Janet Anderson-Bidois: Free speech debate needs to get facts right

Understanding the legislative framework is important, as is having a constructive, ongoing debate about free speech. Photo / 123RF

COMMENT:

The current debate about free speech is a vital one. However, to be constructive, it is important that the discussion is as informed as possible and based on facts. Unfortunately, the opinion piece by Paul Moon and David Cumin in the Herald last Friday misrepresented both the role and the powers of the Human Rights Commission.

Moon and Cumin stated that the commission did not think abhorrent anti-Semitic statements made at a protest were "worthy of investigation, let alone prosecution". In fact, the commission has no power to investigate or prosecute potential breaches of section 61 of the Human Rights Act. Complaints about inciting racial disharmony can only be dealt with through the commission's independent dispute resolution and mediation services.

This involves the commission assisting the parties to resolve the complaint between themselves. If a complaint is not resolved through mediation, or one party won't participate, the commission's role ends. The complainant can then go to the Human Rights Review Tribunal, which can decide whether the law has been breached and award damages and other remedies.

The tribunal and the High Court have both recently reaffirmed the very high legal threshold required to breach section 61. The commission supports a high threshold being applied and has stated so publicly many times.

The commission also agrees that only words at the very serious end of the spectrum should attract legal sanction. Causing offence or merely insulting someone does not meet this threshold, nor should it.

To breach the law, a person must also publish or use words that are not just threatening, abusive and insulting, but which are objectively likely to incite hostility in third parties.

This means that it does not matter if the target group feels threatened or insulted, the key test is whether others outside the target group would be incited to act in a certain way.

Section 131 of the Human Rights Act establishes a criminal offence of inciting racial disharmony. The police prosecute under this section. The Human Rights Commission has no role in investigating or prosecuting these matters.

Moon and Cumin also stated that the commission has "implicitly put forward" an argument that it wishes to protect people from harmful words, with a special emphasis on hate speech directed at Muslim New Zealanders.

This is presumably based on a commission submission to the United Nations Committee on the Elimination of All Forms of Racial Discrimination in 2017. In it, the commission highlighted that mediation was the sole direct avenue for addressing complaints under section 61, a process that we are often told is inappropriate in these circumstances.

We highlighted that section 61 only covers incitement based on colour, race, ethnic or national origins. This is a small subset of the personal characteristics currently covered by the broader unlawful discrimination grounds in the Human Rights Act.

We suggested the scope of section 61 be reviewed. It is notable that the UK, Canada and some Australian states prohibit speech that incites religious hatred. However, in New Zealand, inciting hostility or disharmony based on any religion, including Islam or Christianity, is not covered by section 61.

Inciting hostility against Jewish people or Sikhs might be covered, because case law provides that groups with distinctive social identities, common histories and belief systems may be protected from discrimination on ethnic grounds.

This distinction causes confusion among many who approach the commission.
Understanding the legislative framework is important, as is having a constructive, ongoing debate about free speech.

In doing so, we should also acknowledge that hate speech often acts to silence the voice of those it targets and, as a result, can distort the robust and free exchange of ideas.

The Human Rights Commission has an absolute commitment to recognising and affirming fundamental human rights. This includes the right to free speech but also the right to human dignity — the underpinning principle of the Universal Declaration on Human Rights.

• Janet Anderson-Bidois is chief legal adviser for the Human Rights Commission.