Justice Minister says hate speech laws ‘very narrow’ with gaps

Minister of Justice Andrew Little has said that New Zealand hate speech laws are too narrow and there were gaps in the law, but also said that any changes needed to be robustly debated.

RNZ:  Current hate speech law ‘very narrow’ – Justice Minister Andrew Little

Justice Minister Andrew Little says gaps exist in current laws around hate speech and what should be considered an offence.

Mr Little announced on Saturday that he was fast-tracking the review, which could see hate crimes made a new legal offence.

Mr Little told Morning Report today the current law specific to hate speech offences was “very narrow”.

“It applies to inciting racial disharmony, it doesn’t relate to expressions that incite discrimination on religious grounds or identity or a range of other grounds.”

“If you look at the Harmful Digital Communications Act, which is the other law we have dealing with what we might describe as hate speech, it’s very thorough but the question is whether the processes that are available under that legislation are as accessible and as good as they might be, so there’s grounds to review both those areas,” he said.

On who is covered under current law, Mr Little said: “If your hateful expressions and hateful actions are directed at somebody’s religion, or other prohibited grounds of discrimination other than race then actually it doesn’t cover that, there’s no offence at that point.”

He said you could potentially lay a complaint for mediation with the Human Rights Commission, but that the most gross type of expression seen around the Christchurch terror attacks wouldn’t be covered by it and that looked like there was a gap in the law.

He said the review would make clear whether the law does fit. He’s not convinced it does, but said he’ll leave it up to the experts doing the review.

Mr Little said the issue about where the line was drawn was the most difficult part of any law that constrains expression and speech.

“The reality is we know that there are forms of expression on social media and elsewhere that you can see at face value are totally unacceptable and not worthy of defence but then there are opinions and views that we might disagree with or might even find offensive but are legitimate contributions to debate.”

Mr Little said any change to the law would need to be robustly debated.

I’m sure any suggested changes will be robustly debated.

Gordon Campbell (Werewolf) on the legal crackdown on hate crimes

Obviously, deterring hate speech and outlawing hate crime has the aim of providing better protections to vulnerable persons and communities, but without unduly restricting the public’s rights to free expression. It isn’t an easy balance to strike.

Hate crimes have a broader effect than most other kinds of violent crime. A hate crime victimizes not only the immediate target but also impacts every member of the group that the direct victim represents. Hate crimes affect families, communities, and sometimes the entire nation.

With hate speech, it is maybe worth keeping in mind that this is not purely a hate crime vs free speech issue. Speech has never been entirely free, under the law. Some language (obscenity) some speech in some contexts (eg yelling “fire” in a crowded theatre) and some types of threat have always been illegal.

Theoretically, the online expression of hate speech should fall under the Harmful Digital Communications Act, but given (a) the superheated and extravagant nature of much “normal” online debate and (b) the extent to which hate content online originates from offshore, the New Zealand law doesn’t currently offer much in the way of a defensive shield.

Moreover, regulating speech online to the point where hate speech and/or the perception of it was entirely eliminated would require a surveillance apparatus and enforcement powers like those more commonly found in totalitarian states than in social democracies. Online, the cure may be almost as mad as the disease.

It could easily be worse if allowed to go too far in restricting speech.

To me hate is a very strong term, but many people say they ‘hate’ many trivial things.

With hate crime, and hate speech then, there may well be some scope for adjusting the boundaries of what counts as “intimidation” – where co-ercion is involved or implied – and “menacing”, where the intention is to engender fear and subservience in the victim. Unfortunately though, when Parliament has tried to deal with this sort of thing in the recent past, ordinary civil liberties have gone out the window in favour of rank political posturing.

Political posturing is a problem in any serious debate.

As Andrew Little has said, we have until December to find viable ways to criminalise expressions that (currently) do not meet the traditional tests of criminality – but which nevertheless have left vulnerable communities or persons feeling less safe. (Arguably, the repeated expression of hostile sentiments can serve to make an actual attack more likely.)

Any pre-emptive law however, which tries to restrict expression in areas where strong social disagreement exists will still need to be even-handed.

Putting that in context of recent discussions, that means restrictions on derogatory expressions related to religion would have to be ‘even handed’ – so should apply equally to ‘hate speech’ against Muslims and Islam, Christians and Christianity, and also agnostics and atheists.

This requirement may not suit groups that feel they have historical grievances, or socio-economic inequality etc on their side.

As the late US justice Antonin Scalia once famously wrote, the state has no authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensbury Rules. That’s one of the ironies.

The pressure for change may have to do with expressions of hostile content, but the solutions – if they are to be enforceable – will probably need to be formulated in ways that are content neutral. There will be few easy political points to be scored from such formulations.

The free speech versus hate speech debate is more than political – it is about the fundamentals of democracy as well as the fundamentals of a (relatively) free and open society.

17 Comments

  1. David

     /  4th April 2019

    God lets not end up like the UK with folk being arrested for mis gendering someone on Twitter, or purported islamophobia.
    If you no longer have words to be able to express yourself what are you left with..well look at what is being elected across Europe and the violence that comes with it after the public was left without a voice.

