Proposed changes to hate speech laws have been called a threat to free speech and to democracy itself. But is that really true? George Driver attempts to demystify what the proposed law would make an offence – and what it wouldn’t.
Within days it had descended into the haze. On Friday the government released its long awaited proposal to change hate speech laws. But every time a politician opened their mouth the implications of the law seemed to become muddier.
David Seymour claimed the proposal would see “petitions and lynch mobs demanding police prosecute people with unpopular views” and “make people too afraid to express valid opinions”. Judith Collins said the changes would see the prime minister “erode our democracy and control our speech”. Justice minister Kris Faafoi said it could “potentially” be illegal to bag boomers. To cool things down, prime minister Jacinda Ardern erroneously suggested the law would only apply to those who incite violence, and then had to walk back that claim.
While the debate has rapidly descended into farce, the origin of the proposed law is deadly serious. It is the result of a royal commission of inquiry into the Christchurch mosque shooting, which investigated how the March 15 attack occurred and how it could have been prevented. Its findings were released in December, and along with a raft of recommendations, it said New Zealand should change its hate speech laws. It found Muslim communities had experienced assaults, offensive and threatening behaviour and intimidation based on their religion and New Zealand had become tolerant of this kind of abuse. So the commission called for law changes to address hate crime and hate speech because “an inclusive society must act against behaviours that are harmful and divisive”.
Currently there are five statutes that may apply to hate speech, but the commission found they all have limitations. In particular, the commission took aim at the Human Rights Act 1993, which it said was unclear and ineffective at regulating hate speech; it recommended making changes to two sections of the act.
The act currently makes hate speech a criminal offence (section 131) if it is directed towards a group on the basis of colour, race, ethnicity or nationality. If you use “threatening, abusive, or insulting” words with the “intent to excite hostility or ill-will against, or bring into contempt or ridicule” one of these groups then you can be sentenced to up to three months prison or a $7000 fine.
There is also a civil offence (section 61) which has a slightly lower bar, applying to “matter or words likely to excite hostility against or bring into contempt” one of these groups (emphasis added). Complaints under section 61 are generally dealt with by the Human Rights Commission or the Human Rights Review Tribunal, rather than the police, and they can issue a restraining order or award up to $350,000 in damages.
But the commission found the laws were “not practicable to enforce” because, basically, the wording is woolly and the courts and police have been reluctant to prosecute people.
There has only been one prosecution under section 131, in 1977 (under a predecessor act). This involved the founder of the National Socialist White People’s Party of New Zealand, Durward Colin King-Ansell, who was found guilty after distributing 9000 antisemitic pamphlets containing pictures of Hitler and quotes from Mein Kampf. He was sentenced to three months’ prison, but that was later reduced to a $400 fine on appeal.
Under the civil law (section 61), there have only been two claims, the last of which, in 2014, was brought by Labour MP Louisa Wall, who said an Al Nisbet cartoon was racist. The Human Rights Tribunal dismissed the complaint, finding that while the cartoon was “objectively insulting”, it was not likely to excite hostility or bring Māori or Pasifika people into contempt.
As a result, the royal commission has recommended tightening up the law – that’s right, it recommended making the wording stricter so it would apply to a narrower range of language. It said the Wall case showed the existing law was so broadly defined and the threshold for hate speech so low that it “unacceptably impinges on the right of freedom of expression”. So it proposed sharpening the wording of the law and raising the bar. It recommended replacing the words “hostility”, “ill-will”, “contempt” and “ridicule” with the word “hate”, and replacing the arcane word “excite” with the word “stir up” – so you would break the law if you stir up hatred towards certain defined groups. It also recommended making it an offense to “maintain and normalise hatred”, because under the current wording it might not be illegal if you “preached hate to the converted”.
The existing law also only applies to racism – or speech relating to “colour, race, or ethnic or national origins” – and doesn’t cover hate speech targeting Muslims or other groups. So the royal commission recommended expanding these “protected characteristics” to include religion. It also recommended moving the criminal offence in section 131 to the Crimes Act – a symbolic gesture to put hate speech laws alongside other serious crimes.
It also noted the existing law wasn’t consistent with the UN’s International Covenant on Civil and Political Rights, which says “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law” (emphasis added).
So to summarise, the royal commission called for a law that has existed for decades, and has almost never been used, to be refined to capture a narrower range of hate speech and changed to apply to religious groups, rather than just applied on the basis of race and nationality.
Which brings us to the government’s proposal, released for consultation on Friday. It more or less accepted the commission’s recommendations, while arguably going a little further to liberalise the law. Rather than just expanding the groups protected under the law to religious groups, it also included protections for groups based on gender, sexuality, disability, marital status, employment status, family status, age and political opinion (see the full list here). It also proposed increasing the punishment for the criminal offence to up to three years imprisonment or a $50,000 fine.
