University of Otago Law Theses and Dissertations (2024)

Musgrave, Hannah --- "What Makes Race So Special? Should hate speech provisions under the Human Rights Act 1993 be extended to cover target groups other than race?" [2009] UOtaLawTD 13

Last Updated: 16 September 2023

What Makes Race So Special?

Should hate speech provisions under the Human Rights Act 1993be extended to cover target groups other than race?

Hannah Musgrave

A Dissertation submitted in partial fulfillment of the degreeof Bachelor of Laws (Honours)

at the University of Otago, Dunedin, New Zealand.

16^th October 2009

Acknowledgements

I would like to thank Andrew Geddis, The Donald Beasley Institute, Alice Irving,Rebecca Thomson, Terry Wilson, Stuart Anderson andall those who took it uponthemselves to send me articles relating to my dissertation

Contents

Introduction

In March 2009, the UnitedNations Human Rights Council accepted Resolution A/HRC/4/L.12 that sheltersreligion from criticism, andtherefore condemns religious hate speech.¹While New Zealand expressly rejected this resolution, ² itraises the question, which target groups should be protected from hatepropaganda. My dissertation will attempt to answer thisquestion.

Part A of my dissertation will assess whether New Zealand’s current law iswarranted. First, chapter one will consider thearguments for and against theregulation of hate speech, both inside and outside the classical liberalframework. In particular,I will outline the rationales for freedom of speechbecause those against the regulation of hate propaganda presume it underminesthese principles. However, advocates of hate speech legislation assert that hatespeech does not further classical liberal rationalesfor freedom of speech. Thepersuasiveness of their arguments will be analysed.

In chapter two, I will explicitly consider New Zealand’s legislativeapproach to hate speech. There are numerous statutoryprovisions with thecapacity to deal with hate speech. Yet, each is limited to a specific context.While the media are subjectto relatively extensive regulation, statute onlyprohibits public expressions of hatred if targeting a person’s race. Thus,there is a gap in the law. Under ss61 and 131 Human Rights Act 1993, hate speechis prohibited when directed at a group of peoplebased on their “colour,race, ethnic or

¹ Ian Harris, “It is individuals who have human rights, notreligions”, Otago Daily Times, 14^th August 2009, p9.

² Ibid.

national origin”. I will argue if racist hate speech can be regulated,then other social groups should also be protected fromsuch expression. In doingso, I will consider whether New Zealand’s current hate speech legislationis justifiable. This willamalgamate the general rationales for freedom ofspeech and hate speech legislation, as well as a more in depth analysis of NewZealand’ssocial climate to measure the necessity of ss61 and 131.

Similarly, the Government Administration Committee’s proposal to extendhate speech provisions in this way was vehemently opposedby the public.³This has led some to argue that New Zealand simply adheres to itsinternational obligations. Yet, as discussed in chapter three,internationaltreaties seem to require more of New Zealand. Accordingly, resisting theextension of hate speech provisions on thisbasis seems flawed.

Part B of my dissertation will address the possibility of expanding thoseprotected by ss131 and 61 Human Rights Act, as the primarymechanisms regulatinghate speech. I will confine my discussion to three target groups. The maincontenders for protection are religiousgroups; gay, lesbian, bisexual andtransgender people (GLBT); and the disabled. Religious groups have gainednotable support of theinternational community.⁴ Similarly, theGovernment Administration Committee suggested GLBT are worthy of protection from hate speech.⁵ Finally, the disabled have come into focus withinitiatives such as the Convention for the Rights of Disabled People. All areprotectedfrom discrimination under s21 Human Rights Act.

³ New Zealand’s 15^th, 16^th and17^th Consolidated Report to the Committee on the Elimination ofRacial Discrimination, Jan 2000- Dec 2005, p52.

⁴ Most obviously, the Article 20 International Covenant on Civiland Political Rights prohibits hate speech

based on religion.

⁵ New Zealand’s 15^th, 16^th and17^th Consolidated Report to the Committee on the Elimination ofRacial Discrimination, Jan 2000- Dec 2005, p52.

I will also consider other jurisdictions’ approach to hate speech. Theattitudes of legislatures in the United Kingdom, Canadaand Australia will beexplained. These provide potential templates for New Zealand. The UnitedStates’ position on hate speechwill not feature. The primacy affordedto free speech under the First Amendment of the Constitution ensures hatespeech debatesexist in a very different context than in New Zealand.

I will consider each target group in turn. First, I will identify whetherempirical evidence suggests there is a real and substantialneed for hate speechlegislation to protect these individuals. Second, I will address any features ofthe discrete target group thatwould distinguish them from racial minorities. Ifthese distinctions are valid, it may prevent the straight application of ss61 or131 to religious groups, GLBT, or the disabled.

Chapter 1: The Rationales for Freedom of Speech and

Arguments for the Regulation ofHate Speech

The United Nations General Assembly recognises “freedom of information isa fundamental human right and provides the touchstoneof all freedoms to whichthe UN is consecrated”.⁶ The right to freedom of expression isintrinsic to the acquisition of information. Accordingly, it has become one ofthe world’smost widely recognised rights. ⁷ Classical Liberaldiscourse provides numerous rationales for freedom of speech: that it isessential for democracy, guarantees themarketplace of ideas and promotesindividual autonomy. These ideas can be viewed cumulatively and together providea strong justificationfor the recognition of this basic human right.

Yet, these rationales contain implied limitations. If expression does notfurther these fundamental principles, surely it can beregulated. In many ways,hate speech undermines the justifications for freedom of speech. Hence, hatespeech legislation may represent a justifiable limitation on freedom ofspeech.

⁶ United Nations Resolution 56(1).

7. D.McGoldrick and T. O'Donnell, "Hate-Speech Laws: Consistency with National andInternational

Human Rights Law" (1998) 18 Legal Studies (Societyof Public Teachers of Law), 454.

• 1.1Essentialfor democracy

Freedom of speech is vital to democracy.⁸ Provided the law protectsthe right to express one’s views, public debate over the recognition ofrights can occur. Votersare also likely to be better informed, allowing stateofficials to be held accountable for their actions should they threaten otherrights.⁹

Freedom of expression is also essential for a representative government. By facilitating public discussion on controversial issues,the government canrecognise and combat social problems more effectively. Moreover, individualfreedom to speak allows the democraticallyaccountable to gage majority opinionon contentious matters more readily. Hence, those elected into Parliament areable to betterrepresent their constituents once they ascertain majority willthrough public debate.¹⁰ Thus, freedom of expression can be valued for its ability to create and preserve democracy.

However, this rationale implies hate speech can be regulated when it does notinfluence the democratic process. At this point, criticsof the orthodoxapproach espouse different views. Some argue hate speech is irrelevant to thecasting of votes and self-government.Hate speech is said to constitute“low value” expression making no meaningful contribution to thepublic discourse.¹¹ While Meiklejohn asserts that the application offree speech principles

8. RexAhdar, “The Right to Protection of Religious Freedom” (2008) OLR363.
9. ChristopherJones, "Rocks can Turn to Sand and Wash Away But Words Last Forever: APolicy

Recommendation for New Zealand's Vilification Legislation",(2002) University of Waikato, Faculty of Law, p. 90.

¹⁰ Ibid.

¹¹ G. Huscroft and P. Rishworth, Rights and Freedoms(Wellington: Brookers, 1995), 194.

to racial intolerance is beyond the limits of his inquiry,¹² heseemingly agrees with Holmes that the conveyance of hostile opinions can bejustifiably suppressed.¹³ Incitement to hatred is privateexpression that can be regulated.¹⁴

Conversely, others argue hate speech should be limited because it influencesdemocracy by silencing its targets while perpetuatingracism and oppression.¹⁵ According to Mari Matsuda, those subject to hatred automaticallyretract from society, and remain as silent and invisible as possible.¹⁶Silencing suppresses some views and therefore compromises the publicdebate forum. The media further threatens equal participationin public debateby promoting some beliefs over others.¹⁷ Popular opinions endorsed bythe media become favoured over alternatives.

• 1.2Marketplaceof ideas

John Stuart Mill presents another consequentialist justification for freedom ofspeech. It allows the truth to emerge out of a contestof ideas.¹⁸ InOn Liberty, the “thoroughly reconstructed liberal” explainsthe social value of sharing opinions:¹⁹

¹² Meiklejohn, Free Speech and its Relation to Self-Government(Port Washington, New York: Kennikat Press, 1948) 99.

¹³ Ibid, 87.

¹⁴ Ibid, 99.

¹⁵ Elizabeth MacPherson, "Regulating Hate Speech in New Zealand"(Wellington 2003).Victoria

University of Wellington Faculty of Law, 25.

¹⁶ Mari Matsuda, et al, Words that Wound (Boulder,Colorado: Westview Press, 1993), 50.

¹⁷ Kathleen Mahoney, "Hate Vilification Legislation With Freedomof Expression: Where is the Balance?"(1994) University of Western AustraliaFaculty of Law, p 14.

¹⁸ Rishworth, et. al, The New Zealand Bill of Rights(Oxford: Oxford University Press, 2003), 309.

¹⁹ John Gray and G.W. Smith, J.S. Mill On Liberty: InFocus, (London and New York: Routledge, 1991) 1.

“But the peculiar evil of silencing the expression of an opinion is, thatit is robbing the human race; posterity as well asthe existing generation;those who dissent from the opinion, still more than those who hold it. If theopinion is right, they aredeprived of the opportunity of exchanging error fortruth: if wrong, they lose, what is almost as great a benefit, the clearerperceptionand livelier impression of truth, produced by its collision witherror.”²⁰

This presumes truth is an autonomous and fundamental good. ²¹ Societywill be enriched by pitting ideas against each another, even if one idea islater deemed false.²² Oliver Wendell Holmes coined the‘marketplace of ideas’ to encapsulate this notion.²³

The ability to ascertain truth depends upon the weighing up of alternatives.However, facts accepted at any one time vary accordingto the social andpolitical context. Therefore, truth is susceptible to change.²⁴Hence, it is imperative that competing ideas remain available forconsideration. The accepted belief may well be false, yet only freedomof speechcan reveal this. ²⁵ Guaranteeing freedom of speech for a limitedtime, until public consensus is achieved, is not enough. The state mustcontinually guardthe expression of controversial and unpopular ideas to allowsociety’s opinions to evolve.

²⁰ John Stuart Mill, On Liberty (London: Longman, Robertsand Green, 1869) ctied in ibid, 37.

²¹ K. M. McKillop, “A Comparisson in Where the Limits areDrawn on Freedom of Expression in Germany and New Zealand: A DissertationSubmitted in Partial Fulfilment of the Requirement of the Degree of Bachelor ofLaws (Hons)”, (Dunedin 2001)University of Otago Faculty of Law,vol. Bachelor of Law with

Honours, 10.

²² Abrams v US [1919] USSC 206; 250 US 616, at page 630.

²³ Ibid.

²⁴ Rishworth, n. 19, above, 309.

²⁵ Jones, n.10 above, 90.

However, if hate speech causes its targets to retract their opinions from publicconsumption, Mill’s marketplace of ideas willbe compromised. The questfor truth will be thwarted if some views are automatically excluded. As aresult, Mahoney labels thenotion that a contest of ideas will allow the truthto prevail as “naïve and dangerous”.²⁶ While counterspeech may be the most effective solution to hate speech, ²⁷ itpresumes expression is received on equal terms. But, hate speech ensuresmajority opinions are more accessible than those of theminority.

Such problems are compounded because the marketplace of ideas cannot be viewed neutrally. People cannot set aside their pre-convictionswhen analysing thestrength of competing arguments. ²⁸ Instead, confirmation bias meanspeople prefer information that affirms their established beliefs. This conteststhe liberal assumptionthat people are rational and calculating beings.²⁹

Fish also contests the idea that speech exists neutrally in the marketplace. Heargues free speech does not exist for three reasons.³⁰ First, speechis always constrained because the decision to express an opinion always pursuesa selfish agenda. Second, no speechis free from consequence. Third, if speechalways endorses one opinion, it automatically undermines another. Hence, ideascancause injury. Fish relies on the landmark case of American BooksellersAssociation Inc. v Hudnut to support his assertion.³¹ In thatcase, the Court

²⁶ Ibid, 13.

²⁷ Mahoney, n.18 above, 30.

²⁸ Jones, n.10 above, 10.

²⁹ Ibid, 15.

³⁰ Stanley Fish, The Trouble with Principle, (London:Harvard University Press, 1999), 93.

³¹ 475 US 1001 (1986).

recognised that the ideas of Nazis and the Klu Klux Klan have led to the death and repression of millions.³²

If speech can cause harm, the word/action distinction that justifies theregulation of action alone is flawed. Since Abrams v US, civillibertarians have adopted a “clear and present danger” test toestablish whether words can constitute action.³³ Speech should not belimited simply because it is offensive or hurts people’s feelings.³⁴Justice Holmes used the hypothetical example of the chaos resulting fromfalsely shouting “fire” in a crowded cinema,as typifying the typeof speech that is so closely related to action that it should be limited.³⁵Under the traditional approach, hate speech does not satisfy the clear andpresent danger test. Following the American Supreme Court’sexample, wordsconstituting action tend to be those inciting violence, not merehatred.³⁶

Yet, under Fish’s analysis, speech invoking action deserves no specialstatus than other speech. Instead, “speech iseither action withconsequences, or action without immediate worldly consequences”.³⁷Therefore, the word/action distinction undermines the views of minorities,rather than objectively regulating expression. Limitationsare ideologicallypredetermined to reinforce the authority of the dominant members of society by undermining the ideas of theirsubordinates. Accordingly, Fish labels thereliance on the word/action distinction illusory. Further, surrendering to atheory thatrelies on an ultimate verdict of truth at the end of time achievesnothing because the apocalypse will never come.

³² Ibid.

³³ Catherine Lane West Newman, “Reading Hate Speech from theBottom on Aotearoa: Subjectivity, Empathy, Cultural Difference” (2001)Waikato Law Review 9, 93.

³⁴ Ahdar, n.9 above, 636.

³⁵ Schenck v. United States 249 US 49 (1918), at page52.

³⁶ Ibid.

³⁷ Fish, n. 31 above, 93.

In the meantime, the law is “sacrificing the needs of men and women suffering documentable harm to a bodiless hope”.³⁸

Advocates of hate speech laws also heavily criticise the word/actiondistinction, alleging it fails to recognise the harm causedby hate speechAbsence of an immediate danger to society does not mean expressions of hatredare harmless.³⁹ Rather than categorising speech based on itsability to induce violence, it is best viewed on a continuum whereby hate speechwillinevitably lead to violence. ⁴⁰ It is the incremental effect ofhate speech that is harmful.⁴¹ As Jean Francois and GaudreaultDesBiens argue, such speech constitutes a step towards hate crime, xenophobiaand genocide.⁴² Victims also suffer from psychological and emotional pain as a result. ⁴³

Moreover, the already disadvantaged and subordinate need not tolerate hatredexpressed towards them.⁴⁴. While free speech advocates employtolerance as a tool to argue against hate speech legislation, the focus shouldbe on who canbest exercise tolerance. Surely, it is the dominant members ofsociety, and speakers of hatred, who should tolerate minority groups.

