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Canadian humans Lauren Southern and Stefan Molyneux.
Canadian humans Lauren Southern and Stefan Molyneux.

SocietyJuly 11, 2018

The law and Southern-Molyneux: even terrible, no good people have rights

Canadian humans Lauren Southern and Stefan Molyneux.
Canadian humans Lauren Southern and Stefan Molyneux.

If you think there’s an easy answer on the whole Lauren Southern/Stefan Molyneux saga, law professor Andrew Geddis reckons you probably haven’t thought about it hard enough.

Up until about a week ago, I and most of New Zealand hadn’t the faintest clue who Lauren Southern or Stefan Molyneux were. Having better things to do than mine the seamier veins of the internet, I still haven’t really engaged in any depth with this pair of Canadian alt-right provocateurs’ “message” (such as they have one beyond “let’s make a buck from owning the libs”).  

However, following Auckland Live’s decision to cancel their booking of the Auckland Council-owned Bruce Mason Centre for a speaking event – a decision that Mayor Phil Goff had a big hand in – it seems like everyone is required to have an opinion on them and their right to perform before a paying crowd.

So, Mayor Goff thinks they “spout racist nonsense” and shouldn’t be allowed to use council property to do so. Winston Peters thinks Goff was wrong and that they should have been allowed to speak as originally planned. Simon Bridges thinks that Goff was “entitled” to do what he did, but the pair still should be allowed to visit NZ and speak someplace else. Various other MPs also took to twitter to give their views.

(For the sake of clarity, Southern and Molyneux haven’t been barred from entering New Zealand. After the venue cancellation was announced, the event’s promoter quickly pulled the plug on their Auckland visit.)

And now it seems the High Court will have to form its opinion of the issue, with news that the “Free Speech Coalition” plans to seek a judicial review of the decision to cancel the booking. That elevates the matter from being a mere point of passionate Twitter debate to something a little more meaningful.

Let’s start by acknowledging that the little I know of their views and how they express them makes me pretty sure that The Spinoff’s readership would not be a particularly sympathetic audience for their message. They certainly wouldn’t be welcome at any dinner party I might hold.

But that’s not the test that the court will apply, nor should it apply, when deciding if some public expression ought to be allowed. And if you think an “only people Andrew would like to have dinner with may speak in public” test is an appropriate one, just note that I probably wouldn’t want to have dinner with you either.

What test should instead be used for dividing allowable from not-allowable speech? That’s a hard question, and anyone who says there’s an easy and clear answer to it also isn’t someone I want to have dinner with. Here, as I see them, are the issues that will have to be worked through by the court.

First of all, the council can’t escape this particular problem by arguing that Southern and Molyneux’s rights haven’t really been affected. Mayor Goff’s claim “[it’s] my right, and councils’ right, to deny them a venue” to speak in simply isn’t correct if he means that he can pick and choose at will which speakers may use council-owned property for expressive purposes.

At the risk of lapsing into legalese, the council’s actions when hiring out its venues to speakers are captured by both the NZ Bill of Rights Act 1990 and the Human Rights Act 1993. Those enactments prevent the council from making venue hiring decisions (including cancellations) that “unjustifiably limit” freedom of expression, or that discriminate on the basis of political opinion. Auckland Live – the council’s company that manages the venues – can’t then contract out of those legal obligations.

Consequently, Mayor Goff’s decision (put into practice by Auckland Live) most likely will be found to be unlawful unless there is some sort of “demonstrably justified” reason for preventing Southern and Molyneux from speaking at the council’s venue. Does any such reason exist?

Well, in its statement on the matter, Auckland Live pointed to “security concerns around the health and safety of presenters, staff and patrons” for the cancellation. And, yes, there were promises from Auckland Peace Action that Southern and Molyneux would be “confront[ed] in the streets”, including “blockade[d] entry to their speaking venue.” And, yes, Auckland Live has legislatively imposed health and safety obligations to its staff and those using its premises.

But protest actions at controversial events are hardly unprecedented. For example, in May of this year Auckland Peace Action (peacefully) protested outside of the Israel Day event held at the council-owned Silo Park. Should the mere threat of a protest then have been grounds for Mayor Goff and the council’s Panuku Development organisation to pull the Jewish community’s right to use that space? What if Auckland Peace Action decides that having the Miss Auckland 2018 competition at the Bruce Mason Centre is so great an affront to women that it must be stopped?

For such are the dangers in allowing the threat of an angry mob to be a sufficient reason to take away a person’s right to speak. Granting such a “heckler’s veto” actually incentivises violent responses to things you disagree with – if you want to shut someone up, then simply make a big enough fuss about the fact that they get to speak.

So, in a decision that ironically involved the now-spokesperson for Auckland Peace Action, Valarie Morse, the Supreme Court had this to say about what is expected of those exposed to speech with which they disagree:

[64] … A reasonable person, in a context involving freedom of expression or another right guaranteed by the New Zealand Bill of Rights Act, must surely be a person who is sensitive to such values and displays tolerance for the rights of the person whose behaviour is in question. In other words, the hypothetical reasonable person (of the kind affected) is one who takes a balanced, rights-sensitive view, conscious of the requirements of s 5 of that Act and therefore is not unreasonably moved to wounded feelings or real anger, resentment, disgust or outrage, particularly when confronted by a protester.

