Hate Speech Agenda And Censorship Concerns Changes To Human Rights Act Signal Suppression Of Non-Pc Viewpoints

The Society fears that Phil Goff's proposed changes to the Human Rights Act, signalled in Parliament on Wednesday 15 October 2003, will crush the right to dissent from politically-correct viewpoints regarding gay-rights activism and homosexual lifestyles.

The Society is concerned that the case, in which two Christian videos, agreed to have no sexual content and consisting largely of "talking head" comment, were totally banned by the Film and Literature Board of Review, proves a willingness on the part of the Board, to misuse so-called "hate speech" as an excuse for crushing viewpoints which do not meet the strictures of political correctness.

In a unanimous decision the Court of Appeal quashed the decision of the High Court and the Board which had imposed a total ban on these opinion-pieces for several years. The current Chief Censor, Bill Hastings, was Deputy President of the Board which made this unprecedented attack on freedom of politico- social and religious expression, and has continued to criticise the ruling of the Court of Appeal. He has signalled his clear intention to support "hate speech" legislation which if passed into law, would have the effect of outlawing the sort of robust expression of views found in the videos. In the successful Court of Appeal case, the appellant, Living Word, was opposed by the Office of the Attorney-General, Hon. Margaret Wilson, the Human Rights Commission, the NZ Aids Foundation and the Human Rights Action Group, a gay-rights lobby group.

It is of grave concern to the Society that the Attorney-General, Margaret Wilson, the Minister of Justice, Phil Goff, and the Chair of the Justice and Electoral Select Comittee, Tim Barnett MP, are actively working towards an amendment of the Human Rights Act to include so-called "hate speech" and thus crush the freedoms, so recently recovered by the landmark Court of Appeal decision in Living Word.

As the Society believes that it is vital that the public be fully informed of the issues involved in the case, it has appended the full submission of its lawyers to the Government Administration Select Committee, dealing with the matter of the proposed inclusion of "hate speech" into censorship legislation. The Society made its own submissions to the committee opposing the inclusion of "hate speech" into the list of criteria for censorship.

SUBMISSIONS OF PETER McKENZIE AND PAUL RISHWORTH TO INQUIRY INTO THE OPERATION OF THE FILMS VIDEOS AND PUBLICATIONS CLASSIFICATION ACT 1993

The Chairperson, Government Administration Committee, Parliament Buildings, Wellington

1. This submission is presented by Peter McKenzie QC and Paul Rishworth who were counsel for the appellant before the Court of Appeal at the hearing of the appeal in [2001] 3 NZLR 570 ("Living Word"). That case dealt with important issues concerning the extent of the jurisdiction to censor material under thec Films, Videos and Publications Classification Act 1993 (the "Films Act") and the impact on that function of the right to freedom of expresion and the right to freedom from discrimination in ss 14 and 19 of the New Zealand Bill of Rights Act 1990 ("BOR").

2. In this submision we will direct our attention to questions raised by the Committee in relation to the two Court of Appeal cases - [2000] 2 NZLR 9 and the case.

3. The Moonen Case

It is a misconception to regard this case as threatening the deeming provisions of s2(3) of the Films Act. The approach taken by the Court of Appeal in to the interpretation of the Films Act is the same approach as the Court requires to be taken when interpreting any statute where one of the rights under the BOR is in issue. What the Court of Appeal said in was that the words "promotes or tends to promote or support" in relation to the "exploitation of children or young persons, or both for sexual purposes" are words that, like any other words in the statute, need interpretation and in that process the Courts must have regard to the Bill of Rights. The Court of Appeal rightly corrected the High Court's view that the Films Act could over- ride the right to freedom of expression in the BOR.

4. It is quite wrong to regard the case as in some way allowing greater freedom for child pornography. It does not. The Court was doing no more than ensuring a proper approach to interpretation of any statute where rights under the BOR are in issue. There is no reason to amend the Films Act because of anything said by the Court of Appeal in . Now that we have a Bill of Rights in New Zealand it is the function of the courts to see that all statutes are interpreted consistently with the BOR. To limit the courts in the exercise of that function would be unwise and dangerous.

5. The Living Word Case and the gateways to the censorship jurisdiction in the Films Act.

In Living Word the Court of Appeal held that for material to be "objectionable" and so be subject to the censorship function in the Films Act the material must come within one of the five gateways in the Act or be an activity closely related to those matters. The five "gateways" are sex, horor, crime, cruelty or violence.

The Court of Appeal considered that these gateways serve an important function in limiting the censorship function to certain prescribed activities "as the matters dealt with tend to point to an activity rather than to the expression of opinion or attitude" (p 581). Furthermore-

"Parliament could never have intended that a simple test of injurious to the public good could be used to ban discussion of any subject". (p 581)

6. It would involve a major inroad into freedom of expression to widen the scope of the censorship function beyond the traditional areas of depicting sex and violence encompassed by the five gateways in s 3(1) of the Act and to link into s 3(1) the matters dealt with in s 3(3)(e). What in effect the respondent [the Human Rights Action Group] in the Living Word case was seeking was the right on the part of the censor to ban forms of harm which lie not in some form of depicting, debasing or degrading activity, but in the hearing of or the promotion of ideas - in particular ideas which the majority may consider to be wrong and harmful. If a book or film is to be subject to censorship because it depicts a person in some respect as being inherently inferior eg by reason of age, disability, sexual orientation, religion, economic circumstances or any of the other of the grounds in s 21 of the Human Rights Act, then the width of the censorship function and the range of material open to examination by the censor is greatlt enlarged. This would be a matter of very great concern in a democratic society. It is no doubt for this reason that the legislation of most democracies limits the censorship function to the traditional areas of depicting sex and violence.

