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About the Hate Speech law changes

Written By: - Date published: 12:06 pm, July 6th, 2021 - 94 comments
Categories: act, human rights, labour, making shit up, national, same old national, spin, United Nations, you couldn't make this shit up - Tags:

Another week has passed and attacks on the Government’s hate speech consultation continue.

I am struggling with this.   The quality of the debate resembles what is happening right now in America where a three letter acronym, CRT, which stands for Critical Race Theory, has erupted as something to be feared from the bowels of right wing media.  You may think that Trump has gone, but his ugly racist intelligence hating spirit lives on.

Critical Race Theory is a body of research that investigates structural reasons for why Black Americans fare so much worse than their white counterparts.  Given appalling statistics concerning such things as life expectancy, education attainment and incarceration for black people you would think that it was a topic that should be researched.

Instead the right has launched onto it and accused it of being all sorts of things from an attempt to undermine American Society to an attempt to install socialism.  The rhetoric is really overblown as shown by this clip from the Daily Show.

This reminds me of what is happening in Aotearoa as the Government’s hate speech consultation is debated.

My digital comrade Ad wrote this passionate post about the Government’s proposals and condemned it.  My other digital comrade Clint Smith wrote this other passionate post about the Government’s proposals and said that the intent is good and we should make it work.  Both of them did something that has been missing from the debate so far, they actually analysed what is being proposed.

Unfortunately the debate has been steered away from the actual reality of what is being suggested with some of the contributions shrill and hypo.  Ad’s contribution, which was well reasoned and actually addressed the proposal, is not included in this description but head over to the Daily Blog read and Martyn Bradbury’s and Chris Trotter’s contributions to see what I mean.

It should be remembered that we are dealing with the aftermath of one of the country’s darkest days when 51 kiwis were killed because of the religion they followed.

The events of that day showed how inadequate the law was.  There was a video floating around the internet showing what happened and the authorities needed an urgent ruling by the Classification Office that it was objectionable for the video to actually become illegal.  Imagine having to get a ruling from a Government that something as base as this is illegal before action can be taken.

The Royal Commission into the Terrorist Attack reviewed what had happened and recommended that the Government repeals section 131 of the Human Rights Act 1993 and insert a provision in the Crimes Act 1961 for an offence of inciting racial or religious disharmony, based on an intent to stir up, maintain or normalise hatred, through threatening, abusive or insulting communications with protected characteristics that include religious affiliation.  The Government is is consulting about this proposal.

There are three proposed changes that if enacted would affect the current definition of what is illegal:

  1. A change to the language in the incitement provisions in the Human Rights Act 1993 so that they protect more groups that are targeted by hateful speech.
  2. Replacing the existing criminal provision in the Human Rights Act 1993 with a new criminal offence in the Crimes Act 1961 that is clearer and more effective.
  3. Increasing the punishment for the criminal offence to better reflect its seriousness.

Let us look at what is being proposed.  I am concentrating only on the criminal law implications because these are the changes attracting most attention.

The proposed changes are:

The wording of … the proposed new section 131 … would be changed so that they apply to communications aimed at certain groups of persons in or coming to Aotearoa New Zealand who are protected from discrimination by section 21 of the Human Rights Act.

And …

A new provision would be added to the Crimes Act, which would create a new offence with four key elements. It would be a crime to:

1. intentionally incite/stir up, maintain or normalise hatred

2. against any group protected from discrimination by section 21 of the Human Rights Act

3. through threatening, abusive or insulting communications, including inciting violence

4. made by any means.

The exact wording of this provision will be determined following consultation. This includes whether to use the term “incite”, “stir up” or some other term with the same meaning.

The new offence would be punishable by imprisonment for a term not exceeding three years’ imprisonment or to a fine not exceeding $50,000.  The maximum penalty for an offence under section 131 is three months imprisonment or a fine of $7,000.

Contrary to the impression that some are trying to create the proposal does not radically change the law.

George Driver at the Spinoff has this very clear analysis of what the changes involve:

So how would this law apply in practice? This is the crux of the debate. It is not clear. It is easy to let your imagination run wild with situations where a person could intentionally stir up, maintain or normalise hatred towards a political group or an age group in ways that seem trivial rather than criminal. This was highlighted when Tova O’Brien grilled justice minister Kris Faafoi over just what would and would not be illegal under the law. Would expressing hatred towards house-hogging boomers break the law? “Perhaps,” he said. Could Israel Folau be imprisoned for tweeting that unrepentant homosexuals would be condemned to hell? He “could be,” Faafoi said. The prime minister has also done little to clarify how the law would apply, erroneously implying on the AM Show on Monday that it would only apply to language that incites abuse and violence and that political opinions would be exempt under the proposal (they are not).

