New Zealand’s courts have set a high bar for prosecution of offensive speech. In 1984, the Sunday News published a column attacking the people of Australia, accusing them of various sporting outrages (the underarm bowling incident, the disqualification of a New Zealand horse from the Melbourne Cup, an alleged poisoning of the All Blacks) and personal failings (“our loud-mouthed neighbours across the Tasman”, “Australians are like kiwifruit; if you have too many of them they make you sick”). An Australian resident living in New Zealand took offence and complained to the Race Relations Conciliator, who argued before the Equal Opportunities Tribunal that the column abused and insulted Australians and included racist jokes against the Australian people. The tribunal found that the mere act of insulting a group was not an offence.
Our Human Rights Act, passed in 1993, created a new criminal offence – inciting racial disharmony – punishable by fines or imprisonment. In the three decades since, only one prosecution has been successful – the 2022 conviction of Bay of Plenty man Richard Jacobs, who filmed himself calling for a race war against Māori and posted it to YouTube.
When Labour MP Louisa Wall lodged a complaint against cartoons published by Fairfax Media negatively depicting Māori and Pasifika as “welfare bludgers and negligent parents”, the High Court dismissed the claim, finding that the right to free speech was “the most important cornerstone of a liberal democracy”.
Fifteen days after the 2019 terror attacks in Christchurch, then-justice minister Andrew Little promised to fast-track a review of the nation’s “woefully inadequate” hate-speech laws through Parliament. A year later, having made no visible progress, Little announced that options were working their way through cabinet. In June 2020, he revealed that any reform would take place after the election. In December, the royal commission of inquiry into the March 15 attacks recommended that the government amend the harmful-speech laws to include religion as a protected group. The government accepted the recommendation.
By 2021, Kris Faafoi had replaced Little as justice minister. That June, he released a discussion document outlining a plan to extend the Human Rights Act to cover religious groups and rainbow communities.
The government would also introduce a new criminal offence for stirring up hatred by “inciting, stirring up or normalising hatred against any specific group of people, by being threatening, abusive or insulting, including by inciting violence”. It proposed increasing the term of imprisonment for the criminal offence from three months to three years.
Neither then-prime minister Jacinda Ardern nor Faafoi could explain how the law would work. Would it be hate speech for millennials to criticise baby boomers? Could calling someone a Karen be a criminal act punishable by imprisonment?
Ardern came under heavy criticism after an appearance on morning TV in which she dramatically misrepresented her own law. After “strong feedback” from the public, Labour decided to rethink the proposals.
When Kiri Allan took over as justice minister, she promised rapid progress on hate speech, but this changed when Chris Hipkins took over as prime minister. In his famous policy bonfire, he requested that the Law Commission review the proposed laws – widely regarded as a ploy to delay a difficult policy until after the election, which Labour subsequently lost. Shortly after taking office, new Justice Minister Paul Goldsmith instructed the Law Commission to halt all work on hate-speech legislation.
On April 1 this year, Scotland introduced a law very close to the proposals put forward by Labour in 2021, giving the police expansive powers to investigate and prosecute insulting or offensive speech. In the first two days of the act coming into effect, Scottish police received more than 3000 complaints. Many of them accused Scotland’s then first minister, Humza Yousef, of committing hate speech in an allegedly anti-white speech four years earlier.
The author JK Rowling deliberately broke the law by “misgendering” a number of transgender women who had been convicted of sexual assault. Scottish police decided the statements were not illegal.
The Scottish Police Federation criticised the legislation, commenting: “Police officers are all too aware that there are individuals in society who believe that to feel insulted or offended is a police matter. The bill would move even further from policing and criminalising of deeds and acts to the potential policing of what people think or feel, as well as the criminalisation of what is said in private.”
To read more, see Efforts to shut down hate speech risk harming the very people they’re designed to protect, says a US activist and writer.
