Legal Beagle by Graeme Edgeler


The Government's Proposed Decriminalisation of Racist Hate Speech

In what will hopefully be the first of the number of posts on the government’s hate speech proposals, I have a look at what they actually cover. You may have guessed from the title of this piece that there is some confusion. Certainly, the government is still working through the details, with a public consultation process having just started. But some aspects of the proposal have been under-explained, so here’s a Q&A to kick things off. 

What’s this about hate speech?

The New Zealand Government has released has public discussion document around proposals to reform the two hate speech provisions in the Human Rights Act. The proposals have been well-signalled, with the Report of the Royal Commission of Inquiry into the terrorist attack on Christchurch masjidain containing some of the discussion around changes that it thought should be made.

Before we get to the changes, what are the current laws?

New Zealand has a number of general laws that can be used to prosecute what is sometimes called hate speech, including laws against disorderly and offensive conduct language, against harmful digital communications, and for particularly serious speech, censorship legislation.

This proposal doesn’t alter these laws. It addresses two laws in the Human Rights Act 1993: one a criminal offence and the other a civil claim (like defamation).

Tell me about the current criminal law.

Section 131 of the Human Rights Act creates a criminal offence if you do some combination of the following five things:

  • publish written material, or use words in a public place (you need one of these)
  • if those words are threatening, abusive or insulting (you need one of these)
  • And those words that are likely to
    • excite hostility; or
    • or excite ill-will against; or
    • or bring into contempt; or
    • or bring into ridicule
      (and one of these)
  • And that excitation or bringing is against a group of persons in New Zealand on the ground of their colour, or race, or ethnic or national origins (and one of these).
  • And you intend those words to excite hostility; or to excite ill-will against; or bring into contempt; or bring into ridicule such a group of person (and one of these).

Do one option from each of these things above, and you have committed an offence for which Police can prosecute you. If convicted you can be imprisoned for up to three months, or fined up to $7000. No-one has ever been prosecuted for this in New Zealand, although there was one prosecution under the similar offence under the law that the Human Rights Act replaced.

Importantly, this offence covers speech about groups. Speech directed at individuals mostly isn't covered by this law, nor by the proposals for change. If you are looking for legislation to deal with things like racist or otherwise bigoted street harassment, this is not it.

And the Government is looking at expanding this criminal offence?

No. Also yes, but mostly no. The Government is proposing to decriminalise most of this speech. Under the Government’s proposal, what replaced this criminal offence would not make it criminal to excite hostility against say a race using threatening, abusing or insulting words, it it would not be criminal to excite ill-will against them, nor to bring them into contempt, nor to bring them into ridicule.

It would only be criminal to publish written material or use words to stir up hatred against them. Both the Royal Commission and the Government consider this is less restrictive on freedom of expression. I am inclined to agree. The Royal Commission saw the current prohibitions as unjustified, and considered that criminalising only a small subset of especially harmful speech, likely to engender hatred, was justifiable, but they think the harm caused by that type of speech is worse than the law currently recognises.

Is that the only change planned to the criminal offence?

No, there is some proposed expansion of the law, so as well as increasing the standard to hatred, rather than lesser things like ridicule, and changing the verb from excite (which the Royal Commission noted is somewhat archaic) to “stir up or maintain”, the Government is looking at moving the crime to the Crimes Act and increasing the penalty to three years imprisonment (both to recognise its seriousness), and this is the big change: bringing in other protected grounds (like religion, sex and gender, and possibly all of the other grounds of discrimination in the Human Rights Act).

Is including other grounds of discriminatin what opponents are concerned about?

I think so. There are other concerns, about enforcement, about clarity, and about possible changes in culture, but if we're talking about opposition to the proposed legislative change, most of it has focused on that final bit: extending the protections of hate speech to other classes like religion, and gender expression.

