A hate crime is not an offence in New Zealand. Photo / File
A hate crime is not an offence in New Zealand. Photo / File
Is it a hate crime when a celebrity or sports star shares a racial or homophobic slur with the world?
What about when an artist draws a racially-motivated political cartoon, or a prominent commentator pens a column they describe as simply satire?
New Zealand doesn't have hate crime laws, but in the age of identity politics and a seemingly limitless internet, it appears we are edging closer. Sam Hurley reports.
Rugby star Israel Folau made it clear on Twitter he believes all gay people will go to hell if they don't repent.
American actress Roseanne Barr this week likened a senior adviser to former US President Barack Obama to an ape.
Were the remarks hate crimes or free speech? Itall comes down to context and what country you live in.
In New Zealand, a hate crime is not a specific offence but Kiwis who feel discriminated against have some protection under existing law.
Wellington human rights lawyer Michael Bott says in his view hate crimes are a bias motivated by hostile or malicious speech which ranges from hatred to abuses of expressions.
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Political and media commentators have said some of US President Donald Trump's speeches have encouraged bigotry and racism. Photo / AP
He uses the examples of white nationalists marching in Charlottesville last year, and Joseph Goebbels' Nazi propaganda and cartoons of Jews as extreme examples.
US President Donald Trump's racist remarks and stereotypes "green light" such behaviour in a populations' underbelly, he says.
In America, the first amendment right to free speech continues to create a tension between freedom of expression and the protection from discrimination.
"Free speech, whist it's synonymous with democracy, is not a right that can be asserted to the exclusion of all other democratic rights and values," Bott says.
"The right to human dignity and freedom from discrimination shouldn't be subservient to free speech where you encourage hatred of people of that basis that they're different."
The UK's Racial and Religious Hatred Act came into effect in 2006 and was designed stop racially and religiously-motivated attacks. Photo / Barcroft Media
Europe, he explains, has an acute memory of where unchecked hate speech can lead - concentration camps, extreme cruelty and enormous suffering.
In the United Kingdom, hate crime laws were introduced as the war on terror reached its peak following the September 11 attacks and the 2005 London bombings.
The Racial and Religious Hatred Act, which came into effect in 2006, was designed to quell an increase of racially and religiously-motivated attacks on Britain's streets.
Hate crimes can be a range of criminal behaviour motivated by or demonstrating hostility towards a victim's disability, race, religion, sexual orientation or transgender identity.
It can include verbal abuse, intimidation, threats, harassment, assault and bullying, as well as damage to property. The perpetrator can also be a friend, carer or acquaintance who exploits their relationship with the victim for financial gain or some other criminal purpose.
Penalties range depending on the context - but terms of imprisonment can be handed out.
Last year, the UK's Crown Prosecution Service (CPS) achieved an 83 per cent conviction rate for those placed before a British court for a hate crime.
South Africa's parliament is also in the process of introducing laws for hate crimes and hate speech.
New Zealand has grappled with the issue of hate crimes in the past, including in 2005 as the UK drafted its laws on hate crime.
In the age of identity politics and a limitless internet, do we need hate speech laws? Photo / Mark Mitchell
A parliamentary select committee held an inquiry in Auckland into introducing legislation to ban New Zealanders from expressing certain views.
An overwhelming majority of submissions slammed the proposals as a threat to freedom of expression and the democratic process.
There was backlash from church leaders, academics, broadcasters and conservative groups.
In 2005 a proposed hate speech bill was met with a large local backlash. Cartoon / Rod Emmerson
In February last year, Human Rights Commissioner Dame Susan Devoy called for a review of hate speech law, while asking police this year to start recording hate crime statistics to combat racism.
In response, 27 high-profile New Zealanders, including former National Party leader Don Brash and Dame Tariana Turia, wrote an open letter warning politicians that freedom of speech was under threat at our universities.
It was organised by Auckland University of Technology's History Professor Paul Moon.
The-then Prime Minister Bill English and former Labour leader Andrew Little defended the idea of people expressing strong views on issues.
Also last year, the European Students Association at Auckland University disbanded after threats to its members and accusations of racism and hate speech.
Outgoing Race Relations Commissioner Dame Susan Devoy. Photo / Andrew Warner
Police told the Herald on Sunday this week that while crimes are still coded under existing crime types there has been consultation with community leaders to consider the pros and cons of recording data based on discriminatory attacks.
"The changing demographics in this country has required police to seriously consider a wider discussion which focuses on the rights of individuals to be safe and feel safe regardless of who and where they come from," a police spokesperson said.
New Zealand's Sentencing Act also specifically considers hate as an aggravating factor when sentencing offenders, a position that police strongly support.
The Ministry of Justice also began a crime and victims survey this year.
It will collect information annually from 8000 New Zealanders' experience of crime, including whether they feel they were targeted on racial, religious or sexual grounds.
While a hate crime is not an offence, the Bill of Rights, Human Rights Act and Harmful Digital Communications Act, all provide a potential courtroom defence against offensive material and speech.
The Human Rights Act covers discrimination against people in New Zealand on the grounds of colour, race or ethnicity - but not sexual orientation or religion.
Watchdogs such as the Human Rights Tribunal and Press Council, which regulates the Fourth Estate, also provide guidance but don't prosecute.
People can also claim defamation in the High Court's civil jurisdiction. The test to prove defamation, however, is high.
