Recently a tragic terror attack in Sydney prompted the Australian government to urgently review its hate speech laws. The on-going debate about protection from hate speech and hate-motivated crime raises questions about New Zealand’s laws. Below we explain what the law currently provides, how it applies, and its limits.
There is a limited form of hate speech law in the Human Rights Act 1993. This protects against racist speech directed toward a group of people because of their colour, race, ethnic or national origins. For it to apply the words used must be threatening, abusive or insulting.
Hate speech under the Human Rights Act is a crime where there is “intent” to excite hostility toward a group because of their colour, race, ethnic or national origins. Similar speech which is not intended to excite hostility is not a crime but may be actionable as a civil claim if it is “likely” to excite hostility against a group of people based on their colour, race, ethnic or national origins.
Hate-motivated criminal offending, whether speech is involved or not, will be treated by the courts as more serious and heavier penalties will apply.
Other laws maybe used in ways that have a chilling effect on speech, for example, where complaints are made against regulated professionals under official codes of conduct. However, these are not hate speech laws.
What does the criminal law say about hate speech?
Section 131 of the Human Rights Act makes it a criminal offence to use threatening, abusive or insulting speech 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 colour, race, ethnic or national origins.[1]The penalty for an offence is a term of imprisonment not exceeding 3 months or a fine not exceeding $7,000.
However, before a prosecution proceeds, the Attorney-General must give consent. This is a safeguard to ensure only appropriate cases proceed. In practice, prosecution is rare.
When the Royal Commission of Inquiry into the Christchurch Mosque Attacks considered the current law, they found only three relevant cases and only one was a criminal case. The Commissioners said the law established a high threshold; they doubted that implied threats towards Muslim immigrants would trigger criminal investigation. The Commissioners thought it was unclear whether making already hostile groups more hostile would be caught by this provision. Further, immigration is a legitimate subject for public debate. In those circumstances substantial allowance for freedom of expression would likely be made in any prosecution.[2]
What does the civil law say about hate speech?
Section 61 of the Human Rights Act creates civil liability where a person uses threatening, abusive or insulting speech “likely” to excite hostility against or bring into contempt any group because of their colour, race, ethnic or national origins. Unlike the criminal offence in section 131, there is no requirement to show intent.
This section applies whether words are published, distributed or broadcast, or used in a public place or any place where it is known the words are likely to be published or broadcast.
Complaints about potential breaches may be investigated by the Human Rights Commission.[3] If complaints are unresolved at the investigation stage, a person may lodge a civil claim with the Human Rights Review Tribunal. A civil claim may include a claim for compensation or other orders to prevent or address a breach.[4]
In the leading case,Wall v Fairfax, cartoons published in a newspaper which depicted Māori and Pasifika people in a negative way did not meet the test of “likely to excite” because the outcome required is the effect the behaviour has on other groups and their attitudes, not the impact it has on the groups targeted.[5]
The court said the word “likely” means a “real and substantial risk that the stated consequence will happen”.[6]To “excite hostility” or “bring into contempt any group” refers not to the speech itself but an objective assessment of the likely effect on the minds of others. [7] An objective test asks whether a reasonable person, aware of the context and circumstances, would take the view that the speech was likely to expose a protected group to hostility or contempt from others.[8]
Evidence that Māori and Pasifika people had suffered from stress and anxiety because of the cartoons was therefore technically irrelevant. There was also no evidence that the cartoons had excited hostility or contempt in anyone. On the contrary, the debate around the cartoons had identified that many people held views which were the opposite of the cartoons’ depictions. In those circumstances the court considered the cartoons themselves had little likelihood of altering attitudes and behaviour in others.
The court also thought only “relatively egregious examples of expression” would meet the legislative test as freedom of expression is to be given considerable weight.[9]
What about other types of hate speech?
Existing hate speech law under the Human Rights Act only applies to racist speech. Sections131 and 61 of the Human Rights Act were enacted to give effect to New Zealand’s international commitments to address racial discrimination under the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and the International Covenant on Civil and PoliticalRights (ICCPR). At the time there was no obligation to consider hate speech directed towards groups on other grounds like sexual orientation, religion or disability.
