New Zealand’s international obligations
Article 4(a) of the International Convention on the Elimination of All Forms of Racial Discrimination requires States to:
[D]eclare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origins.49
The chapeau to article 4 provides further explanation as to its purpose:
States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights … .
Articles 19 and 20 of the International Covenant on Civil and Political Rights provide:50
(1) Everyone shall have the right to hold opinions without interference.
(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
(3) The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
(1) Any propaganda for war shall be prohibited by law.
(2) Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.
New Zealand ratified the International Convention on the Elimination of All Forms of Racial Discrimination on 22 November 1972. When later ratifying the International Covenant on Civil and Political Rights, New Zealand entered a reservation to article 20:
The Government of New Zealand, having legislated in the areas of the advocacy of national and racial hatred and the exciting of hostility or ill will against any group of persons, and having regard to the right of freedom of speech, reserves the right not to introduce further legislation with regard to article 20.
Legislative history of sections 61 and 131
The Race Relations Act 1971 was enacted to give effect to the International Convention on the Elimination of All Forms of Racial Discrimination. Unsurprisingly the 1971 Act mirrored the coverage of that Convention and thus did not provide for religion as a protected characteristic. Section 25 of that Act introduced an offence of inciting racial hatred (corresponding to what is now section 131 of the Human Rights Act). And civil liability (broadly along the lines of what is now section 61 of the Human Rights Act) was introduced in section 9A of the Race Relations Act by the Human Rights Commission Act 1977. Section 9A was repealed in 1989 but was in substance re‑enacted as section 61 of the Human Rights Act.
The current law
Sections 61 and 131 of the Human Rights Act provide:
(1) It shall be unlawful for any person—
- to publish or distribute written matter which is threatening, abusive, or insulting, or to broadcast by means of radio or television or other electronic communication words which are threatening, abusive, or insulting; or
- to use in any public place as defined in section 2(1) of the Summary Offences Act 1981, or within the hearing of persons in any such public place, or at any meeting to which the public are invited or have access, words which are threatening, abusive, or insulting; or
- to use in any place words which are threatening, abusive, or insulting if the person using the words knew or ought to have known that the words were reasonably likely to be published in a newspaper, magazine, or periodical or broadcast by means of radio or television,—
being matter or words likely to excite hostility against or bring into contempt any group of persons in or who may be coming to New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons.
(2) It shall not be a breach of subsection (1) to publish in a newspaper, magazine, or periodical or broadcast by means of radio or television or other electronic communication a report relating to the publication or distribution of matter by any person or the broadcast or use of words by any person, if the report of the matter or words accurately conveys the intention of the person who published or distributed the matter or broadcast or used the words.
(3) For the purposes of this section,—
newspaper means a paper containing public news or observations on public news, or consisting wholly or mainly of advertisements, being a newspaper that is published periodically at intervals not exceeding 3 months
publishes or distributes means publishes or distributes to the public at large or to any member or members of the public
written matter includes any writing, sign, visible representation, or sound recording.
Inciting racial disharmony
(1) Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding $7,000 who, with intent to excite hostility or ill-will against, or bring into contempt or ridicule, any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons,—
- publishes or distributes written matter which is threatening, abusive, or insulting, or broadcasts by means of radio or television words which are threatening, abusive, or insulting; or
- uses in any public place (as defined in section 2(1) of the Summary Offences Act 1981), or within the hearing of persons in any such public place, or at any meeting to which the public are invited or have access, words which are threatening, abusive, or insulting,—
being matter or words likely to excite hostility or ill-will against, or bring into contempt or ridicule, any such group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons.
(2) For the purposes of this section, publishes or distributes and written matter have the meaning given to them in section 61.
Section 61 of the Human Rights Act provides for a civil law remedy for speech which does, or is likely to, incite racial disharmony (for which there is no need to prove intent) and section 131 provides a separate criminal offence of inciting racial disharmony (of which intent is an element). Section 132 provides that a prosecution under section 131 cannot be commenced without the consent of the Attorney-General.
