Andrew Little – New Zealanders want a better justice system

Minister of Justice Andrew Little in response to the Te Uepū report – Transforming our Criminal Justice System.


New Zealanders from across the country are calling for the criminal justice system to be overhauled, says Justice Minister Andrew Little.

The Minister today released the interim report He Waka Roimata from Te Uepū Hāpai i te Ora Safe and Effective Justice Advisory Group, which captures feedback from New Zealanders on the current state of the justice system and offers insights on how it can be improved.

“I welcome the first report from Te Uepū, which clearly demonstrates a public appetite for long-term sustainable and enduring transformation in the justice system,” says Andrew Little.

“This report follows comprehensive engagement with the community and shows New Zealanders want to see less offending, less re-offending, and fewer victims of crime, who are better supported.

“The report provides sober reading. There are many stories and examples shared by victims, families, offenders and organisations that are upsetting, especially those that demonstrate failings in the system that could be avoided through simple, early and appropriate interventions.

“The report also offers hope. The overwhelming sense is that we can make change for the better, and deliver safer and more effective justice for all New Zealanders.

“I’d like to thank everyone who has given their voice especially those who have been victimised.

“Te Uepū is now developing reform options for the Government that it believes will contribute to a safer and more effective justice system,” says Andrew Little.

The interim report can be found at: http://www.safeandeffectivejustice.govt.nz/about-this-work/te-uepu-report

‘Surprising’ New Zealand has no strategy to prevent terrorist attacks

Can terrorism prevention in New Zealand be effective without having a strategy. The risk of terrorism can’t be eliminated completely, but some sort of strategy must be a help.

RNZ – Christchurch Attacks: What security agencies are keeping us safe?

The minister responsible for New Zealand’s spy agencies says it’s “surprising” the country doesn’t have a strategy to prevent terrorist attacks.

But Andrew Little maintains the country’s intelligence systems are effective.

“We like to think we have a counter-terrorism means, the ability to respond to something. But we don’t have a strategy that anticipates and prevents or seeks prevention of a terrorist act happening,” he said.

According to research by former army officers Chris Rothery and Terry Johanson, both now academics at Massey University, New Zealand’s entire national security system is “reactionary”, and does not focus on anticipating and preventing terrorist activity.

“There are not many countries that do have a national security strategy, but they do have a more formulated policy [than New Zealand] in regards to a lot of the threats that they’ll face,” Mr Rothery said.

The pair said New Zealand has no national security strategy, no counter-terrorism national strategy and – unlike in Australia,Canada and the United Kingdom – no independent body to check threats are being prioritised properly.

Andrew Little, who is responsible for the Security Intelligence Service (SIS) and Government Communications Security Bureau (GCSB), admitted the focus had been on reacting to events.

“We’ve focused a lot on building up the components you need to have a system that can act and respond, but what we haven’t done is lift it up to the next stage which is having got good foundations, to then think strategically and think ahead and think more robustly about preventative measures.”

This was the case despite a four-year rebuild of the SIS and GCSB, an extension of their legal powers and $200m extra ploughed in since 2016, once an extra $50m included in last week’s Budget is factored in.

The SIS and GCSB did not begin, in earnest, looking into far right activity until mid-2018. The agencies were yet to get to the point of focusing on individuals or organisations when the Christchurch terror attacks happened.

The DPMC stated its counterterrorism approach covered prevention and preparation, plus there was a terrorism risk profile and a framework for preventing violent extremism.

It added that there was a strategic framework drawn up just last year.  The department delayed Insight’s Official Information Act request to be supplied with the framework until later in June.

Governments can’t be fully proactive with everything.

A lot has changed regarding earthquake proofing requirements and guidelines of buildings since the Christchurch earthquakes. And insurance premiums have gone up a lot – it wasn’t just the Government who was unprepared.

There were immediate reactions to the Christchurch mosque massacres, with changes to firearms laws to make it harder to get high capacity rapid fire weapons.

There were also immediate reactions from the Police who arrested a number of people on firearms and hate speech related charges.

