Representatives of communities left out of the Government’s plans to tackle incitement have told Te Kāhui Tika Tangata, the Human Rights Commission, they have been left vulnerable by their exclusion.

Feedback over the last few days has been characterised by disappointment and continuing concern about their safety, after years of discussion and consultation.

“We welcome the protection on religious grounds against speech that incites hostility and hatred,” says Chief Human Rights Commissioner Paul Hunt.

“But as a society, we have a duty to protect groups most at risk from harmful speech.”

The Commission says protection should include speech that incites hostility and hatred based on disability, sexual orientation and gender – in addition to the existing protections for colour, race, ethnic or national origins. This would align with existing on-line harm and sentencing laws.

“The Government undertook significant consultation over several years, and now for it to say to these same communities that they need to be consulted again is very disappointing,” says Hunt.

Members of the Muslim community also expressed disappointment, despite being included in the new proposal. They told the Commission they did not want any other community to suffer what they have had to endure.

The Government has Te Tiriti o Waitangi responsibilities to protect Tangata Whenua communities from harmful speech, including takatāpui Māori (LGBTQ+ Māori), tāngata whaikaha (disabled people) and wāhine.

Expanding the number of groups who may seek help under the Human Rights Act will not change the test for whether such expression is lawful or unlawful, says the Chief Commissioner.

The legal test or threshold has been very high for decades and there have only been two cases of hate speech prosecuted in the last 40 years.

A high threshold is supported by the Human Rights Commission, given the implications the law has for the right to freedom of expression. It means that complaints to the Commission over unlawful expression are rare. In 2021, no civil complaints under Section 61 of the Human Rights Act reached dispute resolution.

“Clearly”, says the Chief Commissioner, “the current legal test or threshold has extremely limited impact on freedom of speech.”

The threshold should not be confused with widening the protection to include the most vulnerable groups – the scope, says Hunt.

“Changing the scope to include these important groups would better reflect our values as a society.

“Recent incidents of violence and incitement to discriminate that have been aimed at LGBTQI+ people here in Aotearoa New Zealand should be compelling the Government to increase protection for them,” says Hunt.

Lesbian, bisexual and gay people in New Zealand experience higher levels of victimisation than the national average.

Advocates for the disability community say many in their community are seeing daily messages targeting them, which is ‘devaluing their lives’.

Incidents of hatred against women have intensified in recent years.

Between April and June 2022, Netsafe experienced a 9.6% percent increase in personal harm reports, including a 33.6 percent increase in ‘other’ reports reflecting a broad range of online harms.

‘Lawful but awful’ speech

The Chief Commissioner says keeping the threshold high for hate speech comes with a responsibility on the Government and each of us to call out ‘lawful but awful’ speech which doesn’t reach the threshold of hate speech, but which nonetheless is inconsistent with a fair, inclusive, tolerant society where everyone can live without fear or intimidation.

“What we call ‘sub-threshold’ initiatives are very important, such as public education and having challenging conversations about the pain and hurt caused by lawful, but totally unacceptable, xenophobic words and conduct,” says Hunt.

NOTES

· Te Kāhui Tika Tangata, the Human Rights Commission consulted with members of the rainbow community, disability community, and religious communities following the Minister of Justice’s announcement on Saturday 19th November. Naturally, there were different nuances among the opinions expressed. Here we convey the prevailing views.

· New Zealand’s Harmful Digital Communications Act (s 6, Principle 10) provides that “a digital communication should not denigrate an individual by reason of his or her colour, race, ethnic or national origins, religion, gender, sexual orientation, or disability.”

· The Sentencing Act provides that “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” is an aggravating factor when sentencing.

· A comparison of New Zealand’s hate speech laws with comparable countries shows we have fewer protections than Canada, England & Wales, Ireland and some Australian States.

· Ireland has recently announced it will add gender, including gender expression and identity, as well as disability to a list of “protected characteristics” which already include race, colour, nationality, religion, ethnicity or national origin and sexual orientation. In the case of gender and sex characteristics, this was to reflect the experiences of certain groups of people targeted for hate crime.

· Ministry of Justice’s recent study, Experience of Crime by Sexual Orientation shows lesbian, bisexual and gay people in New Zealand experience higher levels of victimisation than the national average. See: https://www.justice.govt.nz/about/news-and-media/news/lgb-community-experiences-higher-levels-of-victimisation-than-the-national-average/ 

· The Hoban case highlights the need for inclusion of sexual orientation and gender in harmful speech legislation: the plaintiff, Russell Hoban, was unable to seek recourse under s 61 regarding violent hate speech directed at gay marriage. He has sought a declaration from the courts that s 61 of the HRA is discriminatory because it does not extend protection to cover sexual orientation. The High Court is yet to issue its judgment. See: https://www.stuff.co.nz/national/politics/130325884/gay-hate-speech-case-in-court-as-review-of-law-announced

· The legal threshold for liability under s 61 and s 131 is high as it requires an objective test of whether the expression would be likely to excite hostility against the target group or bring them into contempt with others. In the leading case on s 61, Wall v Fairfax, the High Court observed that the operation of s 61 is limited to “relatively egregious examples of expression which inspire enmity, extreme ill-will or are likely to result in the group being despised”.

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