New Zealand Human Rights Commission: Te Kähui Tika Tangata subsequently in the Harmful Digital Communications Act, which is discussed further below. The scope and application of section 61 was recently considered by the High Court in Wall v Fairfax.101 The Court concluded that cartoons published by the defendants, although offensive, were not likely to excite hostility or contempt at the level of abhorrence, delegitimisation and rejection that could realistically threaten racial disharmony in New Zealand.102 The Court accordingly held that the publication was not captured by the section.103 In coming to its conclusion, the Court made some useful observations regarding section 61: • The civil remedy for racial disharmony is directed at the prevention of discrimination in the form of racist speech, the promotion of racial harmony and to meet New Zealand’s obligations under ICERD.104 • Section 61 establishes a high threshold, targeted to racist speech at the serious end of the spectrum that “applies only to relatively egregious examples of expression which inspire enmity, extreme ill-will or are likely to result in the group being despised.”105 • Section 61 applies only to material that relates to race, colour, ethnic or national origins. Material aimed at individuals or groups because of their religion is out of scope. • A two-part test must be satisfied. First, the expression must be “threatening, abusive, or insulting.” Second, it must be “likely to excite hostility or bring into contempt any group of persons” in New Zealand on the ground of the colour, race, or ethnic or national origins of that group. • “Excite hostility” or “bring into contempt” involves an objective test – “whether a reasonable person, aware of the context and circumstances surrounding the expression, would view it as likely to expose the protected group to the identified consequence.”106 • The focus is on the effect of the words on others outside of the group, with reference to context and circumstances.107 The Court considered who must be likely to be excited to hostility or contempt and found that the focus should be on those who are “susceptible” or “persuadable”. The Court interpreted the verbs “excite” and “bring” to connote a change in behaviour or thinking requiring consideration of whether such people are likely to become hostile or contemptuous as a result of the words used.108 Section 131: Inciting racial disharmony Section 131 provides a criminal sanction for inciting racial disharmony. Section 131 largely repeats the same test as for section 61, except that an accused must have “intended” that his or her conduct would have the effect of inciting hostility or ill-will towards a specified group or bringing that group into contempt or ridicule. The crime attracts potential penalties of a term of imprisonment not exceeding three months or a fine not exceeding $7,000. Section 132 of the HRA requires the consent of the Attorney General to be obtained before a prosecution can be instituted under section 131. Section 131 was originally included in legislation as section 25 of the Race Relations Act 1971.109 The only prosecution under section 25 or its successors, is the 1979 Court of Appeal case of King-Ansell v Police.110 In Wall v Fairfax [2018] NZHC 104. Ibid., at [94]. 103 Ibid., at [94]. 104 See parliamentary comment on the introduction of s 9A into the Race Relations Act (20 July 1977) 411 NZPD 1477. 105 Wall v Fairfax [2018] NZHC 104 at [42] and [52]. The case law is clear that the threshold that must be reached to establish a breach is extremely high. Referring to New Zealand’s obligations under article 4 of the Convention on the Elimination of Racial Discrimination ICERD, the Court held: In our view, the Tribunal was correct to conclude that both civil and criminal conduct caught by art 4 will be “at the serious end of the spectrum”. That inference is warranted by the relatively strong language of art 4 ( “ideas or theories of superiority of one race or group of persons”… “racial hatred and discrimination”), which we do not read as referring to low level insulting speech, It is further warranted by the explicit reference to the principles embodied in the UDHR, which requires due regard to be had to freedom of speech when implementing art 4. 106 Ibid., [51]. 107 Ibid., [50]. 108 Ibid., [63]. 109 Wall v Fairfax [2017] NZHRRT 17 at [118]. 110 King- Ansell v Police [1979] 2 NZLR 531. 101 102 22