offering strong or provocative opinions,7 and there is value in this approach for the purpose of generating discussion and public discourse. The free and frank expression of opinions, particularly on a topic of high public interest, is protected by the right to free speech, so long as standards are maintained.
 However, considering the potential harm caused by the broadcast, we were not satisfied the approach taken by Mr Plunket was justified in the public interest or that it added value to an ongoing discourse around how specific iwi were responding to COVID-19. Mr Plunket’s interview with Mr Rapihana and the subsequent commentary ridiculed and dismissed the exercise of Māori rights and interests, promoted negative stereotypes and encouraged hostility towards Māori. We therefore concluded that upholding the complaint would place a reasonable and justified limit on freedom of expression.
 For the discrimination and denigration standard to apply, the broadcast must refer to a recognised section of the community consistent with the grounds for discrimination listed in the Human Rights Act 1993.8 Māori are clearly such a group. Although the broadcast was an interview with the spokesperson of one specific iwi, in relation to that iwi’s actions, Māori as a whole were referred to in the broadcast. Mr Plunket made references to Te Tiriti o Waitangi and comments drawing on stereotypes of Māori. We are satisfied the standard applies.
 Generally, when applying the discrimination and denigration standard, the key question is whether the broadcast carried a high level of condemnation, often with an element of malice or nastiness, which justifies limiting the right to freedom of expression. Comments will not breach the standard simply because they are critical of a particular group, because they offend people or they are rude.9 We have previously found that the robust nature of talkback radio means the threshold for finding a breach in that context is high.10 However, it does not mean there are no standards that should be applied, nor that talkback hosts can justify approaches amounting to hectoring or even bullying in pursuit of provocative and edgy debate.
 The potentially harmful aspects of the broadcast included:
- promotion of negative stereotypes regarding Māori:
- The description of iwi as ‘bullies’, ‘rogues’ and ‘highwaymen’
- ‘Members of your iwi receive benefits?’
- ‘Have you ever considered this sort of intervention…on an issue like child abuse amongst your population?’
- Mr Plunket’s continued insistence on the illegality of the roadblocks, despite the Police’s view on this.11 For example:
- ‘You don’t have any legal authority…if the process is bullshit that doesn’t make a blind bit of difference…’
- ‘What did New Zealand Police say [LR: they were in full support…] …That’s not what I hear…’
- ‘You’ve got no business interfering with people…why do they have to bother with you, and your iwi, and your silly checkpoints?’
- ‘That’s a legal process that you’d have to go through…people aren’t walking all over you, people are trying to get around and do their business…I’m asking some questions…I’m trying to find out what the information is and whether or not there is legal status for you to interfere with New Zealanders…and I can’t find any authority for it or reason for it or legality for it.’
- Mr Plunket’s apparent ridicule of Māori rights under Te Tiriti o Waitangi:
- ‘I guess if I claim my treaty rights I could set up a 1000-person bubble. Except I wouldn’t do that, because that would be stupid and put people’s lives at risk.’
- ‘It’s all about separatism, folks. It’s all about that Treaty and that spirit of partnership and making up a whole lot of rules cause it makes you feel good. Weird.’
 Mr Plunket presented an image of iwi intimidating people while Mr Rapihana talked about having conversations, consulting and working together to ensure Ministry of Health guidelines were followed. (LR: ‘As I have stated many a time, this is what partnership is about, and if you can’t understand that, that’s your own problem.’ SP: ‘No this is what anarchy’s all about.’)
 We found Mr Plunket’s comments and approach had the effect of reflecting and amplifying casual racism towards Māori. We also agreed with the observations of our cultural advisor that:
- Ridiculing of Te Tiriti o Waitangi and Māori rights under Te Tiriti ‘encourages a view that recognising Māori rights undermines our society and that Māori rights ought not be respected’.
- In the context of the COVID-19 epidemic, ‘it is possible that the broadcast put the physical health of Māori communities at risk by encouraging people not to comply with community checkpoints and precautions Māori communities might have put in place to help stop the spread of COVID-19’.
 Mr Plunket took the position that the iwi had ‘no legal authority’ for its action. Such ‘devil’s advocate’-style interviewing is a common technique. However, Mr Plunket did not allow Mr Rapihana to respond to his assertions. This led to a broadcast more notable for Mr Plunket’s behaviour than a contribution towards informing the public.
 With regard to Mr Plunket’s question about the iwi’s response to child abuse in its community, we do not agree with MediaWorks that there was ‘some justification’ for this line of questioning. This comment, and the question about whether members of Mr Rapihana’s iwi receive benefits, bore no relevance to the subject and could not be justified by the context.
 The feedback from listeners read out on-air by Mr Plunket after the interview reflected how his rhetoric was perpetuating racist perspectives, for example:
- ‘Did I wake up in the 1750s today, Sean, one rule for iwi and one rule for the rest of us...no wonder there is racism in this country.’