The drafting of the sections of the Human Rights Act is untidy:
- Section 61 uses the expression “excite hostility against or bring into contempt any group of persons” whereas the corresponding language in section 131 is “excite hostility or ill-will against, or bring into contempt or ridicule, any group of persons”. The reasons for not including “ill-will” and “ridicule” in section 61 apply equally to section 131. Their inclusion in the latter section must be a drafting slip.
- Section 61(1)(a) was amended in 2015 to add “or other electronic communication” but a corresponding change was not made to the otherwise substantially similar section 131(1)(a). Possibly this omission is picked up by the reference back to section 61 in section 131(2), but this is far from clear.
The protected characteristics identified in both sections do not include religious belief. This is because article 4(a) of the International Convention on the Elimination of All Forms of Racial Discrimination is similarly limited and New Zealand has not fully implemented article 20 of the International Covenant on Civil and Political Rights (which does treat religious belief as a protected characteristic).51
Sections 61 and 131 in the courts
There are only three decisions applying sections 61 and 131 of the Human Rights Act (and equivalent provisions in earlier legislation).
Section 61 of the Human Rights Act was in issue in Proceedings Commissioner v Archer,52 which addressed a radio broadcast that said that Japanese people are “slanty eyed bastards” who live off “rice and shit” and that people “might not notice if we dropped another bomb on Japan”.53 There was also a suggestion that Chinese people would find it easier to pull a rickshaw in Christchurch because of the flat terrain.54 The section 61 claim was upheld. The Complaints Review Tribunal (now called the Human Rights Review Tribunal) held that the “ordinary sensible citizen” would have found parts of the broadcast to be insulting or abusive of Japanese people because it relied “on a racial stereotype of the Japanese” and was threatening because it contained “the threat to remove them from New Zealand”.55 Additionally, it also held that the “ordinary sensible citizen” would have found the broadcast to be insulting to Chinese people as relying “on a racial stereotype of the Chinese as dependent on rickshaws”.56 As well, the broadcast was likely to excite hostility against or bring into contempt Japanese and Chinese people.
The ordinary sensible citizen test applied in Archer has been criticised on the basis that “it unjustifiably limits freedom of expression since undoubtedly challenging and offending opinions should be protected by freedom of expression”.57
The other, and more significant, decision on section 61 of the Human Rights Act is the recent High Court judgment in Wall v Fairfax New Zealand Ltd.58 Two newspapers owned by Fairfax New Zealand Ltd had published cartoons relating to an announcement that the government would fund the expansion of a free breakfast in schools programme initiated by two commercial organisations. The central characters were Māori or Pasifika, depicted as negligent parents preoccupied with alcohol, cigarettes and gambling at the expense of their children’s welfare. It was accepted by both parties that the cartoons were insulting. The issue, therefore, was whether the cartoons were likely to bring Māori or Pasifika into contempt (or excite hostility against them). The High Court found they were not, and dismissed the case.
The reasoning proceeded on the following bases:
- Cases under section 61 of the Human Rights Act are not conflict of rights cases. In other words, the only right engaged when a case under section 61 is brought is the defendant’s right to freedom of speech.59
- Liability under section 61 requires conclusions that the conduct:
- is “threatening, abusive, or insulting”; and
- is likely to excite hostility against, or bring into contempt, a group of persons on the ground of the colour, race, or ethnic or national origins of that group.
- A conclusion that the conduct is objectively insulting, does not, in itself, mean that it is likely to excite hostility against, or bring into contempt, a group of persons.60
- “[T]he legislative mandate is to consider the effect of the words … on others outside the group depicted”.61 The focus of the provision, said the High Court, is on exposure of the protected group to hatred, not immunity from self-hatred (or, by implication, insult).