³⁸ Fish, n. 31 above, 93.

³⁹ Juliet Moses, "Hate Speech: Competing Rights to Freedom ofExpression" (Annual 1996) 8 Auckland

University Law Review 189.

⁴⁰ Mahoney, n.18 above, 9.

⁴¹ Human Rights Commission, “Submission to the GovernmentAdministration Committee into the Inquiry

into Hate Speech”,http://www.hrc.co.nz/home/hrc/newsandissues/submissiontotheinquiryintohatespeech.php,05.05.09.

⁴² Jean Francois and Gaudreault DesBeins, From Syphus’sDilemma to Syphus’s Duty? A Mediation in the

Regulation of Hate Propaganda in Relation to Hate Crime and Genocide, (2000) 46 McGill LJ 121 cited in MacPherson, n. 16 above, 22.

⁴³ Ibid, 20.

⁴⁴ Worjeich Sadurski, “Racial Vilification: Psychic Harm andAffirmative Action” in T Cambell and W

Sadurski, Freedom of Communication (Dartmouth, 1994), 79. cited inAnne Frahvin, “Can Legislation Prohibiting Hate Speech be Justified inLight of Freedom of SpeechPrinciples?” (1995) 18 UNSW Law Journal,333.

Otherwise, the harm caused by hate speech is not “borne by the communityat large, rather it is a psychic tax imposed on thoseleast able to payit.”⁴⁵

• 1.3Personalautonomy

A final justification for freedom of speech is that tolerating seeminglyabhorrent speech also allows the state to remain content-neutral.The governmentshould avoid favouring one view over others because the state derives itsauthority from the universal consensus of its citizens. While policy decisionsmay necessitate the adoption of a particular viewpoint, speech should remainunregulatedwherever possible to guarantee personal liberty.

This personal autonomy argument values freedom of speech in a way that does notdepend on the outcome it produces.⁴⁶ It allows individuals to weighup competing ideas and develop a sense of self when preferring one view overothers.⁴⁷ Traditionally, promoting personal autonomy is thestate’s primary function.

The subjugation resulting from hate speech affects the individual autonomyjustification for free speech. By creating a climate ofdiscrimination, hatespeech undermines self-worth and causes targets to reflect on their subordinatestatus.⁴⁸ This runs counter to the self- development rationale onwhich traditionalists rely. When the opinions of the majority

⁴⁵ Office of Film and Literature Classification Submission to theGovernment Administration Committee into the Inquiry into Hate Speech,29.10.04,http://www.censorship.govt.nz/pdfword/Hate%20Speech%20Inquiry%20Submission.pdf.

⁴⁶Jones, n.10 above, 90.

⁴⁷ Ibid.

⁴⁸ MacPherson, n.16 above, 20.

dominate the marketplace, minority groups will feel alienated from society.⁴⁹ Abstract notions of the marketplace of ideas andpersonal autonomy do not reflect the experiences of those subject to hatespeech.⁵⁰ As opposed to merely offensive speech, hate speechperpetuates existing unjust social norms.

• 1.4Furtherarguments for the regulation of hate speech

Failure to regulate hate speech implies that such expression is acceptable. Yet,if criminalised, hate speech legislation would validatethe target groups’role in society. Whilst hate speech laws may provide bigots with a wideraudience,⁵¹ at least it would be in the context of disapproval andcondemnation.

However, free speech proponents suggest legislating against hate speech wouldshift the focus away from whether the expression ismorally abhorrent. Instead,arguments would centre on legality. This may unduly equate law with morality.The minority group wouldalso be portrayed as a portion of society immune fromcriticism,⁵² which would further alienate them from the generalpopulation. Essentially, social sanctions are preferable to legal ones.

Yet, experience suggests we cannot rely on social morality to regulatepeople’s behaviour. Legal sanctions are necessary toprotect vulnerablegroups in our society. Therefore, the fundamental premise of hate speech is notto render some groups immunefrom criticism, but to afford special protectionto those who are particularly vulnerable. This is not a new

⁴⁹ Jones, n.10 above, 26.

⁵⁰ Mahoney, n.18 above, 18.

⁵¹ Jones, n.10 above, 26.

⁵² Moses, n. 40 above, 194.

concept. The doctrine of unconscionable bargain considers inequality ofbargaining power between contracting parties, and seeks toprotect thevulnerable. Furthermore, the Residential Tenancies Act 1986 imposes numerouscovenants on landlords to prevent abusesof power.⁵³ Moreover, hatespeech legislation does not confer absolute immunity from hate speech. Rather,only extreme expressions of hatred meetthe necessary threshold.

• 1.5Right toequality

For those already suffering from inequality, the burden of hate speech becomesunbearable. It compounds divergence in socio-economicstatus to the extentthat it thwarts the pursuit of equality. Accordingly, freedom of speechcompetes with the right to equality in the context of hate speech.⁵⁴When speech undermines equality, it becomes more difficult to empathisewith the victims of hatred because they are seen as increasinglydifferent fromthe norm.⁵⁵ In these circumstances, hate speech may be justifiablyregulated.⁵⁶ Given equality is a fundamental right in a democraticsociety, perhaps hate speech should be prohibited to preserve it.⁵⁷

Yet, this rationale presumes expressions of hatred promote the inferiority ofthe target group.⁵⁸ This has implications for the definition of hatespeech. If it affirms existing social bias by subjugating target groups, thepositionof majorities becomes unclear. In New Zealand’s democracy,majority views dominate. Any expression that undermines majority

⁵³ Residential Tenancies Act 1986, Part 2.

⁵⁴ Human Rights Commission, n.42 above.

⁵⁵ Delgado, “Rodrigo’s Eleventh Chronicle: Empathy andFalse Empathy (1996) 84 California L R 61, 77 cited in Newman, n.34above, 255.

⁵⁶ Rishworth, n.19 above, 324.

⁵⁷ Mahoney, n. 18 above, 8.

⁵⁸ MacPherson, n.16 above, 15.

opinion therefore undermines existing social norms. In fact, hate speech aimedat majorities may actually promote equality by detractingfrom their socialdominance and elevating the status of minorities. In this context, free speechand equality do not come into conflict.Therefore, minority groups should be thefocus of any discussion of the contest between freedom of speech and the rightto equality.

For this reason, Frahvin suggests hate speech should only be prohibited againstthose who have traditionally faced discrimination.⁵⁹ Only in thiscontext does such expression become harmful. Yet, if the law focused onprotecting those already facing social bias,discrimination may inadvertentlymanifest itself towards other groups in the process. In this way, prejudice willcontinue to permeatesocial relations. Moreover, if some forms of discriminationis categorised as non-traditional, and therefore unworthy of protection,itbecomes impossible to prohibit hate speech against some disadvantagedgroups.

• 1.6Furtherarguments against regulating hate speech

Circumscribing a hate speech provision runs into further problems. If the definition of hatred is subjective, it may be hard toprove at least one memberof the audience was encouraged to hate. Alternatively, an objective test wouldrequire the reasonableperson to be incited to hate. Yet, the ordinary personwould not allow the speaker of hate propaganda to affect their opinionin thisway.

⁵⁹ Frahvin, n.45 above, 334.

Given such difficulties, defining ‘incitement to hatred’ withsufficient precision to prevent overregulation may be impossible.⁶⁰If so, a slippery slope towards the unwarranted restriction ofexpression becomes a real risk.⁶¹ Terms such as “hatred”and “vilification” are ambiguous. With the rule of law requiring aclear proscriptionof legal obligations, hate speech laws may fail to meet thenecessary level of certainty.

Such criticisms emerged in relation to the Electoral Finance Act 2007.Uncertainties within the Act were said to prevent candidatesfrom predictingthe legality of their actions, thereby compromising the rule of law doctrine.Such a fundamental flaw in the regulationof election advertising led to theRule of Law Committee recommending the Act be repealed.⁶² Anylegislative scheme proscribing hate speech must take care to avoid similarambiguities.

On the other hand, difficulties of circumscribing an offence should notdetermine whether such a provision is worthy of enactment.While it maynevertheless be relevant for a cost- benefit analysis, the advantages of hatespeech regulation discussed above outweighthis minor problem. The harm posedis sufficient to warrant the enactment of initially ambiguous legislation.Moreover, clarificationon uncertain notions may be possible through judicialinterpretation, preventing any confusion existing indefinitely.

The notion that criminalising hate speech would force it underground is alsocontested. The argument suggests expressions of hatredwill be harder to detectif its speakers are subject to

⁶⁰ Huscroft, n.12 above, 194.

⁶¹ Newman, n.34 above, 93.

⁶² New Zealand Law Society. Electoral Finance Act: SummaryPaper,

http://www.lawsociety.org.nz/data/assets/pdf_file/0015/4416/Electoral_Finance_Act.pdf , 14^thAugust 2008.

penalties. Yet, hate groups like the Klu Klux Klan already practice extremeforms of vilification. Implementing sanctions for suchbehaviour would make itmore difficult for such groups to express hatred. ⁶³ Detection ofhate groups may be easier if legislation guides law enforcement authorities onwhat is and is not acceptable.

Some also argue that outlawing hate speech would force contempt against certaingroups to be manifested through violence.⁶⁴ This proposition seemsunconvincing. Firstly, there is little empirical evidence to support thisassertion. Secondly, the long-termgoal of outlawing hate speech is to displacesuch ideas from society. This should ultimately reduce the incidence rate ofhate-inducedviolence as hate itself decreases. Thirdly, hate speech legislationdoes not outlaw all expressions of hate. Most formulationsprovide anexception for expression made in private. Furthermore, hate speech is onlycondemned if it focuses on a characteristicof a minority group. Expressions ofhatred directed towards an individual, without any reference to theirminority-group traits,are legitimate under this approach. Finally, thisargument presumably refers to an aversion to breaking the law. Yet, thisrationaleis flawed. Given that the Crimes Act 1961 already criminalisesassault, and hate-motivated violence receives a higher penalty,⁶⁵ itis absurd to suggest someone would choose to commit assault over hate speech.Assault would also likely carry a higher penaltythan hate speech, furtherdeterring would-be offenders of hate speech from committing the former.

⁶³ Winton, “Hate speech in New Zealand: freedom ofexpression and racial disharmony: a dissertation submitted in partial fulfilmentof the degree of Bachelor of Laws (Hons) (Dunedin, New Zealand: University ofOtago, 2005), 45.

⁶⁴ MacPherson, n.16 above, 29.

⁶⁵ Sentencing Act 2002, s9(1)(h).

• 1.7Conclusion

The mechanisms used to justify the protection of free speech are not absolute.They are subject to inherent limits that may permitthe regulation of hatespeech. With the democracy rationalisation, comes the qualification that not allexpression promotes publicparticipation. Furthermore, the harm caused by hatespeech makes targets retract from society and abstain from expressing theiropinion.In this way, the market of ideas will be incomplete. Such silencingwill undoubtedly detract from feelings of self-worth that freespeech allegedlyendorses.

In the context of hate speech, advocates of prescription largely undermineliberal concerns. The inherent ambiguity in the conceptof hatred and thoseworthy of protection from it, should not be decisive in the regulation of hatespeech. Claims that bigots whouse hate speech will resort to violence if theformer is outlawed are ridiculous. Yet, Matsuda and others argue the extensiveharmresulting from hate speech provides conclusive proof that hate speechshould be prohibited.⁶⁶

⁶⁶ Matsuda, n.16 above, 50.

Chapter 2: New Zealand’s current hate speechlegislation

The term “hatespeech” does not feature in any New Zealand statutory provision. Instead,legislation that regulates incitementto hatred has the capacity to manage suchexpression. The primary statutory mechanism that impliedly deals with hatespeech is theHuman Rights Act 1993. Sections 61 and 131 have their origins inss9A and s25 of the Race Relations Act 1971 respectively. Therefore,todetermine the nature and scope of the Human Rights Act, it is necessary toconsider its predecessor. Other legislation that canregulate hate speech iss3(3)(e) Films, Videos and Publications Classification Act 1993 (FVCPA), ss3 and4 of the Summary OffencesAct 1981, and ss66 and 311(2) of the Crimes Act 1961.Furthermore, the New Zealand Press Council, Broadcasting Standards AuthorityandAdvertising Standards Authority have limited jurisdictions to regulateexpressions of hate.

• 2.1RaceRelations Act 1971

The Race Relations Act 1971 declares New Zealand’s intolerance for racialdiscrimination and incorporates the United NationsConvention for theElimination of Racial Discrimination into domestic law.⁶⁷ Article4(1) of this Treaty requires state parties to condemn all propaganda thatpromotes racial hatred and discrimination.⁶⁸ When Hon. D.J. Riddifordpresented the Bill to the House, he recognised the international pressure onstates to take measures to combatracial discrimination.⁶⁹ Hence,s25 created the offence of inciting

⁶⁷ Race Relations Act 1971, Long Title.

⁶⁸ United Nations Convention for the Elimination of RacialDiscrimination.

⁶⁹ Hansard, Vol. 373, 8^th July 1971, 1700.

racial hatred. In New Zealand, race relations between Maori and Pakeha arepromoted by such initiatives.⁷⁰

Enacted in 1979, s9A makes it unlawful to use words likely to cause racialdisharmony, regardless of mens rea.⁷¹ However, in 1989 it wascondemned as unworkable and unduly broad, and was repealed.⁷² Pettyclaims overburdened Race Relations Conciliator.⁷³ Yet, in enactingthe 1993 Human Rights Act, Chris Laidlaw criticised the earlier Parliament fornot replacing s9A with something workablestraight away.⁷⁴

• 2.2HumanRights Act 1993

In amalgamating the Race Relations Act 1971 and the Human Rights Commission Act1977, the Human Rights Act 1993 solely prohibitshate speech based on aperson’s “colour, race, or national or ethnicorigin”.⁷⁵ Section 61 renders it unlawful to publish,distribute or broadcast material that is threatening, abusive or insulting,where it islikely to excite hostility against or bring into contempt any groupby reason of their race, colour or ethnic origin.⁷⁶ Subsection 2establishes a defence if the media “report of the matter accuratelyconveys the intention of the person who...usedthe words.”⁷⁷

⁷⁰ McKilliop, n.9 above, 42.

⁷¹ Maxim Institute, “Hate Speech: Balancing expression,religion, discrimination and harm.” Maxim Institute Policy Paper, Lawand Human Rights, June 2004.

⁷² McKillop, n.22 above, 51.

⁷³ Ibid.

⁷⁴ Hansard, Vol. 357, 13^th August 1993,16919.

⁷⁵ Human Rights Act 1993, ss61 and 131.

⁷⁶ Andrew and Petra Butler, The New Zealand Bill of Rights: ACommentary (Wellington: Lexis Nexis,

2005), 368.

⁷⁷ Human Rights Act 1993, s61(2).

