Controversial Fairfax Media cartoons could have made racism against Māori worse, panel member says

Wednesday, 22 November 2017

One of the Al Nisbet cartoons about the government's breakfast in schools programme.

A court has questioned whether controversial New Zealand cartoons are akin to pro-Nazi propaganda materials designed to incite hatred towards Jews prior to World War II.

A legal debate over the cartoons, which were published in The Marlborough Express and The Press newspapers in 2013 and featured negative depictions of Māori and Pacific people, played out in the High Court in Auckland on Wednesday.

The Marlborough Express Al Nisbet cartoon.

Labour MP Louisa Wall is appealing a decision by the Human Rights Review Tribunal, which rejected Wall's complaint that the cartoons were 'insulting and ignorant put-downs' of Māori and Pacific people.

Panel member Dr Huhana Hickey, who is hearing the case alongside Justice Matthew Muir and former National MP Brian Neeson, asked how Al Nisbet's cartoons could be viewed any differently to those that incited violence towards Jews in pre-1939 Germany.

Labour MP Louisa Wall says the cartoons were insulting.

* Tribunal finds 'provocative' cartoons did not breach Human Rights Act

* Cartoons: negative, insulting**

Dr Hickey said she had personally been spat at and abused just for being Māori.

'I do know that a lot of racism exists quite strongly down south, so did this make it worse? Where do we draw the line to protect those who are being vilified?'

Nisbet drew the cartoons in response to the government's breakfast in schools programme in 2013.

One depicted a group of adults, dressed as children, eating breakfast at school and saying 'Psst . . . If we can get away with this, the more cash left for booze, smokes and pokies'.

The other showed a family sitting around a table littered with Lotto tickets, alcohol and cigarettes and saying 'Free school food is great! Eases our poverty and puts something in you kids' bellies'.

Wall and the south Auckland youth group Warriors of Change complained to the tribunal over the cartoons.

The tribunal ruled in May while the cartoons may have 'offended, insulted or even angered', they were 'not likely to excite hostility against or bring into contempt any group of persons in New Zealand on the ground of their colour, race, or ethnic or national origins'.

It said for that reason their publication was not unlawful.

Wall then appealed that decision to the High Court.

Fairfax Media, which publishes The Marlborough Express and The Press, also owns Stuff.

Appearing for the company, lawyer Robert Stewart said contemporary New Zealand was completely different to pre-WWII Germany.

'It would not happen in today's society because there is a free press, because of the fact these ideas do get debunked,' he said.

'It's not the German press controlled by the Reich. We live in a very different age.

'As uncomfortable as it might be to see confronting and offensive views, ultimately that is for the good of society.'

Earlier, Justice Muir agreed the cartoons were insulting.

The question was whether they had caused 'public hostility' against Māori and Pacific people and breached the Human Rights Act.

Justice Muir said the aim of the hearing was to 'look afresh' at whether there was a breach of the Human Rights Act.

'No-one is contending that the cartoons were not insulting, we certainly all regard them as insulting.

'It is a grossly inappropriate generalisation of Māori parents. What is insulting about the cartoon is to suggest that this is the exclusive preserve of Māori and Pasifika parents.

'This is about how we apply the balance of the test of Section 61.'

Section 61 of the Human Rights Act states it is unlawful to publish any material that is 'threatening, abusive, or insulting' and 'likely to excite hostility against or bring into contempt any group of persons' in New Zealand on the ground of the colour, race, or ethnic or national origins.

Speaking on behalf of Wall, human rights lawyer Prue Kapua said the cartoons did bring Māori and Pacific people into contempt.

'It is colouring the view of general people who are looking at those cartoons.

'How does this not bring Māori and Pasifika into contempt, if they are defined as welfare bludgers and negligent parents and consumed with smoking, drinking and alcohol?'

Justice Muir said he agreed, but he was not convinced most people would take the cartoons at face value.

'The tribunal took the view that in the context of a 'free market of ideas' in an essentially socially liberal country, the reasonable person would concede that, albeit incredibly tasteless, the cartoons were not likely to incite hostility or bring people into contempt.'

Most people would say the cartoons were simply Nisbet's 'warped view of the world', he said.

Kapua said there had to be some limits to freedom of expression where it was discriminatory and prompted 'negative and unhelpful' conversations.

'All this did was encourage people to express their views about Māori and Pasifika families.

'There is an expectation that cartoons do exaggerate a matter to highlight it, but the way Maori and Pasifika were portrayed here is not about highlighting an issue, but is done as a criticism, a stereotype, a cheap shot.'

Justice Muir said freedom of speech was a 'foundational cornerstone' of democracy, and any attempts to curtail it needed to be considered in that light.

Stewart said Fairfax accepted the cartoons were insulting, but said disallowing them was a slippery slope.

'If you try and somehow stop something like this, what do you try and stop next? This is a case of 'where do you draw the line', and in our view the tribunal got it right.

'Without freedom of expression, all of that would be swept under the carpet. A cartoonist holds a looking glass up to society and sometimes that's an uncomfortable view to see.'

During the first hearing, on November 1, Justice Muir expressed discomfort with hearing the case alone.

He acknowledged Wall's work in sponsoring marriage equality legislation in parliament that granted same-sex couples the right to get married, and said it was public knowledge he lived with a male partner.

While the lawyers present did not object to Justice Muir's jurisdiction, he went on to appoint Hickey and Neeson as lay members on the panel to hear the case alongside him.