News / 15 May, 2017

VIEWPOINT: No laughing matter

The publisher of offensive cartoons is cleared of breaking the law, but the insult lingers, says Kennedy Warne.

Written by Kennedy Warne

Four years after two racially offensive cartoons appeared in two South Island newspapers, the Human Rights Review Tribunal has found that their publication did not breach the Human Rights Act.

The cartoons, drawn by Christchurch cartoonist Al Nisbet, depicted two family groups illicitly exploiting a government free-breakfast-in-schools programme intended to benefit children from impoverished homes. They ran in two Fairfax newspapers in May 2013: one in The Press and the other in The Marlbourough Express. In both cartoons, the key characters are brown-skinned. Both elicited condemnation—and support—from readers.

In its 56-page decision, the tribunal found that although the cartoons were insulting to Māori and Pacifika people, they “fell well short of bringing Māori and Pacifika into contempt”. As a result, under the terms of the Human Rights Act no breach occurred.

The test for a breach in a publishing case, the tribunal explained, is not whether a group considers that it has been the target of racial animus, but whether the audience is incited to act in a hostile or contemptuous way.


Cartoonist Al Nisbet's comics depict overweight brown families attempting to take advantage of free food programmes in schools.

“The subjective perceptions of the group (and its members) are irrelevant,” the tribunal wrote. “Indeed, members of the group are not even required to be aware [of what has] been published, distributed or used about the group.”

Rather, the focus of the legislation is the audience, and the presumed effect of what has been published on the minds of readers, viewers or listeners. There needs to be some sort of behavioural activation—some triggering towards hostility or contempt. Although the tribunal did not elaborate on what might constitute “bringing into contempt”, it was satisfied that, in this case, it didn’t occur.

Many will disagree with the tribunal on this point. They will say that the cartoons pandered to long-established Pākehā prejudice around supposedly lazy, bludging Māori and Pacific people, and that the 7500 Express readers who responded supportively to an online poll about the cartoon it published were affirming a contemptuous depiction of Māori and Pacifika.

At issue here are two opposing rights: the right to freedom of speech on one hand and the right to protection from racial discrimination on the other. The tribunal waxes eloquent on the right to freedom of expression, the “lifeblood of democracy”. It highlights the need for a “vigilant free press” that does not shrink from publishing material which may “offend, shock or disturb”. (In fact, the tribunal argues that it is “precisely when ideas shock and offend that freedom of expression is most precious”.)

On the other side of the ledger, the tribunal notes that the exercise of freedoms is subject to necessary restrictions, including (quoting from the International Covenant on Civil and Political Rights), “in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals [and] for the protection of the reputation or rights of others”.

What, then, of the “reputation and rights” of this country’s Māori and Pacifika communities? Does a cartoonist’s freedom-of-speech right to express his opinion entitle him to impugn the reputation and dignity of those groups of people—to infringe their freedom-from-prejudice?

Under the UN Declaration on Race and Racial Prejudice, news media are urged to refrain from presenting “a stereotyped, partial, unilateral or tendentious picture of individuals and of various human groups”. Was that standard upheld by Fairfax?

The tribunal implies that freedom of speech is a higher-order right, and that the “space”within which issues such as race can be raised and debated must be “kept as broad as possible”.

But elsewhere in the world, where freedom of speech is being debated (right now in some US universities, for instance) there is growing recognition of the deep disparities in groups’ ability to engage equally in public debate. In a recent newspaper opinion on campus free speech, New York professor Ulrich Baer wrote that “the parameters of public speech must be continually redrawn to accommodate those who previously had no standing”.

Colonial societies like the US and New Zealand were constructed on prejudice and the denial of standing for indigenous people. That is their foundation. White superiority is embedded in everything from education to law. It takes generations for it to be rooted out—and that process is never complete.

The media, as a primary forum for public discourse, plays a vital role in validating the historically marginalised. If a contemporary portrayal links to, or winks at, a long-held view of racial inferiority, then it perpetuates a discourse of dehumanisation. Just as cities in the US south are now pulling down their Confederate monuments, this country’s “vigilant free press” must be vigilant in dismantling colonial narratives of white superiority.

Freedom and fairness—these are the twin maihi of our common house, the shelter within which we affirm our dignify and fulfil our lives.



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