Rather than being punitive, the statute promotes conciliation. This approachpresumes “no man is entirely free from some formof prejudice” andtherefore imposing penalties for racism is generally inappropriate.⁷⁸Complaints go to the Human Rights Commission for approval in the firstinstance.⁷⁹ Only then, can the Human Rights Review Tribunal deal withthe matter.⁸⁰

In assessing whether words are threatening, abusive or insulting the courts adopt an objective test. As in Neal v Sunday News Auckland NewspaperPublications Ltd, the views of the overly sensitive complainant areinconclusive.⁸¹ However, the inquiry into whether the speech islikely to excite hostility or bring into contempt, involves a different test.TheComplaints Review Tribunal, in Proceedings Commissioner v Archer,deemed an objective approach unsuitable.⁸² Instead, the focus is onthose less perceptive or sensitive to racial differences, who are vulnerable tobe excited to hostility.⁸³ Again, care is taken not to adopt thestandards of the extremely sensitive.⁸⁴

This less sensitive test is a lower standard than an objective approach. Noreasonable person would be excited to hostility simplyby the words of anotherbecause this would imply that racism itself was in fact reasonable. No speechwould satisfy s61 were thisthe test. Essentially, liability under s61 requiresthe complainant to prove two things. First, that the

⁷⁸ Sir Keith Hollyoake cited in McKillop, n.22 above, 48.

⁷⁹ Human Rights Act 1993, s76.

⁸⁰ Jones, n.10 above, 66.

⁸¹ (1985) EOC 76299.

⁸² [1996] NZCRT 16; (1990) 3 HRNZ 123.

⁸³ Tessa May Bromwich, “Balancing Freedoms: A Critique ofNew Zealand's Hate Speech Legislation in

Light of the New South Wales and Victorian Experience”, VictoriaUniversity of Wellington Faculty of Law, (Wellington 2005), 17.

⁸⁴ Skelton v Sunday Star Times [1996] NZCRT 12; (1996) 3 HRNZ 655, at[4].

expression was objectively threatening, abusive or insulting. Second, that thewords are likely to excite hostility in those witha predisposition to hate.

Understandably narrower than s61, s131 Human Rights Act creates a criminaloffence for inciting racial hatred. A person is liablefor bringing intocontempt or ridicule a group of persons on the grounds of colour, race, ethnicor national origin; or publishing or distributing written material that isthreatening, abusive or insulting with the intent to excite hostility andill-will.⁸⁵ The consent of the Attorney-General is required before aprosecution can proceed.⁸⁶ This creates a high threshold to preventthe unwarranted interference with freedom of speech.⁸⁷ To date therehave been no criminal proceedings instigated under s131.

In its submission to the Government Administration Committee, the Human RightsCommission blames the lack of litigation on the needto obtain theAttorney-General’s consent, establish intent, and predict the likelyeffect of the speech in question.⁸⁸ Yet, these very factors preventfrivolous claims under s131. Furthermore, the need to speculate how theaudience will react tospeech is also necessary under s61, about which theCommission does not complain. Instead, retention of s61 is specificallyendorsed.⁸⁹ The ‘likely to excite hostility’ test ispreferable to one requiring actual hostility or ill-will which would rely onsociety’s reactions to an unreasonable extent.

⁸⁵ Butler, n.76 above, 366.

⁸⁶ Human Rights Act 1993, s132.

⁸⁷ Butler, n.76 above, 369.

⁸⁸ Human Rights Commission, n. 42 above.

⁸⁹ Ibid.

• 2.2.1Problemswith the Human Rights Act

Accordingly, the provisions deal with extreme expressions of hatred.⁹⁰The courts have further narrowed the scope of the Act by implying ahumour exception. In Neal v Sunday News Auckland Newspaper PublicationsLtd, the Court dismissed a complaint that an article published in theaftermath of the Melbourne Cup was racist, insulting to Australians,andencouraged New Zealanders to seek revenge against them. Instead, the EqualOpportunities Tribunal concluded that the piece wasintended to be humorous.“Robust banter and leg- pulling [are] not unhealthy if kept withinreasonable bounds”.⁹¹ By excluding liability for satiricalarticles, the scope of the Race Relations Act, and by implication the HumanRights Act, is furtherlimited.

However, in other respects, the court seems to suggest that hate speechprovisions are too narrow. Arguably, King-Ansell v Police⁹²signals an attempt by the judiciary to expand the scope of s131. TheAppellant, the leader of the New Zealand National Socialist Party,published ananti-Semitic pamphlet that was deemed likely to excite hostility and ill-will.The sole issue on appeal was whetherJews, as the target group, shared a common‘ethnic origin’. In a unanimous decision, the Court of Appealconcluded Jewsshare customs and beliefs derived from a common historicalbackground, and therefore fall within ‘ethnic origin’ underhatespeech provisions. In doing so, ‘race’ may require a widerdefinition to prevent the arbitrary regulation of hatespeech.

⁹⁰ Ibid.

⁹¹ Ibid.

⁹² [1979] 2 NZLR 531 (CA).

• 2.2.2Is itdemonstrably justified for the state to punish those engaging in hatespeech?

The natural meaning of hate speech legislation undoubtedly impinges on freedomof expression.⁹³ Following the New Zealand Supreme Court’sdecision in Hansen, the next stage under a New Zealand Bill of Rights Act1990 (NZBORA) analysis is to ascertain whether the Human Rights Act“canbe demonstrably justified in a free and democratic society”under s5.⁹⁴ If the provision cannot be justified, this does notaffect its validity.⁹⁵ Yet, such a conclusion would frustrateattempts to extend the target groups protected from hate speech.

See Also

Journal articles: 'Science fiction films United States History and criticism' – GrafiatiThe Struggle for Trust Online

The Attorney General did not issue a s7 warning for the Human Rights Act, andcommentators disagree whether its provisions pass thes5 test. Butlercomfortably asserts that New Zealand’s hate speech legislation can bejustified.⁹⁶ Section 131 is particularly warranted, as the intentrequirement and the need to gain the Attorney-General’s consent createahigh threshold before free speech will be curtailed.⁹⁷ Furthermore,limiting liability to public acts reflects the liberal idea that the stateshould not interfere with the private spherebecause its mandate, determined bythe social contract, is limited to the public realm.

On the other hand, Rishworth alleges the Human Rights Act lacks sufficientjustification under s5.⁹⁸ His primary concern is the lack of defencesavailable.⁹⁹ This presumption is questionable. The New ZealandBill of Rights text appears to target s61, yet subsection (2) provides anexplicit defence for media reporting. Bromwich is therefore incorrect toassert

⁹³ New Zealand Bill of Rights Act 1990, s14 affirms the right tofreedom of expression.

⁹⁴ [2007] 3 NZLR 1.

⁹⁵ New Zealand Bill of Rights Act 1990, s4.

⁹⁶ Butler, n.76 above, 370.

⁹⁷ Ibid, 369.

⁹⁸ Rishworth, n.19 above, 324.

⁹⁹ Ibid.

privacy is the only exception to liability.¹⁰⁰ Furthermore, liabilityunder both ss61 and 131 can be avoided if the expression is not likely to excitehostility against or bringinto contempt the target group.

Huscroft agrees that s61 does not satisfy the s5 requirements. He advocates fora truth defence when speech deals with matters ofpublic concern.¹⁰¹In response, Moses recommends hate speech legislation should not be confused with defamation.¹⁰² Whereas, the latter seeks to protectindividual reputation, the former aims to prevent hate-inducing speech thatadversely affectsthe community.

However, Moses seems to misinterpret Huscroft’s argument. Rather thanconfusing the purposes of hate speech and defamationlaws, his argument stemsfrom the marketplace of ideas rationale for free speech. If true hate speech isprohibited, the quest fortruth, encompassed by the marketplace of ideas, iscompromised.

On the other hand, true speech that incites hatred may not preserve themarketplace of ideas either. While, at one point in timean allegation about aminority may be true, this may not continue to be the case. Over time, theassertion may become false, yetthe harmful silencing that results from hatespeech would remain indefinitely and prevent the target group challenging thevalidityof hate statements made towards them. Hence, the need to guarantee thefreedom of the marketplace ad infinitum becomes impossible.Furthermore, thepersonal

¹⁰⁰ Bromwich, n.83 above, 20.

¹⁰¹ Huscroft, n.12 above, 206.

¹⁰² Moses, n.40 above, 188.

autonomy of the target group would be compromised in the process. A truthdefence cannot address the harm associated with hate speech.

Hence, it is debatable whether ss61 and 131 satisfy the s5 NZBORA test.Following Hansen, it must first be established whether there is apressing and substantial need for the legislation.¹⁰³ The HumanRights Commission noted that many New Zealanders remain unconvinced that racismexists in this country.¹⁰⁴ Even MP Leslie Munro asserted that she was unaware of any racial discrimination in New Zealand when the Bill was beforeParliament.¹⁰⁵ On the other hand, there is substantial evidence tosuggest ethnic and racial minorities are exposed to expressions of hatred. The2008 Annual Review of Race Relations reports that Chinese people were called“Asian monkeys” on the street and an African-American woman wastold to “go home” because she was a “blackie” and a“nigger”.¹⁰⁶ A former KKK member has even warned aboutthe presence of organised hate groups in New Zealand.¹⁰⁷ The UN HighCommissioner for Human Rights affirms, “no continent, indeed noindividual country, is free of these dangerousphenomena, and it would beinexcusable if countries failed to reach consensus on such importantissues.”¹⁰⁸ Hence, while most claim to be ignorant to the fact,the expression of racial hatred is a problem for New Zealand society. The harmin silencing its victims, makes hate speech a pressing and substantialproblem.

¹⁰³ n.102 above. Hansen condoned the Canadian approachpropounded in R v Oakes [1986] 1 S.C.R. 103.

¹⁰⁴ Human Rights Commission, n.42 above.

¹⁰⁵ Hansard, vol, 377, 28^th November 1971,5113. Evidently, D.J. Riddiford, another Member of Parliament at the time ofthe Act’s conception took a differentview when he asserted that thelegislation was instigated as a result of pressure from the internationalcommunity to combat racial discrimination. This suggests New Zealand doeshave a problem in this regard. See Hansard, Vol. 373, 8^th July1971, 1700 for

comments.

¹⁰⁶ Annual Review of Race Relations 2008.

¹⁰⁷ “KKK Leader Warns NZ on the Dangers of HateGangs”, TV3 News, 2^nd May 2009,http://www.3news.co.nz/Ex-KKK-leader-warns-NZ-on-dangers-of-hate-

gangs/tabid/423/articleID/102257/cat/61/Default.aspx, last accessed09.09.09.

¹⁰⁸ United Nations Durban Review Conference, 20-24 April 2009,question and answers.

In order to satisfy s5, the legislation must also be “demonstrablyjustified in a free and democratic society.¹⁰⁹ There are threeaspects of this.¹¹⁰ First, the means must be rationally connected tothe objective. The Human Rights Act seeks to penalise those who commit hatespeech.This is rationally connected to Parliament’s objective ofimproving race relations by reducing expressions of hatred.

Second, the means must impair the right as little as is reasonably necessary forParliament to achieve its purpose. The Human RightsAct provisions do notrepresent an unqualified limitation on freedom of speech. The privacy exceptionand the need to prove thatthe expression is likely to excite hostility,ill-will or contempt make the provisions relatively narrow in scope. Inaddition, themedia defence under s61(2) and Attorney General’s consentrequired for s131, means the right is impaired as little as possiblewhile stillsatisfying Parliament’s purpose.

Thirdly, the means must bear a proportionate connection to the objective. Theprovisions contain numerous limitations on liabilityand impose relatively minorpenalties. Conviction under s131 carries a maximum of 3 months imprisonment or$7000 fine. Monetary penaltiesor an apology, and assurance the expression willnot be repeated are available for breach of s61.¹¹¹ The limitationson liability already outlined further suggest Parliament did not over- reactwith the enactment of the Human RightsAct. Given the serious social problem ofdiscrimination in a multicultural society such as New Zealand, these hate speechprovisions

¹⁰⁹ Hansen, n.93 above.

¹¹⁰ Ibid.

¹¹¹ Human Rights Act 1990, s83.

are a proportionate response. Therefore, ss61 and 131 can be demonstrablyjustified. The s5 test is satisfied.

• 2.3Films,Videos and Publications Classification Act 1993 (FVPCA)

The FVPCA also has the capacity to deal with hate speech. As both the long andshort titles suggest, the primary focus of the Actis to deal with censorshiplaw. Section 3(1) deems a publication “objectionable” when itdescribes, depicts, expressesor otherwise deals with matters such as sex,horror, crime, cruelty or violence in a way that is likely to be injurious tothe publicgood. Classifying publication as objectionable under s3(3)(e)requires the censor to consider whether the publication representsthatmembers of a particular class, bearing a characteristic specified in s21(1)Human Rights Act, are inferior. The characteristicsspecified in s21(1) includesex, marital status, religion, race, colour and disability. In short, this Actcan protect more targetgroups than the Human Rights Act.

However, Living Word Distributors Ltd v Human Rights Action Group limitsthe application of the FVPCA.¹¹² The expression at issue in thatcase was two videos entitled, “Aids, What you Haven’t BeenTold” and “GayRights/ Special Rights: Inside the HomosexualAgenda”. As Thomas J noted, such films conveyed the opinions of religiousfundamentalists.¹¹³

The Court of Appeal concluded the films did not fall within the scope of theAct. Following

Moonen,¹¹⁴ s3(3) was interpreted as being limited by s3(1). The degradation of homosexuals

¹¹² [2003] 3 NZLR 570 (CA).

¹¹³ Ibid, [66].

¹¹⁴ Moonen v Film and Literature Review Board [1999] NZCA 329; [2000] 2 NZLR9.

falls outside the class created by “matters such as sex, horror, crime,cruelty or violence” because it excludes attitudesand opinions. Thegrounds proscribed in s3(3) do not all relate back to the subject matterreferred to in s3(1). This makes s3(1)a gateway provision for the censorship ofmaterial covered by s3(3). The expression of hatred towards homosexuals cannotbe restrictedunder the FVPCA.

Living Word has been heavily criticised in recent years. McPhersoncondemns the decision for taking an overly-restrictive interpretation ofs3(1).¹¹⁵ The Department of Justice Report to the Internal Affairsand Local Government Select Committee on the Films, Videos and PublicationsClassification Bill affirms s3(1) is not intended to be limited to the matterslisted.¹¹⁶ Instead, s3(3)(e) is said to extend the scope of hate speech provisions beyond race.¹¹⁷ Living Word created alacuna in the law by categorising hate-inducing publications as falling outsideboth the FVPCA and the Human Rights Act.¹¹⁸

• 2.4SummaryOffences Act 1981

Another statutory scheme commonly attributed with criminalising hate speech isss3 and 4 of the Summary Offences Act 1981. Section3 prohibits publicbehaviour likely to provoke violence against persons or property. Yet, the focusof this provision is the violent,not hate- filled, repercussions of suchincitement.

