Mai Chen: Free speech defuses risk of violence

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It is always difficult to draw lessons when a gunman goes on the rampage, as did Anders Behring Breivik in his twin attacks last Sunday in Norway.

Is the shooter just mentally unwell or does this rampage reflect deeper lessons? The event reminds us that freedom of speech is a necessary safety valve, enabling differing political views to be aired without physical conflict.

Equally important are our democratic institutions, especially when dealing with race issues, although the Government still has an important role in managing those issues. These mechanisms reinforce the message that there are legitimate ways of expressing political views and that resorting to violence is not the way.

That reminder is helpful as campaigning gets under way for New Zealand's general election on November 26, with the accompanying political contests.

The referendum on MMP that will be held in conjunction with the election will also bring out pro- and anti-MMP campaigners whose views will clash.

Breivik told a Norwegian judge that the bomb blasts in Oslo, which killed eight people, and his shooting rampage at the Norwegian Labour Party youth-wing summer camp on the island of Utoya, which killed 68 youths, were to "save Europe from a Muslim takeover".

He said that by attacking the youth-wing of the Labour Party he hoped to "give a strong signal" and deter people from engaging politically with the party. He had earlier been involved with Norway's Progress Party, which had become the country's second-biggest political force in 2009 after campaigning on anti-immigration issues, but left because it was too "politically correct".

Breivik's lawyer said of his client: "He had been politically active and found out himself that he did not succeed with usual political tools and so resorted to violence."

People will always have differing views on immigration, and on race issues, but that is why debates like those between Don Brash and Hone Harawira on TV1's current affairs programme Close Up are important. It is also why Peter Ansell should be able to say in newspaper advertisements that he is "fed up with the Maorification of everything", whether this is true or not.

Driving unpalatable views underground is usually a recipe for making them more entrenched, and ensuring they are expressed in ways that break the law.

That is one reason why free speech is a fundamental right protected by section 14 of the New Zealand Bill of Rights Act 1990, and why political speech is given particularly high protection by our courts. This year the Supreme Court found that burning the New Zealand flag at an Anzac Day ceremony was a form of political protest and did not meet the threshold for offensive conduct.

Even our specific hate-speech legislation sets high thresholds before it can be activated. Section 131 of the Human Rights Act 1993 prohibits the incitement of racial disharmony. But the threshold is high, requiring intent to excite hostility or ill-will, or to bring into contempt or ridicule another racial group by publishing or distributing written material or by broadcasting on radio or television, or verbal abuse in a public place.

Because of the chilling effect on freedom of speech this section could have, a prosecution can only be brought if consent is given by the Attorney-General.

We do have tense moments in our politics. In July Hone Harawira challenged Parliament by refusing to give the traditional parliamentary oath. Instead he was thrown out of Parliament by the Speaker after he tried to swear allegiance to the Treaty of Waitangi and not to the Queen.

A man was recently sentenced for plotting to attack an ACC office with a nail bomb because he was disgruntled with his treatment by that corporation.

This month it will be 30 years since the Springbok tour of 1981 that divided the nation over issues of race.

However, the extent of the violence was protesters clashing with police, and when flour bombs and flares were dropped from a plane on to Eden Park.

There have also been large differences of opinion on social issues.

In 2009, 5000 people marched in Auckland against the Government's inaction on the pro-smacking referendum.

Hundreds of members of Destiny Church protested against the Civil Union Bill at Parliament in 2004.

Political insults in New Zealand have also become overheated at times, with both Labour and National oppositions accusing incumbent governments of corruption and worse.

But, with the exception of the ACC plotter, these are examples of people expressing different views to the status quo within the boundaries of our democracy.

It is evidence of people acting within, and not outside, our political and legal system.

The recent events in Norway should make us value the democracy we have.

* Mai Chen is a partner in Chen Palmer NZ Public and Employment Law Specialists and author of Public Law Toolbox, forthcoming.

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