Legal Beagle by Graeme Edgeler

1

Draft Submission: COVID-19 Response (Management Measures) Legislation Bill

Late last week, the Government introduced two further bills around the COVID-19 response, one the COVID-19 Response (Management Measures) Legislation Bill has a very short select committee process, which has meant I haven't been able to consider it fully. There was one matter I saw for concern, which is detailed in my draft submission below. Submissions are due tomorrow, so feel free to suggest amendments, or point out typos, etc.

This one is an odd one: it expands the power of the Government to delay local elections. The problem is that Parliament already did this in 2020, in earlier COVID response legislation and its first attempt had better safeguards. There's no mention of that law in any of the public documents (there aren't many) around this, almost as if the Department has forgotten it exists.

Submission below. Comments welcome. (Please ignore the numbering issues, it all looks fine in the CMS and the word doc I'm working in)

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The Finance and Expenditure Committee

COVID-19 Response (Management Measures) Legislation Bill

Submission of Graeme Edgeler

  1. This submission is made by Graeme Edgeler. I am a Wellington barrister with an interest in electoral law.
  2. I regret that I have not had the opportunity to consider the whole bill given the time made available for submissions, but my brief consideration of it raises concerns about one aspect of the bill: the proposed amendments to the Local Electoral Act 2001.
  1. This bill is a COVID-19 Response legislation bill. While I anticipate all members will accept that the response to COVID-19 might give rise to a need to adjourn a local election (for example due to a local authority being under level 3 or level 4 restrictions, limiting campaigning, voting and enrolment), this has in fact already been addressed: the COVID-19 Response (Further Management Measures) Legislation Act 2020 created COVID-related local election adjournment powers in the Local Electoral Act.
  2. No explanation has been given why these pre-existing COVID adjournment powers are considered insufficient. Nothing in the publicly available material around the bill seems to suggest that the Department even knows they exist.
  3. I am also concerned that an amendment of permanent effect, not limited to responding to the COVID-19 epidemic, has been included in an urgent COVID-19 Response legislation bill.
  4. I recommend that the Committee seek advice on the amendments to the Local Electoral Act and give consideration to:
    • 1. Applying the amendments to the 2022 local elections only;
    • 2. Limiting the effect of the amendments to the COVID-19 epidemic;
    • 3. Consider whether additional safeguards should be added, given the additional powers being given to the Minister.
  5. In particular, I propose that if the Committee considers there are deficiencies in the way the Local Electoral Act permits the Government to respond to the COVID-19 epidemic, it would be better to amend the adjournment power in section 73AB of the Local Electoral Act, rather than that in section 73A.

Adjournment of Local Elections in Emergencies

  1. The Local Electoral Act 2001 contains three powers to adjourn local elections:
    • 1. Section 73 gives a power to an electoral officer to adjourn (ie delay) the election for which they are responsible in the event of an emergency, such as a natural disaster, or adverse weather conditions. Adjournments are for a maximum of 14 days each, but repeated adjournments may be made.
    • 2. Section 73A (that proposed to be amended by the bill) covers situations where an emergency may prevent election processes being run fairly, and provides for an order-in-council to adjourn voting in local elections for up to six weeks if necessary. The section appears to apply a limit of one such adjournment.
    • 3. Section 73AB provides for an order-in-council process to adjourn elections due to COVID-19. The maximum length of an adjournment is six weeks, but subsequent orders, further delaying the election for up to six weeks at a time are permitted.
  1. Clause 4 of this bill would amend the general adjournment power in section 73A. The amendment is not limited to the responding to COVID-19 and unlike most of the other amendments proposed by this bill, is not a one-off:
    • 1. It does not apply only to the 2022 local elections.
    • 2. The changes it makes are permanent.
    • 3. The changes apply to all circumstances in which the section 73A power may be used, not just COVID-19.
    • 4. The only explanation given in the bill (no regulatory impact statement appears to be available) is that it will “provide more flexibility to delay triennial local elections..”.
  2. The explanation in the legislative statement is a little longer, but does not explain the rationale for this particular change:

Local Electoral Act 2001

The next triennial local elections are scheduled to take place on 8 October 2022. The Minister of Local Government proposes amending section 73A of the Local Electoral Act 2001 to extend the ability for the Governor-General, by Order in Council, to specify a later date or dates for key points in the process for triennial local elections in an emergency situation.

Currently section 73A of the Local Electoral Act 2001 only allows for an Order in Council to move key election dates up to 6 weeks after the date that would have otherwise applied. The Bill will allow one key election date dates to be extended further by up to 6 weeks at a time.

  1. It is true that the adjournment power in section 73A only permits one six-week adjournment (which the bill would change), but the adjournment power in section 73AB of the Local Electoral Act already allows for repeated[1] six-week adjournments if the reason for the adjournment is COVID-19. Given this, it is not clear why this amendment it thought to be necessary.
  2. It may be that the section 73A power, which applies, for example, during natural disasters, would be improved by allowing repeated adjournments. But such a change should be made in the ordinary way, following the ordinary regulatory assessment process, and not urgently, and in an un-related bill.

Any Concerns Should be Met by an Amendment to Section 73AB

  1. It is not clear what non-epidemic concerns have led to the proposal to amend the adjournment power in section 73A, rather than 73AB. But if the concerns are around COVID-19, then the bill should amend section 73AB instead. That section is headed “Adjournment of electoral processes and conduct of polls while epidemic notice in force for COVID-19”.
  1. The adjournment power in Section 73AB has several advantages over that in section 73A, in both its current and proposed forms. In particular, in dealing with COVID-19, the power imposes additional safeguards:
    • 1. It requires a notice under the Epidemic Preparedness Act to be in force (the bill would add a definition of emergency to include an epidemic, but would not actually require epidemic powers to be invoked).
    • 2. It is limited to the COVID-19 response, and the additional powers it contains expire[2] when the epidemic ends.
  2. With respect to COVID-19 related adjournments, section 73AB already provides the extra flexibility (repeated six-week adjournments) that is mentioned in the legislative statement as being the reason for the proposed amendment.
  3. If there are concerns that section 73AB will not cover the field, officials should elaborate on those concerns, and propose amendments to them to rectify the situation. There is no justification for addressing non-COVID concerns in an urgent COVID response bill, least of all one allowing only a few days for submissions.

