New Zealand, like many other countries, has legislated to give effect to Article
20 of ICCPR, which requires State parties to ban ‘advocacy of national,
racial or religious hatred that constitutes incitement to discrimination, hostility
or violence’. The United Nations Human Rights Committee has expressed the
view that the prohibitions required by Article 20 are ‘fully compatible
with the right of freedom of expression as contained in Article 19’ (CCPR
General Comment 11, 1983), but Article 20 does not relieve the State parties
of the obligation to protect freedom of expression to the fullest extent possible.
Rishworth (forthcoming) discusses a number of reasons for racial disharmony laws
that limit freedom of expression. These include avoiding harm. He states:
It is possible to trace genocide and acts of violence against racial and ethnic
groups back to the development of attitudes in the community. And if the development
of attitudes is targeted as a ‘harm’ to be avoided because it makes
people more susceptible to incitements to violence, or more tolerant of violence
being perpetrated by the state on racial groups, then the harm avoidance rationale
can be invoked to justify some speech restrictions.
A second reason is that of discouraging discrimination. This rationale in favour
of regulating race-related expression suggests that speech that vilifies promotes
negative stereotypes and attitudes, so that people view those vilified as loathsome
and unworthy and deserving of discrimination.
The psychic injury rationale suggests people should be spared the psychological
harm and alienation that might follow racist remarks. The harm is not so much
in the attitudes engendered in others, as in the erosion of self-worth in the
victims, their withdrawal from society and resultant inequality. Regulation that
limits speech about race is also symbolic, sending positive messages of inclusion
and concern to ethnic minorities and demonstrating a legislative commitment to
There are two provisions in the Human Rights Act 1993 (HRA) that limit freedom
of expression about race. Section 61 prohibits expression that is threatening,
abusive, or insulting, and considered likely to excite hostility against or bring
into contempt a person or group of persons on the ground of their colour, race
or ethnic or national origins. It is the effect of what was said that counts,
not whether the person did or did not intend to excite hostility. Although intention
is irrelevant, the views of the ‘very sensitive’ are not considered
to be the appropriate yardstick to decide whether something is insulting (Skelton
v Sunday Star Times ). There is an exception for the media. It is not unlawful
to publish a report that accurately conveys the intention of the person who used
Section 131 establishes a criminal offence similar to section 61 but with the
additional words ‘with intent to excite hostility or ill will against,
or bring into contempt or ridicule’. Incitement to racial disharmony has
been a criminal offence since the enactment of the Race Relations Act 1971.
The provisions permit punishment of a person for statements they have made because
of what other people might be led, as a result, to think about still another
group of people, or racial or ethnic group.
The application of section 131 and section 61
Section 131 of the HRA and its predecessor sections have rarely been used. It
requires the consent of the Attorney-General to prosecute. The Nazi pamphlet
case, King-Ansell v Police in 1979, is the only reported prosecution under a
predecessor section in the Race Relations Act 1971.
Section 61 has had the most difficult history of any of the provisions of the
HRA. From 1977 to 1989, section 9A of the Race Relations Act also made it unlawful
to use words that were considered likely to cause racial disharmony, regardless
of the intention of the person who used the words. It was repealed in 1989 as
a result of a number of problems that were identified in the wake of the ‘Kill
a White’ case, as the provision applied to public areas only, and a marae
where the comments were made was not considered a public place.
The present section 61 differs in a number of significant respects from its predecessor.
While extending its scope to private as well as public places, it narrows the
offence by removing the reference to exciting ill-will or bringing groups of
persons into ridicule. The change, recognising the need to protect freedom of
expression, raised the threshold at which the Human Rights Commission could intervene.
Latest figures show annual complaints of racial disharmony to the Human Rights
Commission have tripled. In 2002 the Commission received 1,013 complaints in
total, of which 70 alleged racial disharmony. In 2003, there were 1,441 total
complaints, of which 210 were of alleged racial disharmony. After assessing the
racial disharmony complaints, the Commission declined to pursue any of them through
the formal complaints process. The Commission has offered mediation and taken
other action in a number of these cases. Its decisions have been based on the
high threshold in section 61, particularly when the impact of the BoRA is considered
in relation to the words used.