We can expect that our secret services are working secretly to substantially improve counter terrorism and deterrence of and prevention of terrorism.

Pike River mine re-entered, just

Pike River Re-Entry Minister Andrew Little:


More than eight years after 29 men went to work at the Pike River Coal Mine and never came home, the promise to re-enter the mine drift has been honoured.

In the presence of families, experts from Te Kāhui Whakamana Rua Tekau mā Iwa-Pike River Recovery Agency completed breaching the 30m seal and successfully re-entered the Pike River mine drift. Previously scheduled for 3 May, the milestone had been delayed following a false oxygen reading from a failed sampling tube.

“New Zealand is not a country where 29 people can die at work without real accountability. That is not who we are. And that is why today we have fulfilled our promise. Today we have returned,” Minister Responsible for Pike River Re-entry Andrew Little said.

“The tragedy that took these men’s lives was the consequence of corporate and regulatory failure.

“Fulfilling the promise to do everything possible to safely re-enter is an act of justice for families who have waited for far too long.

“It is because of the families’ tireless efforts that future mining tragedies might be prevented.

“There is still much to do. We must find out what happened at Pike River. However long that takes, the recovery project will be done professionally.

“Most importantly, it will be done safely. Safety is the families’ and the Government’s bottom line. This was demonstrated when we delayed re-entry earlier this month.

“Today’s milestone belongs to the families and to the memory of their men. It also belongs to all New Zealanders, who know that going home to your loved ones is the least you should expect after a day’s work,” Andrew Little said.

Video and photographs of the re-entry have been released by the Stand With Pike Families Reference Group at www.tinyurl.com/190521pike

Background here: https://www.beehive.govt.nz/release/pike-river-re-entry


They have only just re-entered the mine. There is a long way to go.

This is a big step towards getting into the mine to investigate causes of the explosions, and to try to recover bodies, but there is a lot to do still.

I have concerns about promises being made, and expectations. The re-entry is expensive, risky, and may or may not resolve what families of the dead miners want.

 

Cannabis referendum announcement

Yesterday Jacinda Ardern advised the Cabinet had made a decision on how they will do the cannabis referendum that has to be held before or alongside next year’s general election.

She said that Minister of Justice Andrew Little will make an announcement on it today.

There’s been a lot of conjecture, lobbying, shonky polling, leaking, misleading claims and noise over cannabis law reform.

No one in Government denies there are health issues with cannabis use, especially for young people. The whole aim of law reform is to switch from a law and punishment approach (which has been unsuccessful if not disastrous), to a health and treatment approach.


UPDATE: the announcement:

New Zealanders to make the decision in cannabis referendum

The Government has announced details of how New Zealanders will choose whether or not to legalise and regulate cannabis, said Justice Minister Andrew Little.

The Coalition Government is committed to a health-based approach to drugs, to minimise harm and take control away from criminals. The referendum is a commitment in the Labour-Green Confidence and Supply Agreement, as well as a longstanding commitment from New Zealand First to hold a referendum on the issue.

“There will be a clear choice for New Zealanders in a referendum at the 2020 General Election. Cabinet has agreed there will be a simple Yes/No question on the basis of a draft piece of legislation.

“That draft legislation will include:

  • A minimum age of 20 to use and purchase recreational cannabis,
  • Regulations and commercial supply controls,
  • Limited home-growing options,
  • A public education programme,
  • Stakeholder engagement.

“Officials are now empowered to draft the legislation with stakeholder input, and the Electoral Commission will draft the referendum question to appear on the ballot.

“The voters’ choice will be binding because all of the parties that make up the current Government have committed to abide by the outcome.

“We hope and expect the National Party will also commit to respecting the voters’ decision.

“I have today released the actual paper considered by Cabinet,” said Andrew Little.

The Justice Minister also confirmed there will be no other government initiated referendums at the next election.


Initial reaction – Green quick off the mark.

Andrew Little guarantees binding referendum on cannabis law reform

Cabinet may be announcing how they will deal with the promised referendum on cannabis law reform today.

