Labour MP Louisa Wall was in court for the hearing today. Photo / Michael Craig
Two controversial newspaper cartoons are "certainly insulting" but whether the images breached the Human Rights Act has become a matter of legal debate.
Labour MP Louisa Wall is appealing a Human Rights Tribunal decision which found two Fairfax Media cartoons did not promote racial disharmony against Maori and Pacific people.
The cartoons by Al Nisbet were published in Fairfax New Zealand newspapers the Marlborough Express on May 29, 2013, and in The Press the following day.
The images portrayed the issue of the food in schools programme, "a measure intended to mitigate some of the worst consequences of child poverty", the Human Rights Tribunal decision from May reads.
The tribunal concluded that although the cartoons were insulting they were not likely to "excite hostility against or to bring into contempt Maori and Pasifika on the ground of their colour, race, or ethnic or national origins".
Wall took exception to the images and claimed the cartoons breached the Human Rights Act by promoting racial disharmony.
Fairfax, which also publishes the news website Stuff, argues its cartoons were consistent with the Bill of Rights, which affords every New Zealander the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.
The Manurewa MP's appeal is being heard today in the High Court at Auckland before Justice Matthew Muir, and lay members of the court Dr Susan Hickey and former National MP Brian Neeson.
Justice Muir said at an initial hearing on November 1 that he wanted a panel to preside over the case, after expressing "some reservations" about whether he held superior qualifications to the members of the Human Rights Tribunal.
He said he was "very, very wary" and given the "huge public implications" and interest of what is a test case.
Justice Muir said today that the panel was tasked with "looking afresh" at the question of whether there was a breach of section 61 of the Human Rights Act.
Section 61 outlines the unlawfulness for any person to publish or distribute material that is threatening, abusive, or insulting and likely to excite hostility against or bring into contempt any group of persons in or who may be coming to New Zealand on the ground of the colour, race, or ethnic or national origins.
However, the legislation also reads that it shall not be a breach of the law if a newspaper, magazine, or broadcast report accurately conveys the intention of the person who published or distributed the matter or broadcast or used the words.
"No one is contending that the advertisements were not insulting, we certainly all regard them as insulting," Justice Muir said.
"Are we asked to determine whether the average New Zealander would find these cartoons to excite hostility and content?
"Are there particularly feeble-minded people or bigoted people out there that would find these [cartoons] incite hostility and contempt?"
Justice Muir said every New Zealander had a right to freedom from discrimination, but questioned whether they had a right to suppress discriminatory views.
Wall's counsel, Prue Kapua, said the issue was not about the cartoonist, but the depiction of Maori and Pasifika as "welfare bludgers and negligent parents" who spent their money on gambling and smokes.
"This is about a decision by Fairfax Media to publish those particular cartoons and do they bring Maori and Pasifika into contempt," Kapua said.
She said the cartoons were stereotypes, which usually undermine a minority group.
Kapua also noted a poll from the now-defunct TV3 current affairs show Campbell Live found 77 per cent of respondents said the cartoons depicted reality.
However, Justice Muir said that the tribunal's decision showed New Zealand was a society that encouraged a free market of ideas in a socially liberal and tolerant country.
"And that a reasonable person would conclude that, albeit incredibly tasteless, the cartoons were not likely to excite hostility or bring people into contempt."
He said the average Kiwi may think: "Oh well, that's Mr Nisbet's particularly warped view of the world, so be it."
Kapua replied: "But two editors picked up Mr Nisbet's warped view of the world and said, 'We are going to publish that in our paper'."
Justice Muir said it was also important to consider the role cartoonists play in western society.
He said they were often on the "cutting edge of debate, not remotely politically correct, tease, and encourage us into diverse views".
When explaining his jokes in a column, Nisbet described cartooning as like "playing practical jokes" and having a crack at all sides, while provoking and firing debate.
"I'm often asked why I draw so ugly. It's because that's what I see. The human race is ugly and does ugly things. Maybe I'm jaundiced," Nisbet explained.
The court heard that a significant number of people directed their ire towards the cartoonist after publication.
Justice Muir continued by saying freedom of speech could be considered to be "the most important cornerstone of a liberal democracy".
"Without it you have no rule of law, you have nothing else," he said.
But Kapua argued it was not an unlimited human right, and said the rights of an individual should not be considered at the expense of the rights of groups.
Hickey raised concerns about the media, the cartoonist, and his South Island audience, which she said was largely Pakeha and home to "a lot of racism".
She also questioned whether the media has a responsibility to suppress such opinions.
Fairfax's counsel, Robert Stewart, said the cartoons were not the view of the newspapers and that a cartoonist was given a "special licence" to draw society as they saw it.
"A cartoonist holds a looking glass up to society," he said. "Sometimes it's an uncomfortable view. Showing society for all of its ugliness."
He also said the editors of the newspapers were conscious of not being seen as a sensor of honest opinion.
"My client would argue that everyone has the right to an opinion ... even ill-informed opinion, insulting opinion, abusive opinion."
Stewart added that the media fulfils two roles in society, that of a bloodhound to sniff out abuses of power and injustice and that of a watchdog to inform the public of important issues.
Hickey, who said she has suffered racial abuse herself, also raised issues about how cartoons can lead to the complete contempt of entire group of people, and gave the example of the depiction of Jews in the German press prior to World War II.
But Stewart rebutted: "It's not the German press controlled by the Reich, and it's not German judges ruling on whether cartoons hold a group in contempt ... we live in a very different age."
Wall has argued the cartoons were "insulting, ignorant and a put down of Maori and Pasifika" and provided negative stereotypes at the expense of vulnerable Maori and Pasifika families, contributing to a negative sense of self-worth.
Counsel for the tribunal Michael Heron, QC, said the case was "extremely important" for the panel as it grappled with the legal limits of freedom of expression.
"There is little, if any New Zealand authority, which can be of assistance," he said.
The panel reserved its decision.
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