The opposition also hasn’t helped clarify the situation, claiming the law will “restrict and regulate the words that come out of our mouths” (as a reminder, the law already exists in regards to racism and in an arguably looser form). Judith Collins claimed it is already a crime to incite violence and “these draconian proposed laws” won’t plug a hole in the law.

However, University of Otago law professor Andrew Geddis says that’s not entirely true. While it is already a crime to incite specific acts of violence (like calling on people to torch someone’s house) and it is a crime to threaten to kill specific individuals, he says it is not currently illegal to threaten to kill members of a general group.

“We saw this play out very recently in relation to a YouTube video where a guy threatened to ‘slaughter Māori people’,” Prof Geddis says. “The police initially couldn’t arrest him for this, until the Classification Office deemed the video to be ‘objectionable’ – then they could arrest and charge him for making an objectionable publication.

“This approach is a bit of an end-run around the limits in the Crimes Act, but it depends on the speech in question being a ‘publication’ (i.e. not simply verbal in nature) and rising to the level of being ‘objectionable’ under our censorship legislation.

Steven Price does not hold back in his criticism of the main stream media excesses in their rhetoric about the proposal:

Let’s start with the alleged “shutting down” of the debate. Really? I mean, really? The government has just released a policy proposal in a discussion paper that literally says, several times, “the government wants to hear from you”. Even if the PM’s responses were “glib” and “dismissive”, that is not shutting down a debate. Different people could have different views about whether her comments were glib or dismissive. Some might even think that glib and dismissive were pretty accurate descriptions of Newhub’s coverage …

And as to the proposed threshold:

Is Duncan Garner right to say that the law could make it against the law to “insult and/or offend people”? No he’s not. The bar is much higher than that. To be criminal, someone’s speech would have to do ALL of six things:

  • be of a particular type (insulting, threatening or abusive) AND
  • be aimed at having a particular effect (incite or normalise hatred, including violence) AND
  • have a particular intention (an intention to incite or normalise hatred) AND
  • be aimed at a particular group (eg racial or religious) AND
  • In the way it is applied in the courts it will have to also have to overcome the protection for free speech in the Bill of Rights Act: that is, a court will have to be satisfied that any conviction is demonstrably justified in a free and democratic society. (Note to Bill of Rights nerds: I say this because of precedents like Browne v CanWest and because the law seems sufficiently open-textured that it could not be said to dictate an outcome inconsistent with the Bill of Rights).
  • sufficiently bad to convince the Attorney-General give consent to a prosecution.

This is a far cry from a law that protects people from just being offended.

Price also describes the complexity of drafting an adequate definition well:

Here is the thing about hate speech: it’s really hard. The harms that can be caused by hate speech are terrible, and they are not necessarily easy for people who aren’t targeted to understand. (If you don’t believe me, read a book called “Words that Wound” and then we’ll talk.)

But it’s almost impossible to define. Any attempt is likely to cover too much speech or too little, or have the appearance of covering too much but the effect of covering too little. How can you juggle all the things it’s supposed to deliver: alleviating the harms of hate speech, protecting important speech that might cause offence, using the law as a signal, using it as a whip, maintaining flexibility, creating clarity, being workable, gaining legitimacy, not creating counter-productive backlash? How do you clearly define the type of speech, the effect it must have, the mental element, and what exceptions there might be for humour or satire, news reporting, drama or for other speech in which there might be overwhelming public interest?

The quality of the debate so far was exemplified by Radio New Zealand’s political commentators show yesterday.  Bridget Morten claimed that insulting a protected group could result in prosecution and three years jail.  Neale Jones replied by correctly pointing out that only extreme hate speech is criminalised and that there must be an intention to cause others to develop and strengthen a hatred towards a particular group.  Kathryn Ryan chipped in that explaining is losing.  As has been pointed out on twitter Radio New Zealand should do better and if any media should actually be digging into and analysing the issues it should be RNZ.

I sense this issue will continue to simmer and boil for a while.  There are too many culture war battles to be fought and National and Act clearly think they are onto a winner.

