Back to Index of Limits on Freedom of Expression

The right to freedom of expression, as enshrined in the New Zealand Bill of Rights Act 1990, may be subject to reasonable limits, prescribed by law, that can be “demonstrably justified in a free and just society.” The courts do not have the ability to strike down legislative provisions that unduly limit the right to freedom of expression. Limitations on the right can be found in several statutes, with some of the provisions potentially relevant to situations involving “heckling” or to the broadcasting of foreign propaganda. These include certain offenses against public order in the Summary Offences Act 1981; provisions related to racist “hate speech” in the Human Rights Act 1993; standards and complaint processes established under the Broadcasting Act 1989; prohibitions on possessing or dealing with “objectionable” publications under the Films, Videos and Publications Classification Act 2003; and the availability of procedures to address harmful information posted online under the Harmful Digital Communications Act 2015. In addition, media entities and advertising are subject to complaint processes in accordance with established systems of self-regulation.

The issue of legal restrictions on “hate speech” has emerged in public debate related to various events over the past two years. The government is currently undertaking a review of existing provisions, including those in the Human Rights Act and the Harmful Digital Communications Act.

I. Right to Freedom of Expression under the New Zealand Bill of Rights Act 1990

The New Zealand Bill of Rights Act 1990 (NZBORA) is one of several statutes that form part of New Zealand’s constitution; the country does not have a single, codified constitutional document.[1] It applies to any acts done by the legislative, executive, or judicial branches of the New Zealand government, or “by any person or body in the performance of any public function, power, or duty” conferred or imposed on it by law.[2] Section 14 provides protection for “freedom of expression,” stating that “[e]veryone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind.”[3]

The rights contained in the NZBORA may be subject to “justified limitations.” The relevant provision states that “the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”[4] The legislation does not allow the courts to strike down or otherwise decide not to apply a provision of another law by reason only of its inconsistency with any provision in the NZBORA.[5] However, the courts must, whenever possible, interpret any law in a manner that is consistent with the rights and freedoms contained in the NZBORA.[6]

When new legislation is introduced in the Parliament, the Attorney-General must “bring to the attention of the House of Representatives any provision in the Bill that appears to be inconsistent with any of the rights and freedoms” contained in the NZBORA.[7]

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II. Legislative Limitations on the Right to Freedom of Expression

In addition to the civil defamation law[8] and various criminal law provisions (e.g., provisions on threats and intimate visual recordings in the Crimes Act 1961[9]), the following legislative provisions contain limits on the right to freedom of expression in New Zealand, including potentially where “heckling” or broadcasting of foreign propaganda rise to the level of breaching the relevant provisions.

A. Summary Offences Act 1981

The Summary Offences Act 1981 contains several offenses under the heading “offences against public order,” including the following:

3 Disorderly behaviour

Every person is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000 who, in or within view of any public place, behaves, or incites or encourages any person to behave, in a riotous, offensive, threatening, insulting, or disorderly manner that is likely in the circumstances to cause violence against persons or property to start or continue.

4 Offensive behaviour or language

(1) Every person is liable to a fine not exceeding $1,000 who,—

(a) In or within view of any public place, behaves in an offensive or disorderly manner; or

(b) In any public place, addresses any words to any person intending to threaten, alarm, insult, or offend that person; or

(c) In or within hearing of a public place,—

(i) Uses any threatening or insulting words and is reckless whether any person is alarmed or insulted by those words; or

(ii) Addresses any indecent or obscene words to any person.

(2) Every person is liable to a fine not exceeding $500 who, in or within hearing of any public place, uses any indecent or obscene words.

(3) In determining for the purposes of a prosecution under this section whether any words were indecent or obscene, the Court shall have regard to all the circumstances pertaining at the material time, including whether the defendant had reasonable grounds for believing that the person to whom the words were addressed, or any person by whom they might be overheard, would not be offended.

(4) It is a defence in a prosecution under subsection (2) of this section if the defendant proves that he had reasonable grounds for believing that his words would not be overheard.