It is not right, therefore, to say that it is justifiable to prevent speech that provokes an outraged or even violent response. Rather, such responses have themselves to be justified, in that the speaker’s message goes beyond what an appropriately tolerant citizen of our democracy ought to have to put up with.

Which is where, I think, we get to the real issue at hand. Mayor Goff, and I’m guessing lots of people reading this, argue that there simply isn’t any requirement to have to tolerate Southern and Molyneux’s proclivity to “attack people on the basis of their faith and ethnicity and … set out deliberately to provoke them.” Such “racist hate speech” altogether falls outside of the sphere of acceptable public discourse.

It seems to me that the courts reaction to this claim will rely on two things.

First, just how bad are the things that Southern and Molyneux go around saying? As I said at the outset, I haven’t spent much time looking into this for myself. But accounts are that they have a pretty racisty-vibe about them (as well as being transphobic and generally awful). And it is true that Southern has been excluded from the United Kingdom (but not criminally charged) for her anti-Muslim actions there.

(But then again, the United Kingdom also indicated that Edward Snowdon would be refused entry should he ever try and travel there. So, can we use “not welcome in the UK” as a reliable test for whether or not a person’s views should be allowed to be heard in this country?)

Second, even if it turns out that Southern and Molyneux’s past statements and behaviour put them within at least spitting distance of being actual Nazis, should that fact be enough to say it is legitimate to silence them? Well, as we saw with the High Court’s ruling earlier this year on Al Nisbet’s terrible, terrible cartoons, our law sets a pretty high threshold for finding that some offensive speech rises to the level of prohibited “hate speech”.

But then, look who that threshold gets set by. It’s perhaps all too easy to proclaim the general need for tolerance and acceptance of “offence” by others when you’re in a privileged and protected social position. For, as Saziah Bashir wrote for Radio NZ’s website; “While some may be able to engage with the likes of Southern on a detached, academic discussion, her views and her actions are actually physically and emotionally harmful.

Should we as a society then impose such asymmetric costs; requiring some social groups to repeatedly carry an especial burden in order to produce the asserted benefits that a “robust and uninhibited” free speech culture is alleged to produce? But, if we are going to mark out some social groups as requiring greater protection from the effects of speech, how do we do so and who gets to decide just who they are? And how do we stop such protection from expanding to capture expression that we might think ought to be allowed? For example, is there a legal test that would protect Muslims from invidious attacks by the likes of Southern and Molyneux yet would not also risk banning the public display of “Piss Christ”?

Like I said, these are not easy questions to answer. I’m not one hundred percent certain what the answers should be in Southern and Molyneux’s case. And I think anyone who sees it as a simple one for the court to resolve probably hasn’t thought about it hard enough.


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It is unknown how many of Stats NZ’s stick figures completed the census
It is unknown how many of Stats NZ’s stick figures completed the census

SocietyJuly 10, 2018

Stats NZ under fire over ‘very serious’ shortfall in digital first census data

It is unknown how many of Stats NZ’s stick figures completed the census
It is unknown how many of Stats NZ’s stick figures completed the census

Statistics NZ has conceded that the 2018 census response rate may be down by almost 5%, sparking concerns that some groups might not be captured by the survey. It has also led to a delay in the release of first results till March next year, and an apology from the government statistician

The 2018 Census, conducted using a much heralded “digital first” model, has fallen short, with the announcement of a 4.5% decline in responses, a rethink on methodology and a delay in the issuing of results.

The need for further “imputation”, in which supplementary information is used in an attempt to plug the census gaps, has raised concerns that some groups of New Zealanders could be unsatisfactorily captured in results.

The shortfall, enough to require what Stats NZ called a “revised methodology to compensate for the missing data”, invites fresh questions about the wisdom of emphasising online responses in 2018, with the old-fashioned door-knock approach only used as a follow-up.

The announcement came in a paper published late last week by Statistics NZ, titled “2018 Census: Potential impacts of revised methodology”. It confirmed the announcement – largely unreported – that the census had seen a significant drop in response. “Interim figures show that we have full or partial information for at least 90% of individuals, compared with 94.5% for the 2013 Census,” the paper explained.

While the target for issuing first results had been October 2018, that had been pushed back. “Because individual responses are lower than we had planned, we need more time than we’d originally anticipated to draw on other information sources and new methods to achieve the highest quality dataset … We are now looking towards a first release of census data in March 2019.”

Indications of a 4.5% drop in response were “very serious”, said Thomas Lumley, professor of statistics at the University of Auckland. “The point of the census is that it’s complete, and it’s what you benchmark everything else to. Ninety per cent is really not good.”

Statistics NZ said that in some cases it will need to draw on “information from the 2013 Census and administrative data to populate missing variables”. Among the “administrative data” sources used for imputation are the Department of Internal Affairs, MBIE, the Department of Labour, the Ministry of Education and Inland Revenue.

