New Zealand Human Rights Commission: Te Kähui Tika Tangata The definition of “objectionable” at section 3(3) includes where the publication represents (whether directly or by implication) that members of any particular class of the public are inherently inferior to other members of the public by reason of any characteristic of members of that class, because of a characteristic that is a prohibited ground of discrimination under section 21(1) of the HRA. This section does not align directly with section 61 of the HRA and is wider in scope, covering representations of inferiority and not requiring any incitement element. person to behave in a riotous, offensive, threatening, insulting or disorderly manner that is likely in the circumstances to cause violence against persons or property to start or continue, is liable to imprisonment or a fine.114 Section 4 states that a person is liable to a fine where in any public place or within hearing of a public place, that person uses words to alarm, insult or offend or addresses any indecent or obscene words to any person.115 Depending on the circumstances, these provisions can have application in situations involving hate speech. Broadcasting Act UN recommendations The Broadcasting Act 1989 requires broadcasters to maintain standards that are consistent with good taste and decency and to ensure that controversial issues of public importance are discussed in a balanced way. Broadcasting standards have been developed in eleven areas, including discrimination and denigration. The relevant standard reflects section 21(1)(c) (iv) of the legislation which requires safeguards against the portrayal of persons in a manner that encourages denigration of, or discrimination against, sections of the community on account of sex, race, age, disability or occupation status or as a consequence of legitimate expression of religious, cultural or political beliefs. There have been several recommendations by UN human rights monitoring bodies relating to hate speech in New Zealand, including recommendations made during the Universal Periodic Review process and following the review of New Zealand by the Committee on the Elimination of Racial Discrimination. Summary Offences Act The Summary Offences Act 1981 includes sections on inciting or encouraging disorderly behaviour and provisions relating to offensive behaviour and language. Section 3 states that people who, in or within view of any public place, behave, or incite or encourage any The Universal Periodic Review of New Zealand in 2019 included several recommendations relating to combatting racism, discrimination, xenophobia and hate crime.116 These recommendations were all accepted by the New Zealand government.117 They included recommendations that the government: Continue efforts to combat racial discrimination and hate speech and promote diversity and tolerance (Recommendation 44); and Develop and implement a national plan of action against racial discrimination, xenophobia and hate crime (Recommendation 48) Wall v Fairfax [2017] NZHRRT 17 at [118]. King- Ansell v Police [1979] 2 NZLR 531. 111 Ibid., Woodhouse J at 537 and Richardson J at 542 (emphasis added). 112 R v Partha Iyer [2016] NZDC 23957 at [29]. 113 Ibid., at [37]. 114 Imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000. 115 Section 4(1) states: Every person is liable to a fine not exceeding $1,000 who,—(a) in or within view of any public place, behaves in an offensive or disorderly manner; or (b) in any public place, addresses any words to any person intending to threaten, alarm, insult, or offend that person; or (c) in or within hearing of a public place,—(i) uses any threatening or insulting words and is reckless whether any person is alarmed or insulted by those words; or (ii) addresses any indecent or obscene words to any person. Section 4(3) clarifies that in determining whether words were indecent or obscene, the court shall have regard to all the circumstances pertaining at the material time, including whether defendant had reasonable grounds for believing that the person to whom the words were addressed, or any person by whom they might be overheard, would not be offended. Aspects of the Crimes Act 1961, including incitement to commit an offence under section 66 are also relevant where hate speech incites the commitment of an offence. 116 Human Rights Council, Report of the Working Group on the Universal Periodic Review: New Zealand, UN Doc A/HRC/41/4 (1 April 2019) at [122.44]-[122.48]. 117 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/41/4/Add.1 (17 June 2019) at [17]: (Recommendations 44-48). 109 110 24