- Liability depends on whether “a reasonable person, aware of the context and circumstances surrounding the expression, would view it as likely to expose the protected group to the identified consequences”.62
- Any assessment of the effects of a publication must be made by reference to context and circumstances.63
- The reference to “likely” in section 61 means a “real and substantial risk that the stated consequence will happen”.64
- The section 61 prohibition “applies only to relatively egregious examples of expression which inspire enmity, extreme ill-will or are likely to result in the group being despised”.65
- In determining whether the exciting to hostility element is established, the focus should be on those who are susceptible or persuadable.66 This excludes those who:
- are not hostile and not capable of being persuaded to hostility or contempt based on protected characteristics; and
- those who are obstinately committed to misinformed and bigoted views.67
- The relevant inquiry is whether susceptible or persuadable people would be likely to become hostile or contemptuous (or possibly more hostile or contemptuous) as a result of the conduct in question.68
As this outline demonstrates, the reasoning in Wall is complex and the drift of the judgment is that liability under section 61 of the Human Rights Act is hard to establish, particularly once significant weight is afforded to the right to freedom of expression.
There has been only one prosecution under what is now section 131,69 a case which resulted in the Court of Appeal decision in King-Ansell v Police.70 The appellant was the leader of the National Socialist Party of New Zealand and, in that role, he had printed 9,000 copies of a pamphlet that was described in this way:
One side of the page portrayed Jesus Christ flanked by Adolph Hitler and featured a quote from chapter 8, verse 44 of St John (an alleged condemnation by Jesus of the Jews: “Ye are of your father the devil …”), a quote from Mein Kampf Part 1 chapter 2 (“…by defending myself against the Jew, I am fighting for the work of the Lord”), and the words “National Socialist Movement” and “For Race and Nation”. On the obverse side was a photo of a dozen or more Nazis with helmets and swastika armbands and language which urged interested people to support the movement: “Study Our Alternative! Help Build A New Order! Our Fight Is Your Fight! Join Us! Write today!”.71
As will be apparent, the pamphlet targeted Jewish people. The primary issue for the Court of Appeal was whether the phrase “ethnic origin” included Jewish people.72
The Court of Appeal noted that the section was “not directed at discrimination based on religion”73 and therefore the phrase ethnic origin did not apply to a group “identified solely by a common religious heritage”.74 It did, however, define the expression reasonably broadly as encompassing a group if:
… it is a segment of the population distinguished from others by a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past, even if not drawn from what in biological terms is a common racial stock.75
Applying that interpretation, the Court concluded that “Jews in New Zealand” form a group with common ethnic origins within the meaning of the section.
The approach taken by the Court of Appeal was subsequently applied by the House of Lords,76 which, on the basis of the reasoning in King-Ansell, held that Sikhs are within the protection of a statutory provision27 providing for protected characteristics in a way that is similar to section 131 of the Human Rights Act.
There is no authoritative decision as to whether the same reasoning could be applied to Muslim individuals so as to bring Islamophobic conduct within the scope of the section, but the predominance of opinion is that it does not.28
A case study
On 4 February 2018, the individual (who committed the terrorist attack on Christchurch masjidain on 15 March 2019) was participating in a private online discussion on the Facebook site associated with the Australian right-wing group, The Lads Society Season Two (see Part 4: The terrorist in Ko tō tātou kāinga tēnei: Report of the Royal Commission into the Terrorist Attack on Christchurch Masjidain on 15 March 2019). The focus of the discussion was on Mein Kampf and, in particular, Hitler’s suggestion that grievance should be the focus of propaganda, “galvanising” those who see themselves as persecuted and “drawing in new sympathisers”. The individual commented:
Agreed, it is far better to be the oppressed than the oppressor, the defender rather than the attacker and the political victim rather than the political attacker. Though 1920’s Germany was a very different time to now and we face a very different enemy. Our greatest threat is the non-violent, high [fertility], high social cohesion immigrants. They will boil the frog slowly and by the time our people have enough galvanising force to commit to the political and social change necessary for survival, the demographics in my opinion will have shifted so harshly that we would likely never recover.