(5) Nothing in this section shall apply with respect to any publication within the meaning of the Films, Videos, and Publications Classification Act 1993, whether the publication is objectionable within the meaning of that Act or not.[10]

Other offenses in this part of the Act include “disorderly behaviour on private premises” and “disorderly assembly.”[11] A further offense, under the category of “offences resembling nuisance,” provides that “[e]very person is liable to a fine not exceeding $200 who, in any public place, unreasonably disrupts any meeting, congregation, or audience.”[12]

In a 2011 decision, the Supreme Court of New Zealand overturned a woman’s conviction under section 4(1)(a) of the Summary Offences Act 1981 that had arisen from her burning a New Zealand flag at a protest during an annual ceremony to commemorate servicemen and servicewomen.[13] A summary of the decision released by the Court states that

[t]he Court has held, unanimously, that offensive behaviour within the meaning of s 4(1)(a) must be behaviour which gives rise to a disturbance of public order. Although agreed that disturbance of public order is a necessary element of offensive behaviour under s 4(1)(a), the Judges differed as to the meaning of “offensive” behaviour. The majority (with the Chief Justice dissenting and Justice Anderson not entirely concurring on this point) considered that offensive behaviour must be capable of wounding feelings or arousing real anger, resentment, disgust or outrage, objectively assessed, provided that it is to an extent which impacts on public order and is more than those subjected to it should have to tolerate.[14]

In his judgment, Tipping J. held that

[f]or me the word “offensive”, in context, means that to contravene s 4(1)(a) a person must behave in a manner that causes offence to those affected to such an extent, or in such a manner, as disturbs public order. It cannot, however, be right that the unreasonable reactions of those who are affected by the behaviour can be invoked as indicative of a threat to public order. Hence those affected by the behaviour must be prepared to tolerate some degree of offence on account of the rights and freedoms being exercised by those responsible for the behaviour. It is only when the behaviour of those charged under s 4(1)(a) causes greater offence than those affected can be expected to tolerate that an offence under s 4(1)(a) will have been committed. And it is always necessary for the prosecution to demonstrate a sufficient disturbance of public order.

In this context public order is sufficiently disturbed if the behaviour in question causes offence of such a kind or to such an extent that those affected are substantially inhibited in carrying out the purpose of their presence at the place where the impugned behaviour is taking place. Only if the effect of the behaviour reaches that level of interference with the activity in which those affected are engaged is it appropriate for the law to hold that their rights and interests should prevail over the right to freedom of expression of those whose behaviour is in contention. That is the appropriate touchstone.[15]

McGrath J. also considered that the rights of those affected should be taken into account, holding that

[i]t must be borne in mind that under s 5 of the Bill of Rights Act, all rights and freedoms may be made subject to such reasonable limits prescribed by law as can be justified in a free and democratic society. In order to be such a limit on freedom of expression, proscribed offensive behaviour must be confined to sufficiently serious and reprehensible interferences with rights of others. Such conduct is objectively intolerable. The court’s analysis must assess the impact of the exercise of the right in the circumstances, as well as the importance of other interests affected. Consideration must also be given to whether there are other methods of addressing the conflict with free speech rights than the offence provision in question or its ordinary meaning.

To this end, a balancing of the conflicting interests must be undertaken by the court as a basis for reaching a reasoned conclusion on whether the summary offence of offensive behaviour is a justified limitation on freedom of speech.[16]

B. Human Rights Act 1993

Section 61 of the Human Rights Act 1993 makes it unlawful for any person

(a) to publish or distribute written matter which is threatening, abusive, or insulting, or to broadcast by means of radio or television or other electronic communication words which are threatening, abusive, or insulting; or

(b) to use in any public place as defined in section 2(1) of the Summary Offences Act 1981, or within the hearing of persons in any such public place, or at any meeting to which the public are invited or have access, words which are threatening, abusive, or insulting; or

(c) to use in any place words which are threatening, abusive, or insulting if the person using the words knew or ought to have known that the words were reasonably likely to be published in a newspaper, magazine, or periodical or broadcast by means of radio or television,—

being matter or words 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.[17]

Racial and sexual harassment are also unlawful under the Act, including when the use of relevant language or other behavior takes place in the context of a person’s “participation in fora for the exchange of ideas and information.”[18]

