David Seymour is tilting at free-speech windmills

The ACT leader has unveiled his ‘Freedom to Speak Bill’. But the case law makes it clear that the laws he seeks to reform are not the terrifying, freedom crushing beasts he has made them out to be, writes Cameron Walker

ACT leader, David Seymour, has promised to introduce a “Freedom to Speak” private member’s bill, repealing sections of the Human Rights Act 1993 and Summary Offences Act 1981 which make “insulting”, “abusive” and “offensive” speech unlawful.

He appears to be referencing the section on prohibiting racial disharmony and the offence of inciting racial disharmony from the Human Rights Act, along with offensive behaviour from the Summary Offences Act.

Seymour argues it still should be a crime to incite or threaten violence but “nobody should ever be punished for their opinion”.

Yet New Zealand case law on these provisions makes it highly unlikely someone would be criminalised for simply holding or expressing an opinion – even an opinion that others found offensive, abusive or insulting.

The courts have narrowly interpreted these provisions so they are only applied in the most extreme circumstances and ensure the right of freedom of expression is staunchly upheld.

Offensive behaviour

Section 4(1) of the Summary Offences Act creates an offence punishable by a maximum fine of $1000:

  1. a) to behave in an offensive or disorderly manner… in or within any public place” or
  2. b) in any public place address words to any person intending to threaten, alarm, insult or offend that person
  3. c) or (i) in or within hearing of a public place use any threatening or insulting words and be reckless whether any person is alarmed or insulted by those words or (ii) address any indecent or obscene words to a person.

The New Zealand Supreme Court in 2011 delivered an important judgment Morse v Police regarding how s 4(1) should be interpreted.

Valerie Morse, a prominent peace activist, was arrested and later convicted under s 4(1)(a) for burning a New Zealand flag at an ANZAC dawn service to protest New Zealand’s military involvement in Afghanistan and other conflicts.

The Supreme Court quashed her conviction – holding that the offence of offensive behaviour was directed at preventing behaviour which disrupts public order. People present in a place being offended by an action is not sufficient unless public order is disrupted. As Chief Justice Sian Elias noted, to fulfil the requirements of the offence the behaviour must be of such a level that it interferes with use of public space by any member of the public through intimidation, bullying or the creation of alarm or unease at a level that inhibits their use of the place.

It is true this case only dealt with s 4(1)(a) but the Supreme Court justices stated section 4 as a whole dealt with issues of public order rather than personal offence and needs to be interpreted consistently with the rights contained within the New Zealand Bill of Rights Act, including freedom of expression.

An earlier Supreme Court decision Brooker v Police noted s 4(1) “exists for the purpose of preservation of public order not to protect … personal sensitivities alone”.

Human Rights Act

Section 61 of the Human Rights Act makes it unlawful to publish or distribute written material or broadcast via radio, TV or electronic means words which are “threatening, abusive or insulting” and are “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.”

It also makes it unlawful to use such words in a public place or any place where the person ought to have known the words were reasonably likely to be published in a newspaper, magazine, or periodical or broadcast by means of radio or television.

Additionally Section 131 makes it a criminal offence to publish or express in public threatening, abusive or insulting words with the intention of exciting hostility or ill will or bringing into contempt people in NZ based on the grounds of colour, race, ethnic or national origins.

In Wall v Fairfax the High Court held s 61 only applies to expression which “inspired enmity, extreme ill will or was likely to result in a group being despised”. It would apply only in very extreme cases and expression which was simply offensive or insulting was unlikely to incite disharmony and therefore was below the threshold required.

In that case the High Court held Al Nisbet’s infamous 2013 cartoons about the Kickstart Breakfast Programme for low decile schools, appearing to show overweight Maori and Pacific parents rejoicing they could now spend more money on “booze, smokes and pokies” were not at the required threshold – even if they caused significant offence to many people.

It is likely s 131 would be applied in a similarly restrained manner.

A confused cause

When analysed alongside their relevant case law it is quickly apparent the sections of the Summary Offences Act and Human Rights Act Seymour wishes to repeal are not the scary freedom crushing laws he has made them out to be.

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They can even be useful for upholding the rights of free speech and assembly of others. For example, if someone came into a public square during a memorial service for the Christchurch mosque attack victims and began purposely insulting and abusing the participants to the point their ability to be in the public space was inhibited, the police may well arrest the perpetrator under s 4 of the Summary Offences Act.

Likewise the provisions in the Human Rights Act are designed to prohibit only the most extreme manifestations of racist speech aimed at dehumanising members of the public and depriving them of their most basic rights.

These provisions do not prevent people from having or expressing political opinions on contentious issues or even from making edgy and taboo jokes or taking part in offensive banter.

Seymour’s pledge to repeal them does nothing to safeguard freedom of speech in New Zealand.


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