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Hate Speech: Balancing Expresssion, Religion, Discrimination and Harm

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Hate Speech: Balancing Expresssion, Religion, Discrimination and Harm POLICY PAPER Law and Human Rights | June 2004 Hate Speech: Balancing expresssion, religion, discrimination and harm I INTRODUCTION In 1869, John Stuart Mill considered that the question application of the New Zealand Bill of Rights Act 1990 of a legislature or executive prescribing what opinions and provides a brief overview of “hate speech” laws in were and were not allowed to be spoken had been so the international community. “triumphantly enforced” that as a writer, he need not This policy paper is necessarily broad in its scope, pay any attention to the topic:1 so as to highlight the number and range of issues It is not in constitutional countries, to be apprehended, involved and provide an accurate background to the that the government, whether completely responsible to issue. Ultimately this paper aims to determine whether the people or not, will attempt to control the expression of legislative intervention is required in the area of “hate opinion, except when in doing so it makes itself the organ of speech” by focusing on the rights and freedoms that the general intolerance of the public. compete for priority. Mill would be disappointed to know that many The paper fi nds that restricting the fundamental constitutional and other western countries are and protected right to manifest religion and have debating the limits of expression with renewed free expression must be balanced with a similarly enthusiasm and many writers are indeed paying close fundamental and important right and concludes that attention to the topic. there is no such fundamental right in law or policy New Zealand is such a country. On 5 August that outweighs these rights. The paper concludes that 2004, the New Zealand Government Administration laws against “hate speech” are unwarranted in New Committee (“Committee”) announced that it was to Zealand’s social and legal context. hold an inquiry into “hate speech”. In announcing the inquiry, Justice Minister Phil Goff stated that II BACKGROUND TO THE GOVERNMENT INQUIRY “Parliament’s responsibility is to balance freedom of A Brief Overview of Framework and Key speech as a fundamental right in a democratic society Developments with the protection of individuals from direct harm…” 2 Whilst his formulation of the competing rights 1. Censorship framework in New Zealand can be debated, it is clear that the legislature will In 1993, the Films, Videos and Publications Classifi cation be required to balance a number of competing rights Act 1993 (“1993 Act”) was passed to create a single and freedoms in its consideration of “hate speech” regime for the classifi cation and censorship of fi lms, legislation. videos and other publications in New Zealand.3 Prior This policy paper identifi es those competing rights to this, censorship in New Zealand had been covered as being: freedom of expression; freedom of religion by three separate Acts: the 1993 Act, the Video and the right to manifest that religion; freedom from Recordings Act 1987 and the Indecent Publications Act discrimination; and the desire (some would say the 1963 (“1963 Act”). right) to be free from differing forms of harm. The key section of the 1993 Act for the purposes of this It will begin by outlining the background to the paper is the defi nition of “objectionable” which is set out in government inquiry, which has its genesis in censorship s3. Section 3(1) sets out that a publication is “objectionable” law. It then follows the terms of the Committee’s if it “describes, depicts, expresses, or otherwise deals with inquiry and addresses the legislative framework in matters such as sex, horror, crime, cruelty, or violence in New Zealand (which already restricts speech), the such a manner that the availability of the publication is www.maxim.org.nz Hate Speech: Balancing expresssion, religion, discrimination and harm | 2 likely to be injurious to the public good” [emphasis added]. Rights Act 1990 (“Bill of Rights”). Therefore the words The words “such as” replaced the words “including” in the “promotes or supports” in s 3(2) must be interpreted in defi nition of “objectionable” in the 1963 Act. Section 3(2) such a way as to impinge as little as possible on the states that a publication “shall be deemed to be objectionable freedom of expression. The Court held that the Board for the purposes of this Act, if the publication promotes, or had not given proper consideration to the provisions supports, or tends to promote or support” any one of the of the Bill of Rights in interpreting the 1993 Act and factors listed in s 3(2)(a)-(f), for example the exploitation of the Board was directed to reconsider the publications. children, torture and