Browsing by Author "Haggie, Vanessa"

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But names will never hurt me: Extending hate speech legislation to protect gender and sexual minorities in New Zealand
(Te Herenga Waka—Victoria University of Wellington, 2013-01-01) Haggie, Vanessa
Hate speech legislation involves a fundamental conflict with the right to freedom of expression. However, it is a conflict that can be justified in a constitutional framework in which free speech is not paramount and can be balanced against other rights and freedoms. This paper discusses the concept of “hate speech” legislation, the conflict between freedom of expression and hate speech censorship, and ways in which these seemingly-incompatible concepts might be harmonised. It considers, drawing on legislation and case law from other jurisdictions, and in light of the Marriage (Definition of Marriage) Amendment Act 2013, the possibility of extending such legislation to protect gender and sexual minorities in New Zealand, and suggests a potential framework for such legislative change. Any provision concerning hate speech must avoid overreaching into the realm of free expression. As a result, ‘hate speech’ should be clearly defined and narrowly focussed in scope, as words or matter which “exposes or tends to expose to hatred or contempt” the minority group at which the protection is aimed. In New Zealand’s constitutional/rights framework, this limitation on freedom of expression can be justified as reasonable and appropriate. While hate speech legislation does create a conflict with freedom of expression, to protect hate speech at the risk of perpetuating harm, discrimination, marginalisation and silencing is not appropriate. It sends the message that the voice of hate speakers is worth more than that of minorities, and undervalues the dignity and social assurance of those minority groups as valued members of society.
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Earth Attacks: Common Heritage of Mankind and the Status of Mars, the Moon, and Other Outer Space Resources in International Environmental Law
(Te Herenga Waka—Victoria University of Wellington, 2012) Haggie, Vanessa
The moon, Mars, and other areas of outer space have captivated the world for generations. Early astronomers observed channels or canals on the surface of Mars, leading to speculation about the potential for intelligent life outside Earth. Space probe missions such as the Curiosity Rover indicate that outer space mining or perhaps even terraforming, activities long considered to fall within the realm of science fiction, may not be such fictional pursuits after all. Such activity leads to questions about the status of resources such as Mars, the Moon and outer space itself. Could it be claimed as unoccupied territory by one Earth nation state, or used as a deep-space military base or testing facility? In a world rapidly being depleted of valuable minerals and even such basic commodities as water, could the discovery of such resources lead to commercial exploitation by individual states or private companies? This paper will address these issues, explaining the relevant international treaty and customary law including the concept and development of the common heritage of mankind. It will evaluate the issues inherent in commercial exploitation, and draw comparisons with other common heritage regimes of the deep seabed and Antarctica. It will consider the place of the Outer Space Treaty, and evaluate suggestions for new outer space legal regimes against environmental concerns and the fundamental status of outer space.
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Freedom of Oppression?: Feminist Perspectives on Freedom of Expression, Pornography and Minority/Non-Normative Sexuality
(Te Herenga Waka—Victoria University of Wellington, 2012) Haggie, Vanessa
The relationship between sexual expression and censorship has, for hundreds of years, been a difficult issue for governments and courts to address; in the post-WWII era, the rapid expansion of sexually explicit media appeared to require a more nuanced approach than the existing legal doctrine. While the United States has developed obscenity law to address pornographic material, obscenity law as currently applied has been criticised on multiple counts and from multiple perspectives. Anti-pornography feminists claim that obscenity law approaches pornography from the wrong viewpoint, arguing that pornography is both discriminatory and active violence against women and should be banned, whereas feminists allied with anti-censorship groups argue against banning sexual expression on the basis that this will endanger valuable feminist expression as well as more problematic sexual expression which engenders patriarchal norms. This criticism is shared by minorities both within and beyond the feminist community; gay, lesbian, and non-normative sexual expression has long been targeted more severely by obscenity law, and alternative feminist regulation of pornography would have a similar effect due to a seeming lack of recognition of feminist intersectionality with these minority groups. Censorship of performative sexuality also arguably denies agency and autonomy to those women who gain personal fulfilment and empowerment from such acts. From a feminist legal perspective, the question can be phrased as follows: should freedom of expression go so far as to protect these displays of sexuality, or should we question the inherent worth of something that arguably perpetuates a patriarchal system of oppression and discrimination? Furthermore, even if one tends toward the latter perspective, how to address the issue legally is difficult. In this paper, I will first discuss the development of United States obscenity law and treatment of pornography as “second-class” expression, and briefly compare it to relevant New Zealand legislation. The paper will then move to a consideration of the main groups of feminist thought and critique relating to sexual expression and pornography, as well as a consideration of minority and non-normative sexuality. The jurisprudence of pornography and freedom of expression is largely centred in the United States context. As a result, discussion of this topic will generally focus on the United States legal perspective. However, the paper will also compare how American obscenity law, versus New Zealand law, treats feminist and minority interests, and evaluate their effectiveness in the balancing of freedom of expression and prevention of discrimination and harm.
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Premature Justification: The Place of Comparator Group Analysis in Discrimination Law in Canada and New Zealand
(Te Herenga Waka—Victoria University of Wellington, 2012) Haggie, Vanessa
Despite its status as a fundamental concept in human rights law, what constitutes discrimination has tended to elude categorical definition in either New Zealand or Canadian law. The prevailing approach toward discrimination accepts it as an inherently comparative concept, and despite suggestions by some that discrimination could be re-framed in a non-comparative manner, this does not appear appropriate for every circumstance given the structure of much discrimination legislation. If discrimination continues as a comparative concept, then some form of comparison is necessary in determining prima facie discrimination. Comparator group analysis, while criticised by some, appears to be a valuable method of analysis in the first step of determining discrimination, but should never replace a more nuanced evaluation of the deeper issues behind an allegedly discriminatory law. Mirror comparison analysis especially has the effect of allowing for premature justification of disputed legislation, and unquestioning acceptance by the courts of such disputed policy. Comparator groups which include as part of their characterisation the disputed point of alleged discrimination result in building it implicitly into the comparator group itself, in a way that views the chosen comparator as the only possible comparison and which lends legitimacy to the alleged purpose without considering how accurate or meaningful the distinction is when considered against the situational background of the case. To use comparator analysis as the sole assessment mechanism allows for superficial considerations of the claimant's situation which denies them the right to have the court question any problematic assumptions and fully address the underlying legitimacy of the law. Recent cases in both New Zealand and Canada indicate the evolving use of comparator group analysis not as a formal, simplistic and definitive approach, but as a flexible tool within a spectrum rather than the definitive approach. It is possible that a move away from formal comparator group analysis, while maintaining a simplified approach toward a consideration of comparison, could be appropriate and apt. Viewing comparator group analysis not as a hard and fast rule, but as a flexible tool which can expand or contract as needed, or as one factor within a spectrum rather than the definitive approach, may be a useful way of approaching this analytical method.