The Proposed Reform Of New Zealand’s Criminal Hate Speech Law

Abstract

This paper discusses the Labour Government’s 2021 proposal to replace s 131 of the Human Rights Act 1993, New Zealand’s current criminal hate speech law, with a new provision in the Crimes Act 1961. The central aim of this paper is to determine whether the provision correctly addresses hate speech. This paper analyses hate speech and whether its harm justifies legislating against it. It agrees the harm it produces is tangible and an increasing issue in New Zealand, indicating s 131 is inadequate. Hate speech laws infringe upon freedom of expression, a justifiably important right protected by the New Zealand Bill of Rights Act 1990. However, s 5 allows for “demonstrably justified” limitations upon it. To achieve this, the proposed provision must be narrowly worded to ensure it is a minimal infringement upon the right. The difficulty in distinguishing insulting communications from hate speech makes this increasingly necessary. Against this normative background, the paper examines the proposal. It agrees that the proposal’s placement in the Crimes Act will better signal the unacceptability and real harm of hate speech. Allowing the communication to be made by any means is the most justified change, as it addresses the rapid increase in online hate speech. The proposal’s use of “hatred” reflects foreign hate speech legislation and international obligations; however, it must be clearly defined to ensure a narrow application. This paper argues the omission of the “likely to” result element is unjustified, as it removes an important safeguard against an unintentionally wide application. It concludes the proposal has merit but requires more work to develop a narrow offence that presents a demonstrably justified limitation upon freedom of expression.