ALLAN JENKS (AND OTHERS) AGAINST THE DOMINION POST
Case Number: 2687
Council Meeting: JULY 2018
Decision: Not Upheld
Publication: The Dominion Post
Balance, Lack Of
Misrepresentation, Deception or Subterfuge
 Martin Devlin, Allan Jenks and Chris McCashin have all complained about a column that ran inTheDominion Post and The Press, titled ‘Thieving Pakeha neighbours have been stealing our stuff for years’, published May 28, 2018.
 The columnist, Joel Maxwell, is contracted by Stuff to write a weekly column and the piece is commentary on referendums the week prior that saw Maori wards rejected in Manawatu, Palmerston North and Whakatane.
 Maxwell argues that paranoia lies at the heart of the results. A supporter of Maori wards, Maxwell suggests “a chunk of Pakeha” are driven by fear. Those Pakeha are like “crummy neighbours” who move in next door and start stealing from you. “Yup, we ended up with thieving Pakeha for neighbours”.
 Maxwell argues a connection between those Pakeha today and past alienation of Maori land when “many Pakeha looked the other way while their kin picked our pockets”. “It used to be all ours, and now it’s theirs”, he writes, before concluding that makes the support of “other Pakeha… extraordinary”.
 The three complainants develop slightly different arguments, but all say or imply that they find the column racist and ill-informed. All argue that if a Pakeha had used such strong language in a column – which they describe as “a tirade”, “tripe” and “vitriolic” – it would be deemed unacceptable, even “hate speech”.
 All three complain under a raft of principles, but as this is an opinion piece the complaints largely revolve around principles four, five and seven.
 Devlin offers the most thorough complaint, describing the piece as “racist, misleading, dishonest and provocative”. Elsewhere he claims it is “inaccurate and unsubstantiated”. He argues most land was sold by willing buyers and most confiscated land was later returned.
 Devlin points to the recent controversial Bob Jones column in the NBR and says “any use of negative racial stereotyping in a major publication, even if it is satirical, is clearly unacceptable, possibly illegal, as Sir Bob Jones and the NBR have discovered to their cost”.
 While some columnists make good reading, Maxwell is “weak” and “offensive” and this column fails as a piece of informed opinion and is not to a standard worthy of publication.
 Devlin continues, “My challenge to the Council is this: If the term Maori were to be substituted in the Maxwell article for the term Pakeha, would the Council condemn such an article?” He says we “cannot have it both ways”.
 Devlin also complains about the headline, under Principle six, saying it is deliberately designed to be provocative and racist. “It does not reflect the content regarding referenda and land alienation per se”.
 Jenks adds the concern that the column is a vicious mischaracterization of those who voted against the Maori wards. Maxwell accuses them of being thieves, he says, when in fact they “value elective democracy in local government”.
 McCashin adds the points that Maxwell is an example of a columnist who uses his feelings rather than providing evidence and facts and criticises him for a lack of detail and “investigative journalism”. Summing up all three complaints, he labels the column “a racist hit job”.
 Dominion Post editor Eric Janssen defends the column on all points, replying to all three but focusing most on the Devlin complaint.
 Janssen says Maxwell has the right to express his opinion and just because some find it discomfiting, that does not mean it breaches Media Council standards.
 He rejects any characterisation of the column as racist or hate speech, describing it as a “robust defence of Maori views about their historical disenfranchisement, but [which] also praises those Pakeha who voted in favour of Maori wards”. Devlin has missed the satire and hyperbole Maxwell employs in the column. Such satire is “a long-honoured and legitimate rhetorical device used by writers down the ages”.
 As a Maori columnist, his voice should be welcomed as there are “precious few Maori columnists in their 40s writing in our newspapers. It might be considered that this is partly because, when they do, they are subjected to multiple complaints from those who simply disagree with them”. He finds the complaints “dispiriting” and an “attempt to bully publishers and columnists who dare to voice a view that tries to escape the monocultural straightjacket in which some readers would like to restrain us”.
 Janssen calls Devlin’s argument on replacing the word Pakeha with the word Maori “spurious”. “Context is everything: Columns condemning Maori behaviour have been published in many media, as have cartoons that some readers have considered offensive”.
 Principles four and five require columns to be based on fact and Janssen says the complainant’s opinions on New Zealand history do not invalidate Maxwell’s claim that “They [Pakeha] cleaned out everything… It used to be ours, and now it’s theirs. The view represents a long-standing grievance of many Maori”. There is “enough foundation in fact in his views of land theft and Maori disenfranchisement for his arguments to be justified”.