- ‘It’s only their own backyard they are crapping in…if you had the opportunity to either lease or buy land in that area or outside, you’d pay more for outside so as to not have to deal with them and future-permitting issues and stand over tactics their land values will eventually reflect this and they will only have themselves to blame.’
- ‘They’re like children, Sean, wanting to be important, bus monitor, hall monitor, pathetic really.’
 Embedding the discriminatory effect of the broadcast, Mr Plunket responded to a caller referencing the depopulation of Aboriginal people in Tasmania by saying: ‘They wouldn’t have any checkpoint problems there’.
 While there was legitimate public interest in iwi checkpoints and community responses to the COVID-19 crisis, this was an inflammatory way to provoke discussion of the issues. We consider Mr Plunket’s tone, dismissiveness, repeated interruptions of Mr Rapihana and the comments he made following the interview were either intended to encourage harmful tropes12 and views, or reflected ignorance at a level that is offensive and harmful to Māori.
 For the reasons outlined above, we consider this broadcast encouraged discrimination against, or denigration of Māori. Therefore we uphold the complaints under the discrimination and denigration standard.
For the above reasons the Authority upholds the complaint that the broadcast by MediaWorks Radio Ltd of Magic Afternoons with Sean Plunket on 6 May 2020 breached Standard 6 of the Radio Code of Broadcasting Practice.
 Having upheld these complaints under the discrimination and denigration standard, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.
The broadcaster’s submissions
 Responding to our provisional findings, MediaWorks submitted no orders were warranted as publication of the decision was sufficient remedy:
- The publication of the decision is likely to generate media coverage.
- The time lag between the broadcast and the decision is ‘significant’.
- The broadcast promoted negative stereotypes, but was not highly inflammatory and did not contain ‘a high level of vitriol’ that ‘might warrant an on-air statement’.
- The decision is the first indication of lowering the threshold applied with respect to the discrimination and denigration standard in a talkback environment.13
- The approach was similar in Waxman and Television New Zealand Ltd (Decision No. 2020-042) with no orders made.
- An order in this instance would be disproportionate to the breach.
The complainants’ submissions
 Nina Whittaker requested:
- MediaWorks publicly acknowledge the decision, that the programme was in breach of the standard ‘for its racist and harmful depiction of Te Whānau ā Apanui’
- the acknowledgement include a link to the decision
- MediaWorks and Sean Plunket issue an apology to Te Whānau ā Apanui and the wider Māori community and ‘make a concrete, written commitment to addressing this breach and preventing any further racist breaches of the Radio Code in the future’
- the Authority issue ‘an official warning’ that MediaWorks may face financial penalties if ‘its programmes are found to breach the Radio Code through discrimination and denigration of Māori again, AND; it cannot provide evidence of due diligence (training, organisational discussions, etc.) to avoid these breaches’.
 Josiah Tualamali’i requested:
- MediaWorks ‘apologise unreservedly for this’, and it be ‘a culturally responsive apology’
- a section 13(1)(d) order of costs to Louis Rapihana14
- the Authority ‘pass on the costs of this work’ and ‘order MediaWorks to own their organisational failure’ to prevent the denigration of a section of society and for ‘calling into question [Mr Rapihana] and his whanau, hapu and iwi – labelling them as child abusers’.
Authority’s decision on orders
 In determining whether orders are warranted, the factors we take into consideration are:15
- 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.
Application of these factors
 The following factors are relevant in this case:
- One standard was breached.
- The conduct was at the serious end of the scale.
- Our decision is unanimous.
- The discourse around iwi checkpoints may be ongoing, as the COVID-19 pandemic continues around the world, and could potentially re-emerge in the community in New Zealand.
- Sean Plunket has been subject to 8 complaints, none upheld, since 2011.16
- MediaWorks has accepted the Authority’s finding.
Broadcast statement – section 13(1)(a)
 Considering first Ms Whittaker’s request for a broadcast statement, we note such an order is typically made where we consider publication of the decision is insufficient to publicly denounce the breach of broadcasting standards, censure the broadcaster, or rectify the harm caused.
 This case was serious. The harm was to Māori generally, as the broadcast ridiculed and dismissed the exercise of Māori rights and interests, promoted negative stereotypes and encouraged hostility towards Māori. The comments made following the interview were either intended to encourage harmful tropes and views, or reflected ignorance at a level that is offensive and harmful to Māori. The broadcaster felt the segment did not contain a ‘high level of vitriol’. We disagree. Mr Plunket has control over what listener feedback he reads out on air. To conclude the interview, which disparaged iwi checkpoints and amounted to a persistent, deliberate attack on Māori, by making light of the depopulation of Aboriginal people in Tasmania, aggravated the harm generated by the original comments.
 MediaWorks suggested this situation was analogous to that in Waxman and Television New Zealand Ltd where no orders were made. We consider the harm in this case more severe and analogous to the circumstances addressed in Day & Moss and NZME (Decision No. 2018-090). In this decision, we are not lowering the threshold typically applied to the talkback environment. The harm was sustained and compounded over an approximately half-hour broadcast. The dismissal and ridiculing of Māori rights and interests is highly inflammatory and the interview was reinforcing negative stereotypes about Māori which are already embedded in New Zealand society.