RNZ: Little guarantees binding cannabis referendum – but yet to define ‘binding’

Justice Minister Andrew Little has guaranteed that next year’s cannabis referendum will be binding, but says he will explain “what binding actually means” when the next details are announced.

Mr Little told RNZ the government stood by its commitment to hold a binding referendum alongside the 2020 election, but he suggested the word “binding” could have several interpretations.

“We made the decision at the end of last year for a binding referendum. That decision remains,” he said.

“[But] once Cabinet has made its decisions, and we’re in a position to announce the next phase … we’ll be able to explain what ‘binding’ actually means.”

Mr Little said the best time to offer that “clarity” would be after the final decision and announcement which he expected would be in “fairly short order”.

National MP Paula Bennett said anything less than the “full legislative process” would let down the public.

“We would like to see legislation that has gone through the House … through the scrutiny of a select committee, so experts can really be involved.

“I hear though there’s a lot of dissension amongst the Greens, New Zealand First and Labour … and I’m worried they’ll go with a watered-down version because it’s too difficult for them to agree.”

This looks quite different to what National were promoting with the leaked Cabinet paper yesterday.

Andrew Little on abortion law reform

Fixing New Zealand’s abortion laws is currently being considered by the Government. Currently the laws are effectively not fit for purpose, being largely ignored but requiring women to make extreme claims.

Andrew Little: “Hard to gauge where the numbers are at at the moment, but I’m confident that we will get a change.”

It will be a conscience vote so won’t be subject to coalition arrangements, but what goes before Parliament will be decided by Cabinet which means Labour and NZ First ministers.

Little: “I’ve already expressed my support for one of the Law Commission recommendations, which was option C.”

  • Under Model C, there would be no statutory test until 22 weeks of a pregnancy. After 22 weeks, the health practitioner who intends to perform an abortion would need to be satisfied that the abortion is appropriate in the circumstances, having regard to the woman’s physical and mental health and wellbeing.

I also support Model C.

Edit: After some thought and a discussion (with a woman) I question whether 22 weeks is an appropriate cut off point. 15-18 weeks for effectively abortion on demand gives women (and girls) plenty of time to decide. If they haven’t decided by then it may be prudent to require a health practitioner to be more involved in the decision.

The chances of a foetus surviving at 22 weeks is minimal – according to studies between 2003 and 2005 the chances of a foetus surviving:

  • 21 weeks and less: 0%
  • 22 weeks:  0-3%
  • 23 weeks: 0-5%
  • 24 weeks: 20-35%
  • 25 weeks: 50-70%

https://en.wikipedia.org/wiki/Fetal_viability

In a Scientific Impact Paper published in February 2014:

‘[t]here is international consensus that at 22 weeks of gestation there is no hope of survival, and that up to 22+6 weeks is considered to be the cut-off of human viability.’

Abortion law reform has also been a sticking point with one of your coalition partners, NZ First. Where’s that at?

Yep, again, good discussions. It’s got to go through the process. It’s a little bit further behind the process than the cannabis-referendum-question issue.

So when can we see abortion removed from the Crimes Act?

Well, again, once Cabinet makes the decision — which, again, I expect will be in the next few weeks; it’ll be, you know, sooner rather than later than that — then we go through the process of legislation. And that’ll be depending on the timetabling in the house and what support it gets. It’s a conscious issue, so MPs from all sides of the house will have a chance to vote for it if they support it or vote against it if they don’t. Hard to gauge where the numbers are at at the moment, but I’m confident that we will get a change.

So where are you personally? Where are you personally now? Do you support the choice of a woman to abort up to 20 weeks?

I certainly… I’ve already expressed my support for one of the Law Commission recommendations, which was option C. Obviously, there’s details around that that are still up for negotiation. I’m confident that we will have a piece of legislation that will herald a significant change, but I can’t foretell what the house or Parliament collectively might decide or not.