What I am saying is that we can’t be a violent group, not now. But without violence I am not certain that there will be any victory possible at all.
It would have been obvious to those participating in the discussion that the individual was referring to Muslim immigrants and that his comment was premised on the Great Replacement theory. There was thus no need for the individual to spell these points out explicitly. What would not have been obvious to those in the discussion was that the last part of the comment was disingenuous because, by February 2018, the individual was already preparing for his terrorist attack. In light of this, it is clear that the purpose of the comment was not to share what the individual was really thinking, but rather to normalise, to a reasonably receptive audience, the idea that violence was inevitable if “victory” was to be “possible”.
This comment is not expressed in abusive or obviously hateful language. It refers to Muslim immigrants as “non-violent” and as having “high social cohesion”. It is deliberately expressed so as not to be an immediate call to arms and it could, perhaps at a stretch, be construed as primarily predictive – that, without a violent response, demographic changes associated with Muslim immigration will destroy Western society as currently understood. All of that said – particularly with the benefit of hindsight – it is not difficult to read the comment as implicitly calling on its readers to prepare for violence, given the Mein Kampf context and what we know the individual was thinking.
The language of the comment is well-removed from the types of speech that to date have been subject to civil and criminal liability in New Zealand. And, leaving aside what we know the individual was thinking, a free speech justification for the comments would not be obviously unsound. Immigration policy, the desirability or otherwise of a national population policy and demographic changes are all legitimate matters for public debate. If a particular policy decision (either macro in terms of government policy, for instance a particular foreign policy stance, or micro in terms of who may use a public facility such as a town hall for a speech) may result in social disorder or violent opposition, it must be legitimate, at least for third parties, to point that out. What is unacceptable is to call for violence.
Could the individual have been prosecuted under section 131 of the Human Rights Act in respect of his comments?
Putting to one side possible practical difficulties in identifying the individual as the author and jurisdictional and related problems in terms of where the offence was committed and who was targeted,79 this question raises general issues as to the reach of the section 131 offence:
- It would be open to debate, at least, whether the post was “written matter” so as to engage section 131(1)(a) of the Human Rights Act, which was not drafted with the internet in mind.
- Although the language used was not “insulting” or “abusive” and not threatening in the sense of making an explicit threat to any of those likely to be exposed to the comment, it was “threatening” in the sense of being an implicit call to those reading the post to consider using violence against Muslim immigrants.
- Although it might be thought reasonably clear that the comment was likely to “excite hostility” towards Muslim immigrants, the Wall approach of looking at the audience poses some difficulties as the readers of the comment (members of a private discussion board on The Lads Society Season Two Facebook page) were presumably already hostile to Muslim immigrants. On the Wall approach (under which making the already hostile even more hostile is seen as only “possibly” enough to trigger liability), it is open to doubt, at least, whether preaching a hateful message to the probably already converted is an offence.
- The preponderance of legal opinion is that adherence to Islam is not within the protection of section 131 as religion is not itself a protected characteristic and Islamophobia targets followers of Islam, not those who share protected characteristics of “race, colour or ethnic or national origin”.
- Given that immigration and demographic change are legitimate subjects for public debate, substantial allowance for freedom of expression would have to be made. How that would have played out in a prosecution under section 131 is hard to predict.
Proposals for change
Sharpening the focus of the offence
In the words “intent to excite hostility or ill-will”, the verb “excite” is used in a slightly unusual sense and suggests causation. This means that an “intent to excite” cannot be established without showing an intention to either: (a) cause “hostility or ill-will” that did not previously exist; or (b) enhance or increase pre-existing “hostility or ill-will”. It logically follows that preaching hatred to the already converted would not breach section 131 of the Human Rights Act. This point, too, is discussed in the Wall case and we have just alluded to it in the case study.
