New Zealand abolished the crime of blasphemous libel in 2019, but a renewed debate over extending hate-speech protections to religion has raised a harder question: can the law protect religious people from hatred without protecting religious ideas from criticism or ridicule? Iranian-born lawyer and Free Speech Union Council member Samira Taghavi warns that the distinction can disappear once the state is given power to police offensive religious speech.
Report by eLocal
A debate New Zealand appeared to have settled seven years ago has returned in a different form.
Parliament repealed the criminal offence of blasphemous libel in 2019. The old section 123 of the Crimes Act disappeared on the basis that the state should not be in the business of protecting religious doctrine from criticism.
Nobody is currently proposing simply restoring section 123.
Instead, the argument is now about whether religion should be added to New Zealand's existing laws restricting speech intended to excite hostility against, or bring into contempt or ridicule, protected groups.
That distinction is crucial.
Supporters of extending the law argue that the objective is protecting religious communities from serious hatred, not shielding Christianity, Islam, Judaism or any other belief system from criticism.
Opponents argue that once religion becomes a protected characteristic within broadly worded speech offences, the practical distinction between attacking people and attacking their beliefs can become extremely difficult to maintain.
That disagreement was explored this week when The Platform's Michael Laws interviewed Samira "Sammy" Taghavi, an Iranian-born former criminal lawyer and Council member of the Free Speech Union.
Taghavi's perspective is unusual because she has lived and practised law under a state in which religious orthodoxy and criminal law were intertwined.
Her warning is straightforward: laws created with benign intentions can eventually be used in ways their original supporters never anticipated.
What Does New Zealand Law Actually Say?
The starting point is considerably narrower than much of the political debate suggests.
Sections 61 and 131 of the Human Rights Act 1993 currently concern racial disharmony.
Section 61 makes certain threatening, abusive or insulting public expression unlawful where it is likely to excite hostility against, or bring into contempt, a group because of its colour, race, or ethnic or national origins.
Section 131 creates the criminal offence of inciting racial disharmony.
It applies where a person intentionally seeks to excite hostility or ill-will against, or bring into contempt or ridicule, a group on those same racial or ethnic grounds through threatening, abusive or insulting expression.
Religion is not presently included in those provisions.
That is the change advocates including the Federation of Islamic Associations of New Zealand have sought.
The issue therefore isn't whether New Zealand already has a general criminal offence prohibiting criticism of religion. It does not.
The question is whether Parliament should extend an existing restriction on racial expression to religious belief.
FIANZ Has Explicitly Sought Religious Protection
FIANZ's position deserves to be represented accurately.
The organisation has long argued that the Human Rights Act should extend its incitement provisions to religious communities.
In its submission to the Royal Commission following the Christchurch mosque attacks, FIANZ argued that section 61 covered racial disharmony but not religious intolerance and hatred, and said this should be amended.
FIANZ has subsequently defended that position.
Its argument is that protecting religious groups against serious incitement would not prevent criticism, satire or ridicule of religions.
In a detailed report on freedom of expression and hate speech, FIANZ argued that New Zealand courts have already established a high threshold for unlawful expression and pointed to the High Court's approach in Wall v Fairfax New Zealand Ltd.
FIANZ's position is therefore not accurately described simply as demanding that Islam become immune from criticism.
It argues that people should remain free to criticise religious beliefs while the law protects religious communities against sufficiently serious expressions of hostility.
That distinction is the central proposition that must be tested.
When Does Protecting People Begin Protecting Ideas?
Taghavi argues that the boundary is inherently unstable.
"Religion should be open for mockery," she told Laws.
Her concern is not primarily that Parliament would enact a law explicitly saying Islam, Christianity or another religion cannot be criticised.
It is what happens when terms such as hate, harm, hostility, contempt, ridicule and offence are applied to disputes involving deeply held religious beliefs.
The distinction between a believer and a belief can become difficult in practice.
Consider two statements.
One advocates violence against Muslims because they are Muslims.
The other ridicules an Islamic theological teaching.
The first is directed against people.
The second is directed against an idea.
Most New Zealanders would probably recognise a substantial difference between them.
The difficult cases sit between those examples.
What happens when someone argues that a religious doctrine is dangerous?
What if someone claims that a religion encourages practices they regard as harmful?
What if a satirist ridicules a prophet, sacred text or religious practice?
What if believers argue that such criticism creates hostility toward them as people?
Those are precisely the circumstances in which the wording of legislation and the interpretation of courts become decisive.
New Zealand Already Abolished Blasphemous Libel
There is an important historical context.
Until 2019, section 123 of the Crimes Act contained the offence of blasphemous libel.
Parliament repealed the offence through the Crimes Amendment Act 2019.
The repeal reflected a basic liberal principle: religious ideas should not receive special protection from criticism simply because they are religious.
That does not mean religious people are without legal protection.
Threats, violence, harassment, vandalism and other criminal acts remain offences regardless of the victim's faith.
Hostility motivated by religion can also already matter when sentencing someone convicted of another crime.
The question now confronting lawmakers is whether New Zealand can go further in protecting religious communities without recreating, intentionally or otherwise, part of the principle Parliament rejected in 2019.
What the Law Commission Actually Recommended
The interview also raises the recent Law Commission review of hate-crime law.
This requires an important clarification.
The Commission did not recommend creating a new hate-speech offence protecting religion.
Its review focused on hate-motivated criminal offending, such as assault or vandalism committed because of hostility toward a victim's identity.
The Commission considered whether New Zealand should create standalone hate-crime offences.
It concluded that it should not.
Instead, it recommended strengthening the existing model under which hateful motivation can be recognised and denounced through the justice system, including at sentencing.
