"… love is wise, hatred is foolish. In this world, which is getting more and more closely interconnected, we have to learn to tolerate each other, we have to learn to put up with the fact that some people say things that we don’t like." – Bertrand Russell, British Philosopher, 1959

While Russell could not have predicted the level of interconnection that exists today, still his words ring remarkably true. The trouble with communication is the more we have with each other, the harder we find it to be charitable or tolerant.

In June the Ministry of Justice announced a review of existing hate speech laws and, following the attack in the New Lynn Mall, the Government has criminalised the planning of a terrorist attack.

Alongside this, the New Zealand courts have been asked to determine unprecedented disputes regarding controversial speakers’ right to freedom of speech and assembly under the New Zealand Bill of Rights Act.

In this article we discuss the Government’s and the courts’ responses to  these issues.

Proposed hate speech reforms

The Government’s proposal to strengthen hate speech laws arose out of recommendations made in the Royal Commission of Inquiry into the terrorist attacks on Christchurch Mosques on March 15 2019 Report (the Report).

The Report summarises the tension between hate speech and free speech, noting ‘the more far-reaching a law creating hate speech offences, the greater the potential for inconsistency with the right to freedom of expression under section 14 of the New Zealand Bill of Rights Act’.¹ Like all NZBORA rights, freedom of expression can be fettered within ‘such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’.

Precisely what ‘reasonable limits’ means is open to significant debate.² The case for a limit on free speech to prevent hate speech and hate crime is made clear in the Report. It cites research showing a link between hate speech and hate crime, and identifies further research indicating a plausible link between hate crime and terrorism.³

More generally, the Report notes that ‘many [of the community] told us the terrorist attack occurred in a context of widespread racism, discrimination and Islamophobia, where pre-judgements (or hostile behaviours) including hate-based threats and attacks are rarely recorded, analysed or acted on’.⁴

Do the proposals go far enough, or too far?

It is important to emphasise at the outset that New Zealand currently has hate speech laws. The Royal Commission, however, has identified two main areas where the current laws can be improved. The Commission notes that the current laws:

• Neither appropriately capture the culpability of hate-motivated offending, nor

• Provide a workable mechanism to deal with hate speech’.⁵

The Government has put forward a number of proposals to address incitement of hatred/hostility:

1. Currently, the incitement provisions in the Human Rights Act 1993 (HRA) only apply to groups targeted because of their colour, race, ethnic or national origins. The Government is looking at amending the HRA’s incitement provisions to include targeting on the basis of religion, sexual orientation, and political opinion.
2. The HRA criminalises inciting racial disharmony (an outdated phrase). The proposals move this provision to the Crimes Act 1961.
3. Punishment for the criminal offence would be up to three years’ imprisonment or a fine of up to NZ$50,000, significantly tougher than the existing penalties.

Full information about the reforms can be found here.

The question is what impact these proposals will have and whether they strike the right balance between free expression and responding to terrorism. Three characteristics of the proposals have courted particular attention from critics:

• Political opinion - Extending the protection to cover political opinion is problematic, with media and commentators expressing concern that the introduction will have a chilling effect on hearty political debate. Free speech is most important when applied to political speech, the cornerstone of democratic debate, and so it seems unlikely that it will continue to be a prohibited ground once a Bill is prepared.

• Changes to the criminal provision - Despite outcry from the Opposition and other critics of the hate speech laws, the proposals do not appear to significantly change the legal position other than by extending protections to more groups, clarifying language, and increasing penalties. Wherever politicians ultimately draw the line between permitted and criminal speech, it will be for the courts to interpret and clarify the legislation which is passed. Previous attempts at enforcing the existing HRA provisions on hate speech have seen the courts set a high threshold for speech that incites hostility and/or ill will.⁶ This is likely to continue.

• Changes to the civil provision - As with the criminal provision, the intention is for the civil provision be broadened to protect all of the groups listed under section 21 HRA. However, unlike the criminal provision, the complainant does not need to prove the person complained about actually intended to incite hostility or ill-will. This seems to broaden the civil provision’s scope, as speakers need not intend to stir up, normalise or maintain hatred in order to be liable, provided that their speech is likely to result in that outcome.

