2 Aug 2018

Grant Morris: The history of free speech in New Zealand

From Afternoons with Jesse Mulligan, 2:34 pm on 2 August 2018

Those attempting to quash freedom of speech tend to come down on the wrong side of history in the end, legal history expert Grant Morris says. 

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Photo: 123RF

Controversial right-wing proponents Lauren Southern and Stefan Molyneux are speaking at a sold-out venue in Auckland on Friday, sparking fears they will incite racism*. 

Their talk comes after a disagreement over Auckland Council’s decision to ban them from its public venues nearly went to the High Court

The conflict drew supporters from left and right wing alike to each side, with a group forming in support of freedom of speech, while others said the message the pair was spreading amounted to hate speech

Lauren Southern and Stefan Molyneux.

 Lauren Southern and Stefan Molyneux have been accused of spreading what amounts to hate speech.  Photo: Supplied.

Senior law lecturer at Victoria University of Wellington Grant Morris says New Zealand has traditions and laws of protecting freedoms of speech and expression. 

“As with many Western democracies there’s a strong presumption that freedom of speech and freedom of expression will be protected. 

“It comes through our common law tradition which we inherited from Britain and have built on, also statute law and in particular … the Bill of Rights Act 1990 which specifically protects freedom of expression, information and opinions.” 

He says we also have curbs on certain freedom of expression. 

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Photo: flickr - Newtown grafitti

“Under the human rights act 1993 there are what are effectively provisions that prevent hate speech, so for example section 61 on racial disharmony

“So, our law tries to have a balance.”

He says there are a number of examples scattered throughout New Zealand’s history of attempts to shut down freedom of speech

Example 1: Parihaka, 1881 

Dr Morris says Parihaka is one of the defining symbolic moments of New Zealand’s history - and perhaps the worst, most awful example of an attempt to shut down freedom of expression. 

Rangi Kipa swings a purerehua (Māori musical instrument) at the Taranaki settlement of Parihaka ahead of the Crown's formal apology for the military invasion of 1881.

 Rangi Kipa swings a purerehua at Parihaka to gather the spirits ahead of the Crown's arrival for the apology for past injustices. Photo: RNZ / Robin Martin

“I think there’s an argument to say that with the Treaty, and with female emancipation in 1893, Parihaka is one of the defining moments … of the 19th century. 

Read more about Parihaka: 

“It’s always been symbolic, especially to Māori and to people from that region, but for New Zealanders in general it’s becoming even more symbolic. 

“What we have at Parihaka is the inspirational leaders Te Whiti o Rongomai and Tohu Kākahi [both Te Āti Awa] speaking out against government policies and Māori land loss. 

“They’re doing it in a forthright way, very clearly, very eloquently, in a non-violent way, but they’re really getting on the government’s nerves through this exercise of their rights of free speech and freedom of expression. 

“The government decides that it’s going to shut it down, that it’s too dangerous, that it doesn’t like that these leaders, this community, is putting this message out into the public.” 

About 1600 government troops invaded the settlement on 5 November 1881.

Armed Constabulary units at Parihaka, 1881

 Armed Constabulary units at Parihaka, 1881 Photo: Alexander Turnbull Library, Parihaka Album Reference: PA1-q-183-19

Many women in the settlement were raped and assaulted,  the village was destroyed, o Rongomai and Kākahi were arrested and detained without trial for 16 months.

Dr Morris says the invasion backfired. 

“Maybe not so much in the short term, but definitely beyond that. 

“We now see Parihaka as one of the symbolic moments of New Zealand’s history and we see the leaders as heroes and the government trying to shut them down … as the villain.  

“Part of what’s going on here is a message being shut down by authority and one of the themes that come through this … is it nearly always backfires." 

Example 2:  World Wars and Strikes 1914-1951 

Dr Morris says World War I and World War II both involved heavy government control of free speech.

“Emergency provisions are brought in by governments, and part of that is to restrict the freedom of expression and the freedom of speech, it’s basically a censorship regime.” 

New Zealand Prime Minister Peter Fraser in 1946.

New Zealand Prime Minister Peter Fraser in 1946. Photo: Public Domain

Dr Morris says similar emergency provisions were also used in times of peace. 

“In the 1951 waterfront strike … the government brings in what are basically wartime regulations to break the strike - again, one of which includes shutting down freedom of expression.” 

He says that while historical examples are often of conservative or right-wing authorities or groups shutting down progressive or left-wing voices. 

“But that’s not necessarily the case with these wartime examples.

“The wartime leader in World War Two … Peter Fraser, who was not only is the Prime Minister of the Labour Party but was also imprisoned during World War One for exercising free speech speaking out against conscription. 

“He does a backflip during World War Two and becomes - many would argue by necessity - the person who actually manages a censorship regime.”

It’s interesting, however, that things seem to have changed of late. 

“Many of the examples we’re seeing in the West at the moment are showing left-wing groups ... trying to shut down right-wing voices. 

“So, we still have this ongoing theme of censorship versus freedom of expression but it may be that the political slant has changed, for now anyway.” 

Example 3: 1935 - Uncle Scrim

Dr Morris says the final example is of Colin Scrimgeour.

“People of  a certain age and who knew this period well will remember Uncle Scrim … a methodist minister, a leading broadcaster - so one of the early big voices on radio during the 1930s - and he also happened to be a labour supporter. 

“On the eve of the 1935 election … he’s about to deliver a talk which it’s rumoured is going to be a call to vote labour, and the broadcaster’s jammed, it’s shut down. 

Colin 'Uncle Scrim' Scrimgeour, famous NZ symbol of free speech during the 1935 election

 Colin 'Uncle Scrim' Scrimgeour, famous NZ symbol of free speech during the 1935 election. Photo: Te Ara / Public Domain

“The rumour is that it’s carried out by the New Zealand postal service on the orders of the conservative coalition government. 

He says this is yet another example of an attempt to shut down free speech backfiring - this time in the short term. 

“It’s argued that this is one of the things that contributed to Labour’s landslide victory very soon after that broadcast which didn’t go ahead. 

He says Scrimgeour was also another example of a lefty who later backed a more authoritarian stance. 

“Colin Scrimgeour was actually a supporter or an advocate for some of what was happening in CHina under Mao Zedong, and we know that was a very repressive regime which very much shut down freedom of expression. 

“This is the trouble when you start out as a radical often wanting your freedom of expression protected … like Peter Fraser, is sometimes that can change.” 

* This article was published before Southern and Molyneux's event in Auckland was cancelled by the venue after a public outcry.