Possible Amendments to Clause 4

  1. If the decision is made that the COVID adjournment powers are to be moved into section 73A, then the protections contained in section 73AB should be carried over:
    • 1. The additional powers should be limited to the COVID-19 response, and to the 2022 local elections.
    • 2. Use of the powers should be premised on the existence of an epidemic notice under the Epidemic Preparedness Act.
    • 3. The additional powers should have a sunset clause.

Conclusion

  1. I regret that I lack the legal knowledge to fully vet the remainder of the Bill in the time available, but having considered this matter, bring my concerns to you.
  1. Parliament has already given the Government powers to respond to the COVID-19 epidemic in section 73AB of the Local Electoral Act. No explanation has been given as to why those adjournment powers are deficient. For example, they already permit the flexibility of repeated six-week adjournments the Government says it need.
  2. Any concerns with this power should be addressed by amendment to section 73AB, not by making permanent amendments to section 73A, especially when those amendments are not limited to the COVID response.
  3. If there are non-COVID concerns behind the proposed amendment, then the Committee should recommend the amendments be removed from the bill, with the government advancing any desired changes them in the ordinary way and not as part of an urgent COVID response bill.
  4. I look forward to speaking to the Committee if time is available.

 

 

Graeme Edgeler

[1]     See Local Electoral Act s 73AB(10).

[2]     Local Electoral Act, s 73AC(1).

2

Not too late to make the Counter Terrorism Legislation Bill clearer

The Counter-Terrorism Legislation Bill was back from Select Committee last week, and got its second reading today.

My submission on the original bill is here. As I often am, I was more reticitent in pushing back that other submitters, largely focussed on asking the Justice Committee to assure itself the new law is needed. The specific questions I raised have been answered by officials, which is nice:

319. Graeme Edgeler (submission 71) asked four specific questions about the terrorist act definition amendments.

a. Question 1: Have there been occasions where the Government has looked at prosecuting something as terrorism, but decided against because of the current definition? The reason for the amendments is forward-looking to ensure that the definition can be relied on in future cases where it is appropriate to prosecute acts as terrorism (see the reasons given above for the proposed changes). There are no specific cases that have dictated the need for the suggested amendments.

b. Question 2: Has the Government not acted to declare a particular organisation a terrorist entity when it would have preferred to have done so, but formed a view that it fell beyond the current law? The answer to that question is no. However, for completeness, we note that the Terrorist Designations Working Group has considered whether some entities are eligible for designation and has determined that they are not under the current framework.

c. Question 3: Has the Government’s proposed change arisen not because some action was not taken in New Zealand, but because of problems identified in other jurisdictions with similar definitions to New Zealand’s current definition? Again, the answer to that question is no. The proposed definition changes are sought by law enforcement authorities in New Zealand to ensure that the definition cannot be circumvented solely by language that may lead to a prosecution failing due to outdated wording or as to uncertainty of the scope of the wording.

d. Question 4: Are the definition changes intended to bring within the current and new terrorism offences actions like those alleged to have occurred in Te Uruwera? As noted above, there are no prior cases that the definition changes are intended to address to allow particular cases to be prosecuted in the future that could not have been prosecuted in the past. In relation to this aspect of Mr Edgeler’s submission, given the facts of the case he refers to, it is difficult to see how any of the definition changes could have made any difference to the outcome of that case.

I still have concerns with the bill, and whether all of the changes it makes are necessary, but the Government has made a clear policy decision and will enact it.

There remains one matter of drafting that still concerns me, which was addressed by officials, but ultimately not changed. Officials appear to be of the opinion that my concern is unwarranted, but the reasons they give are not entirely convincing, so I will expand on my concerns here, in the hope that someone will read this, and reconsider. When making a written submission one always wonders exactly how much to explain, and because its possible I didn’t fully explain my concerns, I will take the opportunity to do so now, before the bill starts the committee of the whole stage.

It concerns the amendments to the law that the Government considers necessary to fill a “gap” in the law exposed by their failed prosecution of Ahamed Samsudeen for preparing to commit a terrorist act, something which is not currently criminal in New Zealand.

The definition of terrorist act in the Terrorism Suppression Act has multiple applications in the current law, most obviously, it forms the basis of the terrorist act offence, which, for example, the Christchurch terrorist was convicted of. It also affects the rules around financing of terrorist organisations, and the designation of terrorist organisations.

Section 25 of the Terrorism Suppression Act formed the basis of the failed attempt to prosecute S for terrorism. Section 25(1) provides:

Carrying out and facilitating terrorist acts

(1) For the purposes of this Act, a terrorist act is carried out if any 1 or more of the following occurs:

(a) planning or other preparations to carry out the act, whether it is actually carried out or not:

(b) a credible threat to carry out the act, whether it is actually carried out or not:

(c) an attempt to carry out the act:

(d) the carrying out of the act.

This seems expansive, but importantly for the prosecution of S, it appears under the heading:

Further provisions relating to interim and final designations

The Court held, as an exercise in statutory interpretation, that the section only dealt with things like designations (which have always been covered by the Terrorism Suppression Act), and not the criminal offence of committing a terrorist act, which was added later. The argument is compelling, I think, and the court judgment is available here for those interested.

The bill essentially replicates the section as a part of the criminal offence. Ministerial advisers don’t really see this as a change. They consider that the wider concept of carrying out a terrorist act has been in the Terrorism Suppression Act since its inception, and this this is not changing. This is true in part, but elides an important point. Previously, this expanded definition of “carrying out” did not form part of the terrorist act criminal offence, and only related to the designation of terrorist entities. The bill changes this.