¹¹⁵ Ibid.

¹¹⁶ Ibid.

¹¹⁷ Ibid, 12.

¹¹⁸ Ibid, 6.

Furthermore, the intent needed to threaten, alarm or insult under s4(1)(b)reduces the protection afforded to minorities from hatespeech.¹¹⁹ InMoss v Police¹²⁰ the accused was convicted for making racist remarks towards his landlady. Moss made offensive remarks after the propertyownertold him to leave his rented property during an ongoing dispute.¹²¹When coupled with the recklessness requirement under s4(1)(c), Mossbecomes an anomalous case. The mens rea requirement substantiallylimitsliability.

• 2.5CrimesAct 1961

According to Bassett and Geddis, numerous Crimes Act 1961 provisions alsoprotect against hate speech.¹²² Section 61 outlined the crime ofsedition, whereby public safety is endangered by exciting hostility and ill-willbetween differentclasses of people.¹²³ However, it was repealed in2007 following the Law Commission’s recommendation.¹²⁴ Sections66 and 311(2) also create secondary liability for inciting the commission ofoffences. Yet, the Crimes Act only regulatesexpression that encourages action,rather than hate speech itself. Like the penumbra of other provisions detailed,the Crimes Actsimply prohibits fighting words, which can already bejustifiably prohibited under the liberal discourse.

¹¹⁹ Winton, n. 66 above, 16.

¹²⁰ (HC Timaru AP 45/92 5^th October 1992, WilliamsonJ).

¹²¹ Ibid.

¹²² Andrew Geddis, “The State of Freedom of Expression inNew Zealand”, (2008) ODLR., 668 and

Bassett, Ian “Is hate speech legislation necessary or desirable?”http://www.hatespeech.co.nz, lastaccessed 21.09.09.

¹²³ Geddis, n.122 above, 668.

¹²⁴ Ibid, 669.

• 2.6NewZealand Press Council

As a self-regulatory agency, the New Zealand Press Council aims to promotebalanced and accurate reporting on diversity.¹²⁵ The Council receivescomplaints where newspapers, periodicals and journals have upset the reader andthe publisher’s responseis inadequate.¹²⁶ In doing so, theCouncil protects against hate speech. Principle 8 of the Press CouncilPrinciples dictates, “publications shouldnot place gratuitous emphasis ongender, religion, minority groups, sexual orientation, race, colour or physicalor mental disability”.¹²⁷ However, the reporting of publicinterest issues is permitted.¹²⁸

Yet, such standards have been criticised. A lack of definition of “publicinterest” means the defence can be invokedarbitrarily to protectapparently harmful speech.¹²⁹ In Roehl,¹³⁰ theCouncil also formulated a defence of satire to justify the seeminglydiscriminatory comment against homosexuals by columnist,Ms McLeod.Nevertheless, the Press Council has invoked their principles in other cases toconclude the articles fell below the acceptablejournalistic standards.¹³¹However, the consequences of such a decision are limited, with the councilunable to enforce recommendations that the publicationissue an apology.

Given the lack of enforcement mechanisms and jurisdiction available to the PressCouncil, its impact on condemning hate speechis limited. Whilst principle 8covers many target

¹²⁵ Grant Hannis, “Reporting on Diversity in New Zealand:The Case of ‘Asian Angst’”, ANZCA08 Conference, Power andPlace (Wellington: July 2008), 4.

¹²⁶ MacPherson, n.16 above, 57.

¹²⁷ Ibid, 56.

¹²⁸ Principle 8, 1999.

¹²⁹ Hannis, n.125 above, 12.

¹³⁰ New Zealand Press Council, Ruling 915, Joseph Roehl againstthe Dominion Post, February 2003,http://www.presscouncil.org.nz/display_ruling.asp?casenumber=915, lastaccessed 29.09.09.

¹³¹ For example see: North and South’s “AsianAngst” detailed in Hannis, n.125 above, 13.

groups, it is only applicable to print media. This leaves the victims of verbalhate speech open to attack. Furthermore, the rulingsof the Press Council aredirected at the publication, not the journalist of the piece concerned. Whilejournalists may be deterredfrom expressing hate in the future if publishersbecome weary of them, there are few immediate repercussions for the author ofhate propaganda. They receive no penalties for the article already sent toprint.

• 2.7BroadcastingStandards Authority

The Broadcasting Standards Authority is another quasi-regulatory body involvedin the regulation of hate speech. Section 4 BroadcastingAct 1989 requires thecensorship of all forms of expression that breach the standards of good tasteand decency. Moreover, s21(1)(e)(iv)Broadcasting Act enables the Authority topromote safeguards against discrimination contained in the codes of broadcastingpractice.¹³² Like the Press Council, the prohibited grounds ofdiscrimination are relatively broad.¹³³ The Authority’s powersare akin to the Press Council’s in other respects too. There is similarlyan exception to criticismfor humorous works.¹³⁴ Jurisdiction of theAuthority is limited to television and radio.¹³⁵ Furthermore, theonly penalties available to the Authority are costs or the issuing of anapology.¹³⁶ Again, this would provide little deterrent for commercialbroadcasters who can easily afford to pay court costs.

¹³² McPherson, n.16 above, 50.

¹³³ Broadcasting Act 1989, S21(1)(e)(iv).

¹³⁴ McPherson, n.16 above, 54.

¹³⁵ Ibid, 52.

¹³⁶ Ibid, 50.

• 2.8AdvertisingStandards Authority

The Advertising Standards Authority aims to self-regulate advertising in NewZealand. Individuals can complain to the AdvertisingStandards Complaints Board,who applies the Advertising Code of Practice February 2009 when considering themerits of a case. Thegeneral principles of the Code expressly refer to the Human Rights Act and New Zealand Bill of Rights Act, presumably includingthehate speech provisions of the former. Principle 2 of the Code for People inAdvertising prohibits advertising that displayspeople in a way that isreasonably likely to cause serious or widespread hostility, contempt, abuse orridicule. Hence, this provisionhas the capacity to deal with hate speech. Whilethere are no specific target groups mentioned, perhaps Principle 3 of the samesectionprovides guidance. It condemns advertising that causes serious orwidespread offence on the grounds of gender, race, colour, sexualorientation,disability and many others. Therefore, the scope of Principle 2 seems verybroad. The complaint presently before theAuthority on Hell’s Pizza“at least our brownie won’t eat your pet dog” advertisement,may deal with theability of Principle 2 to deal with hate speech.¹³⁷Principle 6 provides a humour exception, but this may preclude theestablishment the likely to incite hostility requirement. If Authorityupholds acomplaint, the advertiser is required to remove the advertisement. Like theBroadcasting Standards Authority and the PressCouncil, there is littledeterrent in such an order. The advertisement will nevertheless be displayed fora significant period oftime while the Advertising Standards Authority considersthe matter, and the shock value of it will prompt additional publicity.

¹³⁷ Refers to the incident in Mangere where a Tongan man killedand barbeques his pit-bull terrier cross. Stephanie Dearing, “NewZealand’s Hell Pizza Continues: controversial ad campaigns” http://www.digitaljournal.com/article/278346,28.08.09.

• 2.9Conclusion

The scope of hate speech provisions in New Zealand are rather limited. The RaceRelations Act 1971 and subsequent Human Rights Act1993 outlaw hate speech basedon race, colour, ethnic or national origin alone. Other statutory regimes havenarrow application.Living Word severely limited the scope of the FVPCAby labelling s3(1) a gateway provision to s3(3). Legislation protecting targetgroups beyondrace is limited to certain types of media. The BroadcastingStandards Authority, New Zealand Press Council and Advertising StandardsAuthority have a jurisdiction limited to radio, television broadcasts, and printmedia. Furthermore, the Crimes Act 1961 and SummaryOffences Act 1981 onlyregulate expressions of hate inciting violence or action. Encouraging contemptis not enough. This affordsminority groups little protection from the harmcaused by hate speech.

Chapter 3: New Zealand’s internationalcommitments

Most New Zealand hate speechlegislation owes its existence to the state’s international obligations.For example, a purposeof the Race Relations Act 1971, that preceded the HumanRights Act 1993, was to “implement the International Covenant on theElimination of All Forms of Racial Discrimination”.¹³⁸According to both the Human Rights Commission and the United NationsGeneral Assembly, New Zealand has ratified all major internationalhuman rightsinstruments.¹³⁹ This has substantial implications for New Zealand’s policy on hate speech. Some argue New Zealand limits hate speechonlyto the extent required by international law. Therefore, the scope of NewZealand’s international obligations provides a goodframework from whichto consider whether existing hate speech legislation is adequate.

• 3.1The originof international instruments regulating hate speech

The international human rights movement began with the Universal Declaration ofHuman Rights in 1948.¹⁴⁰ It contains what are now regarded asfundamental human rights such as the right to freedom of expression,¹⁴¹freedom from discrimination,¹⁴² and freedom of thought,conscience and religion.¹⁴³ As a member state of the United Nationssince 24^th

¹³⁸ Race Relations Act 1971, Long Title.

¹³⁹ Human Rights Commission, n.42 above, 6 and United NationsGeneral Assembly, Draft Report of the Working Group on the Universal PeriodicalReview, New Zealand, 4-15 May 2009.

¹⁴⁰ James Weinstein, “Extreme Speech, Public Order andDemocracy: Lessons from The Masses” in Ivan

Hare and James Weinstein (eds.), Extreme Speech and Democracy (Oxford:Oxford University Press, 2009), 62.

¹⁴¹ UDHR, Article 19.

¹⁴² UDHR, Article 7.

¹⁴³ UDHR, Article 18.

October 1945, New Zealand supports the Universal Declaration. This founding human rights document has its origins in World WarII atrocities, particularlythose committed by fascist Germany.¹⁴⁴ Perhaps the anti-Semiticsentiment adopted by Nazis explains why many international documents onlyprotect racial and religious groupsfrom hate speech. These roots may alsoexplain why the Court of Appeal in King-Ansell v Police¹⁴⁵concluded Jews constituted an ethnic group for the purposes of s25 RaceRelations Act, and later s131 Human Rights Act. It wouldbe very strange ifdomestic law implementing international instruments did not cover the very groupthe latter aimed to protect fromhate speech.

• 3.2InternationalCovenant for Civil and Political Rights

The International Covenant for Civil and Political Rights (ICCPR) is one ofthese instruments. Article 20 states: “Any advocacyof national, racialor religious hatred that constitutes incitement to discrimination, hostility orviolence shall be prohibitedby law.” This essentially requires memberstates to prohibit hate speech aimed at racial or religious groups.

New Zealand ratified the ICCPR on 28^th December 1978, signallingtheir compliance with it provisions.¹⁴⁶ The government simultaneouslyentered a reservation that New Zealand will

¹⁴⁴ Sylvia Cartwright, “Elimination of All Forms ofDiscrimination Against Women” (1998) OLR, vol.9, no. 2, 253.

¹⁴⁵ n.92 above.

¹⁴⁶ United Nations Treaty Collection,http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en,last

accessed 22.09.09.

not legislate further under article 20 because the advocacy of national andracial hatred is already outlawed.¹⁴⁷

Yet, the Human Rights Act 1993 prohibits hate speech targeted at a group ofpeople based on their “race, colour, ethnic ornational origin”.This may in fact be broader than purely racist hate speech.¹⁴⁸ Onthe other hand, New Zealand legislation does not protect religious groups.Therefore, the legislature is taking measures beyondtheir obligations under theICCPR in one respect, but then falling short of compliance in another.

This can be rectified if the target groups covered by ss 61 and 131 Human RightsAct 1993 impliedly incorporate religious groups.However, this seems unlikely.Both Richmond P and Woodhouse J in King-Ansell¹⁴⁹ expresslyexclude religious groups from protection under the Human Rights Act provisions.So, while Jews are protected because theyshare common historical roots, otherreligions are seemingly excluded from hate speech provisions. DespiteHuscroft’s assertionthat New Zealand can carry out its internationalcommitments in more than one way,¹⁵⁰ the ICCPR unavoidably requiresthe denunciation religious hate speech. Hence, the Human Rights Act does notfulfil New Zealand’sinternational commitments.

Justifications for such inadequate protection from hate speech could lie inother articles of the ICCPR. Article 19(2) affirms freedomof expression thatincludes the “...freedom to seek, impart and impart information andideas of all kinds....” Yet,the Human Rights Committee has suggested thelimitations on freedom of speech required by article 20 are

¹⁴⁷ Winton, n.66 above, 4.

¹⁴⁸ Maxim Institute, n.71 above.

¹⁴⁹ n.92 above.

¹⁵⁰ Huscroft, n.12 above, 203.

fully compatible with article 19.¹⁵¹ Hence, were the Human RightsCommittee to consider the Human Rights Act provisions under the First OptionalProtocol, New Zealand is unlikely to be able to justify its position.

• 3.3InternationalConvention for the Elimination of All Forms of Racial Discrimination

(CERD)

A similar process exists under the International Covenant for the Elimination ofAll Forms of Racial Discrimination. The Committeeon the Elimination of RacialDiscrimination monitors the implementation of the Convention by receivinginter-state or individualcomplaints, with permission of the member state inquestion. While New Zealand ratified the Convention on 22^ndNovember 1972, it has not accepted the jurisdiction of the Committee tohear individual complaints under article 14.

CERD may explain why only racial groups are protected from hate speech in NewZealand. Article 4 requires state parties to prohibitby law all propaganda thatattempts to promote racial hatred or discrimination. In LK v TheNetherlands, ¹⁵² the CERD Committee found a violation of article4 where the state did not prosecute a group of neighbours yelled ‘no moreforeigners’to a prospective homeowner and threatened to burn down hishome. As Weinstein notes, article 4 is narrower than article 20 ICCPRbecauseit relates to racial hatred alone.¹⁵³ Given this, perhaps the RaceRelations Act should have been framed around

¹⁵¹ Dr Judy McGregor, EEO Commissioner ,“Balancingresponsibilities and rights: freedom of expression and hate speech in NZ”,Ministry of Justice symposium on the Bill of Rights Act, 7.02.06.

¹⁵² Committee for the Elimination of Racial DiscriminationCommunication No 4/1991: Netherlands. 16/03/93, CERD/C/42/D/4/1991.

¹⁵³ Weinstein, n.140 above, 71.

CERD. As it stands, the narrow approach adopted by hate speech legislation begsthe question whether New Zealand is actually complyingwith treatyrequirements.

• 3.4Conclusion

The generous scope of ss61 and 131 suggest New Zealand is a staunch protector ofracial minorities from hate speech.¹⁵⁴ Yet, in relation to othergroups, New Zealand seems hesitant to fulfil even its current internationalobligations under the ICCPR.There is a notable absence of protection forreligious groups under current hate speech legislation. Perhaps it will take aninternationaltreaty of some kind to convince New Zealand that the Human RightsAct 1993 is worthy of extension to shelter a broader range of targetgroups.