 The editor says the complainants’ view on the quality of the writing is irrelevant and a matter of personal taste.
 On the matter of the headline, he says it accurately and fairly conveys the substance or a key element of the column and so meets the standard required by Principle six.
 Responding to Jenks, Janssen says it is “wilful misrepresentation” to suggest Maxwell was saying those who voted against Maori wards are thieves. “Jenks is conflating two threads of his [Maxwell’s] argument into one”.
 As for McCashin, Maxwell is not an investigative journalist, but an opinion columnist and the column is clearly labelled as such. Janssen points to another column by Maxwell linked to in the story that does base an argument on demographic data, but says he is entitled to an opinion even without supporting data.
 Starting with the more peripheral issues, the Council agrees that the headline fairly conveys a key element of the column; the writer argues strongly that some Pakeha stole Maori land for years. The headline is not required to cover every part of an article or column. The complaint under Principle 6 is not upheld.
 Second, the column is clearly labelled opinion as required under Principle 5, and columnists of all persuasions are entitled to express theirs. That is their job. There is no sanction by the Media Council against columnists who are insulting or offensive. As we have often said before, readers do not have the right not to be offended. Complainants can choose not to read that columnist or even that newspaper if they do not like the views expressed. But the columnist has the right to express them.
 On the additional points raised by Jenks and McCashin, it does seem the former has wrongly conflated two points made by the columnist and the latter has failed to draw a distinction between opinion writing and investigative journalism. They are two very different things. While he may prefer columns built on evidence and data, there are many acceptable ways to express an opinion.
 The complainants believe the voters who rejected Maori wards did not do so for the reasons Maxwell claims. That is their opinion, but he is entitled to a different one.
 The nub of the complaints though rests on whether or not the opinion expressed is based on facts (principles four and five) and whether the focus on race and ethnicity is gratuitous (principle seven).
 Devlin’s specific challenge to the facts Maxwell relies on in the column is that virtually all land owned by Maori was legitimately sold by willing sellers to willing buyers, while most confiscated land (done as punishment for rebellion, he says) has been returned.
 The details, rights and wrongs of raupatu and redress are hotly debated topics, but the history of the Taranaki and Waikato wars, Kemp’s deed and the Waitangi Tribunal, for example, shows the issues are complex and not as straight-forward as Devlin describes them. While questions of degree can be debated, Maxwell’s underlying point that some Pakeha settlers stole some – even a significant amount of – Maori land is well established. There is no error in fact.The complaints under Principles 4 and 5 are not upheld.
 So is the column racist and does it constitute hate speech? The Council notes that hate speech is not defined in Media Council principles; what we are asked to decide is whether the discussion of certain issues – race, in this case – crosses a line to be gratuitous or unethical.
 Devlin asks the Council if it would be acceptable for a Pakeha to write as Maxwell has, but the Council does not have to enter that fray. We judge complaints case by case and according to our principles, not hypotheticals.
 The Council does note, however, that we did not uphold complaints against the recent Bob Jones column, contrary to what Devlin implies. As we stated in that ruling, “Freedom of expression is the most important of the principles the Media Council is required to take into account when determining a complaint” and when content is clearly labelled as opinion, there should be few restrictions.
 The column is certainly provocative and insulting to some in its metaphor of the “thieving Pakeha” next door and employs hyperbole. It is clearly designed to be confronting to some readers. Some would argue that is part of a columnist’s stock in trade. Indeed, as Janssen says polemic and satire is ages old and can be found in some of the most celebrated writing of all time. The quality of this satire and polemic is in the eye of the beholder and not for the Council to critique. It is not unethical to prod readers with controversial views.
 Maxwell is far from alone in drawing a line between the history of raupatu and modern day issues, such as Maori wards. So there is nothing gratuitous about his criticism of Pakeha and their past treatment of Maori in a column on this subject.
 Similarly, Maxwell does not make gratuitous generalisations. He makes it clear he is talking about only some Pakeha and ends his column singling out for praise other Pakeha who stand beside Maori.The complaints under Principle 7 are not upheld.
Media Council members considering the complaint were Sir John Hansen, Liz Brown, Jo Cribb, Chris Darlow, Tiumalu Peter Fa’afiu, Jenny Farrell, Hank Schouten, Christina Tay, Tim Watkin and Tracy Watkins.