Where should Freedom of Speech end?

by paige stephens

I Hate Crime | Where Should Freedom of Speech End?

The debate over hate crime laws strikes a difficult question: how can we protect people from hate without undermining the fundamental right to freedom of expression? This article considers whether New Zealand is restricting free speech too heavily, failing to do enough to prevent communities from facing the consequences of hate crimes, or striking a balance between these conflicting issues.

II The New Zealand Bill of Rights Act 1990 (NZBORA)

The NZBORA 1990, though not entrenched, is a well-respected document and reflects New Zealand's commitment to the International Covenant on Civil and Political Rights (ICCPR), which New Zealand ratified in 1978. Article 20 of the ICCPR states that advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. This suggests that limits on expression should be applied when it crosses the line into inciting discrimination or creating a hostile and violent environment.

Section 14 of the NZBORA protects the right to seek, receive and impart opinions. At the same time, the Act also protects individuals’ rights to be free from discrimination (s 19), manifestation of religion and belief (s 15), and freedom of association (s 17). The issue at hand is that protecting freedom of expression inherently conflicts with the above rights when expression discriminates or intrudes on one's beliefs or assembly. Inversely, imposing restrictions on expression to protect these rights is inherently at odds with freedom of expression.

III Hate Crimes Defined

Hate crimes are criminal offences committed against a victim because of a prejudice or hostility toward their specific social group. Incidents of hate crimes appear to be on the rise in New Zealand, with 3452 reported incidents in 2021, rising to 5918 in 2025. 4 out of 5 incidents are based on race or ethnicity, followed by sexual orientation, which makes up to about 1 in 10 incidents. So, what are New Zealand's laws doing to protect society from these traumatic attacks on identity?

IV New Zealand's Hate Crime Law Structure

New Zealand currently has no specific hate crime law. Instead, New Zealand's Sentencing Act 2002 provides that committing an offence against someone because of their race, colour, nationality, religion, gender identity, sexual orientation, age, or disability is treated as an aggravating factor that can increase the severity of a sentence or the time imposed. 

However, s 61 of the Human Rights Act 1993 features 'racial disharmony' as a form of discrimination. Section 61 lays out that it is unlawful to (a) publish, distribute or broadcast words that are threatening, abusive, or insulting; or (b) use such words in public places; or (c) use words or images on media devices that are threatening, abusive, or insulting. It is important to note that the words or material used must be ‘likely to excite hostility or bring contempt to any group based on colour, race, ethnic or national origins’. Not only does this enactment exclude broader bases of hate crime, such as sexual orientation and gender, but the high threshold required also raises questions of potency. 

In Moonen v Film and Literature Board of Review, the Human Rights Law Centre recognised that s 61 of the Human Rights Act establishes a high threshold for an offence under s 131 (Inciting racial disharmony). As stated by the Human Rights Commission, because of the importance of freedom of expression, mere offensiveness is not enough. This means s 61 strictly applies to extremely racist speech or material that provokes extreme ill intent, or is likely to result in the targeted group being harmed. The problem is that this is a tough variable to measure, meaning harmful and targeted hate can easily go dismissed—a clear issue with New Zealand's current system.

V So—What is the Urge for Protecting Freedom of Speech?

An interesting but contentious argument to note in support of freedom of expression is that it protects unpopular ideas. While these ideas are commonly extremist and harmful to others, historically, crucial developmental expressions were unpopular, such as women's rights, LGBTQ+ rights, and Māori land rights. Though admittedly, this is a dangerous perspective. While it is foundational in a democracy for ideas to be expressed so that society can evolve, the specific targeting of hate, often protected by measures intended to safeguard broader democratic expression, poses a particular risk. 

A key issue is the difference between what freedom of expression intends to protect and what it actually broadly encompasses. How do we draw the line at what becomes unacceptable in a functional society while remaining democratic? How do we encompass people's differing social norms into these standards? The easiest thing to do is nothing, which is the current approach of many governments. This leaves it to the courts to determine what is appropriate on a case-by-case basis.

VI The Importance of Protecting Against Hate Crime

With the uprising of politically charged anti-migration figures such as Tommy Robinson, Nigel Farage, Donald Trump, and Brian Tamaki, targeted hate is becoming more normalised and dismissed as mere expressions of belief. The question I ask is: if an expression is causing harm and fear amongst communities, should it be permitted to be shared on public platforms? 

As suggested by The Bureau Investigates, the media plays a central role in promoting hate, as headlines and policies demonise migrants and asylum seekers every day. The further uprise of far-right influencers also plays a significant part, with studies showing that exposure to hate online increases violence, victimisation, and the perpetration of hate speech. More concerningly, people exposed to hate content fail to show revulsion toward it, explaining why some perceive it as harmless and therefore oppose regulating freedom of expression.

The Bureau Investigates also makes an important note of the weaponisation of violence against women being used to spread fear and hate about immigrants. This weaponisation is deeply concerning for both women and migrants, as male violence against women is committed predominantly by men known to the women and by men from every background. Instead of addressing the issue, prominent anti-migration figures disguise this predominantly 'men' issue as a 'migrant' issue. This not only harms people of differing ethnic origins but also invalidates the women of our communities who face persistent hate and sexual injustice, which is ultimately strategically redirected as a campaign of hate. The most interesting part of this all is that anti-migration figures paint this targeted campaign as an attempt to 'protect women', when in fact, it persistently undermines and dismisses the ugly truth of the constant, disregarded harassment that women face.

So—protecting against hate crime runs deep. It is about protecting our communities, our women, our workers, and most importantly, everyone who calls this country home.

VII Key Issues and Recommendations

As identified by the Law Commission, several key issues exist with New Zealand's current hate crime structure, which are limiting the effectiveness of prohibiting hate-motivated crime. First of all, judges are not required to clearly communicate that an offence was a hate crime, meaning hate crimes may not be consistently denounced. Furthermore, no process exists to ensure the courts are aware that an offence may have been a hate crime. This may mean some offenders are not held fully accountable for the severity of their offence.

The Law Commission suggests that a hate crime flag be included in court records. This would allow the police to indicate that the aggravating factor may apply, requiring judges to record this on the court record during sentencing. The Law Commission also recommends adding 'sex' to the list of protected characteristics in the Sentencing Act to protect women from misogynistic hate crime.

While these recommendations would be beneficial for the current state of hate crime laws, root issues still need to be addressed. The threat of hate crime currently outweighs the benefits of the freedom to express harmful and offensive ideas. It is beneficial for New Zealand to make racial disharmony under s 61 of the Human Rights Act a lower threshold to meet. This would better ensure the capture of hateful acts or speech and the denunciation of such conduct. This is extremely important due to the connection between hate speech and hate crime.

VIII Conclusion

Overall, New Zealand's current laws fail to appropriately protect against hate crimes. The time to address this is now, as crime based on prejudice and hostility continues to rise. So, while freedom of expression is indisputably important for a free and democratic society, the protection of New Zealand’s people is ultimately more important, and should be addressed appropriately.