On the other hand, some international documents already exist that could formthe basis for such an expansion. The possible implicationsof the Convention onthe Rights of Disabled Persons and others will be addressed when discussing eachrelated target group.

¹⁵⁴ Maxim Institute, n. 71 above.

Part B

The inquiry undertaken in Chapter 2 suggests ss61 and 131 Human Rights Act 1993are justifiable limitations on the right to freedomof speech. These provisionswill form the basis for discussing whether hate speech directed at other target groups should be prohibited.I will presume that if there is a real andsubstantial need to address hatred towards at religious groups, GLBT and thedisabled,this will justify extension of the Human Rights Act. However, thispresumption may be displaced if there are features of the relevanttarget group that prove particularly problematic. If any such objections are valid,this may prevent the simple expansion of NewZealand’s primary hate speechlegislation.

In 2004, the Government Administration Committee embarked on such an inquiry,only to abandon it after a largely negative publicresponse.¹⁵⁵ Mostsubmissions expressed apprehension that such a development would compromise theright to freedom of speech and democratic process.¹⁵⁶ Other concernsstemmed from the difficulty of establishing an effective threshold for hatecrimes in general.¹⁵⁷ Nevertheless, the Government indicated concernabout the scope of the Human Rights Act by instigating the investigation afterLiving Word concluded homophobic hate speech cannot be otherwiseprohibited.

¹⁵⁵ Andrew Geddis, n.122 above, 665.

¹⁵⁶ Stuart Dye, “Backlash on Hate Speech Proposal”from The New Zealand Herald, 18^th March 2005.

¹⁵⁷Ian Bassett, n.121 above.

Chapter 4: Religious hate speech

Since the Race Relations Act1971, there has been speculation about extending hate speech legislation tocover religious groups. Theargument for prohibiting religious hate speech isprobably the most compelling. Numerous other jurisdictions, subject to verysimilarinternational obligations, have prohibited incitement to hatred based onreligious denomination. The United Kingdom, Canada and someAustralian statesall explicitly outlaw religious hate speech. The broad margin of appreciationafforded to member states under the European Convention of Human Rights meansobligations imposed on the UK are no more extensive that than those inflicteduponNew Zealand by United Nations Conventions.

158

• 4.1UnitedKingdom

The United Kingdom has expressly criminalised incitement to religious hatred. In2006, the Racial and Religious Hatred Bill was enactedto amend the Public OrderAct 1986.¹⁵⁹ Section 29B(1) states:

“A person who uses threatening words or behaviour, or displays any writtenmaterial which is threatening, is guilty of an offenceif he intends thereby tostir up religious hatred.”

¹⁵⁸ Ahdar, n.9 above, 641.

¹⁵⁹ Racial and Religious Hatred Act 2006 (UK), s1.

Subsection 2 provides that a crime can be committed either in a public orprivate place, unless unheard in a dwelling house.¹⁶⁰ Subsequentsections create similar offence for intending to stir up religious hatred invarious other mediums including written,¹⁶¹ visual,¹⁶² andsound recordings.¹⁶³

This legislative amendment was motivated by the apparent injustices resultingfrom the prohibition of racial hate speech under s18Public Order Act 1986.Judicial interpretations of ‘race’ led to some religions, such asJews and Sikhs, being coveredby the provision as ‘ethnicgroups’.¹⁶⁴ Yet, Muslims, Hindus and Christians were leftexposed to expressions of hatred.¹⁶⁵

Furthermore, some strands of Christianity were protected from hate speech underthe common law offence of Blasphemy. These laws protectedthose belonging to theestablished church from offensive expression.¹⁶⁶ Those belonging toanother Christian denomination did not enjoy such immunity. Even after theseparation of church and state, Catholicsremained outside the scope ofblasphemy law because their faith required them to “serve anotherprince”.¹⁶⁷ The process of neutralising the scope of hatespeech legislation also led to the abolition of blasphemy under s79 CriminalJusticeand Immigration Act 2008.

¹⁶⁰ Ibid, s29B(2).

¹⁶¹ Ibid, S29C.

¹⁶² Ibid, S29D prohibits expression that incites religious hatredduring the performance of a play.

¹⁶³ Ibid, S29E prohibits the showing, distributing or playing arecording. S29F covers broadcasting of visual imagery or sound.

¹⁶⁴ Ivan Hare, “Blasphemy and Incitement to ReligiousHatred: Free Speech Dogma and Doctrine” in Ivan

Hare and James Weinstein (eds.), Extreme Speech and Democracy (Oxford:Oxford University Press, 2009), 294.

¹⁶⁵ Ibid.

¹⁶⁶ Ibid.

¹⁶⁷ John Locke, “A Letter Concerning ReligiousToleration” in Hare, n.164 above, 291.

However, some criticise the UK approach. Rex Ahdar endorses Kay Goodall’sopinion that the 2006 Act is almost unenforceablebecause it is sonarrow.¹⁶⁸ Perhaps s29J provides the limitation in scope. Itstates:

“nothing in this part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressionsof empathy, dislikeor ridicule, insult or abuse of particular religions or the beliefs or practicesof their adherents, or of anyother belief system or the beliefs of itsadherents, or proselytising or urging the adherents of a different religion orbelief systemto cease practising their religion or belief system.”

In light of such a legislative statement, the purpose of prescribing an offence for inciting religious hatred becomes unclear. Ifa person is nevertheless freeto ridicule, insult or abuse the beliefs of religious adherents, perhaps s29B(1)becomes meaningless.The only way to rationalise these two apparentlycontradictory provisions is to allow criticism of religious beliefs under s29J,yet prohibit the incitement of religious hatred towards the believers themselvesunder s29B(1). In the abstract, this distinctionmay sound convincing. Yet,ascertaining whether speech is aimed at a religious group or their beliefs mayprove difficult in practice.Perhaps this explains

¹⁶⁸ Rex Ahdar, “Religious Vilification: Confused Policy,Unsound Principles and Unfortunate Law” (Dec. 2007) University ofQueensland Law Journal, vol. 26.2, 293. Kay Goodall, “Incitement toReligious Hatred: All Talk and No Substance” (2007) 70 Modern LawReview, 113.

why there have been few prosecutions under the Racial and Religious Hatred Act2006.¹⁶⁹

• 4.2Canada

Similarly, the Canadian Criminal Code creates an offence of wilfully promoting hatred against an identifiable group.¹⁷⁰ ‘Identifiablegroup’ includes a section of the public distinguished by religion.¹⁷¹Defences prescribed in s319 include truth, faith, public interest and amedia defence.¹⁷² Like s131 Human Rights Act 1993, the consent of theAttorney General is required before a prosecution can proceed.¹⁷³

• 4.3Australia

Excitement to hatred on religious grounds is also an offence in numerousAustralian states. In New South Wales, s20C Anti-Discrimination Act 1977renders it unlawful to incite hatred or contempt for, or subject to ridicule aperson or group based on their race. Yet, ‘race’is given anexpansive definition to include ethno-religious origin.¹⁷⁴

¹⁶⁹ David Shaparo and Oonagh Sands, “free speech, hatespeech and incitement”, (March 2006) Solicitors Journal, vol.150(8), 239.

¹⁷⁰ Canadian Criminal Code, S318(7).

¹⁷¹ Ibid, S318(4).

¹⁷² Jones, n.11 above, 47.

¹⁷³ Ibid, 48.

¹⁷⁴ NSW Anti-Discrimination Act 1977, s4.

Khan v Commissioner, Department of Corrective Services and Anotherdefined the term ‘ethno- religious origin’.¹⁷⁵ Afternoting the uncertainty of the concept, the Court concluded it signifies“a strong association between a person’sor a group’snationality or ethnic culture, history and his, her or its religious beliefs andpractices”.¹⁷⁶ Hence, religion per se is not a prohibitedground for expressions of hatred. However, if there is a correlation between thefaithand the cultural origins of that group, religion will be implicitlycovered by s20C.

Other states are more explicit in their prohibition of religious hate speech.The Victorian Racial and Religious Tolerance Act 2001 creates a separate offencefor encouraging hatred towards religious groups.¹⁷⁷ Moreover, s124AQueensland Anti-Discrimination Act 1991 prohibits vilification against others onnumerous grounds including religion. While federal legislation does not dealwith hate speech,the attitudes of Australian states provide significantsupport for the regulation of religious hate speech.

• 4.4Theargument for prohibiting religious hate speech

As in the United Kingdom, current racial hate speech provisions under the HumanRights Act apply to some religious groups. In King-Ansell vPolice,¹⁷⁸ the Court of Appeal concluded that Jews were coveredby the precursor to s131 because they shared the same customs and beliefs,allowingthem to be classified as an ethnic group. Yet, Richmond P andWoodhouse J explicitly extinguished the possibility that the 1971provision caninclude religious hate speech. This conclusion seems somewhat anomalous. Otherreligious groups will invariably

¹⁷⁵ [2002] NSWADT 131(31 July 2002).

¹⁷⁶ Ibid [20].

177 _s8.

¹⁷⁸ n.92 above.

share customs and beliefs. After all beliefs, and customs adopted inmanifestation of these beliefs, are the primary feature of religion.Woodhouse Jeven supports this by stating, “it does not follow that the identifyingcharacteristics must be genetically determined at birth”.¹⁷⁹

Such an assertion contradicts a House of Lords case that the Court of Appealcites with approval. In Ealing Borough Council v Race RelationsBoard,¹⁸⁰ Lord Killbrandon suggests race, colour, national andethnic origins are similar in that they are not acquired by choice. Moreover,commentators, including Ivan Hare, argue the law does not normally protectpeople from vilification based on lifestyle choices.¹⁸¹ Conversely,Woodhouse J seems to suggest people can choose to which ethnic group they wouldlike to belong.

King-Ansell implies other religious groups may receive protection unders131. By distancing themselves from the strict United Kingdom approach,the NewZealand courts take an apparently liberal approach to those qualifying as anethnic group under the Act. Woodhouse J evenagrees with Lord Simon inEaling that the language adopted by the drafters of these hate speechprovisions is “rubbery and elusive” that deems ‘race’animprecise concept.¹⁸² As a result, the potential to extend the limitsof the Human Rights Act increases.

The international community would also support such an expansion to protectreligious groups. In March this year, Resolution A/HRC/4/L.12of the UnitedNations Human

¹⁷⁹ Ibid, at page 538.

¹⁸⁰ [1972] All ER 105.

¹⁸¹ Hare, n.164 above, 308.

¹⁸² King-Ansell v Police, n.92 above, 537.

Rights Council urged all member states to legislate against defamation ofreligion.¹⁸³ While the Resolution is not binding on member states,it is a distinct signal that the Council considers hatred towards religionasignificant concern.

Apparently, the expression of religious hatred has increased recently. Ivan Harereports “an increase in anti-Islamic statementsfollowing 9/11 and 2005London bombings”.¹⁸⁴ In April 2009, the New York HighCommissioner of Human Rights agreed that, “in many ways, sinceSeptember 11, we have seenthings like racial profiling and the targeting ofparticular ethnic and religious groups”.¹⁸⁵ For example, theinfamous Danish Cartoons depicted the Prophet Mohammed wearing a turban andinforming a suicide bomber that paradisehad run out of virgins.¹⁸⁶Even before the bombing of the World Trade Centre, Tatyana Suszkindistributed posters of Mohammed as a pig and writing the Koranwith histoes.¹⁸⁷ The UK legislation was enacted to address these concerns,despite government denial that incitement to religious hatred iscommonplace.¹⁸⁸

Moreover, Race Relations Commissioner, Joris de Bres, notes that discriminationof religious minorities directly affects New Zealand.¹⁸⁹ In 2008, 5%of complaints to the Human Rights

¹⁸³ Harris, n.1 above.

¹⁸⁴ Hare, n.164 above, 306.

185. HighCommissioner of Human Rights, Press conference by the New York office for theHigh

Commissioner of Human Rights on the latest developments inDurban Review Conference Preparatory Process, (New York: Dept of Publicinformation, News and Media Division, 6^th April 2009).

186. IanCram, “The Danish Cartoon, Offensive Expression and DemocraticLegitimacy” in Ivan Hare and

James Weinstein (eds.),Extreme Speech and Democracy (Oxford: Oxford University Press, 2009),311.

¹⁸⁷ Amnon Reichman, “criminalising religious offensivesatire: free speech, human dignity and comparative

law” in Ivan Hare and James Weinstein (eds.), Extreme Speech andDemocracy (Oxford: Oxford University Press, 2009), 331.

¹⁸⁸ Hare, n.164 above, 306.

¹⁸⁹ Joris de Bres, Race Relations Commissioner , New Zealandfollow up to the Durban Declaration and

Program of Action to Combat Racism, Discrimination, Xenophobia and RelatedIntolerances (Human Rights Commission, October 2008).

Commission were about discrimination based on religious or ethicalbeliefs.¹⁹⁰ The South Park Bloody Mary episode featuring amenstruating Madonna provides additional evidence of the ridicule ofreligion.¹⁹¹

Furthermore, the New Zealand Human Rights Commission suggests, “toleranceof religious diversity is very close to the eliminationof racialdiscrimination”.¹⁹² Perhaps regulating religious hate speech isa necessary corollary of eliminating racism.

• 4.5Naturalcompetition between religions

The main argument against the regulation of religious hate speech is that itwould compromise freedom of religion. Section 18 ofthe International Covenanton Civil and Political Rights, and s13 New Zealand Bill of Rights Act 1990guarantees this right. The ability to “manifest [one’s] religion orbelief in worship observance, practice or teaching”¹⁹³inevitably involve the criticism of other religions in order to attractnew followers.¹⁹⁴ Moreover, the lack of consensus on matter such asGod, the universe and the path to enlightenment means that religious ideas willoften compete with one another.¹⁹⁵

Yet, this may be taking too simplistic an approach. Based on the currentlegislation, religious hate speech would also need to belikely to incitehostility against the target group. However, speech that only promotes oneviewpoint without directly denigratinganother may not

¹⁹⁰ Universal Periodical Review for New Zealand, 5^thSession, considered Thursday 7^th May 2009.

¹⁹¹ Ahdar, n.9 above, 629.

¹⁹² 71^st Session for the Elimination of All Forms ofRacial Discrimination, periodic report of New Zealand, 31.07.07.

¹⁹³ International Covenant on Civil and Political Rights, article18.

¹⁹⁴ Ahdar, n.9 above, 631.

¹⁹⁵ Hare, n.164 above, 308.

satisfy this test. Implicit criticism of other beliefs while promotingone’s own may not be enough.

Furthermore, religious hate speech is expression that excites hatred against aperson based on their belief, not against the religionitself. The UK House ofCommons seems to have adopted this distinction.¹⁹⁶ Jones agrees thatattacks on beliefs can be altogether separate from attacks on theindividual.¹⁹⁷ For example, saying polytheistic religions are wrongdoes not necessarily incite hatred against adherents of Hinduism or Islam.Perhapsan extra step is needed to promote hatred against devotees of suchreligions based on their beliefs.