It’s important to note that there are some safeguards in the law. Any criminal prosecution must be approved by the attorney general, who can in theory filter out frivolous claims, while civil claims can be settled during mediation by the Human Rights Commission.
So how would this law apply in practice? This is the crux of the debate. It is not clear. It is easy to let your imagination run wild with situations where a person could intentionally stir up, maintain or normalise hatred towards a political group or an age group in ways that seem trivial rather than criminal. This was highlighted when Tova O’Brien grilled justice minister Kris Faafoi over just what would and would not be illegal under the law. Would expressing hatred towards house-hogging boomers break the law? “Perhaps,” he said. Could Israel Folau be imprisoned for tweeting that unrepentant homosexuals would be condemned to hell? He “could be,” Faafoi said. The prime minister has also done little to clarify how the law would apply, erroneously implying on the AM Show on Monday that it would only apply to language that incites abuse and violence and that political opinions would be exempt under the proposal (they are not).
The opposition also hasn’t helped clarify the situation, claiming the law will “restrict and regulate the words that come out of our mouths” (as a reminder, the law already exists in regards to racism and in an arguably looser form). Judith Collins claimed it is already a crime to incite violence and “these draconian proposed laws” won’t plug a hole in the law.
However, University of Otago law professor Andrew Geddis says that’s not entirely true. While it is already a crime to incite specific acts of violence (like calling on people to torch someone’s house) and it is a crime to threaten to kill specific individuals, he says it is not currently illegal to threaten to kill members of a general group.
“We saw this play out very recently in relation to a YouTube video where a guy threatened to ‘slaughter Māori people’,” Prof Geddis says. “The police initially couldn’t arrest him for this, until the Classification Office deemed the video to be ‘objectionable’ – then they could arrest and charge him for making an objectionable publication.
“This approach is a bit of an end-run around the limits in the Crimes Act, but it depends on the speech in question being a ‘publication’ (i.e. not simply verbal in nature) and rising to the level of being ‘objectionable’ under our censorship legislation.”
While some of the criticism of the proposed changes has been misinformed and misleading, there have also been more considered critiques. Victoria University of Wellington senior law lecturer Eddie Clark questions the quite radical expansion of the groups the hate speech laws apply to.
“Including things like political opinion and employment status seems quite odd to add as a hate speech provision,” Clark says. “The one that particularly worries me is political opinion, because you want to have robust political disagreement… and you wouldn’t want to risk capturing that within hate speech legislation.”
By contrast, he says the Harmful Digital Communications Act has a much narrower criteria, only applying to communication that denigrates people based on “colour, race, ethnic or national origins, religion, gender, sexual orientation, or disability”.
He says while the wording of the law will be a fine balancing act, that doesn’t mean it’s not worth doing.
“I think there is something compelling about the case that the state should have the back of minority groups who are the target of genuinely disgusting speech that incites hate against them,” Clark says. “So I think it’s important that this is done and that it’s calibrated right. But ultimately it’s a question of what we want society to be and having the institutions and creating the society where people don’t find that sort of discourse acceptable.”
Ironically – tragically – the debate about the proposed law may be generating the kind of behaviour it is designed to stop. Islamic Women’s Council spokesperson Anjum Rahman says she is concerned debate about the proposal will see the Muslim community subject to further abuse.
“There is a danger that people will be unhappy with the law and then they will blame the Muslim community for it,” Rahman says. “One of our primary concerns is our community’s safety, just because of this debate. We’ve seen material, I’m not going to say who it was from, blaming the Muslim community for ‘trying to silence us’ and ‘stopping us from criticising their religion’. There were photos of victims’ families from Christchurch associated with that material. Like, people who had lost loved ones in the attacks. It’s very real.”
Despite this, she says she wants to see a “healthy debate” over the proposed changes.
“People have concerns. I think we should talk about them. We should see if this is the best wording… I think we can come to some sort of understanding, but it would be really great if we didn’t have this kind of politicisation of this and, again, the notion that people are just trying to silence criticism or offensive language.
“We know that hate speech can turn into hateful actions… Criminalisation is not going to solve all of that by any means, and it would be ridiculous to say these law changes are going to have a huge impact on the whole of the problem. But what I’m saying is it’s one tool and there should be some legal redress for the worst cases.”
But Rahman says she is still hesitant to have her say.
“It’s a conundrum for me. If I speak up about it then people will deliberately make it a Muslim issue, and if I stay silent then I don’t get to have my voice heard.”
And this goes to the heart of why the royal commission proposed the changes in the first place – to make New Zealand a more cohesive society “to help all people feel safe and welcome”. To create a society where people aren’t afraid to speak up because they will be targeted for their religion. To create a country where the kind of hate that led to March 15 will not be allowed to grow again.