Körero Whakamauähara : Hate Speech In 1989 section 9A of the Race Relations Act was repealed as it was not working as intended. An explanation for the repeal is provided in Brookers Human Rights Law: the wording allowed the media to be prosecuted for reporting material leading to the exciting of racial disharmony but exempted those who made the comments if they did so in a private place.94 However, in 1993 when the new HRA was enacted, section 9A was revived as section 61, with some changes. The reference to exciting “ill-will” or bringing people into “ridicule” was removed and the media exemption in section 61(2) was added (see Appendix 1). • whether or not further legislation to prohibit or restrain hate speech was warranted; • whether censorship of material that vilifies certain groups would be a justified limitation on the rights and freedoms affirmed by the New Zealand Bill of Rights Act 1990; • an appropriate threshold test for prohibition or restraint of hate speech; • whether any prohibition or restraint of hate speech or hateful expressions would be a justified limitation on the rights and freedoms outlined in the New Zealand Bill of Rights Act 1990; and In 1996, the then Complaints Review Tribunal (later renamed the Human Rights Review Tribunal) considered the implications of section 61 in the case of Proceedings Commissioner v Archer. The Tribunal held that words used in a radio broadcast were likely to excite hostility or bring into contempt Chinese and Japanese people living in New Zealand on the grounds of their colour, race or national or ethnic origins.95 A reasonable person test was found to be the appropriate measure in determining whether the words were threatening, abusive or insulting. • the steps taken by the international community to control hate speech and hateful expressions. In 2004 the Government Administration Select Committee initiated an inquiry into hate speech.96 The inquiry considered how the legislation had worked in practice and whether changes were needed, including whether the law should be extended to cover inciting hatred against people on the grounds of their religion, gender or sexual orientation.97 The terms of reference for the inquiry included consideration of:98 In late 2004, the Committee received submissions on the matter. The Office of Film and Literature Classification, the Independent Crown Entity responsible for the classification of “publications”, submitted that the New Zealand legislation in place at that time did not specifically or effectively address “hate speech”.99 It further submitted that there was substantial precedent for a limited restriction on the freedom of expression to remedy the social harm caused by speech that incites hatred against individuals and groups on the basis of characteristics that are already prohibited grounds of discrimination, including race, ethnicity, colour, nationality, religion and sexual orientation.100 Unfortunately, there does not appear to be a report of the Committee on the Inquiry into Hate Speech but some of the matters raised by the Office of Film and Literature Classification were partially addressed Ibid., at [119] citing Bell (ed) Brookers Human Rights Law (loose leaf ed, Thomas Reuters) at HR61.01. Proceedings Commissioner v Archer (1996) 3 HRNZ 123. 96 Beehive, Goff welcomes hate speech inquiry (7 August 2004) <www.beehive.govt.nz>; see also Government Administration Committee, Films, Videos and Publications Classification Amendment: Commentary (House of Representatives, Wellington 2004) at 3 which stated: We considered carefully whether to widen the meaning of ‘‘objectionable’’ in section 3 of the Act to include hate speech and concluded it was beyond the policy of this bill. The bill primarily caters, in terms of classification, for the proliferation of child sex abuse images via the Internet. Hate speech raises wider legal issues, including the fundamental right in a democracy to freedom of expression. In New Zealand this freedom may be subject to reasonable limits under section 5 of the New Zealand Bill of Rights Act 1990. Section 3 is a specific example of such limits. We were mindful of the need to be cautious in placing further limitations on freedom of expression, however well-meaning, without very careful scrutiny to ensure that any limitation is reasonable and not open to exploitation. Hate speech also falls within the right to freedom from discrimination, and will require further consideration of human rights law. Therefore, the committee has initiated, under Standing Order 189(2), an inquiry into hate speech. Separately, the Minister of Justice has advised us that he will refer the topic to the Law Commission for further study. We anticipate this study and our inquiry will complement each other to provide a sound basis for the determination of these difficult issues. 97 Beehive, Goff welcomes hate speech inquiry (7 August 2004) ) <www.beehive.govt.nz>. 98 Human Rights Commission, Race Relations in 2004, (March 2005) www.hrc.co.nz at [6.3]. 98 Office of Film & Literature Classification, Submission: Inquiry into Hate Speech (29 October 2004) <www.classificationoffice.govt.nz > at [3] and [27]. 100 Ibid. 94 95 21