• 4.6Problemof scope

Another criticism of proposals to legislate against religious hate speech isthat it would create a class of people unjustifiablyimmune from criticism. Theintrinsic link between religion, morality and the state means that religiousadherents often play an activerole in public discussion on controversialmatters.¹⁹⁸ Debates on issues such as abortion and same-sex marriageshave a religious undertone. Therefore, if religious hate speech is prohibited,the religious groups themselves could launch one-sided public attacks withoutopponents being able to rebut.

¹⁹⁶ See the above discussion about the relationship between s29Jand s29(b)(1).

¹⁹⁷ Jones, n.10 above, 92.

¹⁹⁸ Memorandum to the Public Bill Committee on the CriminalJustice and Immigration Bill from the Department for Christian Responsibilityand Citizenship, Catholic Bishops Conference of England and

Wales, and the mission and Public Affairs Council of the Church of England,22 November 2007.

This creates the problem of defining what constitutes a religion for thepurposes of hate speech provisions. Reichman argues religionis more than justan opinion in that it connects people to God.¹⁹⁹ This makes religioussentiments worthy of protection.²⁰⁰ Yet, this leaves atheism in asomewhat anomalous position. Atheism is commonly recognised as being like areligious belief, but itsexplicit rejection of a God would prelude protectionunder religious hate speech provisions according to Reichman’sformulation.Similarly, Buddhism does not recognise the existence of a God inthe Western sense of the word.²⁰¹ Nevertheless, such denominationsare specifically mentioned in s21(1)(d) Human Rights Act 1993 as prohibitedgrounds of discrimination,just like religions who worship distinct deities.Apparently, the legislature makes no distinction between the affirmative beliefin a God or Gods, and the categorical denial that one exists.

• 4.7Conclusion

There is significant support for the proposition that religious groups should beprotected from hate speech under the Human RightsAct. Anti-vilificationlegislation in the United Kingdom, Canada and Australia all include religion asa protected target group.Moreover, extending the Human Rights Act in this waywould conform with New Zealand’s international commitments under theICCPR and the Universal Declaration of Human Rights. In King-Ansell vPolice, the New Zealand Court of Appeal adopted a liberal interpretation of‘ethnic origin’ to include Jews. Perhaps religiousgroups deservemore

¹⁹⁹ Reichmann, n.187 above, 339.

²⁰⁰ Ibid.

²⁰¹ B.A. Robinson, “Buddhism, based on the teachings ofSiddharta Gautama” onhttp://www.religioustolerance.org/buddhism.htm, 10.06.09.

explicit recognition as minorities worthy of protection from hate speech. Thenotable existence of religious profiling and discriminationsupports thisassertion.

Chapter 5- GLBT hate speech

GLBT are arguably one of themost disadvantaged minorities in the western world. They are associated with themost undesirable peoplein society, including criminals, paedophiles and thediseased.²⁰² Yet, Living Word concluded GLBT hate speechcannot be prohibited under s3(3) FVPCA. The subsequent condemnation of thisdecision suggests there isa strong case for the prohibition of hate speechdirected at sexual minorities in New Zealand. While no international instrumentexpressly requires state parties to outlaw homophobic hate speech,²⁰³numerous other Commonwealth countries have regulated hate speech targetingGLBT.

• 5.1UnitedKingdom

The United Kingdom prohibited homophobic hate speech in October 2007.²⁰⁴Section 76 Criminal Justice and Immigration Act 2006 renders it an offenceto use threatening words or behaviour, or to display anymaterial that isthreatening, if it intends to stir up hatred on the grounds of sexualorientation. The Act criminalises homophobicexpression and “help[s] deter and tackle extremists who stir up hatred against Lesbian, Gay, Bisexual and Transgender people”.²⁰⁵ In enacting this legislation,sexual orientation was brought in line

²⁰² Dean R Knight “Im not gay- not that there’sanything wrong with that: are unwanted imputations of gayness defamatory” (2006) 37 VUWLR, 269.

²⁰³ Jonathan Cohen, “More Sensorship less discrimination?Sexual orientation hate propaganda in multiple

perspectives”, (2000) McGill Law Journal, vol. 46, 84.

²⁰⁴ Ian Leigh, “Homophobic speech, equality denial andreligious expression” in Ivan Hare and James

Weinstein (eds.), Extreme Speech and Democracy (Oxford: OxfordUniversity Press, 2009), 381. ²⁰⁵ gayNZ.com, Gay Commentators Slam UKfascist fags,http://www.gaynz.com/forum/index.php?action=printpage%3Btopic=3330.0,25.10.07.

with racial and religious equality. Yet, the House of Commons chose to enact aseparate hate speech provision to protect homosexualsrather than simplyexpanding the scope of others.²⁰⁶

The Criminal Justice and Immigration Act 2006 was not a response to a recentphenomena, but made it easier for inciters of homophobichatred to beprosecuted. In Hammond v DPP²⁰⁷ an elderly street preacherfrom Bornemouth was convicted under s5 Public Order Act 1986 after a crowdbecame hostile during his tiradeabout homosexuals. His claim that homosexualitywas immoral made him liable for displaying a sign causing distress and alarm.However,causing alarm or distress is distinguishable from inciting hatred. Theformer depends on a reaction against the speaker, whereasthe audience of hatespeech exhibit their reaction towards an innocent target group. Hence, thePublic Order Act offence provides only an indirect route to prosecuting hatespeech. The Criminal Justice and Immigration Act 2006 circumvents this.

• 5.2Australia

While fewer Australian states prohibit homophobic than religious hate speech,New South Wales and Queensland still provide significantsupport for theregulation of hate speech based on sexual orientation. In New South Wales, theAnti-Discrimination (Homosexual Vilification)Amendment Act 1993 outlawshomosexual vilification provided it does not take

²⁰⁶ Public Order Act 1986, s18 prohibits racial hate speech. Then,the Racial and Religious Hatred Act 2006 amended the former to includereligiousgroups as target groups protected from hate speech.

²⁰⁷ [2004] EWHC 69 (Admin.).

place during the course of religious instruction.²⁰⁸ This recognisesthe potential clash between homosexuals’ right to be free fromdiscrimination and the right to freedom ofreligion.

Section 124A of Queensland’s Anti-Discrimination Act 1991 prohibits thepublic incitement of hatred towards, contempt for orridicule of a person orgroup on the ground of sexuality or gender identity. The scope of thisprovision is broader than its NewSouth Wales counterpart. “Genderidentity” includes transsexuals, transgender, and others who may nototherwise fallunder “sexuality” or “homosexual”.

The case of Toonen v Australia²⁰⁹ provides internationalsupport for such provisions. Nicholas Toonen alleged ss122(a) and (c), and 123of the Tasmanian Criminal Codeviolated his rights to privacy and equalprotection of the law under articles 17(1) and 26 ICCPR respectively. TheCriminal Codeprovisions outlawed all private forms of sexual contact betweenhomosexual men. The Human Rights Committee concluded that the legislationviolated the complainant’s right to privacy because it allowed the stateto unduly interfere with his private life. While themajority of the Committeereserved their opinion on whether the provisions violated article 26, theyclarified that “sex”,as a prohibited ground of discrimination underarticles 2(1) and 26, did include sexual orientation. Cohen argues this mayrequire state parties to the ICCPR to outlaw homophobic hatespeech.²¹⁰

²⁰⁸ S49ZT.

²⁰⁹ (No. 488/1992), UN Doc. (CCPR/C/5D/488/1992 (1994) printed inReport of the Human Rights Committee, UN GAOR, 49^th session, Supp No.4 UN Doc A/49/40, Appendix (1994) 226.

²¹⁰ Cohen, n.203 above, 86.

• 5.3Canada

In 2003, s319 Canadian Criminal Code added sexual orientation as a prohibitedground on which to wilfully promote hatred under s318.This extension to the lawfollowed the cases of Vriend v Alberta²¹¹ and M vH.²¹² In the former, Cory J remarked:

“the exclusion, deliberately chosen in the face of clear findings thatdiscrimination on the ground of sexual orientation doesexist in society, sendsa strong and sinister message. It could well be said it is tantamount tocondoning or even encouraging discriminationagainst lesbians or gaymen.”²¹³

Similarly, the “destructive message” sent by the initial exclusionof sexual orientation from s318(4) meant the CanadianCriminal Code was overtlydiscriminatory.²¹⁴

Moreover, the Cohen Report concluded, “however small the actors may be innumber, the individuals and groups promoting hatein Canada constitute‘clear and present danger’ to the functioning of democraticsociety.”²¹⁵ Cohen affirmed that s318(4) would likely beconsidered a reasonable limitation on freedom of expression under theKeegstra²¹⁶ analysis. In that case, Chief Justice Dicksonsuggested hate speech legislation aims to regulate the “intentionalfosteringof hatred against particular members of our society, as opposed to

²¹¹ [1998] 1 SCR 493.

²¹² [1999] 2 SCR 3.

²¹³ Vriend v Alberta, n.211 above, per Cory J [100].

²¹⁴ R Robinson, House of Commons debate (4 April 2000) in Cohen,n.203 above, 75.

²¹⁵ 1966 Report of the Special Committee on Hate Propaganda inCanada, 24.

²¹⁶ Cohen, n203 above, 80.

individuals.”²¹⁷ As an identifiable group, sexual orientationbecomes worthy of protection from hate speech. Concern that Canada wasundergoing athird wave of hate propaganda, characterised by an expansion oftarget groups, further supports this proposition.²¹⁸

• 5.4Theargument for prohibiting homophobic hate speech

GLBT are subject to hate speech, and accordingly discrimination, on a regularbasis. According to Ingrid Hess, such hate propagandahas variousthemes.²¹⁹ These include notions that homosexuals spread sicknessand disease, homosexuality undermines social institutions, and homosexualsconspire to corrupt others.²²⁰ In 2001, Amnesty International notedthat in some countries AIDS and HIV have been labelled the “gayplague” and samesex relationships dubbed “bourgeoisdecadence”.²²¹ Similarly, the infamous Reverend Phelps’“God Hates Fags” website reports that “aids cure fags”andany sexual connection outside the marriage bed is “whoremongery andadultery”.²²² Jack Chen shares the experience of a gay manwhose neighbours yelled “die AIDS faggot” at him and issued warningssuchas “these men are gay, they are spreading AIDS, they are childmolesters”. ²²³

²¹⁷ R v Keegstra [1990] INSC 224; [1990] 3 SCR 697, at page 722.

²¹⁸ Cohen, n203 above, 71.

²¹⁹ Ingrid Hess, Prosecution and ‘anti-homosexual’Publications (Edmonton, Alberta: Alberta Jusitce, Appeals and CriminalLawPolicy, 1996).

²²⁰ Ibid.

²²¹ Amnesty International, Crimes of Hate, Conspiracy of SilenceTorture and Ill-Treatment Based on Sexual Identity (London: AmnestyInternationalPublications, 2001), 2. Online at http://www.ai-

lgbt.org/ai_report?torture.htm. Cited in Dr. Ellen Faulkner,“Homophobic Hate Propaganda in Canada”, (2006-2007) Journal ofHate Studies, vol.5.63, 15.

²²² Westbro Baptist Church Home Page, <www.godhatesfags.com>, last accessed,20.08.09.

²²³ Jack Chen, et. al., “sticks and stones: the nexusbetween hate speech and violence”, (1999-2000) 27

Fordham Urb. LJ 382.

Accordingly, another theme can be added to Hess’ list: an association withsociety’s undesirables. For example, one CanadianMP suggested extendinghuman rights instruments to protect Gays and Lesbians would be akin to grantingprotection to “beastliest, paedophiles and necrophiles”.²²⁴Dean R Knight affirms that GLBTs are often grouped alongside criminal andfraudsters.²²⁵ Furthermore, Burn notes that heterosexuals use theword “fag’ or “homo” to insult one another.²²⁶This carries implications for the social worth attributed tohomosexuals.

New Zealand is not immune from homophobic expressions of hatred. The GayNZwebsite details a plethora of incidents vilifying sexualminorities. One recentaccount explains how Barry Bloomfield, a former Primary School Principal, waslabelled a ‘poofter’by colleagues and locked himself in his officeout of fear.²²⁷ Even more ominous is the murder of David McGee in2004. His killer, a homosexual prostitute, alleged McGee touched his anus. The jury accepted that such conduct provoked a violent outburst, during which theAccused beat McGee 40 times. A manslaughter verdictresulted. Peter Wells arguesthis outcome suggests, “a homosexual’s life is of littlevalue”.²²⁸ Again, in July 2009, the homicide of Ronald Brownwas excused as manslaughter after the Accused, Ferdinand Ambach, claimed thevictim’s

²²⁴ Faulkner, n.221 above, 9.

²²⁵ Knight, n.202 above, 20.

²²⁶ S.M. Burn “Heterosexuals’ use of ‘fag’and ‘queer’: Contributor to Heterosexism and Stigma, (2000)

Journal of Homosexuality, 40, 1.

²²⁷ Gay News.com Daily News Staff, “Gay School PrincipleSays He was Harassed”,http://www.gaynz.com/articles/publish/2/article_7824.php, 26.08.09.

²²⁸ Peter Wells, “A Lonely Death”,

http://www.listener.co.nz/issue/3358/features/2592/a_lonely_death.html,18-24.09.04.

sexual advances provoked him to beat Brown with a banjo before ramming its neckdown his throat.²²⁹

The social value attached to homosexuality becomes even more apparent in thecontext of defamation. Courts across the Commonwealthhave concluded that beingdescribed as gay, lesbian, queer or a sodomite is capable of beingdefamatory.²³⁰ While, in 1996 McGechan J stated “homosexualityand lesbianism may be viewed less seriously now than 20 years ago”,²³¹ the New South Wales Supreme Court suggestedaccusations of homosexuality may still be defamatory.²³² Moreover,in New Zealand Magazines Ltd v Hadlee, ²³³ the Court ofAppeal held rumours of lesbianism can lower an individual’s reputation inthe eyes of right- thinking membersof the public. This implies thathomosexuality is inferior to heterosexuality.²³⁴ Conversely, anallegation that someone belongs to a racial or religious minority is incapableof being defamatory.²³⁵ This may render sexual minorities more worthyof protection from hate speech than racial and ethnic minorities such asJews.

In other respects, GLBT and Jews share a similar social history. Both werevictims of Nazism,²³⁶ and have been both “a historical andcontemporary target of societal

²²⁹ “Provocation should stay in the meantime:lawyers”, New Zealand Herald,http://www.nzherald.co.nz/assault-and-homicide/news/article.cfm?c_id=124&objectid=10596554,11.09.09.

²³⁰ Knight, n.202 above, 257. For example see: Anderson vKocsis [1998] 86 OTC 107, Cruise v Express

Newspapers Plc [1998] EWCA Civ 1269; [1999] QB 931 (EWCA(Civ)), Quilty v Windsor [1999] SLT 346 (OH).

²³¹ Television New Zealand v Quinn [1996] 3 NZLR 24, atpage 60.