It is easy to see why you might want to be able to designate a terrorist entity as such, before it had committed a terrorist act. There is a process around designation, and ways to challenge decisions by review and appeal. It does not automatically result in criminal liability, and any downstream liability is clear (eg don’t be a member of a designated terrorist entity, and don’t fund one), so even people who disagree with a designation are clear on their legal obligations.

My concern is the adoption of this language in a criminal offence around committing a terrorist act, in particular around the concept of “credible threat”. It seems entirely reasonable that the Government would want to be able to designate an entity as a terrorist entity if its actions have meant a credible threat to carry out a terrorist act has occurred.

I am a legal expert, not a terrorism expert, but from my understanding, things can be described as “credible threats” even when a threat has not actively been made. In advance of public holidays in the US in the years after the September 11 attacks, authorities would sometimes announce that there was a credible threat, and would eg increase airport security measures. They did not necessarily mean that a terrorist group had actually made a threat, instead the credible threat could arise from intercepted communications, or a tipoff, or even something like a group of sailors going missing off a cargo ship in port, or some combination of the above and more.

When an organisation gets to the level where they are considered a credible threat of terrorism, I can see that you might want to designate them as such, but this type of credible threat isn’t necessarily something they have done, but something that has arisen. This concept of credible threat does not easily transfer to the criminal offence of committing a terrorist act.

The other ways you can commit a terrorist act are all active, and are defined by verbs in the legislation:

  • Planning the terrorist act
  • Preparing to carry out the terrorist act
  • Attempting to carry out the terrorist act
  • Carrying out the terrorist act

    Given the penalties for committing a terrorist act, the law would be much clearer if the credible threat language was similarly active:

    • Making a credible threat to carry out a terrorist act

    A situation in which a credible threat exists should not, by itself, be criminalised. The making of a credible threat should, and other more general credible threats could still be illegal if the credible threat of terrorism had arisen because authorities learned of preparations to carry out the terrorist act.

    The Departmental advice on my submission records:

    326. The Law Society (submission 54) and Graeme Edgeler (submission 71) may have misunderstood that section 5A is existing law and does not create any new concept of carrying out a terrorist act. As outlined in the clause by clause analysis in the Bill “New section 5A relocates section 25 (which is about carrying out and facilitating terrorist acts and is repealed by clause 21). New section 5A(1) is identical in substance to section 25(1).”

    327. It is also not correct that section 5A(1)(b) expands the definition of terrorism to cover credible threats. The definition of “terrorist act” (which gives a wide meaning to “carried out”) has been in the TSA since 2002, when the legislation was first enacted.

    328. Officials agree that the drafting of clause 8 (amending section 6A) is slightly more complex than in the current Act. However, that is to make explicit that planning or other preparations is now a stand-alone offence and criminal liability for that conduct can only arise under section 6B and not section 6A. This means that the maximum penalty for planning or other preparations is 7 years’ imprisonment, and not the maximum of life imprisonment under section 6A for carrying out a terrorist act.

    329. Graeme Edgeler (submission 71) also suggested that the wording of, new section 5A(1)(b) should be amended to cover the ‘making of’ a credible threat. Officials do not consider this amendment necessary as the current wording is clear. The provision, as drafted, requires that a credible threat occurs. As a threat cannot occur without first being made, the wording change is unnecessary.

    The language used in the bill is identical in substance to that currently used in section 25(1), but it is not identical in effect, because it now operates directly on the criminal offence. There are reasons why the passive language in section 25(1)(b) of the current law might be appropriate for a section around designating terrorist groups. It is not appropriate when applied to the terrorist act offence. The Departmental advice that a threat is something that must be made is welcome, but there is no reason not to be clear in the legislation itself. Hopefully this can be fixed before the law is passed.

    2

    Everything was Done; or some answers to some of the questions people have been asking

    On 3 September, New Zealand Police shot and killed Ahamed Samsudeen, shortly after he commenced a knife attack in an Auckland supermarket. Considering him to be highly dangerous, he was under close surveillance. His death meant, that in the days following, the Government and the Courts were able to release a substantial amount of information about him, and how Police and the justice system had dealt with him across his years in New Zealand.

    There are things the public does not yet know, but answers to many major questions are available, ably brought to light by a number of journalists. The reporting of one of those journalists, Stuff’s Edward Gay, and similar stories from other news outlets, as well as similar information released by the Sensible Sentencing Trust, has some people asking questions. And while I cannot answer all of them, there are two big ones I can answer.

    I can start with the short one: Doesn’t the Refugee Convention allow the deportation of people who are a natural security risk, even if they would otherwise be entitled to asylum? It might, but it doesn’t matter. The 1951 Refugee Convention, and the effect given to it under New Zealand immigration law are not the only laws governing refoulement of non-residents. New Zealand has obligations under other laws, including, for example the Torture Convention, not to send people to countries where they are at risk of torture. The Government has not released the information it held about the situation in S’s home country, but arguments focussing entirely on what would be permitted under refugee law alone miss a very important point.

    The other bigger question is around whether Police did everything they could to keep S off the streets. Everything we have seen indicated they did. In some respects, they went to ridiculous lengths, raising serious questions about what our censorship laws cover. They’re not particularly relevant to the questions people have been raising, but I think they are important so address them too.

    S was remanded in prison on two distinct occasions. Police actions in respect of both show them doing everything possible to keep S detained.

