A Supreme Court decision almost 10 years ago – according to a legal opinion at the time – means we can burn the New Zealand flag without fear of arrest.
But be careful about expressing unfavourable opinions of the Treaty of Waitangi. Unlike the flag, it has come to be revered by the governing elite in much the same way as Muslims revere Mohammad and the Koran. Critics, accordingly, are apt to become the targets of the Kiwi equivalent of a jihad.
Newly elected Tauranga councillor Andrew Hollis learned this after posting on social media that the Treaty is “a joke”, and that there is a need to “stop the iwi gravy train”.
Fair to say, his death was not demanded by those who disagreed with him. But there was a powerful clamour for him to step down before he had settled in as a councillor.
The Race Relations Commissioner was among those who demanded Hollis’s immediate resignation, although he was more relaxed about a copy of the treaty being torn in anger from a city council wall.
Point of Order sought clarification of the commissioner’s position and his thoughts about the implications for the freedom of speech which (we contend) should be cherished in a healthy democracy.
The commissioner, former Gisborne mayor Meng Foon, did reply to our email, although he did not address some of our specific questions.
For example, will resignations be sought by anyone who describes the treaty as a joke – or only if they are local body councillors?
When we sought the views of ACT leader David Seymour or an ACT party spokesperson, on the other hand, we received no acknowledgement, let alone a reply. Pity.
As criticism of his opinions mounted, meanwhile, Hollis said he had plenty of support. This is reflected in the 7000 votes cast for him at the election, either because of or in spite of the remarks he made about the treaty and iwi during the election campaign.
He also said he looked forward to working with iwi.
He may not get the chance to demonstrate how willing he is to do this.
Tauranga Mayor Tenby Powell declared his intent to ban him from participating in any council business involving iwi or hapū and Buddy Mikaere, a former director of the Waitangi Tribunal and another voice in favour of Hollis stepping aside from the council, said he would take every opportunity to ensure Hollis played no part in any discussions involving iwi matters because he had a conflict of interest.
Whether the mayor has the authority to impose a ban is open to challenge but it seems he has not appointed Hollis to any committees as a chairman or deputy chairman. This raises the prospect of a committee chairman trying to stop Hollis having a say at meetings when iwi matters are discussed.
Important constitutional questions are being raised here.
The muzzling of democratically elected councillors, for example.
We invited ACT to express its views on Hollis’ right to tell us what he thinks of the treaty after Seymour denounced “the continued censorship of legitimate views on Massey University campuses” which “wouldn’t be out of place in China”.
“Massey University has dealt another blow to free speech by tearing down pro-democracy posters put up by some of its Hong Kong students.
“The students who had their posters taken down said Massey was the last place they expected their speech to be suppressed. They’d be forgiven for thinking they were in Beijing or Shanghai because Massey’s continued behaviour on free speech issues wouldn’t be out of place in China.
“Massey has now developed a taste for shutting down views and opinions that don’t fit with the ‘woke’ worldview of its leadership and staff, and especially Vice-Chancellor Jan Thomas.”
Seymour recalled that the Vice-Chancellor last year misused health and safety concerns to prevent Don Brash speaking on campus.
The university more recently buckled to pressure from a tiny group of intolerant protesters and refused to allow a group of feminists to speak.
“Freedom of speech is half about what the law is, and half about the leadership shown in institutions such as universities. Massey is completely failing the leadership test.”
A Point of Order email to ACT on October 22 asked if Seymour and/or an ACT spokesperson had a view on the rights and wrongs of describing “the treaty” as a joke?
We steered ACT to an RNZ report on the brouhaha in Tauranga.
We have received no reply to this or to a follow-up email on October 25.
Our email to the Race Relations Commissioner similarly drew attention to what Hollis had said about the treaty and to news of a copy of the Treaty of Waitangi being ripped from the wall inside the city council chambers wall.
According to this Stuff report:
Tangata whenua representative Hayden Henry and pulled a copy of the treaty down from the wall of council chambers to make a statement against Māori “being put down on Facebook” by representatives within council.
On behalf of Point of Order readers, we asked:
- Did the commissioner admonish Hayden Henry for his actions– or has he not been asked for comment?
- Does the commissioner distinguish between pulling a copy of the treaty from the wall of the council chambers and calling the treaty a joke? If so, what are the distinctions?
- Is it illegal to describe the treaty as a joke or to question its application to modern-day government?
- Is the commissioner saying anybody who disparages the treaty should be sacked or punished in some way, or is he limiting his stricture to elected local body councillors?
- In calling for Cr Hollis to resign, what regard does he give to the 7000 or so citizens who voted for the councillor, at least some of whom may regard Hollis as their champion on treaty issues and who may complain they have been disenfranchised – in effect – if he is required to step down?
- How does he respond to Hollis saying he is determined to speak his mind?
Here’s the response which arrived today:
Thank you for your correspondence of 24 October.
As a former Mayor and Councillor, I know how important it is to listen to all views and be informed by facts.
My wish is for all of our elected representatives to embrace this important aspect of their role and in particular to learn the history of Māori in this country.
All around the country, Councils are taking their Treaty obligations seriously and working in partnership with Iwi. The comments made by Mr Hollis will not help Tauranga District Council advance their Māori Kaupapa aspirations and relationships.
It’s unfortunate that Mr Hollis has taken this stance because Māori contribute a huge amount to the culture and economic wellbeing of Tauranga.
I don’t condone Mr Henry’s actions, but I understand his frustration and I stand by all those who feel let down by the comments made by Andrew Hollis.
Māori and the residents of Tauranga deserve to have elected leaders who encourage harmonious relationships instead of disparaging Tangata Whenua. Speaking your mind has its place but leadership calls on us to do more, to exercise responsible speech and to consider carefully the impact of our speech on the communities we serve.
The “racism” card was played against Hollis in much the same way as it was played against Don Brash, at Massey and – in another freedom-of-speech controversy – against two Canadian speakers accused of hate speech last year.
Auckland Peace Action group are among those opposing the pair’s visit, with spokeswoman Valerie Morse saying she had been receiving “threats of violence from neo-Nazis for speaking up against the visit of these two racists”.
Going back some 10 years, Valerie Morse was convicted of offensive behaviour after setting the flag alight in an anti-war protest in Victoria University’s law school grounds, opposite the Cenotaph, during the 2007 Anzac Day dawn service.
Her conviction was upheld by the High Court and Court of Appeal.
But the Supreme Court ruled unanimously that offensive behaviour must give rise to a “disturbance of public order”.
The Flags, Emblems and Names Protection Act of 1981 (Stuff reported then) makes it illegal to destroy the flag with the intent of dishonouring it but Auckland University law professor Bill Hodge said the Supreme Court decision appeared to set a new precedent, giving protesters more right to freedom of expression under the Bill of Rights.
“You can now burn the New Zealand flag any time, anywhere you like, because I can’t think of a time any more sensitive with the right people in the right place than Anzac morning in our nation’s capital while the morning ceremony is ongoing. Constables will now get an order that you can’t arrest people simply for burning a flag.
“I had always thought constables could take action pre-emptively to prevent a breach of the peace, this seems to say you’ve got to wait till it happens and, to me, that’s not terribly efficient.”
Let the record show Morse hailed the ruling as a victory for freedom of speech. But we imagine she won’t be championing Hollis’ right to say what he thinks.
UPDATE: This item’s reference to the mayor’s ban has been updated.