Section 131 of the Human Rights Act would be improved if the word “excite” was removed and replaced with a term like “stir up”, which is used in corresponding legislation in the United Kingdom. The “preaching hatred to the already converted” issue could be resolved by adding the verbs “maintain” and “normalise”. We therefore propose that the statutory language be reframed to replace “excite hostility against or bring into contempt” with “to stir up, maintain or normalise hatred”.
As the Wall case illustrates, the words “excite hostility against or bring into contempt” set an apparent liability threshold that is lower than the courts are prepared to accept for the purposes of civil liability under section 61 of the Human Rights Act. This is also necessarily the case with the corresponding but broader language in section 131, “excite hostility or ill‑will against, or bring into contempt or ridicule”. A modified section 131 would be far more straight-forward to apply if “hostility”, “ill-will”, “contempt” and “ridicule” were replaced by “hatred” as it implies extreme dislike or disgust, including an emotional aversion. If the offence was reframed in this way, it would not be subject to restrictive and imprecise interpretations by the courts (such as “relatively egregious”) and could be more easily relied on in appropriate cases.
This reframing would focus the offence on stirring up or provoking hatred of a group of persons defined by their protected characteristic. As well, we consider that explicit and implicit calls for violence should be expressly addressed in the offence. Capturing calls for violence in the section would further pre-empt reliance on a defence along the lines that the defendant was “only” preaching hatred to the converted.
For many, an offence reframed in this way would not go far enough. This is because hate speech produces harms in terms of impacts on targeted groups (particularly the adverse psychological impacts of being “othered”) that go beyond the stirring up of hatred in the minds of an intended audience. There is thus an argument for the view that liability for hate speech should turn on its impact on those who are targeted. There is, however, difficulty reconciling such an approach with freedom of expression, which is currently conceived as encompassing an entitlement to engage in offensive expressive conduct.
Conversely, an attempt to reframe the section 131 offence as we propose will attract opposition from others on the basis that, even as reframed, the offence would unjustifiably infringe freedom of expression. There are, however, a number of countervailing considerations:
- Reformulated as we suggest, the offence would be more narrowly expressed than the current section 131.
- The language of hatred and calls for violence that we propose would catch only extreme speech. We do not see the reframed offence as engaged by microaggressions, and so on. Nor would it be a mechanism for criminalising the vigorous expression of opinion on controversial issues, such as gender identity or immigration. The limits of the reframed offence would be reinforced if, at the same time, amendments were made as we propose to the Films, Videos, and Publications Classification Act (see chapter 4). These amendments would be a signal as to what would not be within the scope of the reframed offence.
- Stirring up of hatred and calls for violence are towards the most damaging end of the continuum of harmful behaviour (see Part 2, chapter 5 of Ko tō tātou kāinga tēnei: Report of the Royal Commission into the Terrorist Attack on Christchurch Masjidain on 15 March 2019). At this end of the continuum, freedom of expression arguments are at their weakest and criminal sanctions are most obviously warranted.
In a prosecution under section 131, the prosecution is currently required to prove:
- a publication that is “threatening, abusive, or insulting”;
- an intent to “excite hostility or ill-will against, or bring into contempt or ridicule” people on the ground of the colour, race, or ethnic or national origins of that group of people; and
- that the publication was “likely to excite hostility or ill-will against, or bring into contempt or ridicule” people on the ground of the colour, race, or ethnic or national origins of that group of people.
In a situation where the first two elements can be made out (a threatening, abusive or insulting publication and an intent to “excite hostility”), we see the third element as having little or no bearing on whether the conduct is sufficiently culpable to justify a charge. It also allows for the possibility of paradoxical defences along the lines that the language in issue was so extreme as to be more likely to encourage sympathy for, than excite hostility against, the targeted group.80 It is thus unnecessary and we propose that it be removed.
