In the High Court at Wellington, Sir Robert Edward Jones v Renae Maihi felt as much about racism as about defamation – before the plaintiff halted proceedings.
But more than just a laugh at his expense, the image and some of the evidence Jones gave in court revealed a man who, despite his sharp mind, quick wit and voracious consumption of current affairs, is out of sync with some aspects of contemporary life. Whether that extends as far as holding views that could be considered by an ordinary person to be racist was left unanswered.
Jones, 80, who told the court he does not have a mobile phone, has staff, instead. When, on the second day of the trial, he turned up without his hearing aid, they scurried to find it. They failed, hence the earphones made available in court for those with hearing impairment.
The case came about after Jones wrote a column in February 2018 in the National Business Review that, among other things, suggested there should be a Māori Gratitude Day when “Māori bring us breakfast in bed or weed our gardens, wash and polish our cars and so on, out of gratitude for existing”.
He said the gratitude day was intended to be the first in a series. The next was going to be a day of gratitude to motorcyclists whose deaths in accidents provided hearts for transplants. The Māori Gratitude Day column was removed from NBR’s website two days after it was first published. “You have to be sick not to see the item as a piss-take,” Jones told the court.
In evidence, Renae Maihi said it was incomprehensible to her that Jones’ column had been “written by a knight”. “His words were an act of violence,” she said. After reading it, she had started a petition to have Jones stripped of his knighthood. Her article accompanying the petition on the change.org website was titled, “Strip racist ‘Sir’ Bob Jones of his Knighthood – Read his vile rant here.”
After threatening legal action against Maihi if she persisted in her actions, Jones sued for defamation.
Maihi told the court that she stood by the words she had used in the petition. She had been angered and upset “as a Māori woman and as the mother of a Māori son” by the column. A film-maker, she has a bachelor of Māori performing arts and lives in Toronto where she said the themes of her work were “around colonial oppression”.
In court, both Jones and Maihi presented as confident, intelligent, articulate and sincere witnesses. Both have Māori children. Jones’ late first wife was Māori and they had two children together. Maihi has an 18-year-old son whom she has co-parented with the boy’s father. At different times, both Jones and Maihi were moved to tears as they gave evidence. And in the end, five days into a case that had been set down for two weeks, both agreed to the matter being called off. The abrupt ending removed the court’s responsibility to rule on the defamation charge, but also its opportunity to provide guidance on what, in 2020, counts as racism.
Humorist, satirist, comic writer
Opening the trial before Justice Susan Thomas, Jones’ counsel, Fletcher Pilditch, said Jones felt he had been defamed by Maihi calling him a racist, and by her saying that he was the author of hate speech and unfit to hold the rank of Knight Bachelor. Jones was a noted humorist, satirist or comic writer, Pilditch said. His published works spanned more than 50 years.
“He is also a libertarian. He believes in freedom of choice and responsibility for those choices. His beliefs can perhaps be best described by the principle of live and let live. These themes run consistently through his published work.”
A key issue at trial would be whether the natural and ordinary meanings of the words used by the defendant “are that the plaintiff is a racist, or that the plaintiff’s article contains racist comments”.
Pilditch said the plain and ordinary reading of the words “Strip racist ‘Sir’ Bob Jones of his Knighthood” were a clear and unambiguous personal attack. “That is further borne out by the purpose of the petition, to strip the plaintiff of a knighthood bestowed on him more than 30 years ago.”
Pilditch said hate speech was topical but hate-speech laws were not intended to protect people from offence, or to suppress ideas. “The aim was to punish the incitement of hate in other individuals. The bar for classifying hate speech, both nationally and internationally, is very high, as is the bar for identifying someone as a racist. It is much higher than simply commenting on historical or current cultural issues.”
In court, Jones had no compunction in outlining how irate and upset he was by what he frequently called “a campaign” that Maihi had run against him after his column appeared in NBR. He was not a racist, he said. “I’ve put an enormous amount of effort into trying to help Māoridom and that’s why I’m very incensed to be sitting here now, over this,” he told Maihi’s counsel, Davey Salmon.