Law Commission advice to the Minister of Justice (Little):

Publication date 26 October 2018

This ministerial briefing paper provides advice to the Minister of Justice on alternative approaches that could be taken in New Zealand’s abortion laws if the Government decides to treat abortion as a health issue.  It describes three alternative legal models:

  • Under Model A there would be no statutory test that must be satisfied before an abortion could be performed. The decision whether to have an abortion would be made by the woman concerned in consultation with her health practitioner.
  • Under Model B there would be a statutory test. The health practitioner who intends to perform an abortion would need to be satisfied that the abortion is appropriate in the circumstances, having regard to the woman’s physical and mental health and wellbeing.
  • Under Model C, there would be no statutory test until 22 weeks of a pregnancy. After 22 weeks, the health practitioner who intends to perform an abortion would need to be satisfied that the abortion is appropriate in the circumstances, having regard to the woman’s physical and mental health and wellbeing.

Regardless of which model may be preferred, the briefing paper sets out several other changes that could be made to align the law with a health approach to abortion. They include:

  • Repealing the current grounds for abortion in the Crimes Act.
  • Removing the requirement for abortions to be authorised by two specially appointed doctors called ‘certifying consultants’.
  • Repealing the criminal offences in the Crimes Act relating to abortion. Instead, other offences in the Crimes Act and health legislation that currently exist would protect women from unsafe abortions. If Model B or C is adopted, an additional offence could be introduced in health legislation for people who perform abortions that don’t meet the statutory test. In no case would the woman be subject to an offence.
  • Allowing women to access abortion services directly, rather than having to get a referral from a doctor as they do under the current law.
  • Removing the current restrictions around who may perform an abortion and where abortions must be performed. Instead, the provision of abortion services would be regulated by appropriate health bodies, the same as any other health care procedure.
  • Moving the Abortion Supervisory Committee’s oversight responsibilities to the Ministry of Health.
  • Requiring health practitioners who do not wish to provide health services in relation to abortion because of a conscientious objection to refer women to someone who can provide the service.

Note: the briefing paper refers to the Termination of Pregnancy Bill 2018 (Qld). The Bill was passed by the Queensland Parliament on 17 October 2018, shortly after the briefing paper was finalised for printing.

 

Pike River re-entry delayed

Re-entry into the Pike River mine has been debated and delayed for eight years. Finally everything seemed to be on track for a scheduled start to re-entry today, but it was announced yesterday that this would be further delayed.

Re-entry was always going to be risky. This shows how much of a risk it is, still.

Andrew Little, Minister for Pike River Re-entry:

Safety comes first – Pike River re-entry delayed

“Yesterday unexpected and unexplained readings were reported by the atmospheric monitoring systems in the Pike River mine, leading to re-entry operations being suspended,” Minister Responsible for Pike River Re-entry Andrew Little has confirmed today.

“Safety has always been our first priority, and will continue to be. In these circumstances the appropriate precaution is to temporarily suspend operations.

“I back the Pike River Recovery Agency to take the time needed to fully understand the cause and significance of these new readings.

“I have spoken with Anna Osborne from the Pike River Families Reference Group. The families will be disappointed at another setback, but safety has always been their first priority too.

“The Prime Minister and I will join the families on the West Coast tonight, and families will receive a comprehensive briefing from the Agency tomorrow,” Andrew Little said.

The Agency will know more after further testing and investigative work is completed over the next week. A meeting of ventilation experts will then convene later in the month.

RNZ:  Unexplained atmospheric readings delay Pike River Mine re-entry

Mr Little told reporters that the readings of elevated oxygen levels were at the borehole, near the rockfall.

The increased levels had not been predicted, and experts advising the government could not explain it, he said.

“When you’ve got a methane-producing environment as you do there – it’s the mix of methane and oxygen that makes it dangerous – that dictates what you do to ventilate the atmosphere, so it is really about making sure that the way we respond through ventilation is going to make sure that the atmosphere continues to be respirable and there is no risk of volatility or explosion.”

There would be a range of possibilities in working to explain the readings – including that the monitoring equipment isn’t accurate – and all would have to be explored, he said.

“We’ve got a discount that possibility, it may well be that oxygen is coming in through the strata, we need to we need to confirm or clarify or discount that possibility. There will be a range of possibilities. Each needs to be explored so that we know how to respond.”