²³² Horner v Goulburn City Council, unreported, SC (NSW),No. 21287/97, Levine J, 5 December 1997.

²³³ [2005] NZAR 621 (CA).

²³⁴ Knight, n.202 above, 20.

²³⁵ Philip Lewis (ed.) Gatley on Libel and Slander(9^th ed., London: Sweet and Maxwell, 1998), 25, cited in Knight,n.202 above, 270.

236. gayNZ.com,n.205 above.

condemnation”.²³⁷ The atrocities committed in Nazi Germanymotivated international hate speech provisions, yet GLBT are not traditionallyrecognisedas a minority worthy of protection.²³⁸ Both Jews andhomosexuals have nevertheless been subject to vehementhostility.²³⁹

However, the reactions of Jews and GLBT to hate speech differ. Jews have a moresecure position in society, given the widespreadrecognition of their historicalpersecution, and are therefore better equipped to deal with prejudice.²⁴⁰On the other hand, homosexuals report that verbal attacks would likelyhave a lasting impact on their self-esteem.²⁴¹ Furthermore, recentstudies have linked suicidal mentality with homosexuality,²⁴² suggesting marginalisation of sexual minorities has a lasting effectmental health. A further study on New Zealanders found arounda quarter ofself-harm inflicted by men, and a sixth of self- harm committed by women wasattributable to same-sex attraction.²⁴³ The apparently irreparableharm caused by homophobic hate speech surely warrants its regulation.

237. LauraLeets “experiencing hate speech: perceptions and responses toanti-semitism and antigay speech” (2002) Journal ofSocial issues, vol.58, issue 2, 342.
     238. RobertJ Boeckmann and Carolyn Turpin-Petrosino “Understanding the harm of hatecrime”, (2002)

Journal of Social Issues, vol.58, issue. 2, 343.

²³⁹ Leets, n.237 above, 342.

²⁴⁰ Ibid, 345-6.

²⁴¹ Ibid, 350, 356.

242. RHerrell, “Sexual Orientation and Suicidality: a co-twin control study inadult men” (1999) Archives

of GeneralPsychiatry, vol. 56, issue 10, 867.

243. NZAids Foundation, submission for the inquiry into hate speech,

http://www.nzaf.org.nz/files/Hate%20speech%20submission%20to%20inquiry%205%20oct%2004.pdf,6.10.04.

• 5.5Relationshipwith religious freedom

A common objection to extending hate speech legislation to protect GLBT is itseffect on religious freedom. Many religions objectto the practice ofhomosexuality and adherents preach against it. Westbro Baptist Church, whooperates the “God Hates Fags”website, relies on numerous biblicalverses to justify their opposition to homosexuality.²⁴⁴ Sodomites areinevitably condemned to Hell according to Romans 1:18-32, 1 Corinthians 6:9-11,1 Timothy 1:8-11, Jude 7.²⁴⁵ Perhaps this conflict explains whynumerous legislatures have provided religious or faith defences to GLBT hatespeech provisions.²⁴⁶ In 2002, Imam el- Moumni escaped liability fordenouncing homosexuality as a ‘contagious disease’ by invokingreligiousfreedom.²⁴⁷ Such a response is common under the‘balancing of rights’ response to conflicts.²⁴⁸

Another frequent reaction to the contest between GLBT hate speech and religious freedom is to distinguish words from actions, therebyregulating religiousexpression in some situations.²⁴⁹ The Supreme Court of Canadaemployed this approach in Trinity Western University v British ColumbiaCollege of Teachers.²⁵⁰ Freedom of religion includes the right tobelieve that same-sex conduct is immoral, but not to act on those beliefs bydiscriminatingagainst practising GLBT.²⁵¹ Gonthier and Bastarache JJfor the minority in Chamberlain v

²⁴⁴ Westbro Baptist Church, n.222 above.

²⁴⁵ Ibid.

²⁴⁶ See Anti-Discrimination (Homosexual Vilification) AmendmentAct 1993 (NSW), s49ZT and Canadian Criminal Code, s318(4).

²⁴⁷ Leigh, n.204 above, 390.

²⁴⁸ Ibid, 389.

²⁴⁹ Ibid, 395.

²⁵⁰ [2001] 1 SCR 772.

²⁵¹ Ibid.

Surrey School District No. 36²⁵² endorsed this distinction.Moreover, UN Declaration on the Elimination of All Forms of Intolerance andDiscrimination Based on Religionand Belief 1981 guarantees the right to freedomof religion, while allowing religious manifestations to be limited ifnecessaryto protect social order or the rights and freedoms of others.²⁵³These approaches minimise the incompatibility of religion andhomosexuality.

Yet, once again, the word/action distinction fails to account for the harmcaused by hate speech. If religious communities are entitledto publiclyadvocate for the condemnation of homosexuality, and thereby incite hatredtowards gays and lesbians, prejudice becomesmore likely. In such anenvironment, homophobia will inevitably flourish. Arguably the balancing ofrights approach is more appropriate.

Under this approach, it is unclear whether religious freedom or the right toequality, compromised by hate speech, should prevail.While some jurisdictionsemploy a faith defence,²⁵⁴ the arguments for excluding such a defenceare more convincing. Faulkner argues most hate speech targeting GLBT is notclothed inreligious rhetoric.²⁵⁵ Yet, research suggests socialmorality bears a strong correlation to religious beliefs, even when individualsare not religiousthemselves.²⁵⁶ Perhaps the more a religious groupadvocates for the hatred of GLBT, the more likely it is that society as awhole will adopt sucha sentiment. Further, if

²⁵² [2002] 4 SCR 710.

²⁵³ Article 1(1) and 1(3). This declaration was adopted by the GAunder resolution 36/55, 36 UN GAOR. ²⁵⁴ For example see: New SouthWales, the Anti-Discrimination (Homosexual Vilification) Amendment Act 1993,s49ZT.

²⁵⁵ Faulkner, n.221 above, 11.

²⁵⁶ Amy Adamczyk and Cassidy Pitt, “Shaping AttitudesTowards Religion: The Role of Religion and

Cultural Context” (June 2009) Social Science Research, vol. 38,issue. 2, 338-351. accessed online at Science Direct, http://www.sciencedirect.com/science?_ob=ArticleURL&_udi=B6WX8-4VDS892-1&_user=100241&_rdoc=1&_fmt=&_orig=search&_sort=d&_docanchor=&view=c&_searchStrId=1018248244&_rerunOrigin=scholar.google&_acct=C000007718&_version=1&_urlVersion=0&_userid=100241&md5=762388d16d32df31917c2ce466783f93.

religious freedom is absolutely protected, an increasing number may invokereligious beliefs to justify their extreme expression.Meanwhile, GLBT hatespeech will continue oppress its victims. Finally, the contest between rightsmay be largely illusory. Hatespeech provisions do not prevent the expressionof mere opinion, for example that homosexuality is sinful. The focus is onexpression so radical that it incites contempt. A faith defence would completelyundermine the principles underlying hate speechlegislation in exchange forabsolute defence to religious freedom.

• 5.6Is GLBTconduct inherited or learned?

A further argument against the extension of hate speech provisions, and oneoften adopted by religious adherents, is that homosexualityis a lifestylechoice. While the regulation of racial hate speech can be justified becauserace is predetermined at birth, thelaw does not traditionally protect peoplefrom the criticism based on their way of life.²⁵⁷ However, scientists have failed to reach a consensus on whether sexual orientation isgenetically predetermined or not.²⁵⁸ The most recent studies indicateat least some correlation between genetic predisposition and sexuality. Iemmolaand Camperio arguegenetic factors linked to the X chromosome influencehomosexuality.²⁵⁹ Furthermore, Levay and Hamer speculate that sizeof the hypothalamus in a man’s brain influences sexuality.²⁶⁰By studying brain

²⁵⁷ Faulkner, n.221 above, 12.

258. Sawyersand others v TVNZ, Broadcasting Standards Authority, Decision 1996- 155,14^th November

1996.

259. ACCianni, F Iemmola, SR Blecher, “Genetic factors increase fecundity infemale relatives of bisexual

men as in homosexuals”, (2009)Journal of Sexual Medicine, Vol.6, issue 9, 449.

²⁶⁰ Simon Levay and Dean H. Hamer, “Evidence for aBiological Influence in Male Homosexuality” (May 1994) ScientificAmerican, 22.

features determined at birth, Ivanka Savin also concluded that sexualorientation is an inherited characteristic.²⁶¹ Homosexuality maytherefore be involuntary.

Nevertheless, in King-Ansell, Woodhouse J stated, “it does notfollow that the identifying characteristics must be genetically determined atbirth”.²⁶² Hence, the Court of Appeal saw Judaism as a personalchoice. If sexual orientation is a learned characteristic, this may not precludethe protection of GLBT from hate speech.

• 5.7Conclusion

The United Kingdom, Queensland, New South Wales and Canada outlaw GLBT hate speech. Such jurisdictions have recognised the harmsuffered by GBLT as a resultof such expression. New Zealand is not immune from this tradition ofvilification. The recognition homosexualityas a defaming characteristic underthe law of defamation, speaks volumes about New Zealand’s social attitudetoward sexualminorities. Even ex-All Black, Jeff Wilson, was deeply offendedwhen accused of being gay by an editorial.²⁶³

Given this social background, sexual orientation should be a prohibited groundon which to incite hatred. A faith defence would underminethe entire purpose ofhate speech legislation. Furthermore, whether sexual orientation is determinedby nature or nurture is immaterialto the regulation of homophobicexpression.

²⁶¹ Andy Cochlan, “Gay or Straight, its Determined atBirth”, (21 June 2008) New Scientist, 10. The study found thathomosexuals’ brain possessed the same characteristics as the brain ofheterosexual members of theopposite sex.

²⁶² n.92 above, at page 538.

²⁶³ Knight, n.202 above, 249.

Chapter 6- disability hate speech

People with physical, mentaland cognitive impairments represent 10% of the global population, and aretherefore the largest minority.²⁶⁴ Despite the vulnerability withdisability, there is little global support for the proposition that hate speechlegislation shouldprotect this group. No Commonwealth country has prohibiteddisability hate speech. Yet, this is not decisive. According to theQueen’sspeech, the UK Criminal Justice and Immigration Bill 2008 wasmeant to include disability as a target group protected from hatespeech.²⁶⁵ While this intention did not manifest itself in theresulting legislation, it nevertheless indicates that the issue is on the radarof the UK legislature.

The Convention on the Rights of People with Disabilities further recognises thatthe rights of individuals with disabilities deservespecial protection. Thesocial stigma involved compromises the ability of disabled people to fully enjoytheir fundamental freedoms.²⁶⁶ As a party to this Convention, NewZealand has agreed to combat prejudice against persons with disabilities bypromoting positiveperceptions and greater social awareness ofimpairments.²⁶⁷ Article 21 also guarantees the right of disabledpeople “to seek, receive and impart information and ideas on an equalbasiswith others”.

264. Conventionon the Rights of Persons with Disabilities, Some facts about persons withdisabilities, 2006http://www.un.org/disabilities/convention/facts.shtml, last accessed2.09.09.
     265. S.Aspis,“hate crime- we know it happens but how can we stop it?” (2008)Community Living, vol. 21,

issue. 4, p13.

²⁶⁶ Convention for the Rights of People with Disabilities,preamble.

267. Conventionon the Rights of Persons with Disabilities, Article 8(a)(ii). Convention on theRights of

Persons with Disabilities, n.269 above.

Arguably, the Convention compels states to regulate hate speech where itprojects a negative image of disabled people, and compromisestheir ability tocommunicate equally with others. The UN recognises that those with impairmentsare more vulnerable to violence and abuse.²⁶⁸ Provided hate speechtowards the disabled exists, New Zealand may be implicitly compelled to outlawit.

The Government’s Disability Strategy reflects aspirations of theConvention as a “powerful tool for change”.²⁶⁹ Stigma,prejudice and discrimination characterise the ignorance exhibited by many. InApril 2001, the Government vowed to take stepsto achieve a fully-inclusivesociety by breaking down the social barriers that cause disability. TheGovernment’s objectivesinclude developing national and local anti-discrimination policies, and ensuring the rights of disabled people bypromoting self-advocacy.Perhaps equal social participation of people withdisabilities necessitates the prohibition on hate speech to neutralise thepublicforum.

• 6.1Theargument for prohibiting religious hate speech

Hate speech directed at the disabled is more subtle than other forms of hatepropaganda. There are no organised groups advocatingcontempt against thehandicapped.²⁷⁰ In fact, the problem may only be visible to thosetargeted by the expression. Perhaps this explains why James Weinsteinbelieves:

268. Conventionon the Rights of Persons with Disabilities, n.269 above.
269. RobynHunt, “Disabled People Face Discrimination”, Human RightsCommission,

http://www.hrc.co.nz/home/hrc/newsandissues/disabledpeoplefacediscrimination.php,10.06.09. ²⁷⁰ Mark Sherry, “Don’t ask, tell orrespond: silent acceptance of disability hate crimes”, 8.01.03, http://www.wwda.org.au/marksherry2.pdf,08.01.03, 3.

“There is not nearly the same reason to try to use the force of law toeradicate ‘hate speech’ against [the disabled].People nowadayssimply do not hate the mentally retarded or physically disabled in the way thattoo many people hate blacks, Jews,or gays.”²⁷¹

Ian Cram agrees that it is “far from certain” that a pressing socialneed exists to justify the regulation of disabilityhatespeech.²⁷²

On the other hand, there is abundant evidence to suggest a problem exists. Inthe media, disability hate speech is rampant. In recentyears, there have beennumerous complaints about use of the word “retard” in popularculture. The movie, Tropic Thunder,was heavily criticised for the gratuitoususe of the word to portray characters with learning difficulties.²⁷³ It includes a character called Simple Jack, played by Ben Stiller, who isconstantly referred to as a retard. Moreover, in 2004, theBroadcastingStandards Authority received numerous complaints about a Black Eyed Peas’song entitled, “Let’s GetRetarded”.²⁷⁴ While thecomplaint of indecency and bad taste was dismissed, The Edge radio stationnevertheless

271. Privatecommunication of 24 December 2007, on file with author in E Heinze,“Cumulative jurisprudence and human rights: theexamples of sexualminorities and hate speech”, School of Law, Queen Mary, London, 1 April2009, (April- June 2009) The International Journal of Human Rights, Vol.13, No.s 2–3, 200.
     272. IanCram“hate speech and disabled people” in Anna Larson and CarolineGooding, Disability Rights in

Europe: FromTheory to Practice (Oxford: Hart Publishing Ltd, 2005), 79.

²⁷³ Walkingisoverrated: New Zealand Disability News, Views andReviews, “Is the word ‘retard’ up there

with ‘Nigger’?”, 27^th August 2008, <http://walkingisoverrated.com/wp-, content/uploads/2008/08/tropic_thunder.jpg" \o>, last accessed 28.09.09.