The distinction between hate crime and hate speech matters.
Punching someone because of their religion involves conduct that is already criminal.
Criticising that person's religion involves expression.
The first question is how an existing crime should be treated when motivated by religious hostility.
The second asks when speech itself should become unlawful or criminal.
They are fundamentally different exercises of state power.
Taghavi's Warning Comes From Iran
Taghavi's objection is informed by personal experience.
She grew up in Iran and practised there as a criminal lawyer before moving to New Zealand.
Iran's post-revolutionary experience provides an extreme example of what can happen when political and religious authority become intertwined.
Taghavi points particularly to the fate of Iranian left-wing movements that participated in opposition to the Shah and, in some cases, supported the revolution that brought Ayatollah Ruhollah Khomeini to power.
The new Islamic Republic subsequently turned against many of those groups.
During the 1988 prison massacres, thousands of political prisoners were executed.
Human Rights Watch has cited estimates ranging from approximately 2,800 to 5,000 victims, while Amnesty International has reported a minimum estimate of around 5,000.
Most were associated with the People's Mojahedin Organisation of Iran, but communists and other left-wing prisoners were also executed.
Taghavi's point is not that contemporary New Zealand resembles revolutionary Iran.
It plainly does not.
Her argument is about the durability of legal power.
Governments change.
Political majorities change.
Social attitudes change.
A censorship mechanism created by one political movement can eventually be controlled by another.
That proposition is difficult to dismiss simply because the circumstances of Iran and New Zealand are radically different.
The Strongest Argument for Reform
There is also a serious case on the other side.
New Zealand's current Human Rights Act creates an obvious distinction between racial and religious hostility.
Public expression deliberately designed to excite hostility against people because of their ethnicity may fall within sections 61 or 131.
Equivalent expression directed at people because of their religion may not.
That distinction became particularly significant after the March 15, 2019 Christchurch terrorist attacks, in which 51 Muslim worshippers were murdered.
FIANZ and other advocates argue that religious communities should not receive less protection from deliberate incitement than racial communities.
They also argue that extending the protected characteristics would not amount to blasphemy law because courts would continue to distinguish severe attacks on people from ordinary criticism of religion.
That is the strongest argument for reform.
It should not be confused with a demand that religious beliefs become immune from public scrutiny.
The Strongest Argument Against It
The counterargument concerns where the legal boundary would actually be drawn.
Section 131 does not refer only to threats or incitement to violence.
Its existing language includes an intention to bring a group into "contempt or ridicule" through threatening, abusive or insulting expression.
Extending those provisions to religious belief would therefore require lawmakers and ultimately courts to decide when abusive or insulting criticism involving a religion crosses the threshold into unlawful hostility toward its adherents.
That is where the blasphemy concern arises.
A law does not need to contain the word blasphemy to have consequences for speech about religion.
Equally, the mere inclusion of religion in an incitement law does not automatically make that law a prohibition on blasphemy.
Everything depends on the wording, threshold, prosecutorial safeguards and interpretation.
That is why slogans from either side are inadequate.
The Political Question Is Returning
The previous Labour Government announced in 2022 that it intended to extend sections 61 and 131 of the Human Rights Act to religious belief.
That proposal was not ultimately enacted.
The current law therefore remains limited to colour, race, and ethnic or national origins for these particular provisions.
The political argument has not disappeared.
Religious organisations and civil-liberties groups are again mobilising around the issue, and the Free Speech Union has launched a campaign opposing what it describes as the reintroduction of blasphemy law through hate-speech legislation.
Taghavi is among those campaigning against such a change.
The dispute is likely to become increasingly important as New Zealand approaches another election.
People or Beliefs?
The underlying question can be reduced to a principle that both sides of the debate must confront.
Religious people possess rights.
Do religions?
A Muslim has the same right as every other New Zealander to personal safety, equal treatment before the law and freedom to practise a religion.
The same applies to Christians, Jews, Hindus, Sikhs, Buddhists, atheists and everyone else.
But Islam, Christianity, Judaism and every other belief system contain propositions about morality, history, human behaviour and the nature of reality.
Those propositions inevitably compete.
Protecting freedom of religion therefore also requires protecting the freedom to reject religion.
A Christian must be free to say Islam is wrong.
A Muslim must be free to say Christianity is wrong.
An atheist must be free to say both are wrong.
And religious people must remain free to argue that atheism is wrong.
The hard question is not whether any of those statements might offend somebody.
They almost certainly will.
The question is when speech stops being an argument about ideas and becomes unlawful conduct directed against people.
Will This Make New Zealand Stronger?
Will this in fact make New Zealand stronger? That cannot be answered merely by attaching either hate speech or free speech to the proposal.
A stronger New Zealand needs both religious freedom and freedom of expression.
It needs Muslim New Zealanders to be safe from genuine threats, intimidation and violence.
It also needs New Zealanders to remain free to scrutinise Islam.
The same standard must apply to every religion.
The decisive test for any future legislation should therefore be whether it targets demonstrable conduct against people while leaving beliefs, doctrines, institutions, sacred texts and religious figures open to peaceful criticism, rejection, investigation, satire and ridicule.
If Parliament cannot draft that boundary clearly enough for an ordinary citizen to know what remains lawful, the resulting uncertainty becomes a restriction in itself.
People begin censoring themselves before any prosecution occurs.
New Zealand abolished blasphemous libel in 2019 because the criminal law should not determine which religious ideas may be challenged.
Any future hate-speech proposal should therefore face a simple but demanding test.
Protect the person.
Do not make the belief untouchable.
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