The protected characteristics provided for in sections 61 and 131 of the Human Rights Act do not include religious belief. As we have indicated, the general drift of court decisions and academic commentary is that Jews and Sikhs can be regarded as ethnic groups (and thus protected by section 131) but this is not the case with followers of Islam or Christianity. Without seeking to challenge the reasoning of the particular court decisions, we consider that the resulting distinctions are not logical.
We acknowledge that there are distinct freedom of expression issues if sharing a particular religious belief system is treated as a protected characteristic. There is a strong tradition in New Zealand (as in many other countries) that religious belief systems are open to debate and that this can be vigorous. Strongly expressed challenges to a religious belief system may also amount to criticism of those who adhere to it.
We also appreciate that there are some philosophical and policy arguments for distinguishing between race and religion. Religious adherence can be a matter of choice and the law does not usually provide protection against vilification based on life choices (for instance political affiliation).81 As well, there are a number of factors suggesting that freedom of expression in relation to religion is of particular importance:82
- Religions compete with each other to convert new adherents and retain existing adherents.
- Religions make competing and often incompatible claims about divinity, the origins of the universe, the components of a good life and the existence and nature of an after-life.
- Religious groups make influential contributions to public debate on matters of profound controversy, including abortion and euthanasia.
All of that said, we see adding religion to the protected grounds as justified given that:
- under section 9(1)(h) of the Sentencing Act, “religion” is a protected characteristic and there is similar recognition in other laws addressing hate speech which we review in the next chapter of this companion paper;
- similar legislative provisions have been amended in other jurisdictions to include religion as a protected characteristic;83
- it would bring New Zealand into compliance with article 20(2) of the International Covenant on Civil and Political Rights, which we have set out earlier in this companion paper;
- it is not logical that affiliation with Judaism and Sikhism are protected characteristics but affiliation with other religions such as Islam or Christianity are not;
- the very clear overlap between Islamophobia and racism (in that many victims of Islamophobic harassment are people of colour); and
- most significantly, the current realities of Islamophobia and the link between hate speech and terrorism.
Concerns about protecting adherents to particular belief systems from criticism are reflected in section 29J of the Public Order Act 1986 (United Kingdom), which was enacted when “stirring up” religious hatred was introduced as an offence in England and Wales. This section provides:
Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.
This section, along with the restrictive definition of the offence,84 make prosecution for the offence for stirring up religious hatred extremely difficult. For this reason we do not support the introduction of an equivalent provision to New Zealand law. We consider that concerns about freedom of expression are met with a high threshold for liability, requiring the prosecution to establish an intention to stir up, maintain or normalise hatred towards members of the protected group and specifically addressing explicit and implicit calls for violence against such a group.
Types of publication covered
Section 131 of the Human Rights Act applies only to the publication of “written matter” or words that are broadcast “by means of radio or television” or used in or near a public place or public meeting. So, unlike section 61 of the Human Rights Act, it does not expressly apply to “electronic communications”. This is a potentially significant gap in the scope of the offence that should be remedied. Indeed, we see no good reason why there should be restrictions based on how hate speech is communicated.
We therefore propose that the description of how hate speech is communicated by replacing the current statutory language with “says, or otherwise publishes or communicates”.
The location of section 131 and the current maximum penalty
The low maximum penalty (three months’ imprisonment) for breaching section 131 of the Human Rights Act serves to diminish the signalling and standard-setting benefits of prosecution and conviction. In contrast, offences similar to section 131 carry a maximum term of imprisonment of seven years in the United Kingdom85 and a maximum term of imprisonment of two years in Canada.86
Including the offence in the Crimes Act rather than the Human Rights Act would enhance the signalling and standard-setting effects of an increased penalty, as the Crimes Act lists offences most commonly considered as serious crimes by New Zealanders.
We propose that the maximum penalty for breaching the new offence should be increased to three years’ imprisonment.
A potential penalty as high as (or more than) two years’ imprisonment would result in those charged with such offences being entitled to choose trial by jury.
