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Has NZ got the balance right on free speech?

New Zealand has waded into the global debate over free speech versus hate speech. But have we got the balance right? Laura Walters reports.

As Massey University carries out an internal investigation into its decision to stop Don Brash’s speaking event in August, the former National Party leader has returned to the podium, and the sky didn't cave in.

The events around Brash’s ban, and a barring of two far-right speakers from Auckland Council venues earlier this year, have led to a national conversation on free speech.

But some question whether we’ve got the balance right. In an effort to stamp out hate speech, are Kiwis stopping free and open debate and the progression of ideas?

The former Reserve Bank governor and founder of Hobson’s Pledge spoke at Massey University last week.

Things grew a little heated at the end of the event, but there were no threats to security, as the university’s vice-chancellor Jan Thomas had suggested there might be when she decided to ban Brash back in August.

(Later emails released under the OIA showed Thomas' ban was based more on worries about being seen to be endorsing racist behaviour, than security.)

About 100 people attended last week's event - at least 80 more than the number expected to attend Brash's August appearance.

AUT history professor Paul Moon said the act of banning people from speaking gave them dream marketing and raised awareness of their beliefs.

“I think Massey University offered the whole of the country an extended case study in how not to do things."

By allowing people to air their thoughts, society holds the issues up to scrutiny and criticism, Moon said. 

It also has the added effect of having people rally around in opposition. In the case of Brash, enrolments in te reo classes have been known to spike when he enters the public discourse.

Massey University politics club organisers Christian Houghton and Michael Curtis described the ban as a “terrifying” move by a university. If Kiwis can’t have a robust debate on difficult issues at a university, where can they?

Brash himself described the move as a “black day” for Massey.

In the wake of these events, many people, including Brash, have referenced the famous quote: “I disapprove of what you say, but I will defend to the death your right to say it.”

However, giving people carte blanche to air their thoughts is also a dangerous approach.

Last year, the Human Rights Commission received 354 enquiries and complaints about race discrimination relating to colour, race or national origin, and 71 complaints about racial harassment.

Meanwhile, a recent Netsafe report found cyberbullying costs New Zealand $444 million a year in harm to individuals, community and interventions.

New Zealand is not immune to bullying, harassment and hate speech. So how do we strike a balance between allowing for free speech and the progression of ideas, while protecting people against hate?

By New Zealand standards

The right to freedom of expression is enshrined in New Zealand law.

The Bill of Rights Act says everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

A spokesperson for the Human Rights Commission said it had an absolute commitment to the right to freedom of expression and the right to human dignity.

The issue of freedom of expression in this broader context was important, and should not be lost sight of during the often robust debates about free speech issues, they said.

“Freedom of speech and expression are important human rights. But most rights are not absolute, and with rights come responsibilities.”

Many countries were currently grappling with finding the right balance, the commission's spokesperson said.

When is it hate speech?

New Zealand also has laws to protect individual people from hateful, threatening or offensive behaviour by one person towards another, including the Sentencing Act, and the Harmful Digital Communications Act.

However, “hate speech” laws are usually thought of as applying to speech directed at a group of people.

New Zealand law passed in the 1970s say this includes “matter or words likely to excite hostility or bring into contempt any group of person” on the basis of their race, ethnic or national origins.

Currently, other comparable countries have equivalent laws covering hostility towards groups of people on the basis of religion, sexual orientation and disability.

The commission is currently looking at this area of law, to see whether New Zealand has the balance right, and whether the laws were fit for purpose in the age of the internet and changing demographics.

But Moon was wary about the process of updating the laws, where the limits would be set, and where the burden would be placed.

A free speech purist would say someone can come to New Zealand and say whatever they want.

Moon agreed there were limits to what should be said but believed incitement to violence and discrimination were sufficient limits.

He's spoken at length about his unease over the potential inclusion of the words "disharmonious speech" in New Zealand law, saying speech became disharmonious if a person responded to the speech in a disharmonious way. That meant the burden, or the power, rested with the person who was on the receiving end - not with the intent of the speaker.

To complicate things further, there is currently no clear definition of hate speech. And in a world where people were worried about causing offence, or being labelled a racist or a sexist, there was the risk of self-censorship.

Moon also raised the issue of consistency.

While New Zealand wasn’t doing too bad when it came to discussions around race relations, religion was another matter.

Some religions were publicly chastised for making discriminatory comments about women and LGBT communities, other religions weren’t.

“If we’re going to have standards at all, and we certainly ought to, at least enforce them evenly or they’re not really standards,” he said.

Brash raised a similar issue, saying the same standards needed to be applied to all when it came to allowing people to speak at a public event.

What next?

The Human Rights Commission spokesperson said there was a need for ongoing collection of data about hate speech, to better inform effective and appropriate responses.

“However, the available information indicates that New Zealand is no exception to the international experience that hate speech is an issue we need to be grappling with, and that we need to do so in ways that also appropriately protect freedom of expression.”

Meanwhile, Massey University is continuing with its internal review led by former deputy state services commissioner Douglas Martin.

In his email to staff, chancellor Michael Ahie said Martin would report back by the end of November, and make recommendations “to ensure that University management and governance learns from the controversy and performs to a high standard in the future”.

Thomas sent one pre-prepared line via a spokesperson: “I welcome the review as good practice to continually improve systems and processes.”

Both Ahie and Thomas declined to be interviewed or comment further.

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