Labour MP's 'racist cartoon' appeal against Fairfax Media dismissed

The Marlborough Express cartoon by Al Nisbet showed Maori as dole bludgers. Image / Human Rights Tribunal

A Labour MP has lost her appeal against Fairfax Media over two newspaper cartoons she says promoted racial disharmony.

Louisa Wall appealed a Human Rights Tribunal decision in the High Court at Auckland last year after the tribunal found the two cartoons were insulting but 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".

The cartoons by Al Nisbet were published in the newspapers the Marlborough Express on May 29, 2013, and in The Press the following day.

The images were said to be portraying the issue of the government's food in schools programme.

Wall took exception and claimed the cartoons had breached the Human Rights Act.

Her counsel, Prue Kapua, argued at the hearing in November that the depiction of Maori and Pasifika showed them as "welfare bludgers and negligent parents" who spend their money on gambling and smokes.

Fairfax, now Stuff, said the 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.

A panel, consisting of Justice Matthew Muir, Dr Susan Hickey and former National MP Brian Neeson was formed to rule on the social issues debate.

In their judgment released today, they said the case was the first of its kind to be considered by the High Court under New Zealand's treaty obligations in the International Convention on the Elimination of All Forms of Racial Discrimination.

"It raises important issues in terms of the interface between the right to freedom of expression, as recognised in the New Zealand Bill of Rights Act, and the legislature's legitimate interest in enhancement of racial harmony by the suppression of certain types of publications – popularly identified as 'hate speech'," they said.

The cartoon which appeared in The Press. Image / Human Rights Tribunal

Both of Nisbet's cartoons had generated significant public feedback.

The Marlborough Express received over 10,000 responses to an online poll which it ran subsequent to the publication, far more than a typical response of no more than 300, the judgment reads.

Approximately a quarter of those who answered the poll said they were "offended" by the cartoon.

Evidence given to the Human Rights Tribunal by former editor of The Press, Joanna Norris, was similar.

Justice Muir said during the hearing that the panel was tasked with "looking afresh" at section 61 of the Human Rights Act, which outlines the unlawfulness to publish or distribute potentially hateful material.

However, the legislation also states that there shall not be a breach of 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.

The judge said at the hearing that every New Zealander had a right to freedom from discrimination, but also questioned whether the courts had a right to suppress discriminatory views.

The issue of "hate speech" has been raised again this week after a petition called for Sir Bob Jones to be stripped of his knighthood for a column he wrote for the National Business Review.

Justice Muir said during the hearing that 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.

Labour MP Louisa Wall. Photo / Michael Craig

When explaining his drawings in a column, Nisbet described cartooning as like "playing practical jokes" and having a crack at all sides, while provoking and firing debate.

Fairfax's counsel, Robert Stewart, said the cartoons were not the view of the newspapers and that a cartoonist "holds a looking glass up to society".

"Sometimes it's an uncomfortable view. Showing society for all of its ugliness," he said.

The panel said there were satirical elements in the Marlborough Express cartoon, but held a different view of The Press cartoon.

"The central adult characters are depicted carrying their own breakfast bowls with the evident intention of passing themselves off as children – a manifestly absurd proposition", they said.

"We are less inclined to consider The Press cartoon as satirical. It is a more obtuse depiction."

However, they were not persuaded that it would excite hostility or brought Maori and Pasifika into contempt.

The panel said it held a unanimous view, aligning to the tribunal, that the cartoons were objectively offensive.

But they did offer a warning for media companies and said the case should "be a cause for reflection by the respondents and their respective editorial teams".

In dismissing the appeal, the panel also quoted the observations of a judge who ruled on another prominent case involving freedom of the press.

"The law's limits do not define community standards or civic responsibility. I would be disappointed if anything which this court might say could be taken as indicative of what people of one race may feel at liberty to say and which people of the other are expected to brook," Sir Edmund Walter Thomas said in the 1997 case of Awa v Independent News Auckland Ltd.