“I back the Pike River Recovery Agency to take the time needed to fully understand the cause and significance of these new readings.

Further testing and investigative work will be completed over the next week and a meeting of ventilation experts will then convene later in the month.

Pike River Recovery Agnecy head Dave Gawn told media in Greymouth the delay was due to an unexpected reading in the gas monitoring.

He said safety was key.

“Dinghy and I would have no hesitation calling stop to the proceedings,” he said.

Dinghy Pattinson – the Pike River Recovery Agencies chief operating officer – said two days ago the agency started a breaching operation of a concrete seal at the start of the mine.

But at the same time they found unusual gas readings at a borehole monitoring point (at borehole 51) deeper in the mine, above rockfall.

He did not know what caused the reading, and had not seen it before.

The cause of it could be something as simple as a damaged tube, he said.

To figure out the cause the agency had lowered another gas detection tube down the same borehole.

But Mr Pattinson said the re-entry would definitely happen, he just could not say when.

They can’t afford to risk another catastrophe in the mine, but there will never be no risk.

RNZ:  Tears shed at news Pike River re-entry would be delayed

Pike River families shed tears when the news came through that today’s re-entry attempt would have to be suspended.

Hopes raised and dashed again for the families who have been pushing for re-entry.

Some want the remains recovered. Some want the cause of the explosions found. Both could be very difficult to achieve.

Is it worth any risk?

 

 

Andrew Little on the legal balance between freedom of speech and hate speech

Minister of Justice Andrew Little on freedom of speech versus protecting people from hate speech.

The New Zealand Bill of Rights Act affirms our right to freedom of expression, including the right to impart and receive opinions of any kind. Protecting freedom of speech is crucial to our democracy and the ability of all citizens to participate meaningfully.

But in the immediate wake of the March 15 mosque attacks, many citizens from minority ethnic and religious communities told of how opinions and statements they routinely see on social media and other public platforms make them feel threatened, unwelcome and alienated.

A responsible government must consider these claims, and on a principled basis.

Consequently I have asked the Ministry of Justice to work with the Human Rights Commission to examine whether our laws properly balance the issues of freedom of speech and hate speech. The process should not be rushed, and I expect a report for public comment towards the end of the year.

Drawing the line is not simple. Protecting freedom of speech that challenges authority and orthodoxy will inevitably still cause offence to some.

But just being offensive or disagreeable does not necessarily make something harmful. Controversial issues in New Zealand, such as immigration policy or indigenous rights and reconciliation with the Treaty of Waitangi, will continue to be the subject of public debate. And so they should.

Protecting our crucially important right to freedom of speech, while testing whether the balance is right regarding “hate speech”, needs a robust public discussion from all quarters. This way we will ensure that all of our citizens’ rights are protected, and every person can express their humanity without fear.

Clear definitions of ‘hate speech’ and ‘harmful’ will be crucial. In current law there is quite a high bar to prove ‘harmful’.

Note that this details an examination of whether current laws get the balance right or not. There is no certainty that the laws will be changed or not.

I think that many people have been jumping to conclusions and scaremongering about this.

The best way of dealing with it is to engage in process, to the extent of contributing to rational discussion on whether our current laws are fit for purpose.

Full op-ed at NZ Herald:


Hate speech threatens our right to freedom of speech

OPINION by Andrew Little

Protecting freedom of speech is vital to hold those in authority to account, challenge the socially and culturally dominant, and enable society to progress.

Freedom of speech can give force to new ideas, but also cause discomfort and offence. It is usually the first right to be lost under oppressive regimes, and among the first to be restored, at least in name, after revolutionary change.

The New Zealand Bill of Rights Act affirms our right to freedom of expression, including the right to impart and receive opinions of any kind. Protecting freedom of speech is crucial to our democracy and the ability of all citizens to participate meaningfully.

But in the immediate wake of the March 15 mosque attacks, many citizens from minority ethnic and religious communities told of how opinions and statements they routinely see on social media and other public platforms make them feel threatened, unwelcome and alienated.

