Hate expression

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 eradicating racism.

Legislative provision

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 ).[6] 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 the words.

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[7] 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.

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 debate:

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.[8] 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).

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