Hate Speech Agenda And Censorship Concerns
Hate Speech Agenda And Censorship Concerns Changes To Human Rights Act Signal Suppression Of Non-Pc Viewpoints
The Society fears that Phil Goff's proposed changes to the Human Rights Act, signalled in Parliament on Wednesday 15 October 2003, will crush the right to dissent from politically-correct viewpoints regarding gay-rights activism and homosexual lifestyles.
The Society is concerned that
the
In a unanimous
decision the Court of Appeal quashed the decision of the
High Court and the Board which had imposed a total ban on
these opinion-pieces for several years. The current Chief
Censor, Bill Hastings, was Deputy President of the Board
which made this unprecedented attack on freedom of politico-
social and religious expression, and has continued to
criticise the ruling of the Court of Appeal. He has
signalled his clear intention to support "hate speech"
legislation which if passed into law, would have the effect
of outlawing the sort of robust expression of views found
in the
It is of grave concern to the Society that the Attorney-General, Margaret Wilson, the Minister of Justice, Phil Goff, and the Chair of the Justice and Electoral Select Comittee, Tim Barnett MP, are actively working towards an amendment of the Human Rights Act to include so-called "hate speech" and thus crush the freedoms, so recently recovered by the landmark Court of Appeal decision in Living Word.
As the Society believes that it is vital
that the public be fully informed of the issues involved in
the
SUBMISSIONS OF PETER McKENZIE AND PAUL RISHWORTH TO INQUIRY INTO THE OPERATION OF THE FILMS VIDEOS AND PUBLICATIONS CLASSIFICATION ACT 1993
The Chairperson, Government Administration Committee, Parliament Buildings, Wellington
1. This submission is presented by Peter
McKenzie QC and Paul Rishworth who were counsel for the
appellant before the Court of Appeal at the hearing of the
appeal in
2. In this submision we will direct our
attention to questions raised by the Committee in relation
to the two Court of Appeal cases -
3. The Moonen Case
It is a misconception to
regard this case as threatening the deeming provisions of
s2(3) of the Films Act. The approach taken by the Court of
Appeal in
4. It is quite wrong
to regard the
5. The Living Word Case and the gateways to the censorship jurisdiction in the Films Act.
In Living Word the Court of Appeal held that for material to be "objectionable" and so be subject to the censorship function in the Films Act the material must come within one of the five gateways in the Act or be an activity closely related to those matters. The five "gateways" are sex, horor, crime, cruelty or violence.
The Court of Appeal considered that these gateways serve an important function in limiting the censorship function to certain prescribed activities "as the matters dealt with tend to point to an activity rather than to the expression of opinion or attitude" (p 581). Furthermore-
"Parliament could never have intended that a simple test of injurious to the public good could be used to ban discussion of any subject". (p 581)
6. It would involve a major inroad into freedom of expression to widen the scope of the censorship function beyond the traditional areas of depicting sex and violence encompassed by the five gateways in s 3(1) of the Act and to link into s 3(1) the matters dealt with in s 3(3)(e). What in effect the respondent [the Human Rights Action Group] in the Living Word case was seeking was the right on the part of the censor to ban forms of harm which lie not in some form of depicting, debasing or degrading activity, but in the hearing of or the promotion of ideas - in particular ideas which the majority may consider to be wrong and harmful. If a book or film is to be subject to censorship because it depicts a person in some respect as being inherently inferior eg by reason of age, disability, sexual orientation, religion, economic circumstances or any of the other of the grounds in s 21 of the Human Rights Act, then the width of the censorship function and the range of material open to examination by the censor is greatlt enlarged. This would be a matter of very great concern in a democratic society. It is no doubt for this reason that the legislation of most democracies limits the censorship function to the traditional areas of depicting sex and violence.
7. It is significant that even the present width of the New Zealand censorship legislation, by reason of the breadth of the definition of "objectionable" in the Films Act, has ben criticised by the Human Rights Commission of the UN which receives country reports under the International Covenant on Civil and Political Rights. The Commission in paragraph 180 of its "Concluding Observations" expresed concern at the vagueness of the term "objectionable publication" in the Films Act.
