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The Christchurch mosque attacks made us more aware of intolerance

24 April 2019

Chief sensor David Shanks has classfied the manifesto of the alleged Christchurch attacks killer as objectionable

New Zealand is a liberal democracy with a Bill of Rights act that affirms democratic freedoms. These apply in all areas of life, including the workplace.

Citizens are guaranteed the right to freedom of thought, conscience and religious belief. This includes the right to adopt and hold opinions without interference.

More significantly for our purposes, the act provides that everyone has the right to freedom of expression including freedom to seek, receive and impart information and opinions of any kind in any form.

The Bill of Rights Act does state that the rights in the act are subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The tragic killings in Christchurch drew attention to an insidious online culture of intolerance, resulting in censorship of various websites, forums and materials.The tragic killings in Christchurch drew attention to an insidious online culture of intolerance, resulting in censorship of various websites, forums and materials.

Most notably, chief censor David Shanks classified the manifesto of the alleged killer objectionable, making it illegal to possess or share.

It is common in times of crisis for governments to actively censor materials that feed into the very crisis they are tackling.

In an employment context, the 1951 Waterfront Dispute is a good example. It became a criminal offence to possess what the government viewed as anti-government literature.

The dispute on the waterfront saw troops working the wharves and new labour recruited to do the watersiders' work.

No doubt the watersiders felt that the government had the sympathetic ear of the mass media and the only way to get their side of the story across was through unofficial publications and leaflets. However, unfortunately for the watersiders, these were illegal.

Following the atrocities in Christchurch there has been a government clamp down on hate speech, particularly online. Communities and individuals have responded to the attacks with calls for increased tolerance and acceptance.

In April a group of business leaders took a stand against racism publishing an open letter calling other New Zealand businesses to join a commitment for a better, safer and more inclusive New Zealand. The signatories committed to creating a culture where words, behaviours and systems that directly or indirectly discriminate against people, are not tolerated.

Chief human rights commissioner Paul Hunt praised their efforts and stated that employers have a crucial role in making sure that workplaces are safe and inclusive environments free from discrimination in all forms.

Certainly, our Human Rights Act prohibits discrimination on the grounds of race, ethnicity, sexual orientation and religious belief both inside and outside of the workplace.

Further, an employer is obliged to investigate and take practicable steps to respond to sexual and racial harassment in the workplace when they are made aware of it.

If employers are seeking to moderate the language used by their employees outside of work, one avenue for them is to include a social media clause.

When rugby player Israel Folau made inflammatory social media posts last year, Rugby Australia sought to insert such a clause into the player's employment contract, but they could not reach agreement.

Therefore, in the wake of Folau's latest controversial social media posts, Rugby Australia must instead rely on the code of conduct signed by the player, which may be more difficult to apply than a specific social media clause.

Alternatively, employers can rely on the duty of fidelity owed by employees which includes the duty not to bring the employer into disrepute, however, the courts have been careful in making decisions that impinge on freedom of expression.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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