    I’ll address them in chronological order. In late 2016, S was arrested and charged with several offences:

    • nine charges of knowingly distributing objectionable material under the Films, Videos and Publications Classification Act 1993 (videos shared on Facebook, said by Police to support violence or terrorism) maximum 14 years in prison)
    • one charge of possession of an offensive weapon (a knife, maximum three years)
    • one charge of failing to assist in the exercise of a search power (by refusing to provide a password to Police to unlock a phone – maximum three months); and
    • two charges of using a document for pecuniary advantage (giving false information in applications for credit used to obtain an iPhone and a watch)

    Police opposed bail. Knowingly distributing objectionable publications is a serious offence, and bail cannot be expected. The Court agreed with Police. While S wasn’t charged with violent offending, both the Police and Courts appeared concerned that it might follow.

    There was a problem for the prosecution. Five months later, the Censor had looked at the material that was the subject of those serious charges, nine Facebook posts S admitted publishing, none of which, it turns out, supported violence or terrorism. There were some disturbing images, but not of the type that a free country bans. Each video was rated R18.

    I will not detail the material here, but many of the videos were of atrocities committed during war, some of which had also been posted by news organisations, including the Daily Mail, and al Jazeera. Police in other countries might investigate evidence of war crimes. Here they were investigating people sharing evidence of war crimes.

    S sought bail again: the Censor’s ruling that the major plank of the prosecution was baseless was a change in circumstance. Police opposed. They had asked the Film and Literature Board of Review to overrule the censor. It was still possible – albeit highly unlikely* – that the Board of Review would overrule the Censor, ruling the videos objectionable, so the prosecution wasn’t technically. That was enough for the Judge. S remained in prison.

    A few months later, the Board of Review confirmed the view of the censor. The charges of knowingly distributing objectionable material were gone. All the videos were R18. You wouldn’t children watching them, but possession of them, and sharing of them with adults was lawful.

    S again applied for bail. Police dropped the now impossible charges. And it happens, the knife charge as well (this was later re-laid, as explained later). But Police still wanted to do what they could over the Facebook videos, even though they were lawful. Two representative charges of knowingly distributing restricted material were added. That is: S was charged with sharing R18 material with people under 18. There’s no mention of evidence that S had Facebook friends under 18. And no evidence that a kid saw even one of the videos because S shared it. But maybe one did, but Police said sharing R18 material to Facebook was enough.

    To draw the first stupid analogy that came into my head: they thought someone was in possession of incest porn. They went to the censor Turns out, it was actually an excerpt of late ’90s classic Cruel Intentions. So they prosecuted them for sharing that.**

    It’s a theory of censorship law that makes some journalism criminal. The censor never rated the public evidence of abuse in Abu Ghraib, but its easy to imagine it getting an R18 or R16 rating if considered by the censor. Video footage like that in the Four Corners’ “Killing Field” investigation into actions of the Australian SAS in Afghanistan could easily be restricted as well. Which would mean you couldn’t print them, or run them on websites in New Zealand. It’s a theory that makes much website pornography illegal as well. And also google image search. Won't somebody think of the children.

    S pleaded guilty to the remaining offences – he always accepted he’d shared the video – but with the serious offences gone, and with S having spent 13 months in prison, he applied for bail. Police knew the sentence that could realistically be imposed on the outstanding charges was less than the 13 months S had already been in prison, so they didn’t oppose bail per se, but did hold out for an argument around conditions, asking for a curfew. Ultimately, the Judge held that the sentence already served meant that would be improper. Because of the time S had served in prison, S wouldn’t be getting a sentence that could see curfew-like restrictions imposed, so they couldn’t be imposed on bail pending sentencing. S was sentenced a few months later.

    During his time on bail, Police were paying close attention to S (it is not known whether it was as intensive as under his more recent release). During the three months awaiting sentencing in the Hight Court, S was rearrested, and faced new charges, including possession of objectionable publication (maximum 10 years in prison), and possession of a knife in a public place. Police re-laid the knife possession charge they had dropped in June 2018.

    Bail was refused throughout these charges, and S ultimately spent around three more years in prison on remand.

    Two of the weapons charges were thrown out. They were charges that S possessed a knife and a throwing star, which were at the address he lived in prior to his arrest while attempting to leave for Syria in 2017. It is legal to possess knives in your home, but this become illegal if Police can establish that possession is in circumstances showing a prime facie intention to use them in a violent offence. Except S abandoned those weapons when he left for the airport, making it impossible a judge ruled, for police to prove even to that low standard (well below reasonable doubt) any criminal intention.

    One subsequent knife charge remained. This is one that the jury acquitted him of. Court documents show what the charge actually involved. The charge was possession of a knife in a public place, so evidence that it had been at S’s home wouldn’t be enough. The public place S was said to have possessed the knife was the shop at which S bought the knife. I paraphrase a court judgment below, describing the charge:

    Wanting to replace the knife taken by Police from his home, S visited a store which sold knives. He spoke to a staff member in relation to purchasing a 10-inch knife. He told them he had viewed it online and advised he wanted a long knife. S picked up the knife from inside the cabinet, held it and checked the blade. He discussed the quality of the knife with a staff member prior to putting the knife in its sheath, handing it to them stating he would take it. S paid the full price ($39) in case, and requested that the knife be couriered to his address, providing his name, address and mobile. He explained to the shop attendant that he wanted to have the knife couriered as he did not want to take the knife out in public, as he feared people’s reactions to a dark man carrying a knife in public.

    That two-minute period during which S held the knife prior to purchasing it was said by Police to be possession in a public place for which S did not have a lawful excuse. The judge let this charge go to trial, and S was acquitted by a jury, something for which I feel a need to thank them. This is why we have juries.

    During this second period of detention, Police also sought to lay terrorism charges, despite no terrorism having then been committed. This too was thrown out: planning to commit a crime has never been a crime of itself (Parliament is currently making it one). The videos S had this time, however, did support terrorism, and S was convicted in respect of two out of three charges.

    The objectionable publications, while support of terrorism, were not of a particularly serious kind. By way of comparison, possession of a live-stream of a terror attack is more serious than possession of a manifesto, and the publications here were much closer to the latter, with the pro-ISIS and pro-terrorism message largely conveyed through words.

