Wall v Fairfax New Zealand Limited  NZHC 104
The New Zealand High Court held that two cartoons published in New Zealand newspapers featuring negative depictions of Māori and Pasifika did not breach hate speech provisions in the Human Rights Act 1993 (NZ) (Human Rights Act). The Court balanced the publisher’s right to freedom of speech under the New Zealand Bill of Rights Act 1990 (NZ) (Bill of Rights) against the government’s interest in protecting individuals from harmful speech and discrimination.
This was the first time the High Court considered section 61 of the Human Rights Act, which is New Zealand’s legislative response to its treaty obligations under the International Convention on the Elimination of All Forms of Racial Discrimination 1965 (ICERD).
On 28 May 2013, then Prime Minister of New Zealand, the Rt Hon (now Sir) John Key, announced that the government would fund the expansion of a programme that provided breakfast to children from low socio-economic communities so that it could run five mornings a week in more schools. As part of the public debate about this policy two cartoons were published in papers owned by Fairfax New Zealand Limited (Fairfax). Mr Al Nisbet penned both cartoons, which depicted Māori and Pasifika parents in a negative light, including as lazy, neglectful, gluttonous smokers and drinkers. The cartoon in the Marlborough Express was published adjacent to an editorial supporting the government’s proposal. The cartoon in the Christchurch Press was one of a number of contributions relating to the programme, including reactions from politicians and educationalists. Both cartoons generated significant public feedback.
Ms Wall complained to the Human Rights Review Tribunal (Tribunal) that the cartoons breached section 61 of the Human Rights Act, which relevantly provides as follows:
(1) It shall be unlawful for any person –
(a) to publish or distribute written matter which is threatening, abusive or insulting,
being matter or words likely to excite hostility against or bring into contempt any group of persons in New Zealand on the ground of colour, race, or ethnic or national origins of that group of persons.
The Tribunal dismissed the complaint, concluding that the cartoons were objectively insulting but by a substantial margin were not likely to excite hostility or bring Māori or Pasifika people into contempt.
Ms Wall appealed the Tribunal’s finding to the High Court.
The High Court, consisting of Justice Muir and two lay members, unanimously dismissed the appeal.
The key consideration before the Court was whether Fairfax’s right to freedom of expression under section 14 of the Bill of Rights operated as a limitation on section 61 of the Human Rights Act. Section 14 of the Bill of Rights provides that everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.
The Court upheld the decision below, finding that this was not a case concerning the conflict between Fairfax’s right to freedom of expression and Ms Wall’s right to be free from discrimination. The Bill of Rights only applies to acts done by legislative, executive or judicial branches of government or a body performing a public function. As Fairfax is a private entity, its legal duty not to discriminate arises solely from the Human Rights Act. Therefore the conflict was between Fairfax’s right to free speech and the New Zealand government’s interest in protecting its citizens from harmful speech.
Article 2 of ICERD condemns, and requires parties to eliminate, all forms of racial discrimination. Under article 4 of ICERD, states condemn propaganda and organisations which are based on, or that attempt to justify or promote, racial hatred and discrimination in any form.
The High Court rejected Ms Wall’s submission that article 2 of ICERD contemplates civil sanctions for racist hate speech while article 4 is specifically concerned with creating criminal offences for more serious manifestations, and that therefore the Tribunal’s conclusion that section 61 (which provides for civil penalties) only captured behaviour at the serious end of the spectrum was wrong. The High Court found that article 2 is merely a general provision requiring states to combat racial discrimination. Article 4 is a “refinement” of article 2, concerned with both civil and criminal conduct and containing, in particular, more detailed guidance on how to combat racist hate speech. The High Court affirmed the Tribunal’s conclusion that the conduct caught by article 4 will be at the serious end of the spectrum.
The Court also considered the right to freedom of expression contained in article 19 of the International Covenant on Civil and Political Rights and article 10 of the European Convention on Human Rights, which were referred to by the Tribunal. Article 19(3) expressly acknowledges that freedom of expression may be subject to restrictions that are provided by law and necessary:
- for respect of the rights or reputations of others; and
- for the protection of national security or of public order, or public health and morals.