But if only we could have a debate about the actual merits.  Instead of this we are being subject to extreme rhetoric from the right such as these examples, the first from ACT and the second from National:

  • “Tougher hate speech laws will take away basic rights to free speech, shut down debate, and make people afraid to express themselves. In short, it will put cancel culture on steroids. We are going to see petitions and lynch mobs demanding Police prosecute people with unpopular views. The only people who win are the perpetually offended.”
  • “This is about control. It is about ensuring that only approved opinions are allowed and making questioning those opinions criminal.”

I suspect we are going to get a great deal of anger and smoke up to the next election.  National is desperate and has no other tool in its tool kit.  Being aided and abetted by some on the left who managed to use the word woke ten times in a single blog post takes some skill.

Don’t get me wrong.  Free speech is one of the most important rights that we have.

This Rowan Atkinson clip captures the importance of the right and the absurdity of attacks on the fundamentals of free speech. But please note none of the examples he gave would be captured by the proposed changes.

We need to have a respectful discussion of the proposed changes and their effect.  Right now we have a rabble conducting a culture war seeking political advantage by peddaling falsehoods.

94 comments on “About the Hate Speech law changes ”

  1. coreyjhumm 1

    Anytime that the state proposes new restrictions on basic human rights or constitutional reforms there rightly will be massive ammount of scrutiny and push back it would be wrong if there wasn't push back, it's shocking to me that some of my comrades are shocked that people are anxious, worried and suspicious about the proposed hate speech reforms.

    There is no arguing that we do need to reform aspects of our speech laws but the proposed legislation whose submission window is extremely short compared to the importance of it on our day to day life has been debated horrifically by the justice minister and the prime minister who have both been caught out as not having a good understanding of what they are proposing and have had to back down several times. This is shocking, for everyone saying that the opposition to the reforms havent read the propositions I'd wager the PM and justice minister haven't in depth read them either based on the way they keep being caught out by journos and opposition as getting points wrong.

    When legislation or proposed legislation includes wording that says mocking or insulting a group is hate speech and the pm says it only applies to threats to harm and then says political opinion isn't in the Legislation but then backs down and says political opinion may not be protected , we have serious issues and the pm ought to get better information and absolutely swear to protect the right of satire, insults, mocking and political opinion. So far she has not.

    If we get that assurance much of the fear will die down.

    If political opinion and satire and the right to offend mock and insult is not protected the left will be the ones who suffer, Maori activists, woke activists, climate activists, unions, comedians, subversive teens all groups who say salatious and quite insulting things at times will be the first to be charged.

    These laws would not and will not prevent a terrorist attack.

    Gun laws however will.

    As an lgbt+ I have had hate speech directed at me and I know what it looks like but it doesn't look like insults/mocking/satire or political opinion and until these things are sworn to absolutely be protected then I will continue to oppose these reforms.

    To compare this to what's going in America is to insult many of your comrades, the pm and the minister have done a horrific job in communicating these proposed reforms and they are incredibly vague, harsh and it's incredibly insulting to many on the left who have read the proposals to lump us in with the alt right because we have genuine concerns, shutting down debate like that and tarring opponents like that will not bring anyone together it will only create more division.

    • nukefacts 1.1

      Hear hear, well said coreyjhumm

    • justone 1.2

      Very well put and i agree with almost all of what you say

      I believe that people are looking in the wrong place for answers though,

      Speech is not a problem , It is the solution

      Speech is the bypass valve that lets the tension leave the vessel , The more we restrict it the bigger the bang when the vessel lets go.

      We have laws for protection against direct threats of harm, These new laws i feel will have no real bearing in real world terms except for causing more tension. People with intellect can hold heated debates and discussions and still respect their opposite if they bring substance to the conversation. Only moronic fools that lean on force and violence can not entertain conversations and discussions that contradict their view point or position.

      They instead incarcerate or fine others who have view points that differ. A pathetic approach that will only cause more harm than good.

      Anyone with a kind heart and or a mind capable of digesting things fully stands at the position of say what you will and believe without consequence but use force to impose your will and you have crossed the line. Force is not discussion or speech and it is force applied that is the true problem.

      The world is diversifying at a faster and faster rate , a snowball of human evolution gaining unstoppable momentum, This at its basic existence is 2 polarities at war , ideals at opposing positions and nothing more..

