The crucial difference is that under s131, the offender must intend to “excite hostility or ill will” – a tougher legal test than under s61. Prosecution under s131 also needs the consent of the Attorney-General. But lawyers agree that the legal threshold is high under both sections of the Act. And the wording in both sections is open to varying interpretations, effectively leaving it to the courts to determine precisely what is meant by words such as “threatening” or “likely to excite ill will”.

The courts also have to weigh extreme language against the Bill of Rights Act, which grants everyone “the freedom to seek, receive, and impart information and opinions of any kind in any form”.

These are complex issues that the judiciary has had surprisingly little chance to clarify. There has been only one recorded case of a criminal prosecution for what might now be termed hate speech, against far-right activist Colin King-Ansell in 1979. He was prosecuted under the former Race Relations Act, which had similar wording to the present statute, for distributing a pamphlet that was held to vilify Jews. He was sentenced to three months in prison but appealed and ended up paying a $400 fine.

Complaints made under the Human Rights Act usually relate to alleged discrimination (for example, in jobs and housing) rather than offensive speech, and are dealt with by the Human Rights Commission.

The commission has no power to make rulings, but offers mediation between the complainant and the person complained about. If complainants are dissatisfied with that process, they can go to the Human Rights Review Tribunal, a quasi-legal body that functions independently of the commission.

This was the course followed last year when Labour backbencher Louisa Wall, the MP for Manurewa, brought a complaint under s61 against newspaper publishing group Fairfax Media (now Stuff) over the publication of two Al Nisbet cartoons that Wall says portrayed Māori and Pasifika people as “welfare bludgers and poor parents who were preoccupied with smoking, drinking and gambling”.

When the tribunal upheld Fairfax’s right to publish the cartoons, Wall – who is Māori – appealed to the High Court in a landmark case, the first such complaint ever dealt with by the court under s61.

In a judgment seen as significant in the evolution of the law relating to what might be termed hate speech, the court agreed that the cartoons were insulting – a point conceded by Fairfax. But it stopped short of finding that they were likely to bring Māori and Pasifika into contempt or excite hostility against them.

Now, Wall is looking at the possibility of drafting legislation that would impose a “duty of care” on media organisations not to publish or broadcast such material – a move guaranteed to alarm free-speech advocates.

Confronting hate

Is the current legal framework adequate to deal with hate speech, however it might be defined? As with many things, it depends who you ask.

The Listener spoke to several prominent academics who argue against new laws to regulate hateful speech. Professor Ursula Cheer, dean of law at the University of Canterbury and author of the authoritative Burrows and Cheer Media Law in New Zealand, believes there are already appropriate remedies in the Human Rights Act, and she thinks it’s right that the threshold for legal action should be high. Crucially, she believes the balance in law between freedom of expression and limitations on harmful speech is “about right”.

“Politicians are cautious about limiting free speech and I think they’re right to be,” says Cheer. “We live in a democracy and you must be very careful about crimes that could encompass more speech.

“You have to be careful about how you define it, and you have to be careful about how you prosecute it and how it’s interpreted, if it ever gets to court. The state can use these sorts of offences to control people.”

Auckland University of Technology history professor and free-speech advocate Paul Moon is emphatically against tougher restrictions on what we can say.

“Some people believe that the mere fact of them finding something offensive means it constitutes hate speech and there should be some regulation or prohibition, which is very dangerous because all it then takes is for them to claim they were offended for the speech to be regulated or put under threat,” says Moon.

Comments that some people deem to be hateful, he says, may be seen by others as quite necessary and truthful.

Moon opened up a new front in the debate last year when he initiated an open letter, signed by a broad cross section of high-profile New Zealanders, warning that freedom of speech was under threat in New Zealand universities. The 27 signatories came from both sides of the political divide and included Sir Geoffrey Palmer, Dame Tariana Turia, Don Brash and Sir Bob Jones.

The letter was triggered by a controversy at the University of Auckland in which a group calling itself the European Students Association claimed it had been forced to disband because of threats of violence against its members. The signatories argued that ideas should not be suppressed just because they were thought to be offensive or wrong-headed.

It was possibly no coincidence that the letter also followed a speech in which the then Race Relations Commissioner, Dame Susan Devoy, called for the Government to review hate-speech law, suggesting that free-speech arguments could too easily become a cover for threatening and harmful language.

Moon accuses the Human Rights Commission, of which Devoy was a member until her recent retirement, of wanting to tighten the rules governing what people can say – a claim the commission rejects.

Massey University sociologist Paul Spoonley is another who questions the need for tougher hate-speech laws. This is very much Spoonley’s territory as he has written extensively about ethnic minorities, and earlier in his career he researched neo-Nazism in Britain and white supremacist groups in New Zealand.

Spoonley, who chaired the “Hate and the Internet” forum, is concerned about the proliferation of extreme comment on the internet, but doesn’t believe the solution lies in stricter legislation.

In Spoonley’s view, the best response to hate speech is to get it out in the open where it can be confronted and countered. “For me, having worked with extremist groups, there is no point in having legislation or policies that drive them underground.