The proposed extension of the criminal offence (and the civil process to other grounds of discrimination) has some opponents worried that political or religious criticism may become fraught (would the Jyllands-Posten Muhammad cartoons be illegal; would Israel Folau’s Facebook paraphrase of Paul’s letter to the Galations?), or that people may be arrested and charged for relatively minor offence (eg misgendering). They’re aware of some things that have happened in other countries, primarily the United Kingdom, such as the 16-year-old who was arrested (but not charged) for having a placard that said “Scientology is a dangerous cult”). They don’t want to risk that happen here.

Does the proposed law cover that?

I don’t think so, but I’d be more confident in that conclusion if the Government was clearer about its intentions. The Government seems very open to the idea– despite what the Royal Commission said about reducing what is actually prohibited – that things like these might be prohibited. When recently interviewed by Tova O’Brien on The Nation, the Minister of Justice was reluctant to comment on a range of hypotheticals. The Government should be answering questions like this.

What about the other changes being looked at?

The proposal suggests that the current process for civil liability should have similar changes – although it is possible that civil liability would remain for not only hatred-engendering speech, but also lesser things like incitement to ridicule or contempt.

They would also extend the provisions around civil liability to include incitement to discriminate. Discrimination is already illegal (people can be sued for discriminating against others), this proposal would extend civil liability to those who encourage such discrimination.

The Government has also announced its intention to clarify the grounds of discrimination to include trans, gender diverse and intersex people (it is generally agreed that they are already protected under the prohibition against sex discrimination, but this would make it explicit).

The proposal would also make the the laws technologically neutral, as it is not clear, for example, that online publications are currently covered.

What next?

The Ministry of Justice has commenced a public engagement process on the Proposals against incitement of hatred and discrimination. Members of the public can have their say until Friday 6 August 2021.

And that covers the change you talk about above?

Yes. And some of the detail too, although this is pre-legislation consultation, so we aren't being consulted on a bill, like we would at a select committee. That will come later.

You can engage with the consultation process here.

What concerns remain? Why would someone oppose this law?

I'm still not convinced, and I hope to cover this in more details in future posts, but a big reason to oppose a change like this is the same reason to oppose any expansion of the criminal law. Imprisoning people is really harmful. Convicting people is really harmful. Prosecuting them is harmful. Being arrested, and even just being visited by police is harmful. If you are a person sympathetic toward the prison abolition movement, there are major red flags here. There are also all of the standard concerns about the focus of police discretion. Will those charged under this law be disproportionately brown, or  poor, like with most other laws?

The most obvious concern is that the Government has not been clear about what it thinks the law will actually ban, and worryingly the Minister of Justice doesn’t seem to think he has a role in deciding what types of things this law would make illegal, nor more importantly, what types of things it would not make illegal.

In particular, the Government doesn’t appear to understand, and has never seemed to articulate what I described above – that its proposal as currently articulated (and as explained by the Royal Commission) decriminalises a bunch of currently criminal speech. It knows it is extending protections to cover other grounds of discrimination, but hasn’t grasped its proposal would move regulation of some sorts of hate speech that are currently prosecutable, to civil proceedings. And if the Government doesn’t realise this, and if the Government will not answer hypotheticals like those Tova O’Brien put to the Minister of Justice, people are right to be concerned.

There are some other issues to be considered too, but are perhaps more in the details.

One example from the discussion document is that it notes that “This proposal does not include the requirement that the communication must be “likely to” incite, maintain or normalise hatred. This exists in the both section 61 and 131 currently (and is not proposed to be removed from section 61). The Royal Commission did not think it was a necessary element of a new offence.”

The Ministry of Justice says it is interested in feedback on this, but the rationale for imposing criminal liability on someone based on the harm they are doing, should probably be connected to the harm they are doing. If someone's speech is not likely to incite, maintain or normalise hatred, can there be a justification for punishing them for inciting, maintaining or normalising hatred?

We'll get into the weeds later, but you can have your say here.

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