New Zealand has ratified international covenants on both the right to freedom of expression and on the prevention of racial hatred, covering the incitement of hostility, violence and racial disharmony. It has also legislated domestically for freedom of expression in the New Zealand Bill of Rights Act, 1990, and against racial hatred in the Human Rights Act.
The Human Rights Act contains two sections dealing with the excitement and incitement of racial disharmony.
"Section 61 of the Human Rights Act, which deals with the excitement of racial disharmony, should be retained. It provides a precautionary framework for serious racial hatred and demonstrates the commitment of the legislature to vulnerable and disadvantaged groups and their protection from serious harm. This is despite the high threshold at which it takes effect.
"We believe that material must be assessed in the context in which it is made or published when deciding whether it is likely to excite racial disharmony," Dr McGregor says.
"However, deliberate or intentional incitement at the more serious end of the scale should be treated in the same way as any other criminal offence and accordingly we propose that section 131 of the Human Rights Act 1990 should be replaced by criminal legislation covering race, colour, nationality, religion, gender identity, sexual orientation, age or disability."
The New Zealand Bill of Rights Act 1990 has had the positive effect of progressively influencing law-makers, judges, policy-makers and public thinking about the importance of freedom of expression as a fundamental human right in a modern democracy. At the same time the present restraints on hate speech constitute a justifiable limitation under s.5 of the Bill of Rights.