The Act establishes dispute resolution procedures through which persons can make complaints about breaches of the above provisions and other provisions in part 2 of the Act, and also provides for civil proceedings arising from such complaints.[19]

In addition, the Act contains an offense of inciting racial disharmony, providing as follows:

Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding $7,000 who, with intent to excite hostility or ill-will against, or bring into contempt or ridicule, any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons,—

(a) publishes or distributes written matter which is threatening, abusive, or insulting, or broadcasts by means of radio or television words which are threatening, abusive, or insulting; or

(b) uses in any public place (as defined in section 2(1) of the Summary Offences Act 1981), or within the hearing of persons in any such public place, or at any meeting to which the public are invited or have access, words which are threatening, abusive, or insulting,—

being matter or words likely to excite hostility or ill-will against, or bring into contempt or ridicule, any such group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons.[20]

 

It is also an offense under the Act to refuse to allow any other person access to or use of any place or vehicle which members of the public are entitled or allowed to enter or use, where that refusal is a breach of any of the provisions related to unlawful discrimination under part 2 of the Act.[21]

Section 61 of the Act was considered by the High Court for the first time in February 2018 in the context of an appeal from a determination of the Human Rights Review Tribunal dismissing a complaint about two cartoons published in newspapers that featured negative depictions of Māori and Pasifika people. The High Court dismissed the appeal, agreeing with the Tribunal that section 61 “established a high threshold and was targeted to racist speech at the serious end of the spectrum.”[22] It found that, while the parties agreed that the cartoons met the first part of the test in section 61 (in that they were “insulting”), they did not meet the second limb of the test (being likely to “excite hostility” against or “bring into contempt” a group of people based on their race or ethnicity).[23]

C. Broadcasting Act 1989

The Broadcasting Act 1989 establishes the responsibility of every New Zealand television and radio broadcaster for “maintaining in its programmes and their presentation, standards that are consistent with” the following:

(a) the observance of good taste and decency; and
(b) the maintenance of law and order; and
(c) the privacy of the individual; and
(d) the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest; and
(e) any approved code of broadcasting practice applying to the programmes.[24]

The Act sets out principles and processes applicable to complaints about programs[25] and establishes the Broadcasting Standards Authority, an independent Crown entity with responsibility for receiving and determining complaints “from persons who are dissatisfied with the outcomes of complaints made to broadcasters,” among other functions.[26] Its other functions include encouraging the development by broadcasters of, or issuing its own, codes of broadcasting practice relating to

(i) the protection of children:
(ii) the portrayal of violence:
(iii) fair and accurate programmes and procedures for correcting factual errors and redressing unfairness:
(iv) safeguards against the portrayal of persons in programmes in a manner that encourages denigration of, or discrimination against, sections of the community on account of sex, race, age, disability, or occupational status or as a consequence of legitimate expression of religious, cultural, or political beliefs:
(v) restrictions on the promotion of alcohol:
(vi) presentation of appropriate warnings in respect of programmes, including programmes that have been classified as suitable only for particular audiences:
(vii) the privacy of the individual:[27]

The Broadcasting Standards Authority has issued codes of practice related to radio, free-to-air television, and pay television, as well as a code on election programs.[28] With respect to foreign channels, the Authority notes that

pay television broadcasters may offer channels over which they have no (or little) editorial control (for example, foreign pass-through channels). This limited control of the broadcaster will be an important consideration when assessing whether a programme has breached standards. However, it is expected that generally a pay television broadcaster will be mindful of the standards and exercise appropriate discretion and judgement when determining which channels should be allowed to pass through its platform.[29]

D. Films, Videos and Publications Classification Act 1993

New Zealand’s censorship legislation, the Films, Videos and Publications Classification Act 1993, enables the Chief Censor and Deputy Chief Censor to classify a publication as unrestricted, restricted, or objectionable.[30] It is an offense under the Act to make, copy, import, supply or distribute, or display or exhibit an objectionable publication.[31] It is also an offense to possess such a publication.[32] A publication is “objectionable” if it “describes, depicts, expresses, or otherwise deals with matters such as sex, horror, crime, cruelty, or violence in such a manner that the availability of the publication is likely to be injurious to the public good.”[33]

