Körero Whakamauähara : Hate Speech Freedom of expression is one of the essential foundations of a democratic society because it guarantees the right of every person to exchange information, debate ideas and express opinions.38 It encompasses the expression of opinions and ideas that others may find deeply offensive, and it may encompass discriminatory expression.39 Despite its fundamental importance, the right to freedom of expression is not absolute and it can be restricted in some circumstances. In the context of hate speech, international law provides for the type of restrictions that may be appropriate. These are outlined in Part II. In New Zealand, the BORA recognises that the right to freedom of expression can be subject to “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”40 The test to be applied under section 5 was set by the Supreme Court in its landmark judgment in Hansen v R, which drew upon the decision of the Canadian Supreme Court in R v Oakes. The components of the Hansen test, set by Tipping J, are as follows:41 (ii) Does the limiting measure impair the right or freedom no more than is reasonably necessary for sufficient achievement of its purpose? (iii) Is the limit in due proportion to the importance of the objective? The right to freedom of expression should not be aimed at the violation of any of the rights and freedoms of others, including the right to equality and nondiscrimination.42 International human rights law guarantees equality and non-discrimination for all people.43 The principle of non-discrimination has three elements:44 • any distinction, exclusion, restriction or preference against a person; • based on a protected characteristic recognised under international human rights law; • which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. (a) Does the limiting measure serve a purpose sufficiently important to justify curtailment of the right or freedom? (b) (i) 38 39 40 41 42 43 44 Is the limiting measure rationally connected with its purpose? Handyside v UK [1976] 1 ECHR 5 at [49] as cited by the New Zealand Court of Appeal in Living Word Distributors Ltd v Human Rights Action Group (Wellington) [2000] 3 NZLR 570 at [45]: Freedom of expression constitutes one of the essential foundations of a [democratic] society … it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. Human Rights Committee, General Comment No. 34: Article 19: Freedom of option and expression, UN Doc CCPR/C/GC/34, (12 September 2011) at [11]. Wall v Fairfax [2017] NZHRRT 17 at [171]: The overarching conclusion to be drawn from ICERD and the ICCPR is that neither the right to be free from hate speech nor the right to freedom of expression is an absolute right. The “due regard” clause in article 4 of ICERD and the qualifications in the third paragraph of article 19 of the ICCPR are explicit in this regard. At treaty level, conflict between these rights is to be resolved by the principles of legality, proportionality and necessity; and [172]: But when rights conflict in New Zealand domestic law, such conflict must be resolved within the analytical framework prescribed by domestic law. That framework is different to the international one not least because whereas article 4 of ICERD and article 19 of the ICCPR contain their own limitation clauses, there is none in s 14 of the Bill of Rights. The limitations are to be found elsewhere, that is in ss 4, 5 and 6 of the Bill of Rights. It is these provisions which, read together, provide the domestic framework of analysis. See further the discussion in Butler and Butler op cit [6.11.20]. Hansen v R [2007] NZSC 7 at [104]. 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 [36]. See article 1 of the UDHR and articles 2(1) and 26 of the ICCPR. At the regional level, for example, articles 2 and 9 of the African Charter on Human and Peoples’ Rights; articles 1(1) and 24 of the American Convention of Human Rights; and, article 14 and Protocol 12 to the European Convention of Human Rights. Human Rights Committee, General Comment No. 18: Non-discrimination, XXXVII, (10 November 1989) at [6]. 9