7. It is significant that even the present width of the New Zealand censorship legislation, by reason of the breadth of the definition of "objectionable" in the Films Act, has ben criticised by the Human Rights Commission of the UN which receives country reports under the International Covenant on Civil and Political Rights. The Commission in paragraph 180 of its "Concluding Observations" expresed concern at the vagueness of the term "objectionable publication" in the Films Act.

8. It is important to recognise that he freedom of expression carries with it the freedom to express views which are erroneous, misinformed, opinionated, bigoted and even completely wrong. Any talk-back radio programme is ample evidence of this. Once the censo is charged with responsibility for determining whether opinions are so incorrect or warped as to be harmful, then our society will have surrendered to a government official the power to determine the appropriateness of the views people are permitted to articulate. It is similarly important to recognise that the fredom of expression carries with it the freedom to campaign to change current political opinion and even opinion on highly unpopular issues which the majority may have decided are beyond debate. The Living Word case is an example of the desire of a minority group [the Human Rights Action Group] to close off debate on contentious views with respect to their lifestyle and moral acceptability of their conduct and ilustrates the danger to freedom of debate when this receives the support of the censor. The two videos in this case were banned for all ages by the Film and Literature Board of Review for reasons which included claimed misinformation in the videos and the treatment of the homosexual lifestyle, in somewhat strident terms, as morally legitimate.

9. The Committee has raised the question whether the Office of Film and Literature Classification should clasify material and whether the Films Act should be amended to provide a penalty for hate speech. It should be made clear at the outset that these videos were not "hate material". None of the seven judges (2 in the High Court and five in the Court of Appeal) involved in the Living Word case regarded the material as being hate material. Indeed, in various ways, every judge to have condsidered these videos made it clear that he would not have banned them. The videos were, as Thomas J described them "essentially political tracts". They fell very far short of coming within the description of being hate propaganda intended to incite hatred and violence against a section of the community. As Grant Huscroft in a comment on the case in the NZ Herald of 19 September stated, it is quite wrong to regard the Court of Appeal in overturning the Board's decision as in some way protecting hate propaganda.

10. We agree that material which promotes violence against any section of the community should not be permitted in a democratic society. Sanctions already exist in the criminal law to penalise conduct which is directed at the dissemination of that kind of material. In particular sections 3 and 4 of the Summary Offences Act 1981 penalise conduct involving the incitement or encouragement of a person to behave in an offensve or insulting manner likely to cause violence against persons or property or to use in a public place or within hearing of a public place words intending to insult or offend a person.

11. The law does not go further in the case of racial discrimination. Material which incites racial hatred is penalised in the Human Rights Act. In this respect Parliament in New Zealand, as in a number of other democratic societies, has treated racial hatred as having such a potential for creating disorder and provoking deep divisions within society that it has outlawed freedom of expression in this area of speech. The majority judgment in the Court of Appeal in at p 582 pointed out that international prohibitions of hate propaganda:

"have remained confined to the categories of race and religion; and that hate propaganda is not seen as syunonymous with more anti-discrimination protections".

There are in our submission sound reasons for limiting such protection to racial discrimination and making no greater inroad into freedom of expresion in relation to other minority groups referred to in the Human Rights Act. Social, political, economic, regious and moral attitudes differ, sometimes quite sharply, in relation to all of these other protected groups. To stiffle even ill-informed and distorted discussion or promotion of views on matters where there are such diverse attituides is inconsistent with he open nature of New Zealand society. If one of these groups is singled out for protection as against others, again sharply diverging views will emerge. As has become the case with the blasphemy laws in most modern democratic societies, to give one group in society the protection of its parlicular sensitivities as against freedom of expreesion on the part of others is to allow for a distortion of the freedom of expresion generally permitted in an open society.

12. The difficulties which are created and the important policies which are in issue in endeavouring to ban "hate propaganda" are well illustrated by the Supreme Court of Canada decision in Ross v New Brunswick School District [1996] 1 RC 827.

Penalising hate material should be distinguished from censorship.

13. It is, however, a big step from saying that hate propaganda should be penalised after the event, to saying it should be censored before the event as a prior restraint so that persomns can never see it. If these video's classification had not been challenged for example, we would never know that the Board had banned publications that The Court of Appeal later held to be both unlawful and inconsistent with fredom of expresion to ban. A prior restraint is a serious business. We know of no international precedent for a censorsip power outside of obscenity and official secrets.

14. The difficulties to which such a serious power would lead are exemplfied by the case in which the videos were described by the Board in a manner that greatly overstated.

15. Are we so confident that we are right in our views that we can ban dissent? Are we so confident we are right that we think we have to? In the end, freedom of expression is there to protect the right to say things, even if the majority might disagree with them. As an open democratic society, it is fundamental that we safeguard that freedom. To quote again from Grant Huscroft's column "Minority groups have everything to fear from censorship and almost nothing to gan."

Peter McKenzie QC.

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