bestiality. This occurred and the publications were still deemed Section 3(3) sets out that in determining whether “objectionable”. a publication is objectionable (other than under s3(2)), In August 2000, the Court of Appeal’s decision in particular weight shall be given to various factors. Living Word Distributors Ltd v Human Rights Action These factors include “the extent and degree to which, Group Inc (Wellington) [2000] 3 NZLR 570 (“Living and the manner in which, the publication represents… Word”) further defi ned the extent of censorship law in that members of any particular class of the public are New Zealand. inherently inferior to other members of the public by The case concerned two videos which discussed reason of any characteristic of members of that class homosexuality in the United States. One video being a characteristic that is a prohibited ground of opposed the addition of sexual orientation to the list discrimination specifi ed in s 21(1) of the Human Rights of prohibited grounds of discrimination in the federal Act 1993.” civil rights code. The other video discussed the spread The 1993 Act establishes a number of important of HIV and AIDS and presented an opinion that one of bodies involved in the classifi cation process. The Film the causes is homosexuality. and Labelling Body (“Labelling Body”) is the offi cial The videos were initially rated by the Labelling Body labelling body and all fi lms and videos must be labelled as “suitable for mature audiences 16 years of age and by the Labelling Body before they are supplied or shown over”. The Human Rights Action Group Inc, submitted to the public. the videos to the Classifi cation Offi ce who then The Offi ce of Film and Literature Classifi cation classifi ed them as objectionable, except if restricted to (“Classifi cation Offi ce”) can classify publications that people over the age of 18. are submitted to it by a number of authorised bodies4 The videos were referred to the Board for a review of or the Classifi cation Offi ce can initiate a classifi cation the decision of the Classifi cation Offi ce on application itself. A decision of the Classifi cation Offi ce can be by the Human Rights Action Group who sought a reviewed by the Film and Literature Board of Review complete ban of the videos. The Board subsequently (“Board”) and decisions of the Board can be appealed to classifi ed both videos as objectionable and it became the High Court on a point of law and then to the Court an offence under the Act to show or even possess the of Appeal on a point of law. videos. The decision of the Board was appealed to the High Court on points of law and then to the Court of 2. Important developments Appeal on points of law. In November 1999, the Court of Appeal delivered The Court of Appeal considered two main issues. its decision in Moonen v Film and Literature Board Firstly the Court considered whether material other than of Review [2000] 2 NZLR 9 (“Moonen”). The case that which described or depicted “matters such as sex, concerned the classifi cation of a book and various horror, crime, cruelty or violence” could be classifi ed as photographs as objectionable by the Board. The books objectionable, if availability of the publication is likely and photographs contained images of naked children to be injurious to the public good and/or fell within one and described stories of sexual activity between young of the descriptions of material set out in s3(3). This boys (under 16) and men. issue centred on the words “such as” in s 3(1) of the The Court held that in considering the interpretation Act and the meaning of those words. The High Court of the words in the 1993 Act, the Court must take an had held that because of the generality of approach approach consistent with the New Zealand Bill of indicated by the words “such as” in s3(1), a publication www.maxim.org.nz Hate Speech: Balancing expresssion, religion, discrimination and harm | 3 could be objectionable even it referred to none of the democratic society. 7 fi ve specifi c items. The Court of Appeal held that the High Court (and The Court of Appeal disagreed and held that for the Board) had erred in law regarding the application material to be “objectionable” it must come within of the Bill of Rights Act. one of the fi ve gateways set out in s 3(1) of the 1993 The result was that the videos were remitted Act (sex, horror, crime, cruelty or violence) or be an to the Board to be reconsidered having regard to activity closely related to those matters. If material the observations made in the judgement. After did not come within these fi ve gateways, then it was reconsidering the videos, the Board held that the not relevant to consider whether the material was videos were not able to be censored for the reasons likely to be injurious to the public good, or whether the give by the Court of Appeal.
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