Is the proposed wording beyond repair during the consultative and select committee processes?

No. Until a draft Bill is prepared, speculation as to the effect of the legislation is just that. The likely effectiveness of the law change will only become clear when a draft bill is prepared. More work needs to be done to ensure the changes actually implement the Report’s recommendations.

Are public organisations required to give controversial speakers a platform?

Another battle over freedom of speech is currently being fought in the courts. Moncrieff-Spittle v Regional Facilities Auckland Limited concerned whether Regional Facilities Auckland Limited (‘RFAL’) was entitled to cancel a speaking event for right-wing Canadian YouTubers Lauren Southern and Stefan Molyneux.

At first blush many thought the case would engage ‘hate speech’ issues. However the case turned on the fact that the promoter failed to give any indication to the venue that security was likely to be an issue due to counter protests which were expected to block access and affect neighbouring businesses. This gave rise to genuine health and safety concerns justifying cancellation of the event. On the specific facts of the case, it was undoubtedly the right decision.

Similar issues emerged in the recent High Court case concerning a group called Speak Up For Women (‘SUFW’), a self-described ‘traditional women’s group’, campaigning against proposed changes to the way gender is registered on official documents.⁷ In June 2021, a member of SUFW arranged with the Palmerston North City Library to book a venue for a public meeting. Eight days prior to the event , the Council advised SUFW that it was cancelling the event in favour of arranging a meeting at a later date where balanced perspectives on the topic could be heard.

SUFW filed judicial review proceedings seeking a direction that SUFW’s license to hire the meeting space continued in force. The High Court applied the Court of Appeal decision in Moncrieff-Spittle v RFAL and held that, unlike in the earlier case, SUFW had the right to hire out the Library as a venue for its meeting. By insisting that SUFW could only speak at an event on council owned premises in the manner prescribed by the Council, there had been a serious failure to recognise the group’s right to freely assemble and speak. Justice Nation therefore granted SUFW the right to host their event and it duly went ahead.

This remains an active space, that we are watching closely. The Supreme Court has granted Malcolm Moncrieff-Spittle and David Cumin leave to appeal the Court of Appeal’s decision in Moncrieff-Spittle v RFAL.

Changes to terrorism laws

The New Lynn terrorist attack also brought reforms to the Terrorism Suppression Act 2002 (‘TSA’) into the spotlight. The Prime Minister conceded that, prior to the attack, Government agencies failed at several legal attempts to prosecute the terrorist or to keep him detained.

The Government introduced the Counter-Terrorism Legislation Bill, which amended the TSA to criminalise the planning and preparation of a terrorist act. Under the new law, the prosecution must prove that the act which is planned or prepared for would constitute a terrorist act if it were carried out, but need not prove a particular target, location, date or time that the act was intended to be carried out at.

There are concerns that the reform extends the criminal law beyond when ‘you go out and start to do something’ into ‘[criminalising] thinking about doing something’. The Green Party and the ACT Party opposed the Bill citing the lack of adequate human rights protections.

However the two major parties in Parliament committed to passing the Bill and it received royal assent on 4 October 2021.

What's next?

Both the hate speech and terrorism law reforms have been criticized as ‘knee-jerk’ responses to recent terrorist acts. To a degree they are. But the real question now is, if passed, will they prevent future attacks? Since 11 September 2001, the debate between free speech protections and anti-terrorism has unfolded with fresh intensity on a global level. Broadly speaking, there are two divergent approaches as to criminalising speech. The US courts have maintained broad constitutional protections of hate speech, whereas Europe and Canada have put in place hate speech laws intended to protect vulnerable communities. For New Zealand, these events are unprecedented and there is no playbook to follow.

1. Royal Commission of Inquiry into the terrorist attack on Christchurch mosques on 15 March 2019 Final Report (11 March 2021) at [4.1.5].
2. At [4.1.6].
3. At [4.113] – [4.1.14].
4. At [4.3.18].
5. Royal Commission of Inquiry into the terrorist attack on Christchurch mosques on 15 March 2019 Hate speech and hate crime related legislation (26 November 2020) at 40.
6. Wall v Fairfax New Zealand Limited [2018] NZHC 104.
7. See this recent press around a controversial advert and billboard campaign.