If naked women can grace massive advertising hoardings, why is a man facing jail for expressing his opinion? CLARE SWINNEY investigates:

So imagine your surprise when an officer of the law comes calling, grabs you by the scruff of the neck, and says you have no right to criticise the city council from the privacy of your own property.

Also, and rather controversially, Finau believes it’s a fundamental human right to be able to express political views using signage on private property, and claims his battle is about defending this right for everyone. Indeed this case raises interesting practical, political and philosophical questions about censorship and freedom of expression in New Zealand.

Ike Finau, a 38-year old fitter and welder, who’s bent on bucking the system, launched his David vs Goliath-style campaign in his Grey Lynn garden in 1998 to support the left-wing, civil disobedience-based organisation, the Water Pressure Group (WPG). As community groups go, it’s one of the most active and tenacious in the country - being doggedly outspoken on the drawbacks of commercialising water services, privatisation and public-private-partnerships.

Finau’s inaugural sign stated "Dump Metrowater". Metrowater is a Local Authority Trading Enterprise established by Auckland City Council (ACC) in 1997. To Finau, it symbolises the unwelcome beginning of the commercialisation of water services in Auckland City. The water charges making life more difficult for large, low-income families. His sign stood for 18 months, drawing no complaints.

Then, in late-1998, a few weeks before the local body elections, the WPG sent a letter to candidates asking them to clarify their position on Metrowater. Candidates were requested to sign and return a pledge stating, ‘I will actively work towards the swift dissolution of Metro Water Ltd. and its holding company, and I will vote for the return of Auckland’s Water service to direct democratic control, answerable to consumers via Auckland City Council.’

On the basis of pledges returned and candidates’ policies, Finau advised members of the Polynesian community whom to vote for - a decision he regrets today, for in an ACC meeting in mid-2000, two of the candidates Finau endorsed, reneged on their pledges: Bruce Hucker abstained from voting and Penny Sefuiva voted against Metrowater’s dissolution.

Feeling angry and used, Finau promptly raised new signs: ISN’T BREAKING YOUR PROMISES LYING TO THE PUBLIC and STOP PRIVATISATION DUMP METROWATER - BRUCE HUCKER AND PENNY SEFUIVA. Copies of the signed pledges were pinned up also.

A year passed, and still no complaints. As the 2001 local body elections drew closer, Finau took some signs down and erected new ones, including DUMP THE MAYOR OF METROWATER - CHRISTINE FLETCHER, HELP STOP PRIVATIZATION, DUMP BRUCE HUCKER, YOU SELLOUT TRAITOR. HIS [sic] BEHIND - METROWATER –WAIKATO PIPELINE. BRUCE HUCKER YOU DOG TUCKER.

Dr Bruce Hucker, a University lecturer, is all for freedom of political expression, but had reservations about Finau’s signs. He termed them defamatory.

Shortly after Finau erected these, the ACC acting on a complaint, wrote to Finau on 19 June 2001, advising him to remove the signs. If he did not, the council would, as they breached provisions of Auckland City Consolidated Bylaw 1998. Specifically, ‘signage in residential zones shall be limited to a single externally facing sign for each road frontage, advertising a lawful use of the site, located on the site to which the use occurs and advertising only products or services available on the site.’

Rather than dismantle, after reading the letter Finau resolved to erect additional ones and, by late-June 2001, he’d added six more to the ensemble, one of which warned, ‘CITY COUNCIL YOU LEAVE THESE SIGNS ALONE OR IT’S WAR.’

A bemused Finau: "It’s ridiculous to have a by-law allowing a sign like ‘Sexy Titillating Ladies Available From Midnight,’ but not a ‘Merry Xmas’ sign."

Hucker’s response: "This by-law is to deal with visual pollution and aimed at commercial advertising, but has caught up with political expression in this case."

The City backed off Finau until after the election. Then, in late-2001, it pushed the matter to a District Court hearing. And Judge Roderick Joyce, QC, who presided, ruled in February 2002 that all signs must be removed. In justifying his decision, he noted that this was a justifiable limitation on Finau’s freedom of expression, as Ike ‘like any other citizen, has avenues of word of mouth, letter writing, attendance at Council or Council committee meetings, calling or speaking at public meetings, distribution of pamphlets or papers, web page publication and encouragement of media intervention.’

In his defence, Samoan-born Finau says he believes the best way to express his political views is via placards, because English is his second language and thus he doesn’t feel confident on talkback radio or writing letters. Also, he doesn’t possess a computer, is not computer-literate, so is unable to e-mail and set up a personal web page. And Council meetings are not a realistic option, as speaking rights are restricted, placards prohibited and interjecting protesters are cast out.

Reluctantly, Finau complied with the Order, removing the signs from his garden. It was a sad day for him and to rub salt into the wound, Auckland City wrote to Finau again on 22 February 2002, advising him to remove all signs from his vehicle also - as they contained messages similar to the ones removed.

Finau was incensed and wrote to the Human Rights Commission (HRC), complaining that Auckland City was bullying and harassing him and that he was being discriminated against on the grounds of his political opinion. He also asked the Commission to fund an Appeal against Judge Joyce’s decision. The HRC declined the request, however the Council backed off temporarily and Ike was able to retain the signs upon his vehicle.

