Why we should be very afraid of the proposed hate speech laws
By Rod Vaughan
As pressure mounts on the Prime Minister to ditch the government’s proposed hate speech legislation, the High Court at Palmerston North has been grappling with an issue that is likely to escalate if the government’s plans become law.
It arose when a group called Speak Up for Women (SUFW) booked the council-owned Palmerton North library to hold a public meeting to discuss another government plan – the intended passage into law of the Births, Deaths, Marriages and Relationships Registration Bill, deferred by the previous government after opposition from NZ First.
SUFW opposes the sex self-identification clauses in the bill, saying there has been inadequate public consultation and the bill risks unintended consequences for women’s sex-based rights, such as single-sex spaces like changing rooms and prisons.
But after accepting SUFW’s online booking, the council changed its mind, saying after doing ‘research’ and seeking feedback from the community, it wanted to replace the intended SUFW meeting with its own version: a “facilitated debate that enabled all the various viewpoints surrounding the bill to be aired”. The council also took it upon itself to invite the minister in charge of the bill, Jan Tinetti, to speak at the meeting. One trans activist in the community described SUFW as a ‘hate group’ – a label SUFW denies, saying its members have a broad range of views.
SUFW objected to the council’s restrictions and filed for judicial review (Daphne Kaye Whitmore v Palmerston North City Council).
When the matter came before Justice Gerald Nation late last month, the council denied it was in breach of the free speech provisions in the Bill of Rights Act 1990 (BORA). It said its decision was rational and reasonable in terms of BORA and it was empowered under the Local Government Act 2002 to exercise control over the city’s library “in a manner which it considered promoted social and cultural wellbeing in Palmerston North, even when this might impose some limits on BORA-protected rights”. The council also indicated it would not allow SUFW to express its views about the proposed legislation at the meeting in the way the organisation wanted to.
In finding for SUFW, Justice Nation said no safety or security issues had been brought to his attention and there was sufficient evidence before him to be clear that SUFW “cannot rationally be described as a hate group”. In his view, the council’s decision involved a “significant failure to recognise SUFW’s right to freedom of speech and freedom of peaceful assembly”. SUFW spokesperson Beth Johnson says the group has encountered resistance from councils in almost every town it has tried to hold a meeting as a result of pressure from its political opponents.
No definition or scope
Against this backdrop, lawyers, politicians and commentators from all sides of the political spectrum are lining up to oppose the government’s proposed extension of our hate speech laws, currently enshrined in the Human Rights Act 1993 and the Harmful Digital Communications Act 2015.
Most complaints are about the lack of definition and scope of the proposed changes – a problem, they say, that exists globally. As distinguished historian and AUT Professor Paul Moon put it in an interview with LawNews two years ago, the inability of global lawmakers to define hate speech is “a major stumbling block for all proponents of hate speech legislation…
“There is no jurisdiction in the world where a statute has been enacted that offers a clear definition of what hate speech is. Consequently, it is left to the police and the courts to determine. This raises the problem of citizens not knowing precisely where the boundary of criminality of speech begins.”
In his Bowalley Road blog site last week, left-wing political commentator Chris Trotter urged the Prime Minister to walk back her plans. In a post entitled I understand why you want to do it, Jacinda – but don’t Trotter said: “The urge to suppress ideas and beliefs which contradict what one fervently believes to be the truth is not a healthy urge. It is a totalitarian urge – an urge to bend the whole world to your way of thinking…
“One can only feel desperately sorry for the police as women turn against men, trans on TERFs (trans-exclusionary radical feminists), Māori on Pakeha, Christians on atheists, supporters of Palestine on supporters of Israel, baby boomers on millennials and neo-liberals on Marxists. The courts will be full of angry and bitter complainants and defendants. Juries will be asked to solve problems philosophers have struggled with for centuries. Vast sums of money will be expended on lawyers. And all in the name of strengthening New Zealand’s social cohesion.”
Meanwhile, back in the arena Jacinda Ardern and Justice Minister Kris Faafoi face accusations of being out of their depth and failing to grapple with even the most basic of issues.
Asked by Newshub’s political editor Tova O’Brien how the line would be drawn between permissible speech and hate speech, Faafoi replied that he was the Justice Minister so it wasn’t up to him. That would be a decision for the police, he said. To which a flabbergasted O’Brien remarked: “If they don’t understand the policy direction and intent of the law, how can they expect the judiciary to interpret and apply the law?”