    The two publications, videos of religious hymns, were described in the sentencing notes as:

    “The first nasheed, titled “What a victory for he who got shahada” features a still image of a man wearing a black balaclava and black clothing, holding a large machine gun and standing in a field of flowers. Behind him is a flag of ISIL or ISIS, a designated terrorist organisation under the New Zealand Terrorism Suppression Act 2002. The nasheed is sung in Arabic but with large English subtitles also displayed. The lyrics of this nasheed speak of obtaining martyrdom on the battlefield and being killed in Allah’s cause.

    “The second nasheed is similar, and is titled “We came to fill the horror everywhere”. It contains a series of black and white images in the background, which are somewhat difficult to make out, but tend to show buildings with smoke around them, images of the ISIL flag flying from vehicles and being held by soldiers. Again, the nasheed is sung in Arabic but with English subtitles displayed. It speaks to matters such as making disbelievers taste the heat of swords, sending disbelievers to death without mercy, and to make countries of disbelief “rain with fire and a strike on their streets and attacks.”

    While 10 years is the maximum sentence available under the charge faced, that is reserved for the worst kinds of offending (eg videos showing actual victims of child sexual abuse). You are not going to get sentences close to that for possession of what are effectively word-based publications. At the sentencing, the Crown suggesting a starting point of six months imprisonment. The judge agreed. S had, of course, been in prison this second time for approximately three years.

    Given this, a prison sentence being pointless (it would see S freed, with no restrictions), so S was sentenced to supervision, with a number of special conditions imposed. The Crown sought electronic monitoring, but this was refused by the judge, who was “conscious of the lengthy time [S had] already spent in custody”.

    S also faced newer charges in the District Court, for assaults on Corrections staff during his three years in prison, but given what had happened in the High Court, and the nature of charges remaining in the District Court, that was a foregone conclusion. 10 months in prison had passed since the assault charges were laid, and with the trial some way off, it was obvious to all that more time spent on remand would be in excess of any likely sentence.

    Auckland Crown Solicitor Brian Dickey is recorded in Edward Gay’s article:

    The Crown solicitor for Auckland, Brian Dickey, told Stuff that S had already spent 10 months in prison on the assault charges and any trial date was likely to be sometime in the second half of 2022.

    Had S been found guilty of the assault charges, Dickey said, he would have been released, given the time he had already served.

    “As such, and in the knowledge Mr [s] was to be subject to the sentence of supervision imposed by the High Court, police, represented by and taking advice from the Office of the Crown Solicitor at Auckland, determined that continued opposition to Mr [S]’s bail would inevitably fail,” Dickey said.

    “That is, despite their ongoing concerns, given the time Mr [S] had spent in custody already his continued detention could no longer be reasonably justified.”

    He said police had previously opposed [S]’ bid for bail but the police had exhausted all options available to keep [S] in custody.

    “Consequently the police focus was upon preparations for Mr [S]’s inevitable release.”

    With a High Court judge having just refused electronic monitoring because of the time already served, Police knew no District Court judge was going to impose it. Bail followed a few days later in the District Court, by consent. No other outcome was realisitically possible. Conditions akin to those imposed in the High Court's sentence of supervision were added.

    While we don’t yet know everything that occurred, the actions of Police as recorded in Court documents released following S’s death, show that Police did everything they could to have him in continued detention. If anything, as a civil libertarian, I'm concerned they did too much.

    * The FLBR is designed as a community check on the Censor, and has historically been more likely to reduce a rating, rather than increase it, although that is not wholly unknown.

    ** This isn’t quite fair: while during its New Zealand theatrical run Cruel Intentions had an R18 rating, this was later reduced to R16, but it was the first stupid analogy I thought of, and the same legal concern would arise with R16 material.

    2

    The New New Prohibition

    In the decades leading up to the 18th Amendment, the case for the prohibition of alcohol was made repeatedly. The harms of alcohol were substantial, and the US experience was worse than most. The victims made the case, and campaigners made the case for those who couldn’t speak for themselve. You might think there are issues with alcohol consumption still today. In the late 1800s, per capita consumption was three times what it is now.

    The need to protect people from the nation of drunkards was obvious. The problems were pressing. And a decades-long campaign pushed for the constitutional amendment that would be needed to give the Federal Government the authority to ban liquor.

    And it worked. They got the law change. Alcohol didn’t go away, but consumption dropped. But it didn’t really work. New alcohol harms arose, which the US continues to live with today. Despite the problems caused by alcohol, the problems caused by alcohol prohibition were greater, and then for the only time, the US Constitution was amended to repeal an amendment.

    We have seen this again. The problems of drug addiction are well known, but the problems with drug prohibition are also well-known. There are even problems with non-punitive drug interventions such as the D.A.R.E. programme, participation in which appears to have correlated with increased drug use.

    We may be facing a similar issue with hate speech. The government and the Royal Commission have done reasonable jobs in establishing that there is a problem. And they have been supported in this by people from communities that are often the target of hate speech (albeit most of the examples given of hate speech by vulnerable communities are of speech that wouldn’t be covered by this proposal, and some people within those communities have raised concerns that hate speech regulation may in fact increase hate incidents).

    But making the case that there is a problem is very different from arguing that you have a solution to that problem. And this is something the government simply has not done.

    Does the government think it’s proposals will decrease hatred and increase cohesion? It hasn’t really said. It appears to hope they will, but can it explain why?

    What countries have good hate speech laws? Whose law has been appropriately applied, without unintended chilling effects against non-hate speech? And which, ideally, has had a positive overall effect on domestic tranquility and ehanced social cohesion?

    Does the government have a sense of which countries have had poor (or poorly implemented) hate speech laws? What lessons has it learned from those countries?