The Government wishes to amend the Bill of Rights Act (Attorney-General David Parker pictured alongside Prime Minister Jacinda Ardern). Photo / Mark Mitchell
On February 26, Attorney-General David Parker along with Justice Minister Andrew Little announced a proposal which would see Parliament required to review a law if the courts declare it to be inconsistent with the Bill of Rights.
"We hope to have the policy work on that completed this year and an amendment introduced to the House in early 2019," Parker said at the time.
Bott says, while the proposal was welcomed, it did not go far enough to curb those people increasingly living in an echo chamber promoting extreme views.
"You're going to have these fringe organisations - the Alex Joneses of the world (American radio show host and conspiracy theorist) - holding great sway promoting horribly bizarre, I think, basically hateful speech. Purely on the basis that they appeal to the xenophobic ideals of their audiences.
"They say, 'Well, that's our free speech' and I say, 'Well, no, you haven't got the right to spread lies'.
"Free speech doesn't mean a right to say absolutely anything you want. If you take an absolutist approach to free speech then you're allowing an Adolf Hitler to rise up."
Reality TV personality Julia Sloane used a racial slur on-screen. Photo / Michael Craig
At an address to the Auckland District Law Society in May, Parker also talked about the protection of human rights.
"It is fundamentally important to the New Zealand I want to live in that freedoms and civil liberties be maintained and promoted," he said.
"Liberties such as the recognition of human rights, freedom from violence, freedom of political expression, freedom of religion, protection under the rule of law, secure property rights, liberties for women, as well as for religious, ethnic, and sexual minorities."
Examples which could be considered hate speech in New Zealand include Real Housewives of Auckland star Julia Sloane's infamous on-screen racial slur in 2016.
Fellow housewife Gilda Kirkpatrick asked another cast member, Michelle Blanchard, for a hand getting up from below decks, prompting Sloane to say: "She's not your boat n*****."
"I own that [comment]. I should never have said it and I don't want to make excuses for it. But at worst it could be said it was casual racism," she said in explanation.
And early this year, a petition was formed calling for Sir Bob Jones to be stripped of his knighthood for what was labelled an offensive and racist column he wrote for the National Business Review.
A petition called for Sir Bob Jones to be stripped of his knighthood after a column some thought was hate speech. Photo / NZ Herald
The piece, which had the opening line "time for a troll", included a call for an annual "Māori Gratitude Day" in place of Waitangi Day.
He continued: "I have in mind a public holiday where Maori bring us breakfast in bed or weed our gardens, wash and polish our cars and so on, out of gratitude for existing.
"And if any Māori tries arguing that he/she didn't have a slight infection of Irish blood or whatever, they might be the better for it, the answer is no, sunshine."
Bott says it was too easy for someone to simply explain away offensive words by saying, "I'm just being funny, that's just satire".
In April, even Prime Minister Jacinda Ardern weighed in after Wallabies fullback Israel Folau was called out for his homophobic social media comment.
Australian rugby star Israel Falou made comments on social media which were termed hate speech by some. Photo / Getty Images
He stood by his comments and claimed religious freedom, but Ardern said while strongly not agreeing with the athlete's comment also didn't think it was a case of hate speech.
Bott says there was a difficulty in saying to Folau "you can't say that" without then being accused of suppressing speech.
"But if he starts trying to persecute gay people and is saying they can't walk on the streets and express their love for each other then he runs into loggerheads with their right to freedom of expression and freedom of belief … this is the tension that you have."
A case that made it to court was that of Labour MP Louisa Wall who claimed two cartoons were offensive and in essence hate speech.
The 2013 cartoons in the Press and the Marlborough Express, by Al Nisbet, were said to be portraying the issue of the Government's food in schools programme. She pointed to racial disharmony.
A Human Rights Tribunal decision found the cartoons were insulting but not likely to, "excite hostility against or to bring into contempt Māori and Pasifika on the ground of their colour, race, or ethnic or national origins".
Wall appealed the decision in the High Court this year which, ruled against her.
Fairfax, now Stuff, stood up for its cartoonist.
The media company argued the drawings were consistent with the Bill of Rights, which affords every New Zealander the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.
A panel consisting of Justice Matthew Muir, Dr Susan Hickey and former National MP Brian Neeson was formed to rule on the appeal.
Labour MP Louisa Wall who argued in the High Court that two cartoons excited racial disharmony. Photo / Mark Mitchell
Justice Muir, New Zealand's first openly gay High Court judge, said he was "very, very wary" of what was a test case which carried "huge public implications".
He said during the hearing that the panel was tasked with "looking afresh" at section 61 of the Human Rights Act, which outlines the unlawfulness to publish or distribute potentially hateful material.
The legislation, however, also states that there shall not be a breach of law if a newspaper, magazine, or broadcast report accurately conveys the intention of the person who published or distributed the matter or broadcast or used the words.
Justice Muir's dialogue during the case showed how divisive the case was.
He said freedom of speech could be considered "the most important cornerstone of a liberal democracy".
"No one is contending that the [cartoons] were not insulting, we certainly all regard them as insulting," he said.
But the panel, while warning that the case should serve as a cause for reflection, agreed with the Human Rights Tribunal.
Free speech, it ruled, was too important and too delicate of a right for a court to restrict.
It said the tension between free speech and hate speech will continue.