      No hate speech laws or anything similar will ever stop a mad man with bad intentions , You can not legislate crazy away with speech laws , this is a delusional , detached viewpoint that will cause more harm than good

      • mickysavage 1.2.1

        I think I will create some boilerplate text out of this:

        1. Read the proposal.
        2. It does not criminalise insults.
        3. Arguably it means the law covers more groups but the threshold for a prosecution is actually increased.
        4. Tell me why existing provisions such as the Summary Proceedings Act, the Films, Videos, and Publications Classification Act, the Harmful Digital Communications Act and the Human Rights Act have not crushed the right to free speech.
        • justone 1.2.1.1

          Mickey , remember when speed cameras were first introduced "we will never hide speed cameras, this isnt about revenue" an inch always becomes a mile

          We are looking at the same thing from a different view point.

          The REAL ISSUE is only going to get worse,

          I am glad you have total clarification on the issue as it seemed fa foi and jacinda had discrepancies about clarification.

          I believe that while we as humans are different , there will always be differing points of view , accept that . some people hate accept that. where we can find common ground is that force is not acceptable, I dont believe these laws will change anything in that regard . Is there data to prove the opposite or is this just a form of virtue …

          People insult me all the time, Im opinionated , So be it. Most of the time i just laugh it off . I would even go as far as to say some people hate me. their problem and their right to do so..

          My position until i see you or others present data to change my mind is that these laws are negative in regards to social cohesion

          Its not always the laws presented , the direction the laws take us is often more important and in the long term more relevant

          Call me what you want , hate me as much as you want . I endorse your right to do so . My ego can take it..
          If you cant laugh at yourself then you have no right to laugh at others

          • lprent 1.2.1.1.1

            remember when speed cameras were first introduced "we will never hide speed cameras, this isnt about revenue" an inch always becomes a mile

            Sigh. That sounds like a completely unsubstantiated assertion to me. If you want to use that kind of argument here, then you should probably expect to substantiate it.

            The only thing that a speed camera does is to take photos of cars that are exceeding the speed limit of the road that they're travelling down. They have been remarkably effective at doing that. I used to largely ignore speed limits and drive to what I thought was a safe speed. I notice that I don't do that nearly as much now. I also now haven't had a speeding ticket from either a cop or a camera in nearly 2 decades.

            To substantiate your claim you'd need to demonstrate that the posted speed wasn't clear and that the ticket was a trick because of that. That would be pretty hard these days partly because motorists object to speeding tickets in court on that basis and the posted signs are pretty damn clear even in the backblocks.

            Or you'd have to substantiate a claim that the speed cameras were deliberately configured to be incorrect. There have a been a couple of cases here where the defence was that the cameras weren't calibrated recently enough or by people who could calibrate them professionally – thereby throwing doubt of their reading. That has improved the calibration procedures quite a lot. I don't know that a case here has ever proved that the calibration was incorrect either intentionally or by accident.

            Anything else would just come down to idiots like to speed and idiots must like getting speeding tickets.

            It sounds like you might fit that case – just my opinion you understand…

            • justone 1.2.1.1.1.1

              You missed my point . The point is death by a thousand cuts.

              I dont have a problem with speed cameras , I have a problem that we were misled in order to pass a law that was not favorable with the majority and these misleading tactics are often used . That was just an example

              Personally I have had one speeding ticket in 25 years of driving . I own it , I fucked up

              Its not unsubstantiated it was on the paul homes show . I remember my father laughing and saying "sure you wont"

              • mickysavage

                But but but but

                This is not a proposal for a new restriction. It is a proposal to change an existing restriction that is being made tougher to breach but will apply to more groups.

              • lprent

                Its not unsubstantiated it was on the paul homes show . I remember my father laughing and saying “sure you wont”

                Paul Holmes show! Must have been decades ago. He has been dead for the last 9 years. Ummm. He resigned from TVNZ in 2004 after 15 years of the Holmes show. Spent 6 months on a similar show on Prime. After that that weekly chat show on Prime until 2008.

                However as far as I am aware neither Paul Holmes nor anyone else has ever had any evidence to suggest that speed cameras do anything more than snap people who are actually speeding.

                I’d call that to be a completely unsubstantiated assertion by you that they were only there to get collect fines. If you want to assert that there has been such proof, then I’d suggest that you find something credible (ie not a dead talk show host waffling) that actually proves it.

                There have been cameras added over the years in various locations and into the mobile fleet. Their increase has been backed by where there are known speeding points needing sped limits to be followed, and areas where there are high speed related death rates.