    I sought examples of countries with good hate speech laws on twitter some time ago, and someone suggested Ireland was one jurisdiction that had done well with its hate speech legislation. And it is generally agreed that the United Kingdom has gone overboard (albeit its worst excesses have been under general speech laws rather than its hate incitement law). But the English hate incitement law and the Irish hate incitement law are essentially paraphrases of each other: they have the same wording in the elements of the offence, using “stir up”, and “hatred”, and cover approximately the same groups (the Irish law adds membership of the travelling community and sexual orientation, which aren’t currently in the English equivalent).

    What lessons has the government learned from countries whose experience of hate speech laws has been poor? Whose hate speech laws haven’t just failed to arrest hateful speech, but have instead preceded a less harmonious, more divided society? Does it even acknowledge that that can be a consequence? How does it intend to ensure that New Zealand is a country whose experience of hate speech regulation is a positive one, and not one that not only fails to reduce hate, but perhaps increases it?

    Because, as with prohibition – of alcohol, or drugs – this is a major risk. The evidence that hate incitement laws actually do that much about hate is weak.

    And most importantly, does the Government even know what it wants to ban?

    It has refused to be drawn on hypotheticals offered by journalists and the public, but could it give us some of its own?

    What type of currently legal speech does the Government want Parliament to criminalise?

    Dr Edward Clark of Victoria University of Wellington has given one example. He thinks the law change should ban this. Does the Government? We don’t know.

    I want ridiculously specific examples.

    I know what the Royal Commission’s legislative proposal would say, and the what the Royal Commission said that would mean, and how the Courts applied the old law. And I can explain all of those things. But I could have done that with National’s amendments to the Bail Act, and look how they turned out.

    There are going to be people who insist that misgendering someone will become illegal. I am relatively clear it would not, under the proposals as they stand, but I am not making charging decisions, nor sitting on juries.

    Would someone making statements similar to those made by Israel Folau be at risk? Would cartoons like Jyllands-Posten’s, which were reprinted in several New Zealand newspapers in solidarity be illegal? How about Charlie Hebdo’s? There were activists who wanted the mayor of Wellington to declare a state of emergency in order to stop the harm they said would be done by Speak Up For Women’s recent meeting to discuss the Births, Deaths, Marriages and Relationships Amendment Bill. Does the government think the statements made at a meeting like that should be illegal? How about the statements made by the people protesting outside?

    We need the government to be able to say “no”. Or perhaps “yes”.

    Because we do not know it when we see it.

    An important component of the rule of law (perhaps the most important) is certainty. The law should be declared in advance so that people can comply with it. And the biggest problem for people who will try to moderate their behaviour in response to a new criminal law isn’t whether they can recognise a bunch of things that will be covered by it, it’s whether they can recognise what things won’t. Because if it is not clear, then important, protected speech will be chilled.

    As discussed in this piece, there is the fear of second order effects. Whatever you think of the law itself, there is a real risk it simply causes other things to happen, because of the signal it sends to police and to courts.

    There are also the standard reasons to oppose any criminal law. Imprisoning people is really bad. It affects them. It affects their partners, and children. The effects are intergenerational. You should reserve imprisonment for the worst types of offending, where these consequences are truly justifiable.

    But beyond imprisonment, prosecution itself is massively harmful.

    Imposing criminal justice processes on people should be reserved for situations where the consequences of subjecting people to criminal processes are justified by the harm done by an alleged crime. This is especially so when we are dealing with what might be prosecutions for speech we might ultimately find out – perhaps after multiple appeals – isn’t just not criminal hate speech, but is legislatively protected free speech. Liam Hehir describes these concerns as well as I could here:

    For those caught up in it, the process is the punishment

    So let’s say you make a controversial political statement and some deranged person on Twitter or whatever decides to lay a police complaint about it.

    An officious police officer decides to investigate you for it. You then have the anxiety of having an investigation hanging over your head. While the investigation is ongoing, and who knows how long it will take, it will be the first thing you think about in the morning and the last thing you think about before you go to sleep.

    If a prosecution is brought, you could then face expensive and stressful court processes. It could go all the way to the Supreme Court - then back down to the lower courts again - then up again. All in all your case could spend years working its way through the Byzantine legal system before any sense of finality is reached.

    All of this time and effort will be on top of your regular job since the fact that you are caught up in a time consuming prosecution does not relieve you of the need to make a living. Quite the opposite, in fact, since you would be a fool not to use a lawyer and they're not cheap. The investigators and prosecutors, on the other hand, are just doing their day job, have nothing at risk and are being paid to make your life an ordeal.

    The costs of victory can be very steep

    You might ultimately win that case. If so you get your name in the law reports and lecturers in law schools up and down the country can cite the case as an example of the law working as planned. That might feel like a moral victory. 

    In no other sense will you consider yourself to have won anything.

    In fact there’s a good chance your life will be wrecked anyway. As we’ve seen in places like the United States, a common response to somebody being vindicated in one set of proceedings is the launch of another set. When it becomes a tool in the hands of the motivated, the law can be a blunt and unforgiving weapon.

    This assumes you have the stomach to see the whole thing through, of course. In practice, the easier thing to do is just not speak your mind on an issue of controversy. Which if you’re inclined to a more controlled discourse you might think is a good thing - but that’s because you favour political censorship.

    Voltaire once said: “I was never ruined but twice: once when I lost a lawsuit, and once when I won one.” It’s absolutely true. In Canadian and American jurisprudence they call this a chilling effect, which refers to the voluntary curtailment of rights through fear of the disproportionate stress and anxiety inflicted on people by the legal system.

    The Government has the numbers to pass a law, but if it wants to bring the public with it, it should be starting now. A government passing any law should be able to answer questions like those I ask above. It hasn’t yet. And until it can, there’s no way it should be legislating.

