Beyond the Binary: A Principled Framework for Hate Speech Reform in Aotearoa New Zealand
The debate over hate-speech legislation in Aotearoa New Zealand has become mired in false binaries. We are told we must choose between protecting vulnerable communities and safeguarding free expression, between legislative action and education, between criminalisation and impunity. This framing is not only unhelpful; it is false. The international human-rights framework provides a clear baseline from which domestic reform must proceed.
International law establishes that states have a positive duty to prohibit the most severe forms of hate speech. Article 20(2) of the International Covenant on Civil and Political Rights (ICCPR) requires that “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” As the UN Human Rights Committee explained in General Comment No 34 (paras 50–52), states must meet this obligation, but such laws must also satisfy the strict proportionality requirements of Article 19(3). This ensures that the prohibition of incitement coexists with, rather than undermines, freedom of expression.
Aotearoa has accepted these obligations. They set the minimum standard for legislative protection. Yet our domestic law remains far below that floor. Section 131 of the Human Rights Act 1993 criminalises only the incitement of hostility or contempt on the narrow grounds of colour, race, or ethnic or national origins. Sexual orientation, gender identity, religion, and disability receive no protection. The evidential threshold is prohibitively high, requiring intent to excite hostility or contempt. Unsurprisingly, there have been no successful prosecutions in three decades. This is not the protection of free speech; it is abandonment of communities under sustained attack.
The Hybrid Model: Matching Response to Harm
Balancing proportion and access
Comparative experience shows that effective regulation requires a graduated response proportionate to harm. Criminal sanction should be reserved for deliberate incitement to hatred or violence, while lesser harms demand accessible civil remedies.
Aotearoa should adopt a hybrid civil-criminal model drawing on the most effective elements of international practice.
• Civil pathway: modelled on Australia’s Racial Discrimination Act, it would make it unlawful to publicly engage in conduct that incites hostility, serious contempt, or severe ridicule against a protected group. Managed through the Human Rights Commission, it would focus on conciliation, education, and restorative outcomes such as apologies or retractions.
• Criminal pathway: a new offence in the Crimes Act should prohibit the wilful promotion of hatred against a protected group, modelled on s 319(2) of Canada’s Criminal Code. “Wilful” would require specific intent, and “hatred” would mean only the most extreme emotion—detestation and vilification. The threshold would thus remain high, ensuring that criminal liability is confined to the most egregious, deliberate campaigns to dehumanise and incite violence.
The Rabat Plan: A High Threshold Against Misuse
Critics of hate-speech reform raise a legitimate concern: the potential misuse of such laws to silence dissent or restrict religious expression. The Rabat Plan of Action—developed by UN experts to operationalise the balance between Articles 19 and 20 of the ICCPR—provides the safeguard we need.
It sets out a six-part contextual test that must be satisfied before expression can be criminalised:
- Context – the surrounding social and political conditions;
- Speaker – status or influence of the communicator;
- Intent – whether the expression was deliberate;
- Content and form – tone, style, and nature of the speech;
- Extent of dissemination – reach and audience; and
- Likelihood of harm – probability that discrimination, hostility, or violence will occur.
Embedding this framework—either as an interpretive provision or as binding prosecutorial guidance—would ensure restrictions are evidence-based and proportionate. Offensive political comments, theological critiques, or controversial research would remain protected. What would not be protected is systematic vilification designed to make violence against a minority seem acceptable.
Beyond Legislation: A Holistic Strategy
Legislative reform is essential but insufficient. The UN Strategy and Plan of Action on Hate Speech (2019) emphasises that the primary response to hateful rhetoric must be more speech, not censorship. Aotearoa needs a National Action Plan encompassing public education, digital- and media-literacy initiatives, support for targeted communities, and sustained engagement with technology platforms on content-moderation duties.
Protected characteristics must be broad, inclusive, and equal. While Article 20(2) mandates protection for racial, national, and religious grounds, there is no principled basis for creating a hierarchy of hate that shelters some communities while abandoning others. The United Kingdom’s fragmented model—where race receives stronger protection than religion or sexual orientation—illustrates this flaw. Aotearoa’s framework should explicitly include race, colour, religion, ethnic or national origins, sexual orientation, gender identity or expression, and disability, with all grounds afforded equivalent protection. This approach aligns with our general obligation of non-discrimination and contemporary international practice.
Robust defences must safeguard genuine academic, artistic, scientific, and journalistic work, as well as fair comment on matters of public interest made reasonably and in good faith. These are not technical exceptions—they are the structural protections that preserve democratic discourse.
The Path Forward
Hate-speech legislation is not an attack on democracy—it is a defence of its foundations. A society that permits the systematic dehumanisation of people based on protected characteristics is not exercising freedom—it is eroding the equal participation on which democracy depends.
Aotearoa can design legislation that fulfils our international obligations, protects vulnerable communities, and maintains robust safeguards for legitimate expression. Evidence from comparable jurisdictions shows this is not aspirational—it is achievable.
The question is whether we have the political will to act.