Others have said these types of statements allow a climate to develop that is tolerant of harmful discriminatory expression.

A responsible government must consider these claims, and on a principled basis.

Consequently I have asked the Ministry of Justice to work with the Human Rights Commission to examine whether our laws properly balance the issues of freedom of speech and hate speech. The process should not be rushed, and I expect a report for public comment towards the end of the year.

The context for this stocktake is not just the horrific events in Christchurch, but also the history of free speech protection in New Zealand.

The reality is we already have laws to protect against what we call “hate speech”, which are the Human Rights Act and the Harmful Digital Communications Act. These criminalise incitement of racial disharmony through written or verbal expression, and refusal to remove social media posts which are bullying or include humiliating intimate information about someone.

Is it right that we have sanctions against incitement of disharmony on racial grounds but not, for example, on grounds of religious faith?

And how could there be any limitations on free speech, in light of the Government’s obligation under the Bill of Rights Act to protect it?

Our Bill of Rights draws on worldwide traditions to uphold basic human rights. The law has a close family link to one of the founding documents of the United Nations, the Universal Declaration of Human Rights.

The Declaration upholds freedom of thought and religion and the right to hold opinions “without interference”. But, forged in an international effort determined to eliminate the hatred and discrimination that drove World War II, it also called on us all to act towards one another in a spirit of “brotherhood”, and affirmed the right of every person to be protected against discrimination.

It drew on the revolutionary charters of the Enlightenment, the United States and French constitutions. Both protected free speech, with the Americans emphasising the equality of all people and the French stating liberty is the freedom to do anything which doesn’t harm others.

When speech threatens others, or is abusively discriminatory, then it has the potential to cause harm and encroach on the freedom of others.

As with the heritage that inspired it, our Bill of Rights recognises what it describes as justified limitations. It does so to ensure the exercise of a freedom by one person does not deny freedom to others.

Drawing the line is not simple. Protecting freedom of speech that challenges authority and orthodoxy will inevitably still cause offence to some.

But just being offensive or disagreeable does not necessarily make something harmful. Controversial issues in New Zealand, such as immigration policy or indigenous rights and reconciliation with the Treaty of Waitangi, will continue to be the subject of public debate. And so they should.

Protecting our crucially important right to freedom of speech, while testing whether the balance is right regarding “hate speech”, needs a robust public discussion from all quarters. This way we will ensure that all of our citizens’ rights are protected, and every person can express their humanity without fear.

National backs Pike River mine re-entry

The National Opposition have said they now support re-entry into the Pike River mine as they believe it can be done safely.

NZ Herald:  Politics off the Pike River table as National backs re-entry

The National Party is accepting advice that the Pike River re-entry can now be done safely, taking politics off the table on an issue that has been a bitter political battleground.

Yesterday, the party’s Pike River recovery spokesman, Mark Mitchell, met with the Families Reference Group – which represents more than 80 per cent of Pike River victims’ families – and told them National supported the re-entry plan.

Afterwards, Mitchell told the Herald the party’s position had always backed a re-entry as long as it could be done safely, but it is the first time National has told the families’ group it backs the plan.

“The advice now is that we can get in there, and we completely support that.”

As far as I can find rep-entry is planned to begin on 3 May:

Minister Responsible for Pike River Re-entry Andrew Little has announced that in light of the current state of preparations, the scheduled date to commence re-entering and recovering the access tunnel to the Pike River Mine (the drift) will be Friday 3rd May.

“Since I announced on 14 November 2018 that the project will proceed, there has been an incredible amount of preparation to get ready for re-entry. This has included preparing bridges for heavy loads, installing a nitrogen plant, upgrading the power supply, laying many kilometres of piping for the nitrogen, drilling more boreholes, installing monitoring equipment, and purging and ventilating the drift.

“As well as this, staff have been trained on working in a forensic environment. Worksafe have been reviewing all aspects of the planning, risk assessments and supporting documentation, in order to ensure the re-entry plan is safe.

https://www.beehive.govt.nz/release/pike-river-mine-re-entry

 

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.