                Last I looked the biggest fines collection were for cameras on Tamaki drive. That is also an area that still has a lot of cars and a lot of cars speeding.

                • Anne

                  Last I looked the biggest fines collection were for cameras on Tamaki drive. That is also an area that still has a lot of cars and a lot of cars speeding.

                  Yep. The entitled rich brats from Remuera/Parnell et al who think the laws of the land don't apply to them. Got the same problem on the Shore around Takapuna and through to Devonport.

                  I grew up in Mt. Albert – a nice middle of the road suburb – and when I came to the Shore to live the aggressive driving shocked me to the core. 40 years on they've had their wings clipped because the main road through [Lake Rd] is permanently grid locked from morn to night.

                  One of the local speed cameras is on the straight stretch of Lake Rd known as memorial drive at the bottom of the last hill into Devonport. Its a great reminder to everyone and noticeable how quickly the cars slow down. So, they achieve what they set out to… act as a brake and save injuries and lives – not to mention smashed up cars.

        • Darien Fenton 1.2.1.2

          Yes : thank you Micky. It might help people actually ask the questions they should. As if the world is gonna end on the rock of a conversation like this.

      • lprent 1.2.2

        We have laws for protection against direct threats of harm, These new laws i feel will have no real bearing in real world terms except for causing more tension. People with intellect can hold heated debates and discussions and still respect their opposite if they bring substance to the conversation.

        The problem with your thesis, and we see this here all of the time, is that common tactic of bigoted arseholes is to conceal their intent, threats and even their actions by spraying it across a group rather than the individual. The reason that they do this on this site and others is because that often it isn't a criminal offence to do so.

        Now on this site we don't care. We treat all threats, implied and actual, against groups as being against individuals. Which is effectively what this Act looks like it will do as well.

        Places with less strong legal and moral standards often don't – there are a few running around NZ that actually make a living off doing what these laws will deny.

        Sites that are excessively shy of civil litigation won't as well. Facebook being the obvious example until they started getting pinged for it.

        No hate speech laws or anything similar will ever stop a mad man with bad intentions , You can not legislate crazy away with speech laws , this is a delusional , detached viewpoint that will cause more harm than good

        Nope – but what it can do in the current world is to provide the required legal cover to minimise the impediments for communications channels to limit the access of crazy dimwits to hook up with each other and incite or plan their intended operations.

        In short – your ideas are those of a deluded fool with a simplistic shallow understanding of the issues. Perhaps you need to think more before pulling and pulling this kind dumb shit here.

        • RobbieWgtn 1.2.2.1

          "…that common tactic of bigoted arseholes is to conceal their intent, threats and even their actions by spraying it across a group rather than the individual"

          Yep, I see Rawiri Waititi do that frequently.

          • lprent 1.2.2.1.1

            Possibly. I have no idea. Doesn't do it here though.

            It was the favourite tactic at the late Whaleoil (and its successor) site. Happens frequently in the comments section at Kiwiblog. Some radio jocks like Mike Hosking depend on it for their living. And it sounds like it is increasingly taking over at TDB.

        • justone 1.2.2.2

          Yawn your right im a simple minded fool and this new law is going to make the world a place where people cant get together anymore to do stupid things.

          You dont think there will be simple workarounds?

          perhaps you spend too much time in echo chambers and your thoughts are over reinforced

          The majority of people dislike this proposal and dont want it passed . We must all be delusional and you must be right and anything spoken to the contrary must be ridiculed and belittled, Who cares what the majority want in a democracy . That dosnt matter . The poll i took part in was 85% against but who cares because only you know right

          Ive lived in very violent countries where the murder rates in cities are more in a year than this country has in decades.. Perhaps I have reference points of understanding that are beyond your minds comprehension.

          • mickysavage 1.2.2.2.1

            How about you detail what it is that you do not like about the proposal. And address the actual proposal, not what Judith says.

    • mickysavage 1.3

      Anytime that the state proposes new restrictions on basic human rights or constitutional reforms there rightly will be massive ammount of scrutiny and push back it would be wrong if there wasn't push back, it's shocking to me that some of my comrades are shocked that people are anxious, worried and suspicious about the proposed hate speech reforms.

      Sure some people are anxious. This sustained attempt to misrepresent the actual effects of the proposal is having that effect.