The current case law results in liability under section 131 depending on subjective conclusions on the part of the court based on the “relatively egregious” standard adopted in Wall. This involves an impressionistic assessment. This is not an ideal basis for imposing criminal law sanctions as people should be able to know in advance with reasonable certainty whether something they intend to do is, or is not, against the law.
It would be particularly unsatisfactory if such a standard was required to be applied in jury trials, especially if the right to freedom of expression is in issue. It is not consistent with our system of criminal law for freedom of expression concerns to be applied as a matter of fact (and thus in trial by jury) to the circumstances of the case at hand by balancing the right to freedom of expression against the culpability of the defendant’s actions.87 It would not would not be easy for trial judges to sum up to juries as to how the “relatively egregious” standard should be applied. A new approach to the offence would be required which would be likely to emerge through a process of trial and error. The fundamental problem is that it is difficult to extract from the current wording a test for liability that, on the one hand, respects the statutory text but, on the other, is sufficiently strict to ensure that the right to freedom of expression is not infringed. This is particularly so in relation to “ridicule.”
These concerns are best alleviated by defining the substance of a hate speech offence sufficiently narrowly to take freedom of expression issues out of play.
Accordingly, an increase in penalty resulting in a right to choose trial by jury makes a reframing of the offence all the more desirable.
We therefore propose that the offence currently created by section 131 of the Human Rights Act be repealed and replaced with a new equivalent reframed offence in the Crimes Act.
What a new offence might look like
The proposals for change we have set out in this chapter can be brought together as a new provision inserted in the Crimes Act 1961 and worded broadly as follows:
Inciting racial or religious disharmony
Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding three years who:
- with intent to stir up, maintain or normalise hatred against any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins or religion of that group of persons;
- says or otherwise publishes or communicates, any words or material that explicitly or implicitly call for violence against or is otherwise, threatening, abusive, or insulting to such group of persons.
49. United Nations International Convention on the Elimination of All Forms of Racial Discrimination 660 UNTS 195 (opened for signature 21 December 1965, entered into force 4 January 1969).
50. United Nations International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976).
51. See Human Rights Commission Kōrero Whakamauāhara: Hate Speech – An overview of the current legal framework (December 2019) at page 13.
52. Proceedings Commissioner v Archer (1996) 3 HRNZ 123 (CRT).
53. Proceedings Commissioner v Archer, footnote 52 above at page 125.
54. Proceedings Commissioner v Archer, footnote 52 above at page 125.
55. Proceedings Commissioner v Archer, footnote 52 above at page 128.
56. Proceedings Commissioner v Archer, footnote 52 above at page 128.
57. Andrew Butler and Petra Butler, footnote 30 above at paragraph 13.20.21.
58. Wall v Fairfax New Zealand Ltd, footnote 6 above.
59. Wall v Fairfax New Zealand Ltd, footnote 6 above at paragraph 33.
60. Wall v Fairfax New Zealand Ltd, footnote 6 above at paragraphs 46–49.
61. Wall v Fairfax New Zealand Ltd, footnote 6 above at paragraph 50.
62. Wall v Fairfax New Zealand Ltd, footnote 6 above at paragraph 51.
63. Wall v Fairfax New Zealand Ltd, footnote 6 above at paragraph 59.
64. Wall v Fairfax New Zealand Ltd, footnote 6 above at paragraph 61.
65. Wall v Fairfax New Zealand Ltd, footnote 6 above at paragraph 56.
66. Wall v Fairfax New Zealand Ltd, footnote 6 above at paragraph 78.
67. Wall v Fairfax New Zealand Ltd, footnote 6 above at paragraph 74.
68. Wall v Fairfax New Zealand Ltd, footnote 6 above at paragraph 63. The judgment of the High Court in Wall was approved of by Paul Rishworth. He noted that the decision “provides welcome clarity that the approach which the Human Rights Commission has been taking to section 61 for some years is correct”. See Paul Rishworth “Human Rights”  NZLR 543 at page 570.
