Freedom of Speech: If it ain’t broke, don’t fix it

By Thomas Harré

Certain elements of New Zealand’s political class are trying to tamper with the architecture of free speech in New Zealand.

As I’ve said previously: If it isn’t broken, don’t fix it.

Freedom of speech is central to a functioning democracy. Yes, it allows people who one might disagree with to have their piece said, but it serves the broader purpose of stirring debate.

This is a balancing act. As a society, we have to maintain the fine line between competing bundles of rights – “freedoms to” vs “freedoms from” (sometimes referred to as positive and negative liberty). In New Zealand, people have a right to say what they want. They also have a right to be free from discrimination. At the fringes, these rights can come into conflict with one another.

There are clear lines of demarcation between free speech and the criminal offences associated with inciting racial disharmony, or obscene behaviour. Parenthetically, the question of whether it is the role of the State to proscribe standards of obscenity might be left for another day.

A person charged with one of these offences is entitled to rely on the protection of the right of free speech under the Bill of Rights Act 1990, and have that right weighed up in balance by a Court.

In a sense, this is an academic issue. There don’t appear to have been prosecutions – either successful or unsuccessful under section 61 of the Human Rights Act (criminalising the inciting racial disharmony). The offensive behaviour provision of the Summary Offences Act carries a minor penalty only. New Zealand’s Law Society has written about it here.

Nonetheless, academic is not the same as irrelevant. Law must protect all parts of society – vulnerable or not. To call for the abolition of the Human Rights Commission is simply bizarre, and suggests a privileged worldview totally out of touch with reality. The efforts of some politicians to manipulate this key principle in order to score political points is absurd.

Thomas Harré

Barrister, LawAid International Chambers