“The government has a lot of data on nearly everyone,” explained Lumley.

“Anyone who has for example paid taxes or got medical care or immigrated or anything like that, there are records the government has. And a lot of that data is linked together in the Integrated Data Infrastructure [IDI] …

“Suppose you need to know somebody’s income. If you know their age, and where they live, and their occupation, that gives you a range of plausible incomes, and you can either do a best guess or you can have multiple plausible values, which accounts for the uncertainties, and that lets you fill in quite a bit of information,” he said.

“It helps that the administrative data is fairly complete. But there is going to be some people who are double counted and some aren’t counted at all. The real problem is if there are groups who are poorly represented – if for example there are particular ethnic groups or particular age groups who are missed more often. If you’ve got a small minority group and a 10% hole, you can lose quite a lot of people into it. So it depends how good the coverage of the administrative data is to get the counting right.

“To some extent some vulnerable groups will be captured quite well, because the IDI has more data on them. So people on benefits, for example, the IDI will probably capture quite well. But some other groups may be underrepresented.”

The full impact would not be measurable in the short-term, said Lumley.

“The thing about imputation is while it can work really well, it’s very hard to tell how well it has worked in a particular setting … In five years’ time, looking at this data retrospectively, assuming the next census works better, they’ll be able to redo imputation and look retrospectively, and then the data will improve. But the next five years it’s going to be lower quality data, and we won’t know where it’s lower quality.”

Lumley said it was unknown whether the digital first approach was to blame for the drop in responses.

“What it may reveal is that they tried to save too much money with digital-first. Because if you’re going to do a census at all, it’s worth paying to get it right. There’s a lot of value to a good census and much less value to a not very good one.”

Government statistician Liz MacPherson acknowledged there were shortcomings in the “digital first” approach, in which the census was predominantly conducted online, with the traditional door-knockers coming into play only a follow-up phase in an attempt to reach those who had not responded, and issued an apology to those who struggled with the new system.

“While we can’t be sure yet why we have a lower response from individuals, there are a number of factors we will explore as part of our planned review. We already know we didn’t get everything right,” she said in a statement.

“We built new systems and processes to run this census, and while the majority of New Zealanders were able to take part without a hitch, we know that some people did not have a good experience this year. I have had mixed feedback from people. For some it was the easiest census ever; for others it has been a frustrating experience. For that I am sorry.

“As with every census, we will be undertaking a full independent review to ensure we can make improvements next time.”

In response to questions from the Spinoff, Statistics NZ said that a 4.5% figure was not yet reliable.

“It’s too early to confirm the final response rates yet. We expect to confirm the final response rate with our first Census data releases, scheduled for March 2019. In each census the final response and coverage rates are calculated by the Post Enumeration Survey which estimates the number of people the census should have counted,” it said in an email.

It added: “Stats NZ applies robust analysis and processing to the data to ensure it is accurate, and of high quality. The interim individual response rate we reported on was based on full or partially completed individual responses from field operational data.

Stats NZ said it was confident that the reduced census reponse would not make the data incapable of “accurately representing hard to reach groups”.

“We have been investigating the use of administrative data to complement census data for a number of years. This work underpins the revised methodology for 2018 Census and will deliver high quality data and high value data for our users,” it said.

Statistics NZ pointed out that there was “a long term, international trend of declining census response rates”. Because of this the 2018 Census “has a strategic objective to make more use of administrative data to improve the quality of census data”.

Asked whether the drop could be attributed to the digital-first shift, Statistics NZ said: “The digital-first approach was a big change for 2018 Census. We set a target of 70% online participation and our interim figures are showing that more than 82% of responses were online.”

Asked whether budget constraints had an impact on the drop in response, Stats NZ said: “We are undertaking a comprehensive review of the 2018 Census operation to gain a full understanding of why people did or didn’t respond. This will include a review of the budget.

In last week’s paper, Statistics NZ described the chief advantage of a national census is that “data is available at a neighbourhood level and provides detailed characteristics of small population groups. For the 2018 Census we used a new model for collecting the information. We focused on online participation followed up with postal reminders and household visits for those who had not taken part on census day.”

It added: “One of the goals of the 2018 Census was to improve data quality while modernising. The objective was to ensure accuracy of national counts and reduce variation in subnational response rates. Our interim calculations show that we have not reached our target coverage rates of 94 percent or higher …  However, our interim calculations show full or partial information for about 90 percent of individuals. The interim response rate varies across subpopulations and small geographic areas. To be able to provide good-quality information for all subpopulations and small geographic areas, we need to have very high coverage and response rates across all of New Zealand.

“Given the interim position of individual response rates for the 2018 Census, we are looking at expanding our imputation approach. We are investigating how we can impute households, and cases of item non-response. Both item and unit imputation will improve data coverage and, occasionally, data quality, but not for all census variables. If we do not impute, there will be large amounts of missing data that will affect the overall quality of the dataset.”

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