We strongly support right to freedom of speech

We strongly support right to freedom of speech

June 11, 2018

By Paula Tesoriero, acting Chief Human Rights Commissioner.

I am concerned at recurring speculation that the Human Rights Commission is campaigning to limit free speech. Those who hold this view say we want to ban "disharmonious" or hate speech aimed at certain religions, and to make such comments an offence.

They say we intend to do this in a way that specifically advantages Muslims while disadvantaging other members of our community, particularly those who practise different religions.

Let me be quite clear. There is no such campaign. We do not want, and are not calling for, a ban on speech directed at those who are Muslim.

What we do want is respectful and informed discussion about our current legal frameworks and consideration about whether they are "fit for purpose", particularly in the age of the internet and changing demographics.

The commission has no fixed view about whether any specific law change is necessary or required. But we do have a role in reflecting community questions and concerns and we believe that debate and discourse about all human rights are important in our society. We raised some of these issues in a 2017 submission to the United Nations committee that oversees the Convention on the Elimination of Racial Discrimination.

By way of context, people ask us why the "exciting racial disharmony" provisions of the Human Rights Act apply to some groups and not others. We are also asked why people who complain to the commission under these provisions are offered mediation but are not able to obtain a decision or finding from us about the substance of their complaint.

The answer is we do not have decision-making or investigative jurisdiction in relation to these cases, nor any other individual discrimination complaint.

At times we get asked about the apparent anomalies between the scope and nature of the Harmful Digital Communications Act and the relevant provisions of the Human Rights Act. These are all good questions - they deserve consideration and discussion.

We have also been criticised in some quarters for arguing in a recent legal case that a very high threshold should be applied when the court is considering potential breaches of existing racial disharmony laws.

The reason the commission took this stance is that we strongly support the right to freedom of speech and expression and believe that there should be legal consequences only for cases at the most serious end of the spectrum. Words or conduct that offend, upset or hurt people's feelings are not of themselves going to fall into this category.

But rights are not absolute and they do not exist in isolation. Individuals have a right to freedom of speech but they also have a right to be physically safe irrespective of personal characteristics such as ethnicity, colour, age, religion, disability, sexual orientation or gender identity.

Sometimes finding the right balance is difficult. And people have many different views on where the line should be drawn. But we need to keep discussing and debating the issues, and we need to do so in a respectful, dignified and informed manner.

This was first published in the NZ Herald on 11 June 2018.