User:Hannah.croucher/sandbox

The right to freedom of speech is not explicitly protected by common law in New Zealand but is encompassed in a wide range of doctrines aimed at protecting free speech . An independent press, an effective judiciary, and a functioning democratic political system combine to ensure freedom of speech and of the press .In particular, freedom of expression is preserved in section 14 of the New Zealand Bill of Rights Act 1990 (BORA) which states that:

“Everyone has the right to freedom of expression, including the right to seek, receive, and impart information and opinions of any kind in any form”.

This provision reflects the more detailed one in Article 19 of the ICCPR. The significance of this right and its importance to democracy has been emphasised by the New Zealand courts. It has been described as the primary right without which the rule of law cannot effectively operate . The right is not only the cornerstone of democracy; it also guarantees the self-fulfilment of its members by advancing knowledge and revealing truth . As such, the right has been given a wide interpretation. The Court of Appeal has said that section 14 is “as wide as human thought and imagination” . Freedom of expression embraces free speech, a free press, transmission and receipt of ideas and information, freedom of expression in art, and the right to silence . The right to freedom of expression also extends to the right to seek access to official records. This is provided for in the Official Information Act 1982.

Limitations

There are limitations on this right, as with all other rights contained in BORA.

“It would not be in society’s interests to allow freedom of expression to become a licence irresponsibly to ignore or discount other rights and freedoms” .

Under article 19(3) ICCPR, freedom of expression can be limited in order to:

• respect the rights and reputations of others; and
• protect national security, public order, or public health and morals.

Jurisprudence under BORA closely follows these grounds . Freedom of expression is restricted only so far as is necessary to protect a countervailing right or interest . The Court of Appeal has held that the restriction on free speech must be proportionate to the objective sought to be achieved; the restriction must be rationally connected to the objective; and the restriction must impair the right to freedom to the least possible amount . The right to freedom of expression may also be limited by societal values which are not in BORA, such as the right to privacy and the right to reputation.

Hate speech is prohibited in New Zealand under the Human Rights Act 1993 under sections 61 and 131. These sections give effect to article 20 ICCPR. These sections and their predecessors have rarely been used. They require the consent of the Attorney-General to prosecute. Incitement to racial disharmony has been a criminal offence since the enactment of the Race Relations Act 1971. Complaints about racial disharmony often concern statements made publicly about Maori-Pakeha relations and immigration, and comments made by politicians or other public figures regarding minority communities.

Freedom of the media

Freedom of the media is also recognised as an important democratic principle. New Zealand is ranked eighth on the Press Freedom Index 2010 and there tends to be strong legal, public and media comment where this right is infringed . Section 68 of the Evidence Act 2006 provides a qualified form of privilege for journalists who wish to protect the identity of their sources. The Court of Appeal has also laid down guidelines for the police when searching media premises for law enforcement reasons, so that their sources remain protected .

The Courts may order that publication of information be withheld in whole or part, in the interests of justice. Often this is to protect the right to a fair trial, to protect the interests of the parties, or to uphold public confidence in the integrity of the justice system . It is not uncommon for New Zealand Courts to suppress names and evidence in civil and criminal proceedings so as to protect the right to a fair trial.

"The law of New Zealand must recognise that in cases where the commencement of criminal proceedings is highly likely the Court has inherent jurisdiction to prevent the risk of contempt of Court by granting an injunction. But the freedom of the press and other media is not to be interfered with lightly and it must be shown that there is a real likelihood of a publication of material that will seriously prejudice the fairness of the trial ".

The Broadcasting Act 1989 is a statute limiting the media’s right to freedom of expression. Broadcaster’s have a responsibility to maintain programme standards that are consistent with: the observation of good taste and decency, the maintenance of law and order, the privacy of the individual, the principle of balance when controversial issues of public importance are discussed, and approved code of broadcasting practice applying to programmes . The Broadcasting Standards Authority is a Crown Entity that hears complaints from the public where codes of practice have been breached. Print news media are self regulated through the Press Council.

External links

• NZ Action Plan for Human Rights