It’s often said that one person’s terrorist is another’s freedom fighter and equally, one person’s hate speech may be another’s strongly held opinion. During Race Relations Day celebrations, Race Relations Commissioner Dame Susan Devoy argued for free speech not hate speech and called for more prosecutions and preventative work to be done.
That prompted Auckland academic Paul Moon to circulate an open letter reminding us that the Education Act asserts clearly the right of academics to speak as critics and consciences of society. The letter, which was signed by several prominent New Zealanders, argued for universities being bastions of independent thought and open expression.
"Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form." The NZ Bill of Rights Act 1993 (section 14).
Chief Legal Advisor at the Human Rights Commission, Janet Anderson-Bidois says that hate speech is generally understood to be speech that attacks a person or group of people on a basis of a personal characteristic; such as gender, disability, colour, race, or ethnic or national origins.
“We don’t use the term “hate speech” as such but what we have currently is a number of different laws that address different aspects of “hate speech” as such in the provisions of the Human Rights Act itself” says Anderson-Bidois.
“So section 61 makes it unlawful to publish or use words that are threatening, abusive or insulting, where those words are likely to excite hostility against any person, or group of people on the grounds of their race, colour, nationality, religion, gender identity, sexual orientation, age, or disability.”
Professor Andrew Geddis, from the Faculty of Law, University of Otago, disagrees. He says that New Zealand's only specific "hate crime" provision in the Human Rights Act 1993, section. 131 applies to "racial hate speech" – but does not cover any other group.
“The speech must be intended to excite hostility or ill-will toward the group in others “, says Professor Geddis.
“It doesn't cover someone who is just expressing their own dislike of some racial group. You need the Attorney-General's permission to bring charges under it. For this reason, only one successful prosecution has been brought under s.131 since it was first introduced back in the 1970's.”
Professor Geddis concedes that some actions motivated by hatred towards groups will be crimes.
“For example, there's this case that I blogged on back in 2013: “Where someone has then committed a "hate crime" (i.e. an "ordinary" crime that was motivated by "hate"), the Sentencing Act 2002, s.9 lists as an "aggravating factor": that the offender committed the offence partly or wholly because of hostility towards a group of persons who have an enduring common characteristic such as race, colour, nationality, religion, gender identity, sexual orientation, age, or disability; and (i) the hostility is because of the common characteristic; and (ii) the offender believed that the victim has that characteristic.
But this is just one factor for the judge to take into account when sentencing he offender, says Professor Geddis.
“It can be offset by other things (such as remorse, guilty pleas, age of the offender, etc).”
He also says there are gaps in our laws around the internet as a vehicle for hate speech.
“The new Harmful Digital Communications Act 2015, s.22 makes it an offence to "post a digital communication with the intention that it cause harm to a victim", which would cover forms of hate speech about/directed at an identifiable person. But it doesn't catch general hate speech such as the recent Wellington College case.”
Is it time to update this provision?
Janet Anderson-Bidois says it is not time to update the provision yet.
“There is no right not to be offended. We are looking at much more than that. It’s not just the words themselves, it’s the impact they have. The right has to be exercised responsibly."
She says it is all a matter of perspective. “What one person finds offensive, another might not.”
"The free exchange of ideas is important; it’s a cornerstone of democracy. Where it gets difficult is where you draw the line between what is free and frank and appropriate and what can cause harm to others.”
“No right is absolute. One good example is child pornography, something very harmful. It crosses the threshold. ”
HRC have asked police to collect hate crime data as part of their crime statistics. In response, police issued a statement by Superintendent Wally Haumaha: Deputy Chief Executive, Maori, Pacific and Ethnic Services:
"Police are aware that any criminal offence that is motivated by hostility or prejudice towards someone based on their personal characteristics such as race, gender, religion or sexual orientation must be addressed.
"Police have given much consideration to this and are in the process of addressing these issues which have at this time resulted in the collection of information that records this type of offence that directly impacts a person on race gender or religion or sexual orientation.
"Police are very conscious of the complexities of the recording of Race Hate crimes as a result of direct attacks on a person’s personal characteristics in terms of their race, religion, beliefs.
"The changing demographics in this country has required police to seriously consider a wider discussion which focuses on the rights of individuals to be safe and feel safe regardless of who and where they come from. Police have consulted with community leaders to consider the pros and cons as to how we should record data based on discriminatory attacks against individuals.
"At present, such crimes are coded under existing crime types due to the variety of offending, but this does not mean they are taken any less seriously. In fact the Sentencing Act specifically considers hate as an aggravating factor when sentencing offenders, a position that we support.
"Police do rely on reports of crime and harassment coming from the public. In the meantime we encourage those who are the victims of crime as a result of their background to report directly to police.”
Debate around the issue is continuing in the community. Mervin Johnson studies media and journalism At Whitireia New Zealand, Wellington’s tertiary Institute of Technology. Unsurprisingly, he believes unequivocally in our absolute right to freedom of expression.
“I think you can’t really be picky about freedom of speech. It’s only hate speech when someone is inciting violence. “
Mervin knows what he’s talking about. As an Indian New Zealander he has experienced racism first-hand but that hasn’t changed his stance on free speech.
“Even though I’m a brown person and someone says something against me, they have a right to say that.”
Fellow student Ireland Hendy-Tennent feels that community leaders need to practice restraint.
“Freedom of speech is really important but if you represent a community or have a job representing people, you should be held accountable for your actions. There should be limitations on what you can say in a certain role.”
Radio journalism student Laura Keown feels that a learning opportunity was lost when the European Club at Auckland University was shut down.
“The way that those kids got dragged through the media, it could have been a teachable moment for them. It was like this opportunity for a conversation got shut down before it started.”
Mervin Johnson believes that those who do practice hate speech will be outed anyway.
“There’s going to be racist people always around. If they’re going to come out, say something or do something, or print something really racist, they crucify themselves. I’m so against racism but it should come to the forefront. It should become a conversation. These people should be exposed, not suppressed.”