8. It is important to recognise that he freedom of expression carries with it the freedom to express views which are erroneous, misinformed, opinionated, bigoted and even completely wrong. Any talk-back radio programme is ample evidence of this. Once the censo is charged with responsibility for determining whether opinions are so incorrect or warped as to be harmful, then our society will have surrendered to a government official the power to determine the appropriateness of the views people are permitted to articulate. It is similarly important to recognise that the fredom of expression carries with it the freedom to campaign to change current political opinion and even opinion on highly unpopular issues which the majority may have decided are beyond debate. The Living Word case is an example of the desire of a minority group [the Human Rights Action Group] to close off debate on contentious views with respect to their lifestyle and moral acceptability of their conduct and ilustrates the danger to freedom of debate when this receives the support of the censor. The two videos in this case were banned for all ages by the Film and Literature Board of Review for reasons which included claimed misinformation in the videos and the treatment of the homosexual lifestyle, in somewhat strident terms, as morally legitimate.
9. The Committee has raised the question whether the Office of Film and Literature Classification should clasify material and whether the Films Act should be amended to provide a penalty for hate speech. It should be made clear at the outset that these videos were not "hate material". None of the seven judges (2 in the High Court and five in the Court of Appeal) involved in the Living Word case regarded the material as being hate material. Indeed, in various ways, every judge to have condsidered these videos made it clear that he would not have banned them. The videos were, as Thomas J described them "essentially political tracts". They fell very far short of coming within the description of being hate propaganda intended to incite hatred and violence against a section of the community. As Grant Huscroft in a comment on the case in the NZ Herald of 19 September stated, it is quite wrong to regard the Court of Appeal in overturning the Board's decision as in some way protecting hate propaganda.
10. We agree that material which promotes violence against any section of the community should not be permitted in a democratic society. Sanctions already exist in the criminal law to penalise conduct which is directed at the dissemination of that kind of material. In particular sections 3 and 4 of the Summary Offences Act 1981 penalise conduct involving the incitement or encouragement of a person to behave in an offensve or insulting manner likely to cause violence against persons or property or to use in a public place or within hearing of a public place words intending to insult or offend a person.
11. The law does not go further in the case of
racial discrimination. Material which incites racial hatred
is penalised in the Human Rights Act. In this respect
Parliament in New Zealand, as in a number of other
democratic societies, has treated racial hatred as having
such a potential for creating disorder and provoking deep
divisions within society that it has outlawed freedom of
expression in this area of speech. The majority judgment in
the Court of Appeal in
"have remained confined to the categories of race and religion; and that hate propaganda is not seen as syunonymous with more anti-discrimination protections".
There are in our submission sound reasons for limiting such protection to racial discrimination and making no greater inroad into freedom of expresion in relation to other minority groups referred to in the Human Rights Act. Social, political, economic, regious and moral attitudes differ, sometimes quite sharply, in relation to all of these other protected groups. To stiffle even ill-informed and distorted discussion or promotion of views on matters where there are such diverse attituides is inconsistent with he open nature of New Zealand society. If one of these groups is singled out for protection as against others, again sharply diverging views will emerge. As has become the case with the blasphemy laws in most modern democratic societies, to give one group in society the protection of its parlicular sensitivities as against freedom of expreesion on the part of others is to allow for a distortion of the freedom of expresion generally permitted in an open society.
12. The difficulties which are created and the important policies which are in issue in endeavouring to ban "hate propaganda" are well illustrated by the Supreme Court of Canada decision in Ross v New Brunswick School District [1996] 1 RC 827.
Penalising hate material should be distinguished from censorship.
13. It is, however, a big step from saying that hate propaganda should be penalised after the event, to saying it should be censored before the event as a prior restraint so that persomns can never see it. If these video's classification had not been challenged for example, we would never know that the Board had banned publications that The Court of Appeal later held to be both unlawful and inconsistent with fredom of expresion to ban. A prior restraint is a serious business. We know of no international precedent for a censorsip power outside of obscenity and official secrets.
14. The difficulties to which such a
serious power would lead are exemplfied by the
15. Are we so confident that we are right in our views that we can ban dissent? Are we so confident we are right that we think we have to? In the end, freedom of expression is there to protect the right to say things, even if the majority might disagree with them. As an open democratic society, it is fundamental that we safeguard that freedom. To quote again from Grant Huscroft's column "Minority groups have everything to fear from censorship and almost nothing to gan."
Peter
McKenzie QC.