A recent Court of Appeal case challenged the limited scope of protection against hate speech.However, the court made it clear that only parliament can extend the law to protect other groups from hate speech. As recently as 2023 a proposal to extend hate speech law to protect groups on grounds other than race was rejected. A link to our case note about the Court of Appeal decision is here.
What about free speech rights?
The New ZealandBill of Rights Act (NZBORA) protects fundamental rights and freedoms, including freedom of expression.[10]Freedom of expression refers to the right to express a view, share information, or opinions of any kind.
The Human RightsCommission says freedom of expression is one of the essential foundations of a democratic society because it protects the right of all people to share information, debate ideas and express opinions.[11]
Sometimes what people say can be challenging, unpleasant, and even offend some people, but generally their right to say it is protected by the NZBORA. Freedom of expression under NZBORA may only be restricted in law if it serves an important purpose, the right is limited no more than is necessary and the limit is a proportionate response to potential harm.
In New Zealand, the existing hate speech laws have largely adopted the approach taken overseas which emphasises that the suppression of repugnant ideas is not the aim of hate speech legislation. It is the negative effects of hate speech which is the target of legislative restriction.[12]
What about hate-motivated behaviour?
Under the Sentencing Act 2002 any criminal offence, whether speech is involved or not, may be considered by the courts to be more serious if it is hate-motivated.
The Sentencing Act provides that where an offence is committed because of hostility towards a group of people because of their race, colour, nationality, religion, gender identity, sexual orientation, age or disability, that hostility is an aggravating feature of the offending and an increase in penalty may be applied to the sentence.
The New Zealand Police flag incidents of hate-motivated crimes in their systems so that the relevant information is available when sentencing an offender.[13] Up until the end of 2024, the police also captured information about speech which was suspected of being hate-motivated even where no crime was committed. That practice stopped following a review by police and systems have since been updated to clarify that hate-motivation is not an offence on its own; a crime must be committed for the police to keep records about it.[14]
The UK police had followed a similar practice of recording ‘hate’ incidents which were not crimes up until a judicial review in 2021. In that case the court held the practice interfered with freedom of expression and described it as having a chilling effect on the individual concerned in the case and public debate in general.[15]
Conclusion
New Zealand’s current laws on hate speech are limited in their scope, and freedom of expression is given significant weight.
This explainer offers general information only. It is not legal or other advice and should not be relied on as such. Examples are given only to illustrate the law and the issues. If you have questions or need assistance with a particular situation, we’d love tohear from you at contact@ethosalliance.nz.
[1] Section 131 of the Human Rights Act 1993.
[2] RoyalCommission of Inquiry into the Terrorist Attack on Christchurch Mosques on 15March 2019, Companion Report: “Hate speech and hate crimerelated legislation,” 26 November 2020, 27.
[3] Section 79 of the Human Rights Act 1993.
[4] Sections 92I and 92M of the Human Rights Act 1993.
[5] Wall vFairfax NewZealand Limited [2018] NZHC 104.
[6] Wall vFairfax NewZealand Limited [2018] NZHC 104, [61].
[7] Wall v Fairfax [2017] NZHRRT 17, [191.3].
[8] Wall vFairfax NewZealand Limited [2018] NZHC 104, [51].
[9] Wall vFairfax NewZealand Limited [2018] NZHC 104, [56].
[10] Section 14 of the New Zealand Bill of Rights Act 1990.
[11] Human Rights Commission, Korero Whakamauahara: Hate Speech, December 2019, 8.
[12] Wall vFairfax NewZealand Limited [2018] NZHC 104, [48].
[13] Section 9(1)(h) of the Sentencing Act 2002 makes hate motivation an aggravating feature of anyoffence if it is partly or wholly committed because of hostility towards agroup of persons who have an enduring common characteristic such as race,colour, nationality, religion, gender identity, sexual orientation, age ordisability.
[14] See NZ Police, “Hate motivated crime,” https://www.police.govt.nz/advice-services/advice-victims/hate-motivated-crime,last accessed 9 March 2026.
[15] R (Miller) College of Policing [2021] EWCA Civ 126, [102].