  2. Alan Wilkinson

     /  4th April 2019

    Censoring free debate in one place can create hate speech in other places. This is becoming all too depressing and negative.

  3. david in aus

     /  4th April 2019

    “Putting that in context of recent discussions, that means restrictions on derogatory expressions related to religion would have to be ‘even handed’ – so should apply equally to ‘hate speech’ against Muslims and Islam, Christians and Christianity, and also agnostics and atheists.”

    I think you are being very optimistic. The current narrative and interpretations are that discrimination and hate can only be related to “oppressed” groups. Thus, “white-privilege’ can be said with abandon but not about some other groups. The answer you will get runs along the lines of, “You don’t understand power structures …..”. I remember the current Minister in the Labour Cabinet (Willie Jackson), who said on his radio program: “Maori cannot be racist”, using that line of thinking.

    When a previous commentator mentions that those of only a particular political persuasion seems to have a free pass, they have a strong point.

    The danger is the subjective interpretation and application of any laws.

  4. david in aus

     /  4th April 2019

    What is interesting is that the current mood of “Liberal Democracies” is to move towards the Singapore model on Free Speech.

    Singapore’s sedition act: “A notable feature of the Sedition Act is that in addition to punishing actions that tend to undermine the administration of government, the Act also criminalizes actions which promote feelings of ill-will or hostility between different races or classes of the population”.

    Singapore had been pilloried by the Liberal Western media for their laws. The irony is not lost on me.

    A case in point: Amos Yee.
    “Singapore’s authorities detained Yee for 55 days over that video, in which he also used profanity and made disparaging comments about religion. Yee, who is an atheist, also went to jail for several weeks in 2016, after the government said he was guilty of “deliberate intent to wound religious feelings” because of his comments about Christianity and Islam.”

    Amos Yee was granted asylum in the US after fleeing Singapore.

  5. david in aus

     /  4th April 2019

    Songs that may be considered offensive and banned under broaden Hate Speech Laws, if we apply offensive speech equally to all religion.

    God is a woman: Ariana Grande
    Judas: Lady Gaga
    Bohemian Rhapsody: Queen- banned in some Muslim countries for using the word “BIsmilla”, a word found in the Koran.

    The list could be endless.

  6. artcroft

     /  4th April 2019

    The list of people you will still allowed to hate on:
    White people
    Men
    Christians
    People who eat meat
    TERFS
    Those on the right.
    Free thinkers.

    • PDB

       /  4th April 2019

      Motorists
      Rich Pricks
      Business people
      Taxpayers
      Anybody with anything ‘negative’ to say (no matter how small) about Islam/ Maori
      Critics of the modern day reinterpretation of the Treaty
      Donald Trump
      People not convinced man is the primary driver of climate change

      • Corky

         /  4th April 2019

        ”People not convinced man is the primary driver of climate change.”

        That’s a great one at the moment with some councils not convinced about signing another bs climate accord. Finally people may be seeing this scam for what it is.

    • Duker

       /  4th April 2019

      You all seemed confused about what hate speech is . Hating or deriding a group isnt hate speech.

      Wasnt there that former woman train driver who used to write about rural issues who ‘wanted to break legs’ over a certain environment issues. -Thats hate which combines politics and violence.

    • Kitty Catkin

       /  4th April 2019

      Artcroft, I haven’t eaten meat for years and now find the idea revolting, but don’t hate the poor benighted souls who still do this disgusting thing; eating a carcase, ugh, ugh. Eating a pig’s arse…pass the bucket….

  7. adamsmith1922

     /  4th April 2019

    Personally I am for free speech and against any further restrictions than those we have at present.
    I believe that any changes will cause more problems than they solve.
    We will land up granting a hunting licence to those who seek to be perpetually offended.
    It is indeed ironic that so called ‘progressives’ are leading this push for suppression, regression and oppression.

    • PDB

       /  4th April 2019

      Ironic maybe but in keeping with what being a ‘progressive’ is all about.

  8. PDB

     /  4th April 2019

    Slippery slope this – in a similar vein: “Radio talkback host Heather du Plessis-Allan ‘leeches’ comment in breach of broadcasting standards”

    Saying somebody or something ‘leeches’ off something is a fairly common expression & comparing her saying it to genocide as one nutter did is the height of overreaction.

    https://www.stuff.co.nz/entertainment/tv-radio/111785592/heather-du-plessisallan-in-breach-of-broadcasting-standards

    • Alan Wilkinson

       /  4th April 2019

      BSA empathises with fellow leeches.

      • Duker

         /  4th April 2019

        Fancy that . We dont really have free speech afterall – not that you have been complaining for decades about the ‘Film and Literature Classification’ and the ‘Broadcasting Standards. Then there is the Advertising Standards but thats an Industry Body not Government.

        For some strange reason, when its a terrorist and white supremacist ‘media fu&%ing’
        72 page screed whos been shut down you are stirred up over censorship.

        • Alan Wilkinson

           /  4th April 2019

          You rabbit about stuff you know nothing about. Actually I’ve been a critic of all of them for decades but you wouldn’t know.

          • sorethumb

             /  5th April 2019

            The only reason I can think of for not letting us read his manifesto is that we might agree?