At the time of the trial, the petition was still on change.org, although it had been twice rejected by Parliament. It was removed from the site as part of the agreement on the fifth day of the trial to end the proceedings. By then, four witnesses, Victoria University of Wellington emeritus professor of politics Dame Margaret Clark, gym owner and Jones’ regular tennis partner Ryan Wall, author Alan Duff and New Zealand First leader Winston Peters’ chief of staff, Jon Johansson, had given character evidence on Jones’ behalf. All said he was not a racist.
For her part, Maihi described how upset she was by Jones’ column. She recognised racism when she saw it, she told the court. She had grown up with it. Her mother’s Pākehā partner had created an abusive home life; she had been racially taunted at the local swimming pool in Auckland’s Manurewa as a child; her son had been the victim of racism and she saw her petition “as part of a mother’s duty of protection”. Racism was a dangerous and potentially damaging mindset. “To my mind, hate speech and racist speech are one and the same.”
Jones on the stand
Because the trial ended before Maihi was cross-examined, or had called witnesses in her defence, it was dominated by the case for Jones. At one point, he started to break down when describing his first visit to a women’s refuge. He had been taken to one, before there was a national refuge movement, by a woman who had hoped he might financially support the refuge that she had helped establish in Wellington’s Hutt Valley. Most of the women at the house were Māori. A small boy, aged about three, had dived under a table on seeing Jones visit. The boy, it seemed, was terrified of men. “It was so upsetting,” Jones said, his voice breaking. He became a committed supporter of the refuge movement, donating to it, fundraising for it and serving on its boards for many years.
Jones was also at times an irascible witness, sparring constantly with Salmon in lengthy exchanges and unwavering in his assertions that colonialism and, in particular, breaches of the Treaty of Waitangi, were not a cause of socio-economic disadvantage among contemporary Māori. It was more likely welfarism was to blame, and characteristics particular to disadvantaged Māori. Everyone had choices about how they lived their lives, he said. It was a fact that there were no full-blooded Māori left.
He was asked about suggesting in his NBR column that he didn’t want his children, “wasting their education on a dying language now confined to hobbyists”.
“Are you aware of any extent to which a number of Māori might find that a hurtful or offensive comment?” Salmon said.
“Oh, God. I walk down the street – some people find it offensive,” Jones responded. “That’s an absurd proposition to put to me. Taking offence at everything is a modern-day phenomena.”
Jones insisted te reo Māori was dying. “It’s not a [disputed] matter of fact. The Government made an announcement last week that they’re making no progress. I’m pleased to hear it.”
Salmon said a number of Māori did not consider the language to be dying, nor that it should be allowed to die. “You’d agree with that?”
DS: So you would agree that they might find that offensive to hear the suggestion …
RJ: Oh, God. I stated a fact. It is a dying language, admitted by Government proponents last week who are making no headway. Which shows there’s common sense out there. But I consistently said … that if people want to do it, that’s their choice. Don’t make it compulsory. And I’ve held that view since I first started secondary school at 13 when all New Zealand public state-school kids had to learn French. I refused to. I don’t want to learn French.
DS: You call it a waste of education.
RJ: Of course it is. The human brain has infinite capacity to absorb stuff. What kids don’t have is infinite time. They should be more selective of what they use their study time for.
DS: You then relate it to law students having to learn Latin, “a language with no connection to New Zealand”. Do you see that that might be provocative?
RJ: Oh, God. Provocative to who? Dead Romans?
DS: I’m not asking whether you think people should feel provoked, I’m asking whether in your columns in which you appear to enjoy provoking, you realise that this would provoke.
RJ: Basically, you’re saying, if I wrote, “the cat sat on the mat”, would that be provocative. I tried it once, and it was.
Jones said he had never once said that people should not learn Māori and his objection was only to compulsion. “I have always argued simply, as I started arguing when I was 13 and refused to learn French, ‘I don’t want to learn French’.”
Salmon put to Jones another column quote in which Jones had written, “If someone’s interested, by all means learn Māori. So, too, with an endless list of activities from stamp collecting to line dancing. Each to their own, but let’s not have compulsion based on an ill-considered romanticism.”
Salmon asked if Jones agreed that “describing learning te reo as, quote, ‘ill-considered romanticism’, will offend a number of people?”