²⁷⁴ BSA Complaint 2004-105, http://www.bsa.govt.nz/decisions/2004/2004-105.htm,02.09.04.

stopped playing the version that used the word “retard”. Thisreflected the Authority’s view that the song lyricshad “seriouslyupset, offended and adversely affected many listeners”.²⁷⁵

Timothy Shriver, Chairman of the American Special Olympics, and others label this term hate speech because it perpetuates the imagethat disabled people aresecond-class citizens worthy of ridicule.²⁷⁶ Patricia E Bauer likens“the r-word” to racist and sexist slurs.²⁷⁷ Words like‘idiot’, ‘moron’, ‘spastic’,‘spas’, ‘lame’, ‘psycho’,‘loony’ and ‘schizo’ have similar effects.²⁷⁸

Hate speech towards disabled people in the media has a reverberating effect onsociety. Young people are particularly susceptibleto media influence. Perhapsthis explains why phrases such as “you are so retarded”, are commonin schools.²⁷⁹ Furthermore, many children with physical and mentalimpairments report being called, ‘mutant’, ‘drongo’and‘dipstick’ by their peers.²⁸⁰

Yet, young people are not the only ones to adopt such attitudes towards disabledpeople. Similar behaviour by adults arguably condonesplayground expressions. InGermany, a man disabled man committed suicide after he was reminded “underHitler you would havebeen

²⁷⁵ Allegations of Gary Watt, the Complainant, that the Authoritycondoned even if the song did not intend to offend anyone.

²⁷⁶ Walkingisoverrated.com, n.273 above. Also see: Kyron, Thespecial parent.com, “the r-word isn’t just

hurtful, its hate speech” http://thespecialparent.com/2008/08/09/hate-speech-and-tropic-thunder/,09.08.08. ²⁷⁷ Patricia E Bauer, “Tropic Thunder- Once Upona Time there was a retard”, News and Commentary on Disability Issues,1^st August 2008, http://www.patriciaebauer.com/2008/08/01/once-upon-a-time/,last accessed 14.09.09.

278. EHeinze, n.271 above, 199.
279. RobinM Smith and Mara Sapon-Shevin , “Disability Humour, Insults and InclusivePractice” (2008-

2009) Social Advocacy and SystemsChange, vol. 1(2), 2.

²⁸⁰ Mike Constantine (Producer) Sticks and stones: a videoabout name calling and putdowns, 1995, NZ.

gassed” and “you are living off our taxes”.²⁸¹Moreover, Mencap details the experience of a female in Suffolk who, whiletravelling on a bus, was told “you’re spastic,you can’t look after yourself or go anywhere by yourself, you’re a spastic andspastic people should have people lookingafter you”.²⁸² In1999, Glenn Hoddle, the English Football Association Manager, suggesteddisabilities reflect bad karma from former lives and werethereforewarranted.²⁸³ A similar sentiment was expressed towards paraplegic, Nicholas Steenhout, who was told, “God punished you and I hope hepunishesyou some more”.²⁸⁴ These cases are not exceptional.Mencap reports 88% of people with intellectual disabilities have been bullied inthe past year.Moreover, this may underestimate the problem, with many incidentsgoing unreported.²⁸⁵ While, bullying includes, but is not limited toserious verbal barrages, this nevertheless highlights a significant socialproblem.

Even more problematic is the link between such expressions of hatred andhate-motivated crimes. The vulnerability of those with physical,mental andcognitive impairments is tested through verbal harassment, which then escalatesto physical violence when their weaknessis confirmed.²⁸⁶ In Europe ablind woman was told “you people belong in concentration camps”before her stick was thrown down an escalator.²⁸⁷ Even moredisparaging is the case of Eric Krochmaluk, a cognitively disabled man, who waskidnapped, choked, beaten, burned withcigarettes, taped to a chair, had hiseyebrows shaven and was abandoned in a

²⁸¹ Richard Light, “A real horror story: the abuse ofdisabled people’s human rights”, Disability Awareness in ActionHuman Rights Database Report 2002.

²⁸² Mencap Campaigns Department, Living in fear: the need tocombat the bullying of people with a learning disability, (London: Mencap,June 1999), 14.

²⁸³ E Heinze, n.294 above, 199.

²⁸⁴ Mark Sherry, n.271 above, 5.

285. IanCram, n.272 above, 70.
286. Mencap,n.282 above, 12.
287. Cram,n.272 above, 65.

forest.²⁸⁸ The frequency of such incidents would likely decrease ifideas of disdain could be displaced from society by hate speech legislation.

Discrimination towards disabled people may be similarly affected by hate speechlegislation.²⁸⁹ In June 2009, the Human Rights Commission reportedfound 28% of people with disabilities had experienced explicitdiscrimination.²⁹⁰ Furthermore, in 1999 disability was the mostcommon ground of discrimination reported to the Human Rights Commission.²⁹¹These statistics may explain why the Human Rights Commission advocated forthe inclusion of disability in hate speech provisions.²⁹² Legislationprohibiting incitement to hatred may be able to modify social attitudes in away that has positive repercussions foranti-discrimination initiatives.

• 6.2Marginalisation

The historic marginalisation experienced alongside expressions of hatredprovides another compelling reason to prohibit disabilityhate speech. Like Jewsand Homosexuals, Hitler alleged the disabled threatened Aryan purity.²⁹³The euthanasia programme, code-named T4, was responsible for the death ofover 100,000 impaired people who were condemned as ‘unworthyofliving’.²⁹⁴ Like the absence of hate speech legislationprotecting GLBT, it is

²⁸⁸ Sherry, n.271 above, 5.

289. Kryon,The special parent.com, n. 276 above. Also Mencap, n.282 above, 5.
290. Hunt,n269 above.

²⁹¹ Minister for Disability Issues, NZDisability Strategy: Making a World of Difference (Wellington: Departmentfor Disability Issues, April 2001), 7.

292. HumanRights Commission, n.42 above.
293. Cram,n272 above, 68.
294. Light,n.281 above. Cram, n.272 above, 68.

disconcerting that handicapped people remain susceptible to hate speechconsidering their similar historical social experience toJews.

• 6.3Theproblem of definition

An objection to the prohibition of disability hate speech is circumscribingexactly what constitutes a “disability”.Care must be taken not toadopt an overly broad definition to prevent claims that the legislation cannotbe demonstrably justified,under s5 NZBORA. However, disability is now widelyaccepted to be a social construct.²⁹⁵ Hence, its meaning is heavilydependent on social context and can change over time. Anne Bray notes thatissues of permanency, howthe condition was acquired, and cut-off pointscontinue to permeate debates on the definition of mentalimpairment.²⁹⁶

Nevertheless, the accepted definition of mental disability has endured since1992, when it was first formulated by the AmericanAssociation for MentalRetardation. Therefore, ‘mental impairment’ imposes:

“substantial limitations in present functioning. It is characterised bysignificantly subaverage intellectual functioning,existing concurrently withrelated limitations in two or more of the following applicable adaptive skillareas: communication, self-care,home living, social skills, community use,

295. AnneBray, Definitions of intellectual disability: review of the literatureprepared for the National Advisory Committee on Health and Disabilityto informits project on services for adults with intellectual disability (Dunedin:Donald Beasley Institute, June 2003), 1.

²⁹⁶ Ibid.

self-direction, health and safety, functional academics, leisure and work.Mental retardation manifests itself before age 18.”²⁹⁷

The UK Disability Discrimination Act, Americans with Disability Act and theConvention for the Rights of People with Disabilitiesframe ‘physicalimpairment’ in similar terms. It must be long-term, and hinder theindividual’s ability to carryout day-to-day activities,²⁹⁸substantially limit one or more major life activities,²⁹⁹ orinterfere with social participation.³⁰⁰ All focus on extensive socialexclusion. This high threshold ensures the definition of‘disability’ is sufficiently narrowto justify the outlawing ofdisability hate speech.

• 6.4Islegislation the best way to deal with this problem?

There is an argument that terms like ‘retard’ and‘psycho’ are in such common usage that prohibiting disabilityhatespeech would require heavy censorship.³⁰¹ Hence, there are moreappropriate ways to deal with expressions of contempt directed at those withphysical and mental impairments.However, the innocuous use of such words arenot the focus of hate speech legislation. Only when ‘retard’ isincorporatedinto a hate-inducing dialogue is it classified as hate speech.Presuming only extreme cases of speech inciting contempt continueto beprohibited; the threat of serious censorship is minimal.

²⁹⁷ Luckasson et al, The Criminal Justice System and MentalRetardation (Baltimore: PH Brookes Publishing Co. 1992), 1.

²⁹⁸ Disability Discrimination Act (UK) 2005, s2(1).

²⁹⁹ Americans with Disabilities Act 1990, s3.

³⁰⁰ Convention on the Rights of People with Disabilities, article2.

301. Heinze,n.271 above, 201.

The International Association of Chiefs of Police provides recommendations totackle hate speech, which are not limited to legislativemeans.³⁰² These include increasing awareness about prejudice and intolerance,providing support for victims, and implementing school programmesto educateabout diversity in the hope that society will purge itself of these evils.Yet, the Association also recognises thatlegal sanctions are necessary topunish the perpetrators of hate speech and deter others. Apparently, educationalone is not enough.

This does not automatically presume that incitement to hatred provisions should be extended to protect the handicapped. Ian Cramsuggests other enactments,namely the UK Harassment Act 1977, can effectively deal with disability hatespeech.³⁰³ Section 1 prevents a person pursuing a course of conductwhich knowingly amounts to harassment. ‘Course of conduct’ requiresthere to have been at least two incidents. The New Zealand Harassment Act 1997has similar requirements.³⁰⁴ However, arguably this does not addressthe true harm of hate speech. The oppression and silencing resulting from hatespeech, isnot dependent on repetitive conduct by one person. Rather, the sameharm is inflicted if two people make separate hate-inducingcomments.Furthermore, the cardinal aim of hate speech legislation is to protect thosewith scant political influence.³⁰⁵ The provisions of the Harassment Act cannot adequately address this.

302. InternationalAssociation of Chiefs of Police (1998) in Sherry, n.270 above, 5.
303. Cram,n.272 above, 77.

³⁰⁴ Harassment Act 1977, s3, defines“harassment” in terms of “a pattern of behaviour”.

³⁰⁵ Heinze, n.271 above, 199.

• 6.5Conclusion

Despite contrary assertions, disability hate speech represents a serious, albeitmore subtle, problem. Some continue to blame thosewith physical and mentaldisabilities for societal problems and advocate distain towards them. Whilecommonly used terms like ‘retard’and ‘psycho’ alone maynot incite hatred, other disability slurs undoubtedly do. Given the historicaltreatment of disabledpeople as unworthy, and the relatively stable definitionsof mental and physical impairment, the prohibition of disability hate speechisa rational response to a significant social harm. Incitement to hatredlegislation would be the most compelling instigator ofchange in socialattitudes towards the physically and mentally impaired.

Conclusion

Hate speech does nothing to further the rationalesbehind freedom of speech. The oppressive silencing caused by extremeexpressionsof distain has a reverberating effect on democracy, the marketplaceof ideas and personal autonomy. Hence, resistance to hate speechlegislation onthis basis is fundamentally incoherent. Associated harm cannot preserve opendiscussion for all sections of society.Therefore, hate speech can distort whatthe democratically accountable interpret as public opinion. Accordingly, hatespeech legislationrepresents a justifiable limitation on freedom of speech.

Sections 61 and 131 Human Rights Act 1973 are New Zealand’s primary hatespeech provisions. They outlaw incitement to hatredbased on “colour,race, ethnic or national origin”. Other legislation, including the FVPCA,Crimes Act 1961 and SummaryOffences Act, all have limited capacity to deal withhate speech. Some provisions rely on resulting action and others are limitedtoexpressions in the media. None address the problem of hate speech generally. TheBroadcasting Standards Authority, New ZealandPress Council and AdvertisingStandards Authority suffer similar flaws. Thus, a lacuna exists in New Zealand law whereby some minoritygroups are left vulnerable to expressions ofhatred.

Furthermore, this gap in hate speech legislation cannot be justified byresorting to New Zealand’s international obligations.Article 20 ICCPRrequires state parties to outlaw expression that incites both racial andreligious hatred. Given that the HumanRights Act only prohibits racial hatespeech, New Zealand’s reservation that current legislation already giveseffect toarticle 20 is flawed. Were hate speech provisions framed aroundCERD

obligations, the limited target groups covered may be more defensible. As itstands, New Zealand is in violation of internationaltreaties.

Article 20 alone provides a strong justification for extending the Human RightsAct provisions to include religious hate speech.The approach adopted in otherjurisdictions supports this conclusion. The United Kingdom, Canada andAustralian states all prohibitexpressions of distain directed at religiousgroups. Furthermore, judicial interpretations of existing provisions inKing-Ansell v Police³⁰⁶ have already gone some way inexpanding their scope beyond their literal interpretation. The need to prohibitreligious hate speechis also greater since the recent increase in religiousprofiling.³⁰⁷

The case for regulating homophobic hate speech is almost equally as compelling.While it lacks the endorsement of a UN Human RightsCommission Resolution, theUnited Kingdom, Canada and numerous Australian states have enacted homophobichate speech legislation.Moreover, the harm caused by such expression furtherrationalises its prohibition. GLBT people are commonly associated withsociety’smost undesirable people.³⁰⁸ Furthermore, evidencesuggesting sexual orientation is a partly biological characteristic, makes itanalogous to race, and thereforestrengthens the argument for prohibition ofhomophobic hate speech.

Unlike religious and GLBT, disability hate speech receives little attention.Perhaps the subtlety of the denigration explain this.Words such as‘retard’ are so commonly used that

³⁰⁶ n.92 above.

³⁰⁷ Hare, n.164 above, 306.

³⁰⁸ Knight, n.202 above, 20.

the use of such words in hate dialogue can be overlooked.³⁰⁹ There isalso evidence that disabled members of our society tolerate more explicitexpressions of hatred. Yet, especially limitationsassociated with disabilitymay prevent such incidents being reported as readily.³¹⁰ While someargue ‘disability’ is too broad to justify regulation, definitionsof both physical and mental impairmentare relatively stable. Accordingly,extension of the Human Rights Act to include disability is probably demonstrablyjustified.

Hate speech legislation should be expanded to shelter religious groups, GLBT andthe disabled. The scope of this paper prevents anexhaustive analysis of allminority groups that may require similar protection. Yet, in protecting racealone, it is apparent thatss61 and 131 Human Rights Act are inadequate.Immediate legislative attention is needed to address the profound harmassociated withhate speech.

“Hate cannot drive out hate; only love can do that. Hate multiplies hate, violence multiplies violence,and toughnessmultiplies toughness in a descending spiral of destruction The chain reactionof evil--hate begetting hate, wars producingmore wars--

must be broken, or we shall be plunged into the dark abyss ofannihilation.”³¹¹

³⁰⁹ Smith, n.279 above, 2.

³¹⁰ Cram, n.272 above, 70.

³¹¹ Martin Luther King Jnr, Strength to Love (New York:Harper and Rowe, 1963) 37.

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