Newstalk ZB senior political correspondent Barry Soper. Photo / Dean Purcell
The exchange
The exchange between Soper and du Plessis-Allan – and subsequent complaint from a listener – centred on Doyle’s departure from Parliament last September.
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.
Newstalk ZB Drive host Heather du Plessis-Allan. Photo / Michael Craig
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.
The complaint
Complainant Chiu Tang focused on how Soper had stumbled over the pronouns of Doyle (they/them), and how he and du Plessis-Allan laughed about that. Tang said it was an example of the regular discrimination that LGBTQ+ people faced.
Tang also took exception to du Plessis-Allan calling Doyle “Bussy” – a term referencing earlier controversy surrounding Doyle’s Instagram account. “What makes [du Plessis-Allan] think it’s okay to call people by their nicknames on a national radio station?”
Former Green Party MP Benjamin Doyle. Photo / Mark Mitchell
Tang complained that the broadcast breached the discrimination and denigration standard, initially complaining to Newstalk ZB/NZME.
NZME did not uphold the complaint.
It said that, although some listeners “may find Heather’s opinions offensive”, NZME considered “… the remark did not seriously violate community standards of taste and decency” and “was unlikely to cause widespread disproportionate offence and distress”.
It provided further context about ZB’s target audience of adults aged 40-59, that the Drive show was live and focused on news and current affairs and that it also broadcast opinions on current events. “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’.”
It said listeners were accustomed to each presenter’s style of broadcasting.
The BSA comes in
Tang took the complaint to the authority, which noted that NZME said it could not initially locate the audio for the BSA.
“Once directed to the segment’s location on its Newstalk ZB website, NZME provided a recording of the broadcast …,” the BSA said.
The authority later noted these “apparent challenges”, saying it found NZME’s “handling of this aspect of the complaint to be unsatisfactory and remind NZME of its duties under the Broadcasting Act 1989″.
On the complaint itself, NZME told the authority that Soper’s comments were immediately addressed by du Plessis-Allan.
“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.″
It added: “… the 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).”
In a later response, and upon learning of the BSA’s provisional decision to uphold the complaint, NZME said the decision was “fundamentally flawed”.
It told the BSA: “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.″
NZME said the authority had relied on the Human Rights Commission (HRC) and Crown Law Office’s “interpretation of the relevant section of the Human Rights Act”.
It said this interpretation had never been confirmed by a New Zealand court.
NZME also said the BSA had considered specifically adding “gender identity” to the authority’s discrimination and denigration standard in a review in 2021-22, but ultimately decided against this.
The BSA decision
The authority referenced Soper’s comment about “it”.
“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’.”
The authority said it did “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”.
“Referring to a person as ‘it’ is insensitive, disrespectful, and dehumanising – ‘it’ classifies a human being as an object, animal or other nonhuman 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.”
‘Particularly vulnerable’
The authority said the tone, choice of language and sustained nature of the comments on ZB reflected the high level of condemnation necessary to encourage the different treatment of non-binary people, to their detriment.
“The trans/non-binary community are particularly vulnerable,” it said.
“As we have previously found, 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 [and] 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.”
It said that, overall, “we consider the broadcast encouraged the different treatment of non-binary people, to their detriment”.
“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.”
In deliberating over the complaint and responses, the authority said it recognised that open discourse and debate played “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.”
However, 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.”
It added: “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.”
The authority said NZME considered it was “clear” that section 21 of the Human Rights Act, as currently drafted, “does not capture gender identity”.
“Gender identity is not expressly cited as a prohibited ground of discrimination in s 21,” the BSA said. “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’.″
BSA order
The BSA ordered Newstalk ZB to broadcast a statement on du Plessis-Allan’s show, summarising the finding.
It has to be approved by the authority and broadcast within a month of its published decision and on the same weekday (Friday) as the original broadcast.
It made no orders for a financial penalty.
The decision comes at an eventful time for several of the parties involved in the case. Last week, Du Plessis-Allan was named broadcaster of the year for the second straight year; Soper has recently published a best-selling book and been made an ONZM; and the authority is facing the scrapheap after controversy over its plans to adjudicate on a complaint about The Platform, Sean Plunket’s digital news platform.
Another aspect of Chiu Tang’s complaint, in which Tang took exception to du Plessis-Allan’s comments on another matter, was not upheld.
Those comments were in reference to a motorist filming Act leader David Seymour’s driving behaviour on a motorway.
Approached for comment today, an NZME spokeswoman said the company did not “have anything to add”.
Editor-at-Large Shayne Currie is one of New Zealand’s most experienced senior journalists and media leaders. He has held executive and senior editorial roles at NZME, including Managing Editor, NZ Herald Editor and Herald on Sunday Editor, and has a small shareholding in NZME.