In letters sent back to complainants the Commission stated that the offensiveness
of a race-related comment is not sufficient on its own. The comment must also
be a probable cause of ethnic hostility or contempt. The vast majority of comments
that are complained about are unlikely to contribute to serious ethnic unrest.
In some cases where the comments were broadcast on radio or television, complainants
are referred to the Broadcasting Standards Authority.
Hostility’ and ‘contempt’ are not clear-cut terms, and the
Commission’s interpretation of them must be consistent with the right to
freedom of expression set out in the BoRA. For example, comments such as broadcaster
Paul Holmes’ use of the term ‘cheeky darkie’ to describe United
Nations Secretary-General Kofi Annan offended many New Zealanders, but it was
not considered likely to cause serious ethnic tension or unrest.
|Case Study: The Holmes’ ‘Cheeky Darkie’ Debate|
| In 2003, on his morning radio show, broadcaster Paul Holmes called UN Secretary-General Kofi Annan a ‘cheeky darkie’ and said the world would not be told what to do by someone from Ghana. He later went on to make disparaging remarks about women journalists. The ensuing public debate gave some insight into New Zealanders’ attitudes towards free expression and social responsibility in the media. For example, the Nelson Mail published 63 letters on the topic in one edition, which were relatively evenly divided into pro- and anti-Holmes viewpoints. Supporters of Holmes defended his right to say what he wanted, referring to the sanctity of free expression, or argued that his comments were merely tongue in cheek, and lamented the growth of political correctness. Detractors denied it was a light-hearted and inconsequential comment and said it reflected unacceptable behaviour by a high-profile public figure.
The broadcaster (The Radio Network Ltd) reacted quickly to public complaints about Holmes’ comments and took a number of actions, including airing two apologies and meeting with the Race Relations Commissioner. The Broadcasting Standards Authority (BSA) agreed that Holmes’ comments were unacceptable and breached broadcast standards, but was satisfied with the broadcaster’s actions and did not uphold public complaints that further action should be taken.
Racial disharmony complaints often concern statements made publicly about Maori-Pakeha
relations and immigration, and comments made by national and local politicians
or other public figures regarding minority communities. Most of the statements
about which people complain to the Human Rights Commission have been publicly
disseminated in newspapers, on radio (including talkback) and on television.
The majority of complainants first find out about the statements from other media
(for example, a newspaper report on remarks broadcast earlier on radio, or vice
versa). Other media that feature in small numbers of racial complaints include
advertising, shop displays, websites (including message boards and chat rooms)
and direct mail flyers.
There is a legitimate public issue about the efficacy of section 61 if racial
disharmony complaints seldom reach the threshold at which the Commission may
intervene. Overseas and historical experience do not necessarily provide guidance.
As Kathleen Mahoney (1994) points out, the modern issues raised by hate speech
are very different from those faced by fledgling democracies in the seventeenth
and eighteenth centuries when the rationales for free speech were developed.
New Zealand, too, has a very different experience from many other developed parts
of the world, particularly Europe, where new hate expression laws deal with more
extreme expressions of hate speech and xenophobia. Grant Huscroft (1995) refers
to this uniqueness in a discussion about racial disharmony and public and political
Once it is recognised that discussion and tension in Maori-Pakeha relations is
a permanent feature of New Zealand political life, the futility of attempts to
regulate political expression becomes apparent. On the Maori side, it is not
surprising to find that long held grievances often result in emotive language
that may well be racist in tone, at least as far as non-Maori are concerned.
Its use may be deliberately provocative, in order to draw attention to the claim
made, or it may be honestly felt … By the same token, however, it has to
be accepted that feelings are equally strong amongst Pakeha New Zealanders, and
that Maori claims may engender strong responses which Maori consider racially
defamatory. These responses may also be deliberately provocative, to express
strong disapproval of a particular claim, or they may simply be an emotional
response. The case for regulating this sort of expression is as weak as the case
for regulating radical Maori expression (p.200).