Recent examples of publications deemed objectionable under the Act are the video footage and “manifesto” produced by the man accused of attacking two mosques in Christchurch on March 15, 2019.[34]

E. Harmful Digital Communications Act 2015

The purpose of the Harmful Digital Communications Act 2015 is to

(a) deter, prevent, and mitigate harm caused to individuals by digital communications; and
(b) provide victims of harmful digital communications with a quick and efficient means of redress.[35]

The Act sets out a list of ten “communication principles” that must be taken into account by the agency designated to receive complaints under the Act and by the courts.[36] These entities must also act consistently with the rights and freedoms contained in the NZBORA.[37] In addition to complaint procedures, the Act establishes an ability for an affected individual or other relevant people to bring civil proceedings in relation to alleged harm resulting from a digital communication, and sets out the procedures applicable in such proceedings.[38] It also creates an offense of causing harm by posting a digital communication. The relevant provision states that

(1) [a] person commits an offence if—

(a) the person posts a digital communication with the intention that it cause harm to a victim; and

(b) posting the communication would cause harm to an ordinary reasonable person in the position of the victim; and

(c) posting the communication causes harm to the victim.

(2) In determining whether a post would cause harm, the court may take into account any factors it considers relevant, including—

(a) the extremity of the language used:

(b) the age and characteristics of the victim:

(c) whether the digital communication was anonymous:

(d) whether the digital communication was repeated:

(e) the extent of circulation of the digital communication:

(f) whether the digital communication is true or false:

(g) the context in which the digital communication appeared.

(3) A person who commits an offence against this section is liable on conviction to,—

(a) in the case of a natural person, imprisonment for a term not exceeding 2 years or a fine not exceeding $50,000:

(b) in the case of a body corporate, a fine not exceeding $200,000.

(4) In this section, victim means the individual who is the target of a posted digital communication.[39]

 

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III. Industry Self-Regulation

A.  New Zealand Media Council

The New Zealand Media Council (formerly the New Zealand Press Council) is a self-regulatory, industry-funded body that provides an independent forum for resolving complaints related to “published material in newspapers, magazines and their websites, including audio and video streams, as well as to digital sites with news content, or blogs characterised by their new commentary.”[40] It has published a list of principles that complainants may use as the basis for their complaints, and lists the organizations and publications that have agreed to abide by these principles. These include organizations that provide video-on-demand services and broadcasters that provide online news content.[41]

B.  Advertising Standards Authority

The Advertising Standards Authority has established advertising codes[42] and complaint processes regarding the content and placement of advertisements.[43] It works within the legal framework provided by various laws that restrict advertising in New Zealand, which provide “a legal backstop to deal with more serious advertising breaches.”[44] The three main objectives of the Authority are as follows:

1. To seek to maintain at all times and in all media a proper and generally acceptable standard of advertising and to ensure that advertising is not misleading or deceptive, either by statement or by implication.
2. To establish and promote an effective system of voluntary self-regulation in respect to advertising standards.
3. To establish and fund an Advertising Standards Complaints Board.[45]

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IV. Debate Regarding Regulation of “Hate Speech”

There is currently debate in New Zealand regarding the regulation of “hate speech” and the implications for freedom of expression.[46] This follows various events, including two “alt-right” figures from Canada being denied access to council-owned speaking venues in Auckland in 2018,[47] ongoing discussions about freedom of speech at universities,[48] as well as discussions relating to white supremacy and Islamophobia following the Christchurch mosque attacks,[49] and homophobia in relation to comments made by a prominent sports player.[50]

The Minister of Justice, Andrew Little, stated in March 2019 that the government would fast-track a review of existing legislative provisions related to hate speech, particularly those in the Human Rights Act and the Harmful Digital Communications Act, as well as sections of the Crimes Act.[51] He also did not rule out the establishment of “hate crime” as a separate offense.[52] There is currently no specific “hate crime” offense in New Zealand, but the Sentencing Act 2002 includes hostility towards groups of people “who have an enduring common characteristic” as an aggravating factor to be taken into account when sentencing offenders.[53]

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Prepared by Kelly Buchanan
Foreign Law Specialist
June 2019

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Last Updated: 12/30/2020