    7

    Political opinion and the proper scope of hate speech laws; a post in honour of John Campbell

    I was alerted late last week to the fact that John Campbell had used one of my earlier pieces in questioning the Prime Minister about the Government’s hate speech proposals, in particular focussing the lack of clarity in the Government’s announcements. Thanks John!

    One issue that Campbell raised, that I haven’t yet addressed here, is the proposal that protections from hate speech might be extended to groups defined by their political opinion. This is a particularly controversial aspect of the government’s proposed changes, with even people strongly supportive of hate speech reform concerned about overreach. While the Government agreed in principle that hate speech protections should be expanded to all the protected classes in the Human Rights Act, it has more recently appears to be in two minds. Most (perhaps even all) of the strong defences of widening the protections against hate speech I have read, say they are concerned that expanding protections to groups defined by their politics: they agree the criminal offence should expand from the race/nationality/ethnicity it currently covers to other grounds such a religion, sex/gender, and sexuality, but think expanding to all of the grounds may be going too far. Victoria University’s Dr. Edward Clark has suggested that the grounds contained in the Harmful Digital Communications Act might be a compromise.

    I remain sceptical of the government’s hate speech proposals: I don’t believe the government has made the case for them, and I especially don’t believe it has explained nearly well enough the expression it wants its laws to cover, nor more importantly, the expression it wants to leave alone. I am very much open to the idea perhaps we shouldn’t change the law at all.

    But if we do change the laws, the question of political opinion is one point on which I have most strongly formed an opinion. Any new hate speech protections should absolutely extend to every single one of the protected grounds in the Human Rights Act, including political opinion.

    I suspect I may be the only person who has said this.

    Opposition to the expansion of hate speech offences to political opinion often rests on the idea that expressions of political opinion should not be regulated by the criminal law. I agree. But expansion of hate speech offences to political opinion isn’t (or shouldn’t be!) about expressions of political opinion, it should be about – like the rest of any proper hate speech law – about expressions of hatred: hatred directed toward groups of people based on their status, and perhaps likely* to inspire hatred by others toward them as well.

    (*the current proposal does not include a requirement that to be criminal, hate speech would actually have to be likely to incite hatred, which is one thing the Government has raised for discussion. The Royal Commission said it shouldn’t – because the bar of stirring up hatred is so high, intention should be enough – but I suspect this is one area the Government will reconsider.)

    Any justifiable hate speech law will only capture the worst of what might colloquially be called hate speech. We’re not talking about speech that directly encourages violence (that is hopefully dealt with elsewhere), but it would cover speech which may create a culture in which violence can flourish. This is speech which might lead to people being emboldened to abuse others in public, and which accordingly may cause people to retreat from public life and public spaces.

    Ultimately – with the Christchurch terror attacks in the background – we are talking about speech said to increase the likelihood of terrorism and genocide. The aim is only to catch the worst of the worst, the most vile, hatred-inspiring speech. If the government’s intention really is to only proscribe the very worst type of hate speech, then there should be no concern about protecting beneficiaries, or unmarried people, or holders of particular political opinions. You will, of course, still be able to inspire ridicule and contempt, which is proposed to be decriminalised. Maybe that’s still not enough, but that debate is about the scope of the offence, not the groups it protects.

    There are three basic question to address when formulating a general hate speech offence like the Government is proposing:

    1. What expression should be covered? (the government says published material that is threatening, abusive or insulting)
    2. Whom must the expression be about? (the government says, at present, the classes of people protected from unlawful discrimination under the Human Rights Act)
    3. What intention and consequence the expression must be conveyed with? (the government proposal is with the intention of stirring up hatred, although with the likelihood of hatred being stirred up irrelevant)

      In assessing whether the law goes too far, we are mostly looking at point three. The use of insult in the answer to the first question concerns some people, but were you to remove the words "threatening, abusive or insulting" entirely, and replace them with “publishes or communicates any words or material” you wouldn’t greatly expand the scope of banned expression, because point three is so limiting. If extending point two to cover groups of people defined by their political opinion causes you concern, your problem is really with either point one or point three: you are concerned that we will capture too much speech, and that the standard has been set too low. If we were only catching the worst speech, extending the protection to groups defined by their political opinion should not be a problem.

      This suggested amendment has its genesis in the Report of the Royal Commission of Inquiry into the terrorist attack on Christchurch masjidain. While there is no evidence that the Christchurch terrorist was radicalised in New Zealand (and ample evidence he wasn’t), the New Zealand Government wishes to play its part in reducing the risk of radicalisation in the future. The theory is, if New Zealand plays its part, and other countries do their bit as well, then maybe if not eliminating terrorism, it may nonetheless be reduced.

      Now, maybe the evidence it will work is weak. Maybe evidence suggests that criminalising more hate speech may in fact increase the radicalisation of people who feel at the margins, but the point is: the aim of the law is to (hopefully) reduce terrorism, by lessening an environment in which radicalisation may flourish.

      And if that is the aim, and the law is tightly drawn to focus on the worst speech which might lead to that, and is not focussed on common impoliteness, or political or religious debate or criticism (even harshly phrased, perhaps likely to lead to ridicule), and it recognises that it should even be permissible to inspire hatred of say a religion, or of a political opinion, if your expression does not also inspire hatred of people who share that religion, or opinion (that’s a difficult line to draw in practice, but it is one the proposal does, albeit only implicitly), then the law itself shouldn’t be the problem.

      If you have correctly calibrated the law being doing all of those things, then why would you want to protect the group of people defined by their status as refugees, or as unemployed, or having a particular political opinion? What type of speech is it that you – with so narrowly defined a law – want to permit that such a law would prohibit? What speech about a group of people defined by their race, or their religion or their sexuality, is it you want to prohibit, but you think would be absolutely fine if directed at members of the Green Party, or supporters of immigration and multiculturalism, or some other political opinion?

