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

The Al Nisbet cartoon that ran in The Press in May 2013.
Al Nisbet

The Al Nisbet cartoon that ran in The Press in May 2013.

A tribunal has found Fairfax Media did not breach the Human Rights Act in publishing two "provocative" cartoons in its newspapers.

Labour MP Louisa Wall and South Auckland youth group Warriors of Change took the company and The Press and Marlborough Express newspapers to the Human Rights Review Tribunal over cartoons published in 2013. Fairfax Media, which publishes the two newspapers, also owns Stuff.

Cartoonist Al Nisbet produced two cartoons about the Government's breakfast in schools programme. One depicted a group of adults, dressed as children, eating breakfast 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".

The cartoon that ran in The Marlborough Express.

The cartoon that ran in The Marlborough Express.

Wall said the cartoons were "insulting and ignorant put-downs of Maori and Pacific people". She argued they breached section 61 of the Human Rights Act.

* Full decision: Human Rights Review Tribunal
Cartoons 'provocative, negative, insulting'
Editor defends cartoon decision
Cartoons targeted 'bludgers', not race

Section 61 states: the written matter or words must be "threatening, abusive, or insulting" and the second requirement is that the written matter or words must be "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 of that group. That is, the written matter or words must: [189.1] Be threatening, abusive or insulting; and [189.2] Be likely to excite hostility against or bring into contempt any group of persons on one of the specified grounds. 

Cartoonist Al Nisbet said the cartoons were not racist, and directed at anyone who complained about poverty.

Cartoonist Al Nisbet said the cartoons were not racist, and directed at anyone who complained about poverty.

Wall said she was disappointed by the result and may consider taking the action further.

"I do not agree with that interpretation of section 61 of the Human Rights Act and am particularly concerned at the assertion that an objective assessment of whether the cartoons were likely to bring a group of people into contempt is one that can only be made by a person who is not Maori or Pacific. 

"I will take some time to peruse the decision, to discuss it with the Warriors of Change and the witnesses that gave evidence and to determine whether it is a matter that should be looked at by a higher Court."

The tribunal's ruling, released on Friday, found 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".

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For that reason their publication was not unlawful.

"In a free and democratic society it is essential that the "space" within which issues (including race) can be raised and debated must be kept as broad as possible," the ruling found.

At the tribunal hearing in 2014, Wall argued for a lower threshold in interpreting s61 of the Human Rights Act, allowing consideration for "subjective offence". She initially lodged a complaint with the Human Rights Commission, which found no breach and took no action.

The tribunal agreed. "Our holding is that parliament has framed the s61 racial disharmony provision in appropriately narrow terms," its decision said. "It would be wrong to characterise this decision as a ruling that there is a "right to insult". There is no such right."

Attacks on the functioning of democratic institutions and the free communication of information and ideas highlighted the need for a vigilant free press, the tribunal found, permitted to offend, shock or disturb on occasion.

"It is important the press continue to speak truth to power.

"It should also be remembered that in the aftermath of the murder of twelve persons (including cartoonists) in the attack on the Paris offices of the magazine Charlie Hebdo on 7 January 2015 it was appropriately observed by Salman Rushdie that the art of satire has always been a force for liberty and against tyranny, dishonesty and stupidity."

The Press editor-in-chief Joanna Norris welcomed the tribunal's "strong" decision.

"[It] squarely rejects the misguided notion that publication of material offensive to some should be unlawful, finding in favour of freedom of expression.

"Freedom of expression underpins a free and fair democratic society. If New Zealanders are not free to express views, even those that offend, outrage or upset some people, all human rights are threatened."

She pointed to the tribunal's finding that the cartoons were "unquestionably about a subject of public interest".

"The cartoons published by the Marlborough Express and The Press provided a controversial viewpoint on the efficacy of the Food in Schools programme. The fact that children are going to school hungry is a challenging issue with a great many causes and deserves thorough discussion through a variety of viewpoints. To attempt to suppress a view on this matter because it is offensive to some people is deeply troubling and a failure to properly confront the real issues."

 - Stuff

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