# Freedom of Expression Legislation Bill

The Parliament of New Zealand enacts as follows:

### 1. Title

This Act is the Freedom of Expression Legislation Act 2020.

### 2. Commencement

This Act comes into force on the day after the date on which it receives the Royal assent.

### 3. Purpose

The purpose of this Act is to make amendments to multiple enactments to better protect human rights outlined in the New Zealand Bill of Rights Act 1990.

## Part 1 - Amendments to the Summary Offences Act 1981

### 4. Principal Act amended

This Part amends the Summary Offences Act 1981 (the principal Act).

### 5. Section 3 replaced (Disorderly behaviour)

Replace section 3 with the following:

>### 3. Disorderly behaviour
>
>Every person is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000 who, in any public place, behaves, or incites or encourages any person to behave, in a riotous, threatening, or disorderly manner that is likely in the circumstances to cause violence against persons or property.

### 6. Section 4 replaced (Offensive behaviour or language)

Replace section 4 with the following:

>### 4. Disorderly or threatening behaviour or language
>
>(1) Every person is liable to a fine not exceeding $1,000 who, in any public place—

> * (a) behaves in a disorderly or threatening manner; or

> * (b) addresses any words to any person intending to threaten or abuse that person.

>(2) Every person is liable to a fine not exceeding $500 who, in any public place, addresses obscene words to a child.

>(3) It is a defence in a prosecution under subsection (1) if the defendant proves that he had reasonable grounds for believing that his words and acts would not be excessive in all the circumstances pertaining at the material time.

## Part 2 - Amendments to the Flags, Emblems, and Names Protection Act 1981

### 7. Principal Act amended

This Part amends the Flags, Emblems, and Names Protection Act 1981 (the principal Act).

### 8. Section 11 amended (Offences involving New Zealand Flag)

In section 11(1), omit paragraph (b).

## Part 3 - Amendments to the Human Rights Act 1993

### 9. Principal Act amended

This Part amends the Human Rights Act 1993 (the principal Act).

### 10. Section 61 amended (Racial disharmony)

In section 61(1)(a), omit " or insulting" in each instance.

### 11. Section 63 amended (Racial harassment)

In section 63(1)(b), replace "hurtful or offensive" with "abusive and harmful".

## Part 4 - Amendments to the Harmful Digital Communications Act 2015

### 12. Principal Act amended

This Part amends the Harmful Digital Communications Act 2015 (the principal Act).

### 13. Section 12 amended (Threshold for proceedings)

In section 12, replace subsection (2) with the following:

>(2) In any case, the District Court must not grant an application from an applicant referred to in section 11(1)(a), (b), or (c\) for an order under section 18 or 19 unless it is satisfied that—

> * (a) there has been a threatened serious breach, a serious breach, or a repeated breach of 1 or more communication principles; and

> * (b) the breach has caused or is likely to cause harm to an individual; and

> * (c\) the breach or breaches are not in the public interest.

### 14. Section 19 amended (Orders that may be made by court)

In section 19, insert a new subsection (7):

>(7) However in doing anything under this section, the District Court may not do anything which would impede any expression or communication of material where it remains in the overall public interest, considering all relevant circumstances, for such expression or material to exist in its present state of availability.

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**Explanatory Notes**

**General Policy Statement**

This bill makes amendments to several separate enactments to enhance the right of free expression currently outlined in the New Zealand Bill of Rights Act 1990. It will remove the act of being offensive in a public space as a criminal offence and increase the threshold for the commission of various public order offences. It will decriminalise the defacement of the New Zealand flag, which is often an act of political expression. It will decriminalise insulting speech under the Human Rights Act 1993. Finally, it creates explicit protection for "public interest content" within the Harmful Digital Communications Act 2015. These changes will create a less arbitrary set of laws and promote a greater amount of expression, both by expanding the scope of the law and by reducing any "chilling effects" which may come about from the restriction of free expression.

**Section by Section analysis**

Section 1 is the title section

Section 2 is the commencement section. It provides for the bill to come into force immediately after it receives Royal Assent

Section 3 is the purpose section.

Section 4 outlines the Act that Part 1 amends (the Summary Offences Act 1981).

Section 5 replaces section 3 of the Summary Offences Act 1981 to remove references to insulting or offensive conduct.

Section 6 replaces section 4 of the Summary Offences Act 1981 to decriminalise the use of insulting words in a public space and tighten obscenity provisions to only cover the case where children are involved.

Section 7 outlines the Act that Part 2 amends (the Flags, Emblems, and Names Protection Act 1981).

Section 8 repeals the paragraph in the Flags, Emblems, and Names Protection Act 1981 which makes dishonourably treating the New Zealand flag a crime.

Section 9 outlines the Act that Part 3 amends (the Human Rights Act 1993).

Section 10 decriminalises insulting speech in the context of s 61 of that Act.

Section 11 sets a higher standard for what constitutes harmful speech under s 63 of that Act.

Section 12 outlines the Act that Part 4 amends (the Harmful Digital Communications Act 2015).

Sections 13 and 14 create public interest protections for content that may be subject to that Act.