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Louisa Wall v Fairfax - Judgment

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

BETWEEN LOUISA HARERUIA WALL

Appellant
AND FAIRFAX NEW ZEALAND LIMITED

First Respondent

MARLBOROUGH EXPRESS

Second Respondent

CHRISTCHURCH PRESS

Third Respondent

Hearing: 22 November 2017

JUDGMENT OF MUIR J, DR H HICKEY AND MR B K NEESON


Introduction

[1] The appellant, Ms Louisa Wall, appeals from a determination of the Human Rights Review Tribunal (the Tribunal) dismissing her complaint that two cartoons penned by Mr Al Nisbet and published by the first respondent (Fairfax) breached s 61 of the Human Rights Act 1993.

[2] She says that the Tribunal misinterpreted s 61 by wrongly concluding that it was intended to capture only “behaviour … at the serious end of the continuum of meaning” and that in so doing the Tribunal ignored relevant material relating to the origin, context and purpose of the provision. She says further that the Tribunal erred in applying an objective test with the result that the impact of the cartoons on those insulted by them is a relevant consideration in assessing their legality. In any event, she says the cartoons were so insulting in their treatment of Māori and Pasifika that the Court could comfortably conclude they were likely to excite hostility towards or bring into contempt people of that ethnicity.

[3] The case is the first to be considered by the High Court in relation to the section 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).

It raises important issues in terms of the interface between the right to freedom of expression, as recognised in s 14 of the New Zealand Bill of Rights Act 1990 (NZBORA), and the legislature’s legitimate interest in enhancement of racial harmony by the suppression of certain types of publications – popularly identified as “hate speech”, albeit that unlike several overseas equivalents, the legislation does not specifically identify exposure to “hatred” as the benchmark of illegality.

[4] We do not consider it appropriate to allow the appeal. Our reasons follow.

Full judgment - Wall v Fairfax NZ Ltd


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