RJ: Och, well, as I say, all sorts of things offend people. We live in an age of offence-taking as we read about all the time.
DS: We also live in an age, though, where there’s a fairly strong position in Government policy and in culture to reinforce and learn te reo and where it is not considered –
RJ: Which, by their own admission last week, has failed …
DS: And which is not considered an ill-considered romanticism by most Māori people. Do you agree?
RJ: No, I don’t think most Māori people don’t agree with that at all. I think they’d probably agree with me, I think. If you want to learn it, learn it – I make no judgment about that. I just say don’t compel us to. Or Latin, or French or anything else.
DS: So you see no implications in your description of learning te reo as ill-considered romanticism?
RJ: I think it is. I think it’s an accurate description.
DS: And your expectation is most Māori would also consider learning any te reo to be ill-considered romanticism?
RJ: In my view, yes. I think they would be very silly to waste good learning time, time being the keyword, not capacity. If they want to, they should do it.
DS: That’s what you think. Do you think they will agree with that?
RJ: I have no idea, but I imagine they probably would. It’s pretty logical, but do it if you wish to do it, don’t force it on people … There’s a qualification, that it is compulsory. You keep dodging that. I lambasted the Welsh for this stuff … a ridiculous language and the only thing it’s ever contributed is lovely Christian names for women: Bronwyn and the like.”
Jones refused to concede his columns were designed to provoke readers. If that was true, he said, Maihi’s petition to revoke his knighthood would have had five million signatures rather than the 65,000 she originally claimed.
“It went down to 59,000. It seemed to go backwards, notwithstanding the efforts of 200 women [assisting her].
DS: I’m not talking about …
RJ: Why aren’t there five million signatures? So, no, I don’t agree. The statistical evidence is you’re wrong.
DS: You don’t agree that you have been seen, by some people, as a controversial voice on issues Treaty and Māori?
RJ: Some people object to everything.
Jones rejected Salmon’s suggestion that he wrote columns “for a bit of a joust”. He wrote for his own pleasure, he said.
DS: In any event … you talk about introducing Māori Gratitude Day. Now, everybody understands, and you don’t need to say this again, that you weren’t genuinely suggesting that Parliament legislates a new holiday.
RJ: No, I can name one who kept insisting that I was. [Maihi said] she couldn’t sleep all night.
DS: Well, that’s your view of what she said.
RJ: I’m sorry, she did say that. She’s on record. Not only couldn’t she sleep all night …
DS: Let’s park that …
RJ: Well, you asked if I knew anybody [who took Māori Gratitude Day seriously]. Yes, I do. Your client. She couldn’t sleep at night and she spent two years saying I advocated servitude, to use her word.
DS: Do you want to hear my question, Sir Robert?
RJ: I thought you’d asked it.
DS: You then go on to say in place of a “much-disdained Waitangi Day”, and it’s those words I want to focus on. Would you agree that your sentiments, included implicitly here about Waitangi Day and about the Treaty of Waitangi, are somewhat controversial?
DS: You don’t?
DS: You consider that your view that the Treaty of Waitangi is irrelevant and has had no negative impact on Māori by its breach, you say that’s not a controversial view?
RJ: No, I don’t think its controversial. I’ve already pointed out that article recently in the Economist about the average life of treaties [being six years] … I don’t know what everybody agrees with, but I don’t think it’s controversial to say that a 180-year-old treaty is now redundant.
DS: You are not just saying it is redundant, you are clear in what you’ve written and what you’ve said to me today that the breach caused no harm to modern Māori … do you regard that as just a potentially controversial view?
RJ: A lot of these people we’re talking about – like with socio-economic [implications] – would never have heard of it. How do I know that? I had a home at Tūrangi when I was in my fishing obsession and I knew a couple of prison guards and they used to tell me about Māori youths coming into prison who had never seen or held a knife and fork and they had to teach them. I doubt very much if those kids knew about the Treaty of Waitangi.
DS: Sir Robert, I’m just asking if you know it to be a somewhat controversial view?
RJ: No, I don’t believe it’s controversial at all.
