Körero Whakamauähara : Hate Speech The provision was proposed as a response to the dissemination of Nazi-Fascist propaganda. Article 20 establishes a positive obligation on States to prohibit speech that constitutes “propaganda for war” or “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.” States are required to “adopt the necessary legislative measures prohibiting the actions referred to therein.”60 The three protected characteristics under article 20(2) – nationality, race, and religion – have come to be interpreted and understood as supporting the principle of equality on a larger scale. Article 2 of the ICCPR guarantees rights “without distinction of any kind” and article 26 expressly provides that “the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground”. The Special Rapporteur has recently noted that international standards ensure protections against adverse actions on grounds such as sex, language, religion, political opinion, sexual orientation, gender identity or intersex status, migrant or refugee status, and disability.61 He further stated:62 Given the expansion of protection worldwide, the prohibition on incitement should be understood to apply to the broader categories now covered in international human rights law. The UN Human Rights Committee has made clear that article 20 does not necessarily require that hate speech be made a criminal, as opposed to a civil offence and has clarified that a prohibition under article 20 must also comply with article 19(3).63 60 61 62 63 64 Seventeen States, including New Zealand, have entered reservations to article 20 of the ICCPR. New Zealand’s reservation reads:64 The Government of New Zealand having legislated in the areas of the advocacy of national and racial hatred and the exciting of hostility or ill will against any group of persons, and having regard to the right of freedom of speech, reserves the right not to introduce further legislation with regard to article 20. By entering reservations, States indicate that they do not intend to be bound by the article or provision to which the reservation relates. New Zealand’s reservation to article 20 is significant given the absence of a “religious hatred” ground from the existing legislative framework. Sections 61 and 131 of the Human Rights Act currently only cover incitement based on colour, race, ethnic or national origins. Although article 20 requires legal prohibition of advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence, the reservation that has been entered means that the New Zealand government is not obliged to legislate further to give full effect to the requirements of the article. Article 20 also requires the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination. Incitement of discrimination (as opposed to incitement of hostility or contempt) is also absent from the current legislative framework in New Zealand. Human Rights Council, General Comment No. 11: Prohibition of propaganda for war and inciting national, racial or religious hatred (Art 20) U.N. Doc. CCPR/C/GC/11 (July 29 1983) at [1]. United Nations General Assembly Report of the Special Rapporteur on the promotion and protection of the freedom of opinion and expression UN Doc A/74/486 (9 October 2019) at [9]. Ibid. See Human Rights Committee Rabbae v The Netherlands, Communication No. 2124/2011, UN Doc CCPR/C/117/D/2124/2011 (29 March 2017) at [10.4]. See also United Nations General Assembly Report of the Special Rapporteur on the promotion and protection of the freedom of opinion and expression UN Doc A/74/486 (9 October 2019) at [9]. See for example: Australia, Belgium, Denmark, Finland, Luxemberg, Malta, New Zealand, United Kingdom and the United States. 13