Auckland City Councillor Juliet Yates, Council’s Regulatory and Fixtures Sub Committee chairperson maintains: "Our democratic system does require individuals to limit their freedom of action in the public interest, which is described in our laws and bylaws that apply to everyone."

So a pivotal matter leading from Yates’ allusion to democracy is whether the majority is in fact, opposed to or affected by Finau’s signage.

Investigate conducted a poll in Finau’s neighbourhood. His property at 10 Warnock Street sits near the end of a quiet street. Unless one swivels one’s neck, his signs aren’t obvious when driving by on busy Richmond Road, which his street connects with. However, they are to the Buddhist Centre facing his home, a Community Centre that’s down a driveway to the right and a small row of quaint shops, which also lie to the right of Finau’s residence.

Those closest to Finau’s property expressed some of the strongest opinions. Two said they loved Finau’s signs, another said, "They’re great!" A woman griped: "If they allow signs with the word abortion on them, why can’t he have his?" If real estate agents can scatter their signs around like confetti, why can’t Finau, queried a pensioner.

Thirteen out of eighteen of Finau’s neighbours did not express reservations about Ike’s signs. However, two said that although they agreed with Finau’s right to express his beliefs as he does, he’d gone too far, as he’d been defamatory. One man said Finau should have the right to freedom of expression using signs, but thought his looked scruffy. An elderly lady grumbled that they should be removed, as they were untidy and defamatory. And another took exception to their contents, saying they should be taken down. Three of Finau’s neighbours had signs reading ‘In Solidarity with Ike.’ Plus, the WPG presented a list of over 250 signatures from people who support Ike’s protest signs, many of whom live in Finau’s vicinity.

The apparent support for the placards begs the question, was the by-law being used to outlaw the signs itself supported by the majority, or did a local elected dictatorship, without the majority of ratepayers’ support, pass it? If the latter is the case, how far can anyone go with signage on his or her own property? Should there be any limitations?

While Yates maintains, "Council Officers deal with complaints about illegal signs in the manner and with the penalties the law provides," evidence indicates Auckland City is not even-handed. For example, a David Lennard complained to the City twice concerning an ACT-Party hoarding on busy Kepa Road in the upmarket suburb of Orakei, nestled between Mission Bay and Remuera. The sign broke a number of bylaws, including that of being significantly over-sized and outside the designated Auckland City owned area. The City ignored his complaints.

Barry Wilson, President of the Auckland branch of Civil Liberties, who admits civil liberties lawyers can’t agree on the Finau case, says: "If Council can make those tasteless massive billboards advertising liquor and underwear an exception, but can’t allow a citizen to express themselves, that is, in my view, an inconsistency. If anything’s an environmental pollutant, it’s those."

While in recent years New Zealand courts, especially the Court of Appeal, have shown an increasing appreciation for freedom of expression issues, there’ve been disgraceful violations. For instance, during APEC meetings, police dispersed peaceful ‘Free Tibet’ protesters who were exercising their legitimate rights outside a venue where a dinner for Chinese President, Jiang Zemin was being held.

Likewise, Auckland City removed two banners strung up for the Dalai Lama’s visit, one as it breached city guidelines and the other as Council wished to adhere to Foreign Affairs guidelines. Additionally, Auckland Airport last year removed the Falun Gong display, claiming it had been criticised by travellers and the Chinese Embassy – the Airport Authority subsequently came under fire itself for undermining the basic human right of freedom of expression, and allowing political practicalities to win over principles.

City officials will not disclose the complainant’s identity, but a reply to an Official Information Request hints at it being one of the politicians referred to in Finau’s signs.

The defamation issue is a red herring. If the signs were defamatory, the councillors concerned could equally have taken High Court action against Finau under the heavily punishing defamation laws and had the signs banned. But they haven’t.

Aucklander and Green Party MP, Nandor Tanczos, who considers this to be a case of political censorship, says that although he doesn’t agree with the content of Ike’s signs, he believes Ike should have the right to express his views this way.

"I think it’s a case where Auckland City has by-laws that can be used for political censorship which breach the Bill of Rights and our fundamental right for freedom of expression. There are many different reasons why the Council’s said they’re objecting to the signs, but when you peel it all away, what it’s saying is Ike’s not allowed signs that express his political opinion, in particular if it’s a political opinion the Council doesn’t agree with."

On 17 January, which Judge Joyce tagged Ike’s last chance, a heavy aura of righteousness hung almost tangibly in the air where a mish-mash of placards stood - DEFEND DEMOCRACY, GE FREE ZONE, GOD SAVE THE QUEEN and LOYAL. Finau, feeling nonchalant, put these up to make a mockery of the court ruling; then went on a camping holiday with his family. The slogans stabbing politicians were put on mothballs. Indeed ACC have had a Clayton’s win by silencing Ike’s dissent, for in the garden where civil disobedience reigns, umbrage is taken at authoritarianism.

As for Judge Joyce and his controversial ruling: it flies in the face of superior court rulings in other jurisdictions, one of the most notable being a Canadian Supreme Court ruling overturning a Toronto City bylaw banning people from erecting billboards expressing political opinions – the court ruled the City had no authority to set a mere bylaw against the fundamental rights to freedom of expression in a democracy.