Jones said he accepted that there had been breaches of the treaty “and they can be dealt with, but now we see the extrapolation of the Treaty. These are the dangers. This is what irritates me. To cite one: airwaves. They weren’t even known about until 45 years later and so on and so on.”
DS: Can we stick on topic, Sir Robert. You said the breaches caused no social or economic harm to Māori.
RJ: Not 200 years later. You’re making excuses.
DS: I’m just asking whether you know enough of New Zealand, of the Government’s public policies, and of recent jurisprudence to know that your position there is a controversial one?
RJ: No, it’s not a controversial one. I know politicians better than you and I know what motivates them when it comes to this sort of thing – the critical Māori seats, which are the things that have been actively fought over once Labour lost them for the first time.
DS: All right. And where you’ve said that rather than make kids learn the language – to those Māori still alive, some of them here, who were strapped for speaking Māori at school, do you think that that would be a controversial thing to say? That there’s nothing in learning to speak Māori, because it’s dying?
RJ: You’re talking about the past – the strapping in schools. We’re talking about now.
DS: But now we have people with that living memory. As to why Māori is spoken –
RJ: I got strapped every day at school. Literally. I don’t carry it with me for the rest of my life. You get on with life.
DS: I’m not suggesting anything about that. I’m saying, do you regard the fact that children were prevented, for example, from speaking te reo at school …
RJ: I accept it’s true, but to say that generations later they’re still reeling from the impact and therefore going out committing crimes, etc …
DS: I’m not saying that, Sir Robert …
RJ: Well, I’m sorry, that is what you’re saying.
DS: Then you’re not listening to my questions.
Justice Thomas: No, that’s not what Mr Salmon said.
DS: I’m putting to you that those are examples of the types of people who would find what you say contentious, and possibly hurtful. Do you accept that, or not?
RJ: I don’t believe that. I’d be happy to argue with any intelligent Māori on the Treaty of Waitangi being redundant.
Free to call out racism
Opening the case for the defence, Salmon said that although the case concerned a private law claim in defamation, “it raises issues of significant public importance about freedom of speech and in particular the freedom of Māori and other racialised groups to name and respond to racism, prejudice, discrimination and antagonism, as those terms are properly understood today”.
There was no question, Salmon argued, that Jones was free to express his views about Māori in the NBR column. However, Jones’ argument was that Maihi was not free to respond to his views, and to express her opinion that those views were racist and a type of hate speech. Such an outcome, Salmon said, would not just deny the defendant’s freedom of expression, “it would also risk dangerously curtailing the ability of racialised groups, and the community as a whole, to discuss and address racism.
“The plaintiff and Pākehā would be free to attack Māori and other racialised groups, or use pejorative or discriminatory language about them, but those racialised groups would be hamstrung in their ability to respond.”
Salmon said Maihi did not accept that she had damaged Jones’ reputation, “because his reputation was generally bad in the aspect to which the proceedings relate, on account of his publicly expressed views on Māori and other ethnic groups”.
She relied on four affirmative defences to defamation: honest opinion, truth, responsible communication on a matter of public interest and qualified privilege.
Salmon said Maihi would call witnesses including Treaty lawyer Moana Jackson, psychologist Raymond Nairn, international human-rights expert Kris Gledhill, and media-studies expert Nicholas Holm.
A “sensible” end to proceedings
Before she had a chance to do that, Jones discontinued the proceedings.
“I filed these proceedings because I was deeply offended by Ms Maihi’s allegations,” Jones said in a statement issued after the case was abandoned.
“I am not a racist. I now accept, however, Ms Maihi’s offence taking was a sincerely held opinion. The parties may never align on what is acceptable humour, however, no malice was intended by either, thus it is sensible to put an end to proceedings.”
Maihi welcomed Jones’ move.
“This has always been about highlighting the harm and impact that racist language has, both now and historically,” she said in a statement. “It is important for us all to remember that language and articles of this nature, whether intentional or not, can and do cause hurt. It is important, too, that those on the receiving end of racism have an opportunity to express their feelings.
“While I and many others disagree strongly with the language Sir Robert has used about Māori, we can disagree with him without being rude about him as a person. I ask people to keep this in mind when posting on social media.”
This article was first published in the February 29, 2020 issue of the New Zealand Listener.