Körero Whakamauähara : Hate Speech The 2014 Universal Periodic Review also addressed hate speech, recommending that the New Zealand government “continue combatting and condemning racism and hate speech used by politicians and the expression of racism in the media, in particular discriminatory language and hate speech and the dissemination of racist ideas and languages”.118 This recommendation was accepted by the New Zealand government.119 The Committee on the Elimination of Racial Discrimination has recommended review of, or changes to, New Zealand’s hate speech provisions on a number of occasions. For example, in its 2017 report on New Zealand, the Committee made recommendations relating to hate speech.120 Recommendation 2 stated: Recalling its general recommendation No. 35 (2013) on combating racist hate speech, the Committee recommends that the State party: (a) Review the adequacy of current legislation in addressing and sanctioning racist hate speech and incitement to racial hatred, and ensure that the legislative framework conforms to article 4 of the Convention. Recommendation 3 further stated: Recalling its general recommendation No. 35 (2013) on combating racist hate speech, the Committee recommends that the State party: Ensure that all incidents of racist hate crimes and racist hate speech are investigated and prosecuted, that the perpetrators are sanctioned and that victims are compensated. The Committee has also recommended that New Zealand make the optional declaration provided for in article 14 of the ICERD, recognising the Committee’s competence to receive and consider communications from individuals or groups claiming to be victims of violations of any of the rights in the Convention.121 New Zealand has not yet made a declaration under article 14.122 Overview of hate speech laws in New Zealand The hate speech laws in New Zealand are limited in scope. The HRA provides both civil and criminal remedies for hate speech, but only in relation to hate speech directed at race, colour, ethnic or national origins. The full range of protected characteristics listed in the HRA are not covered under the current hate speech provisions in the HRA. Characteristics such as disability, sex, sexual orientation, religious belief, age, family status, employment status and political opinion are absent. The HDCA makes it illegal to post certain types of digital communications that cause harm across a broader range of protected characteristics and has a different legal test. However, this legislation only applies to online hate speech. While these provisions initially only applied to one-on-one communications and not to hate speech against groups, recent case law has interpreted the legislation more broadly. It is also noted that if a criminal offence is found to be motivated by hate against an individual on the basis of a protected characteristic, then this is regarded as an aggravating factor in sentencing. However, the existence of a hate-based motivation factor for sentencing purposes is not equivalent to a stand-alone criminal offence. While there are some provisions of the FVPC Act and the Broadcasting Act that are relevant to the discussion about hate speech, these are limited to the scope of their respective legislation, namely as it relates to film, videos and publications and broadcasting. Similarly, the Summary Offences Act may be relevant depending on the circumstances. Human Rights Council, Report of the Working Group on the Universal Periodic Review: New Zealand, UN Doc A/HRC/26/3 (7 April 2014) at [122.100]. 119 Human Rights Council, Report of the Working Group on the Universal Periodic Review: New Zealand – Addendum Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review, UN Doc A/HRC/26/3/Add.1 (26 May 2014) at [15]. 120 Committee on the Elimination of Racial Discrimination, Concluding observations on the combined twenty-first and twenty-second period reports of New Zealand, UN Doc. CERD/C/NZL/CO/21-22 (22 September 2017) at [9] and [11]. 121 At [42]. 122 Ministry of Justice, “Constitutional Issues and Human Rights” <https://www.justice.govt.nz/justice-sector-policy/constitutional-issues-and-humanrights/human-rights/international-human-rights/cerd/>; United Nations Treaty Collection, “Status of Treaties: International Convention on the Elimination of All Forms of Discrimination” <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-2&chapter=4&clang=_en>. 118 25