New Zealand Human Rights Commission: Te Kähui Tika Tangata Sentencing Act 2002. Section 9(1) of the Act requires the courts to take into account the following factors in sentencing a convicted offender: (h) that the offender committed the offence partly or wholly because of 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; and (i) the hostility is because of the common characteristic; and (ii) the offender believed that the victim has that characteristic. The list of protected characteristics under section 9(1) (h) is relatively wide ranging, covering race, colour, nationality, religion, gender identity, sexual orientation, age and disability. Approaches to hate crime laws and associated data collection have been the subject of debate in New Zealand.34 There have also been repeated calls for better collection of data about crimes motivated by hate to ensure that there is visibility and understanding about the prevalence and nature of such events and to allow better targeting of resources in response.35 Section 131 of the Human Rights Act also makes certain types of hate speech a criminal offence. The threshold is high and consent must be obtained from the AttorneyGeneral before any prosecution can be commenced for this offence. Section 61 of the Human Rights Act contains a similar civil prohibition on certain types of hate speech. These provisions are discussed in more detail later in this paper. Balancing and limiting rights and promote the right to freedom of opinion and expression, on the one hand, and to combat intolerance, discrimination and incitement to hatred, on the other.36 While hate speech laws may challenge the right to freedom of expression, they are not designed to hinder words or debate.37 In the context of this discussion it is important to be clear about the distinction between explicit limitations on a right and the balancing of different rights. Freedom of speech, like most human rights, is not absolute and it is subject to certain restrictions or limitations under international and national law. The challenge is to precisely define and apply these lawful limitations. In contrast, balance is a key feature or attribute that runs through human rights law and practice. Balances have to be struck between human rights. For example, the right to privacy has to be balanced with the right to information. Equally, freedom of speech has to be balanced with other human rights such as the rights to security and non-discrimination. The right to freedom of expression is one of the most valued and well known of all human rights. It is protected in article 19 of the Universal Declaration of Human Rights (UDHR) and article 19 of the International Covenant for Civil and Political Rights 1966 (ICCPR). It requires States to guarantee to all people the freedom to seek, receive or impart information or ideas of any kind, either orally, in writing or in print, in the form of art, or through any other media of a person’s choice. The right to freedom of expression is reflected in New Zealand law under the New Zealand Bill of Rights Act 1990 (BORA). Section 14 reads: Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form. When considering the issue of hate speech, one of the challenges is reconciling the need to protect 34 35 36 37 8 See for example, Sam Sachdeva, “Government downplays police suggestion of new hate crime legislation after Muslim abuse in Huntly” Stuff (15 February 2017); Joe Hingham “Invisible violence: Why we need a hate crime law in New Zealand” The Spinoff (16 November 2017); Sara Vui-Talitu “Muslim Kiwi says hate crime legislation must change” RNZ (17 June 2019). See for example, “It Happened Here -reports of race and religious hate crime in New Zealand 2004-2012” (June 2019). https://www.hrc.co.nz/ files/1515/6047/9685/It_Happened_Here_Reports_of_race_and_religious_hate_crime_in_New_Zealand_2004-2012.pdf United Nations General Assembly, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, UN Doc A/67/357 (7 September 2012) at [3]. Although it should be noted that one of the criticisms of hate speech laws generally is that they can be used by States as a tool to deter or punish legitimate criticism of government action, particularly in non-democratic States or fragile democracies.