      It is instructive to contrast the terror attack in 2019 Christchurch terror attacks with the 2011 terror attack in Norway. There are a lot of similarities, with some suggestion that the Christchurch terrorist was inspired by the Norwegian terrorist. But there is an important distinction worth dwelling on.

      The Christchurch terrorist selected his victims based on their religion. They were targeted because they were Muslim.

      The bombing in Oslo was of a building housing the office of the Prime Minister. The victims on the island of Utøya were attending a summer camp as members of the Worker’s Youth League (a political group affiliated with the Norwegian Labour Party).

      If we are truly intending to pass a law to diminish the likelihood of terrorism, is that really where we want to draw the line? Seeking to limit speech aimed at creating a culture which might inspire someone to attack a place of worship is justifiable, but limiting speech aimed at creating a culture which might inspire someone to attack a group defined by their support for multiculturism goes too far?

      Now, maybe banning even the worst of the worst hate speech is actually a bad idea, or even counterproductive. But if you are sufficiently convinced it is a good idea that you support some version of the Government’s proposal (perhaps with “likely” added back or, or “insult” removed), why wouldn’t you want to expand the protection to all of the protected classes in the Human Rights Act?

      I have in part, an ulterior motive here. A major concern is that the proposal will not be narrowly targeted, and will have the effect of banning speech that we would not want banned. If there is to be a law change, I want to ensure as far as possible that the law:

      • Only bans the very worst, most hateful speech; and
      • is clear, so that we all know what is banned, and what is not; and finally
      • ensures that those involved in enforcing the law - police, prosecutors and Courts - are be strongly incentivised to not seek to push boundaries.

        I think back to the Harmful Digital Communications Act. There were many concerns with the criminal offence it contains. While the civil process provides for a set of priciples that create a helpful balancing exercise, which explicitly recognises the important of freedom of expression and other societal interests in play in the public dissemination of ideas, the criminal offence is drafted in a way which does not. On its face, it does not protect fair and accurate reports of news in the public interest. Of course, while the offence should be fixed, in reality, I am not all that concerned that an online news report of say an allegation of sexual assault will actually lead to a conviction under the HDCA for intending to cause the perpetrator harm. I do not think a court would ever convict, even if you looked at the elements of the offence and determined “Yes, credibly accusing someone of rape is likely to cause them serious emotional distress.”

        Select Committee submission made on behalf of news media on the Harmful Digital Communications Bill strongly pushed against the idea that news media should be covered by it. They said that Broadcasting Standards, and Media Council guidelines were sufficient to protect the public from bad reporting.

        While news media have exemptions from some laws (for example, you cannot make a privacy act request for information they hold about you obtained through their newsgathering activities, and they can attend court hearings in criminal cases, even when the public is excluded), I did not support one in the HDCA. The types of things that should be banned by a law like the Harmful Digital Communications Act are things that no news organisation should get remotely close to ever publishing. And if they do publish something that would appropriately see a non-journalist like me face criminal charges, they should face them too.

        I want the courts to read down the overly broad criminal offence in the HDCA, and knowing that news media are there with the rest of us makes that much more likely. The inclusion of news media in the HDCA is protective against overly expansive rulings that unjustifiably reduce freedom of expression.

        And maybe the inclusion of groups defined by their political opinion, will ensure that those drafting and enforcing hate speech laws will be appropriately circumspect, only targeting with the law what can truly be justified. Because we will be incentivised to permit harsh criticism of political opinions without that being held to be stirring up hatred of holders of those views, and because we will want to allow ridicule of them, then these things will also be protected in other areas, like discussion of religion, and any expanded hate speech law will not become a de facto blasphemy law.

        But this really is secondary. If you could convince me that all of my other concerns about the hate speech reforms are wrong, and could prove that there is no risk of them being abused by Police, or misapplied by the Courts, and there would be no second order effects discouraging lawful speech, I would still want political opinion included, for the same reason that is already in the Human Rights Act.

        There are difficult questions in discrimination law. But there are easy questions in discrimination. Some things are just more important.

        Food is necessary for life, so supermarkets shouldn’t be permitted to refuse service to people with disabilities, or the unemployed. Housing is needed too, so landlords shouldn’t be permitted to refuse to rent to people because of their ethnicity.

        Employment is more delicately balanced. Everyone should be able to get work, without a protected status being held against them, so you wouldn’t want a cleaning company to be able to refuse to hire someone because they were Muslim, but do you want to ban a church-run Christian-based after school programme from doing the same (perhaps yes, but only in some roles, not others)? Perhaps you do think that so long as a person can do the job, even that sort of role shouldn’t have a religious requirement (even if say, the appointment of a Minister of religion does). But that is a harder question, with a less obvious answer.

        But where does protection for hate speech fall? If we’re truly capturing the worst of the worst speech: speech that when repeated often enough, by the wrong people, in the wrong way, makes genocide more likely, encourages terrorism, and makes random attacks and abuse more likely, then surely this is one of the easier questions?

        These are groups that are protected from discrimination in employment, in access to housing and education and the provision of goods and services, etc. Are there really groups that we want to protect from such discrimination, but would be okay with them being subjected to culture-of-terrorism-enhancing speech?

        I suggest not. If a group of people is unworthy of protection within a hate speech law designed to ensure social cohesion and the ability to take part without fear in daily and public life, then the problem isn’t the hate speech law, the problem is the list of protected groups in the Human Rights Act. If New Zealand is to expand its hate speech laws to protect other groups, it ought to protect all of the groups protected by section 21 of the Human Rights Act.

        If there is some group we decide we do not want protected from this, then we should be deleting it from the Human Rights Act. But I, for one, am fine with the list. We should protect the groups listed in s 21 from discrimination in their daily lives. And if we conclude hate speech laws will help, and will not risk doing more harm than good, we should not be passing a law to criminalise speech likely to increase the chance of another attack like that in Christchurch, while accepting that speech likely to increase the chance of an attack like that in Norway is the price we pay for living in a free society.