New Zealand Human Rights Commission: Te Kähui Tika Tangata Part III: Hate speech laws in New Zealand Human Rights Act The racial disharmony provisions contained in sections 61 and 131 of the Human Rights Act 1993 (HRA) are generally referred to as New Zealand’s hate speech laws. The predecessors to these provisions were enacted to meet New Zealand’s obligations under the ICERD set out in the previous section.91 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. Section 61 provides for a civil law remedy for racial disharmony and section 131 provides for a separate criminal offence of inciting racial disharmony (see Appendix 1 for the laws in full). Section 61: Racial disharmony Racial disharmony is a form of discrimination in the public sphere directed against a group of persons, rather than an individual. Section 61 of the HRA makes it unlawful for any person to publish, broadcast or distribute written matter or use words in public which are “threatening, abusive, or insulting” and likely to “excite hostility against or bring into contempt any group of persons…on the ground of the colour, race, or ethnic or national origins of that group of persons.” Section 61 also covers material that has been broadcast by electronic communication which means the provisions can apply to the on-line environment. The New Zealand Human Rights Commission (Commission) can receive complaints about alleged breaches of section 61. The Commission can provide dispute resolution assistance to help the parties to the complaint resolve the concerns that have been identified. This includes providing a free, independent mediation service to members of the public who have made complaints. 91 92 93 Wall v Fairfax [2017] NZHRRT 17; Wall v Fairfax [2018] NZHC 104. Wall v Fairfax [2017] NZHRRT 17 at [119]. Ibid., at [119]. 20 If a complaint is not resolved through the Commission’s processes, the complainant can take the complaint to the Human Rights Review Tribunal, an independent judicial body. The Human Rights Review Tribunal has jurisdiction to provide remedies including damages, declarations and the issuing of training orders if it determines that section 61 has been breached. Complainants can also approach the Office of Human Rights Proceedings, a separate and independent division of the Commission, to request free legal assistance with pursuing claims before the Human Rights Review Tribunal. In the 2017/2018 year the Director of the Office of Human Rights Proceedings provided assistance to 31 percent of the applicants who sought assistance. Between 2014 and 2018, the Commission received 218 complaints of racial disharmony. These do not represent individual instances giving rise to a complaint. For example, 37 of the complaints received in 2018 related to one newspaper article. Only one complaint under section 61 has been considered by the Human Rights Review Tribunal. The original section 61 first appeared in 1977 as section 9A of the Race Relations Act 1971, which was an Act intended to affirm and promote racial equality in New Zealand and to implement ICERD. The then Minister of Justice, Hon David Thomson, described the proposed section 9A as importing “the milder processes of conciliation and the civil law to deal with cases where the language used was not sufficiently flagrant to lend itself readily to criminal prosecution.”92 It was intended that this section would provide additional power for the then Race Relations Conciliator to combat racial prejudice.93