However, there are some important reasons for retaining section 61. First, New
Zealand is not immune from global patterns of migration, religious intolerance
and xenophobia, nor from border-defying high and low technologies and market-driven
media. While the high threshold of section 61 is criticised by those who favour
stronger regulation of hate speech, it can also be regarded as a precautionary
boundary fence around freedom of speech in the event of future racial hatred.
Second, New Zealand, as a modern democracy respecting equality, biculturalism,
and multiculturalism, accepts as a fundamental principle that legislative protection
and Government regulation are required to protect the vulnerable. As Mahoney
(1994) suggests, to use freedom of expression as a philosophy to permit disadvantaged
or vulnerable groups to be seriously harmed by more powerful groups misunderstands
the proper role of Government and its commitment to ICCPR.
Widening the scope of hate speech?
Currently, grounds of discrimination that are not race-related have no equivalents
to the law against racial disharmony in the HRA. The legislation’s anti-hate
provisions apply only to vilification on the grounds of race, ethnic or national
origins and colour. Despite this, people make complaints about vilification on
grounds other than race including religious belief, which some view as closely
tied to ethnicity, and sexual orientation.
The Human Rights Commission has argued for a broadening of the legislation classifying
films, videos and publications beyond sex, horror, crime, cruelty or violence
to address vilification of people, whether or not they are also involved in sex
or violence. The Commission submitted to the 2001 Inquiry into the Operation
of the Films, Videos and Publications Classification Act that the focus of censorship
law had shifted to an approach:
characterised not by a focus on morality and particular subjects (such as sex)
per se but rather by a focus on the type and extent of any harm which might be
caused. If it is not harmful, the modern view would hold, there is no case for
censorship. Conversely if it is harmful (enough) there is a case for censorship.
A harms-analysis approach to censorship suggests that the vilification of vulnerable
groups should be liable to classification because it ‘causes actual harm
to members of those groups, to those groups as a collective and, by extension,
to society as a whole’.
The issue of what constitutes harm has been examined by the Supreme Court of
Canada, which stated that hate propaganda is not merely offensive, but constitutes
a serious attack on psychological and emotional health. Societal freedom is undermined
because such expressions create discord among groups and foster an atmosphere
conducive to violence and discrimination. In this line of thinking hate speech
is not merely an expression of intention to act in the future. It is an end in
itself and a practice of discrimination.
In a 2004 submission to the select committee considering the Films, Videos and
Publications Classification Amendment Bill, the Human Rights Commission said
that section 61 and section 131 of the HRA were too blunt as legislative instruments
to encompass the harmful, often incremental, processes of marginalisation and
discrimination of hate speech. Furthermore, the Office of Film and Literature
Classification (OFLC) was a more suitable and experienced body with expertise
in weighing the balance between freedom of expression and the potential for harm.
Promotion of racial harmony
Freedom of expression implies a positive role for the media, in particular, to
promote racial harmony through the airing of plural voices, through the promotion
of tolerance, and through the provision of information that aids public understanding.
Serious concerns, though, have been raised by Maori and Pacific peoples’ commentators
about the mono-cultural bias of the mainstream news media.
For Pacific journalist Tapu Misa, the important issue is how the media report
race and ethnicity, rather than whether they should address them. She argues
that, when reporting crime statistics that show disproportionate numbers of young
Pacific peoples as offenders, the media should contextualise and scrutinise the
social conditions that contribute to the trend rather than present statistics
in a ‘gleeful’ way as evidence of inferiority. She also believes
that the media have an obligation to critically examine, rather than simply reproduce,
comments made by news sources, particularly when the comments could be construed
as racist or homophobic.
Racial disharmony laws come into effect after publication. This is because restraint
before publishing has traditionally been regarded as seriously inconsistent with
freedom of expression. Censorship, on the other hand, operates on the basis that
certain publications, those deemed objectionable, should not be published at
all, or restricted to adults only (R18 films, for example).