The Court affirmed the Tribunal’s conclusions that, since the right to freedom of expression is one of the essential elements of a democratic society, any restrictions must be appropriate to advance their protective function, the least intrusive of the available measures, and proportionate to the interests to be protected.
Scope of the right to freedom of expression
The Court also rejected the appellant’s submission that the Tribunal failed to identify the countervailing interest to freedom of expression, finding that the Tribunal properly took into account the government’s interest in promoting racial harmony in its construction of section 61.
The High Court accepted the Tribunal’s application of the framework in Moonen v Film and Literature Board of Review  2 NZLR 9 (CA), and its conclusions that freedom of expression is not an absolute right and that in light of the dictionary definitions and international case law, section 61 establishes a high threshold, is targeted to racist speech at the serious end of the spectrum and therefore is not inconsistent with the right to freedom of expression.
Interpreting section 61
The High Court emphasised that section 61 demands a two-step test:
- first, is the matter threatening, abusive or insulting, and
- second is it likely to excite hostility against or bring into contempt a group of persons?
All parties agreed that the first step was met – the cartoons were insulting.
The Court emphasised that the second step is an “objective effects-based test” that acknowledges that the purpose of human rights laws is to prevent discriminatory effects rather than punish those who discriminate. Because it applied to only relatively egregious examples, the Court held that section 61 met the demonstrably justified legislative objective of suppressing racial disharmony while allowing the broad “space” required in a democratic society to be able to express views that may shock or disturb. This approach was supported by the Canadian jurisprudence and aligned with article 4.
The High Court found in construing section 61 Human Rights Act that the Tribunal did not address a threshold issue of who it is that is likely to be excited to hostility or hold Māori and Pasifika people in contempt as a result of reading the publications. The Court concluded that the section requires an assessment of how a reasonable person would think others in society who are “persuadable” or “susceptible”, or not immune to having hostility excited in them based on race, would react to the publications.
In relation to the second step, the High Court agreed with the Tribunal that the cartoons did not meet this description, but did not agree that they fell short by a “substantial margin”. The Court’s conclusion that the cartoons were not likely to bring Māori or Pasifika people into contempt or excite hostility against them was due to the editorial context in which the cartoons were published. They were intended to spark debate and formed part of a rich tradition of cartoonists using hyperbole to express views even if they caused offence. Furthermore the cartoons were only two contributions to a wide-ranging debate, in both newspapers and the public more broadly, about an important public policy issue. They inspired “push back”, which lessened the likelihood that a reasonable person would think “persuadable” people in New Zealand would become hostile to Māori or Pasifika people as a result.
This decision displays the fine balance that must be achieved between protecting freedom of expression and prohibiting racial hate speech. Even though the High Court found that the cartoons were objectively insulting, the legislation required an additional element, being that the content would incite racial hostility or bring into contempt. This limits the operation of section 61 of the Human Rights Act to particularly egregious examples of expression which incite animosity or are likely to result in the group being despised. Implicit in the High Court’s judgment was recognition that cartoons, when read in context, may be intended to be inflammatory to spark debate that would potentially lead to positive change. Whilst there was a large amount of public backlash and debate following publication of these cartoons, this was not equivalent to causing discriminatory effects. Whether the Human Rights Act would intervene to prevent insulting comics in a less constructive context remains to be seen.
The tension between a cartoonist’s right to freedom of expression and racial discrimination laws was evident in Australia by the publication in 2016 of a cartoon by Bill Leak depicting a drunk Indigenous father who had forgotten the name of his son. This sparked a complaint by the Australian Human Rights Commission for racial discrimination under section 18C of the Racial Discrimination Act 1975 (Cth), which was ultimately withdrawn. Despite the differences in free speech and racial discrimination legislation between the two countries, when the issue arises in the future, Australian courts may look to this New Zealand decision for guidance.
The full decision can be found here.
Jessica Wotton is a Lawyer at Banki Haddock Fiora.