69. The charge was laid under section 25 of the Race Relations Act 1971 which, as we noted above, was in the same terms as section 131.
70. King-Ansell v Police  2 NZLR 531 (CA).
71. See Bill Hodge “Civil Liberties in New Zealand: Defending Our Enemies” (1980) 4 Otago Law Review at page 464.
72. King-Ansell v Police, footnote 70 above at page 533.
73. King-Ansell v Police, footnote 70 above at page 541 per Richardson J.
74. King-Ansell v Police, footnote 70 above at page 533 per Richmond P.
75. King-Ansell v Police, footnote 70 above at page 543.
76. Mandla v Dowell Lee  2 AC 548 (HL).
77. Section 1 of the Race Relations Act 1976 (United Kingdom).
78. For cases, see Nyazi v Rymans  unreported EAT/6/88 (UK); Tariq v Young Birmingham IT, 19 April 1989 (unreported); CRE v Precision Manufacturing Services Ltd Case No 4106/91; J H Walker Ltd v Hussain  IRLR 11. For academic commentary, see Ivan Hare “Crosses, Crescents and Sacred Cows: Criminalising Incitement to Religious Hatred” (2006) Public Law at page 525; Kay Goodall “Incitement to Religious Hatred: All Talk and No Substance?” (2007) 70 Modern Law Review at page 93; Neil Addison Religious Discrimination and Hatred Law (Routledge, London, 2007) at page 28; Maleiha Malik “Extreme Speech and Liberalism” in Ivan Hare and James Weinstein Extreme Speech and Democracy (Oxford University Press, Oxford, 2009) at page 100. The position was also reinforced during the parliamentary process in the United Kingdom which led to the enactment of, amongst other things, stirring up hatred on religious grounds. See House of Lords Select Committee on Religious Offences in England and Wales (HL Paper 95–I, April 2003) at paragraph 15; Richard Kelly The Racial and Religious Hatred Bill (Research Paper 05/48, 16 June 2005) at pages 3, 7, 12–13 and 31. However, in K S Dobe and S S Chhokar “Muslims, ethnicity and the law” (2000) 4 International Journal of Discrimination and the Law it is argued that the criteria established in Mandla v Dowell Lee are sufficiently broad to recognise British Muslims as a distinct “ethnic group” if interpreted in a purposive manner.
79. A New Zealand court probably would claim jurisdiction. See R v Shepherd and Whittle  EWCA Crim 65,  1 WLR 2779; and R v Burns  EWCA Crim 1466, which involved broadly comparable situations. But there would remain an issue whether the post, published as it was to a Facebook page associated with an Australian group, could be said to relate to “any group of persons in New Zealand” as required by section 131.
80. Law Commission (United Kingdom), footnote 1 above at paragraph 2.28.
81. Ivan Hare, footnote 78 above at paragraph 534.
82. Ivan Hare, footnote 78 above at paragraph 534.
83. See, for example, New South Wales (Crimes Act 1900 (New South Wales), section 93Z); Victoria (Racial and Religious Tolerance Act 2001 (Victoria), sections 7–8 and 24–5); Queensland (Anti-Discrimination Act 1991 (Queensland) sections 124A and 131A); Northern Ireland (Public Order (Northern Ireland) Act 1987, section 8); and Ireland (Prohibition of Incitement to Racial Hatred Act 1989, section 1). In England and Wales there is an offence of stirring up racial hatred under section 29B of the Public Order Act (United Kingdom).
84. The offence of stirring up religious hatred is confined to language that is “threatening” rather than “threatening, abusive or insulting” (as is the case with section 131 of the Human Rights Act and its United Kingdom equivalent in respect of racial hatred).
85. See sections 18–23 and sections 29B–29G of the Public Order Act 1986 (United Kingdom).
86. See section 319.1 of the Canadian Criminal Code RSC 1985 c C-46.
87. See the remarks of Elias CJ in Morse v Police  NZSC 45, 2 NZLR 1 at paragraph 13.