On the other side of the House, National and Act have been equally scathing, with Judith Collins describing the proposed changes as “a total cluster” while David Seymour calling them “a huge win for cancel culture” which will create an even more divided society.
“They will put cancel culture on steroids,” he said. “This is a solution looking for a problem. It will take away basic rights to free speech and it will shut down debate and make people too afraid to express valid opinions.”
The government’s proposed legislation will extend to religion and yet-to-be-defined other groups the current offences of inciting hostility or ill-will against, or bringing into contempt or ridicule, any group on the grounds of colour, race or ethnic origins. The offences will be enshrined in the Crimes Act and penalties increased from up to three months’ imprisonment or a fine of up to $7000 to up to three years’ imprisonment or a fine of up to $50,000.
In a discussion document, the Ministry of Justice says protection under this definition could be for ‘some or all’ of the following reasons: sex (including pregnancy and childbirth), marital status, religious belief, ethical belief, colour, race, disability, physical or psychiatric illness, intellectual disability, or abnormality of a physiological or anatomical structure or function.
The list goes on to include people using wheelchairs, reliance on a guide dog, age, sexual orientation and, perhaps most controversially, political opinion, which includes the lack of a particular political opinion or any political opinion.
So what do the legal fraternity and other free speech advocates make of it all?
On the issue of whether Ardern and Faafoi fully understand what they are trying to achieve, Moon says: “If a minister of the Crown is planning to introduce legislation in this area, there is a minimum expectation that that minister would be familiar with the issues raised by the proposed legislation and the provisions of existing legislation, in this case around speech. It seems that some senior members of the government are not as well briefed on this issue as they ought to be and this is concerning.”
Jordan Williams, general secretary of the Free Speech Union, says alarm bells should ring if politicians have difficulty explaining what a proposed law change means or how it would be applied.
“That is particularly so when dealing with the criminal law and restrictions on speech,” he says. “Some of the claims made by the Prime Minister are demonstrably wrong.”
Lawyer and former Act MP Stephen Franks says comments made by both the Prime Minister and Faafoi show they are well out of their depth, “constitutionally and in terms of analytical capacity.
“Neither shows normal understanding of the role of legislation or the legislator: the elementary requirement for the rule of law that the citizen be able to know in advance from written rules how the law will apply to them and their actions, and are predictable in application to unexpected or novel circumstances. It shows disdain for the protection our law is supposed to provide against the temptation of all in power to make up the rules as they go.
“The deliberate use in the proposals of vague terms confers unfettered law-writing power on the courts. That shows contempt for the fundamental wisdom of our inherited tradition – to write law not for the well intentioned, but for those who will abuse it for personal and group power.”
Or, as Williams puts it, “Given the difficulty and errors ministers and the Prime Minister have made in trying to sell their policy, how on earth is the average citizen supposed to understand what is lawful and unlawful?”
Another issue is the severity of the proposed penalties, with the maximum being harsher than the current penalty for assault.
Moon says not only is the penalty disproportionate but its severity will induce a halo effect, where people are frightened into silence in areas that may not be covered by the proposed changes. “I was in Eastern Europe during the communist era and saw first-hand the sort of fear that pervades a society once such measures are enacted,” he says.
Williams says it’s the “most bizarre approach to criminal law” he has encountered. “It is an insult to those who suffer from physical assault and offensive to those who have faced bodily harm as it distorts the way we assess the seriousness of other crimes with similar penalties.”
As the Royal Commission in the Christchurch terror attack noted, nothing in the government’s proposed changes around hate speech would have prevented the carnage.
“It therefore seems unconscionable for the government to use that massacre to advance this ideological cause,” Moon says. “Neither is there any conclusive evidence from any jurisdiction where similar measures have been implemented that radicalisation is reduced as a consequence. Indeed, the case could be made that restrictions on the open expression of ideas could end up intensifying radicalisation. It’s a not-so-unintended consequence of legislation criminalising so-called ‘hate-speech’. Anyone who thinks that a change in law will diminish hate clearly has little grasp on history.”
Moon says the current law functions well and strikes the right balance between free speech and the need to protect people. “There is therefore no advantage whatsoever in the government’s plans to criminalise certain forms of speech. The planned change to the law will represent a triumph of coercion and signals that the state no longer regards all ideas and opinions as valid.
“The fact that the government has refused to undertake comprehensive, peer-reviewed research is significant too. Had it done so, the findings most likely would have confirmed that the present legislation functions particularly well.”