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.