 A broadcast statement will provide a public denunciation of the breach and help remedy the harm caused by the broadcast. Even though some time has elapsed since the broadcast, the COVID-19 response remains in the public discourse. The statement may also give guidance to broadcasters on the application of the standard and confirm the Authority’s expectations which will have a general deterrent effect with respect to future breaches.
 Consistent with the Authority’s usual practice, the broadcaster will draft a statement summarising the upheld aspects of our decision, for approval by the Authority. The statement should be broadcast at a similar time, and on the same day of the week, as the original broadcast, in order to reach a similar audience. We encourage MediaWorks to consider broadcasting the statement in te reo Māori as well.
Costs to the Crown – section 16(4)
 Costs to the Crown (up to $5,000) are usually ordered where a broadcaster’s conduct resulting in a breach of standards is at the medium-to-serious end of the spectrum, and the Authority determines a punitive response is required.
 Having balanced the factors outlined above, we consider that in this instance, the conduct and seriousness of the breach justify an award of costs to the Crown. We consider a punitive response is required to hold the broadcaster to account, deter future non-compliance and confirm our expectations.
 In considering the quantum of the costs, we have reflected upon the factors discussed above, as well as previous Authority decisions. We consider an order of costs in the amount of $3,000 is appropriate.
 While we do not have the power to require MediaWorks to provide evidence of due diligence such as training and organisational meetings to avoid future breaches, we note that any actions undertaken by MediaWorks will prove their effectiveness by preventing outcomes such as this decision.
1. Under section 13(1)(a) of the Broadcasting Act 1989, the Authority orders MediaWorks Radio Ltd to broadcast a statement. The statement shall:
- be broadcast during Magic Afternoons with Sean Plunket on Magic Talk
- be broadcast at a similar time, and on the same day of the week, as the original broadcast
- be broadcast 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 Broadcasting Act 1989, the Authority orders MediaWorks 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 District Court.
Signed for and on behalf of the Authority
Judge Bill Hastings
21 December 2020
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Josiah Tualamali’i's formal complaint – 7 May 2020
2 Nina Whittaker’s formal complaint – 10 May 2020
3 MediaWorks’ response to the complaints (both received the same response) – 25 June 2020
4 Mr Tualamali’i's referral to the Authority – 25 June 2020
5 Ms Whittaker’s referral to the Authority – 26 June 2020
6 MediaWorks’ confirmation of no further comments – 2 July 2020
7 Ms Whittaker’s submissions on Provisional Decision and orders – 1 December 2020
8 MediaWorks’ submissions on Provisional Decision and orders – 7 December 2020
9 Mr Tualamali’i’s submissions on Provisional Decision and orders – 8 December 2020
1 Leigh Pearson declared a conflict of interest and did not participate in the determination of this complaint.
2 Kim Moodie “Police, local council assist with Bay of Plenty iwi border closure” NZ Herald (online ed, New Zealand, 22 March 2020)
3 Matt Burrows “Coronavirus: Community roadblocks turn Bay of Plenty locals away for not having 'travel permit' from local iwi Te Whānau-ā-Apanui” Newshub (online ed, New Zealand, 5 May 2020)
4 “Te Whanau a Apanui checkpoints to be lifted” Waatea News (online ed, Auckland, 12 May 2020)
5 Dr Jones is an Associate Professor in the Faculty of Law at Victoria University of Wellington. His expertise and primary research interests relate to Te Tiriti o Waitangi and Indigenous legal traditions.
6 Guideline 6a
7 See, for example, Marra and MediaWorks Radio Ltd, Decision No. 2019-023
8 Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
9 As above
10 Day & Moss and NZME Radio Ltd, Decision No. 2018-090 at 
11 Te Aniwa Hurihanganui “MPs’ questioning of legal iwi checkpoints ‘really is racism’” RNZ (online ed, New Zealand, 1 May 2020); “Māori leaders push ahead with plans for roadblocks, checkpoints on tribal boundaries amid coronavirus lockdown” TVNZ (online ed, New Zealand, 23 March 2020)
12 A trope is a common or overused theme or device - <https://www.merriam-webster.com/>
13 Compared to decisions Lochead and Radioworks, Decision No. 2010-031, Freemand & Purchase and RadioWorks, Decision No. 2011-034, Bowman and RadioWorks Ltd, Decision No. 2012-049, Green and MediaWorks Radio Ltd, Decision No. 2015-087, Haines and NZME Radio Ltd, Decision No. 2017-039, Woolrych and Glennie, Decision No. 2019-100
14 This section does not apply where there is no breach of privacy.
15 Guide to the BSA Complaints Process for Television and Radio Programmes, Broadcasting Standards in New Zealand Codebook, page 58
16 Most recently Hargreaves and MediaWorks Radio Ltd, Decision No. 2020-044B and ten Hove and MediaWorks Radio Ltd, Decision No. 2020-044A