      There is no arguing that we do need to reform aspects of our speech laws but the proposed legislation whose submission window is extremely short compared to the importance of it on our day to day life has been debated horrifically by the justice minister and the prime minister who have both been caught out as not having a good understanding of what they are proposing and have had to back down several times. This is shocking, for everyone saying that the opposition to the reforms havent read the propositions I'd wager the PM and justice minister haven't in depth read them either based on the way they keep being caught out by journos and opposition as getting points wrong.

      This is a consultation on a proposal. If there is to be legislation then it has to be drafted and put through Parliament complete with a separate select committee process. This is not being rushed. It is actually quite careful.

      The PM and Faafoi struggled to answer some way out of left field propositions put to them sure. How about you detail which part of the proposal you object to and why.

      When legislation or proposed legislation includes wording that says mocking or insulting a group is hate speech and the pm says it only applies to threats to harm and then says political opinion isn't in the Legislation but then backs down and says political opinion may not be protected , we have serious issues and the pm ought to get better information and absolutely swear to protect the right of satire, insults, mocking and political opinion. So far she has not.

      Read the proposal. It suggests there are six discrete hurdles that would have to be met before a prosecution could even be started. It does not say that mocking or insulting a group is hate speech. Also required would be the following:

      • It has to be aimed at having a particular effect (incite or normalise hatred, including violence) AND
      • There has to be a particular intention (an intention to incite or normalise hatred) AND
      • In the way it is applied in the courts it will have to also have to overcome the protection for free speech in the Bill of Rights Act: that is, a court will have to be satisfied that any conviction is demonstrably justified in a free and democratic society.
      • It has to be sufficiently bad to convince the Attorney-General give consent to a prosecution.

      If political opinion and satire and the right to offend mock and insult is not protected the left will be the ones who suffer, Maori activists, woke activists, climate activists, unions, comedians, subversive teens all groups who say salatious and quite insulting things at times will be the first to be charged.

      Political opinion and satire would not meet the definition of hate speech.

      These laws would not and will not prevent a terrorist attack.

      Gun laws however will.

      The Government has changed the gun laws.

      As an lgbt+ I have had hate speech directed at me and I know what it looks like but it doesn't look like insults/mocking/satire or political opinion and until these things are sworn to absolutely be protected then I will continue to oppose these reforms.

      How much proof do you require? What words in the proposal would you change?

      To compare this to what's going in America is to insult many of your comrades, the pm and the minister have done a horrific job in communicating these proposed reforms and they are incredibly vague, harsh and it's incredibly insulting to many on the left who have read the proposals to lump us in with the alt right because we have genuine concerns, shutting down debate like that and tarring opponents like that will not bring anyone together it will only create more division.

      This is exactly what is happening in America. Just look at the number of times that the claim has been made that this criminalises insults when clearly it does not.

      • Nic the NZer 1.3.1

        "The PM and Faafoi struggled to answer some way out of left field propositions put to them sure."

        I presume they were well prepared for, "what is your name, what is your quest and what is your favourite color though".

    • Bazza64 1.4

      Well done Corey – agree with everything you say.

      The government has been caught looking like fools trying to bring this in & not even fully understanding the issues involved. Their fallback position is "Its a discussion document"

      • mickysavage 1.4.1

        It is a discussion document and they are inviting comments. Everyone can submit on it. Hopefully people will actually concentrate on the proposal because I have not seen much evidence of this occurring so far.

    • Liberal Realist 1.5

      coreyjhumm – Completely agree, my thoughts exactly. Thank you for taking the time to put forward a thorough, eloquent, insightful analysis and opinion. + 100!!

    • Sacha 1.6

      As an lgbt+ I have had hate speech directed at me and I know what it looks like but it doesn't look like insults/mocking/satire or political opinion

      Corey can you please tell us what it does look like? Genuinely interested how it differs from those other things.

      • mickysavage 1.6.1

        It is already an offence to excite hostility against or bring into contempt any group of persons in or who may be coming to New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons.

        If LGBT+ people think they should not receive the same protection then they should say so and tell the Government.

        • Sacha 1.6.1.1

          I'm interested to know how Corey recognises it, as distinct from insults, mocking, etc.

    • Incognito 1.7

      Anytime that the state proposes new restrictions on basic human rights or constitutional reforms …

      From that I take it that you have not read a single word in/of the Discussion Document. There are no such proposals, in fact, it is rather the opposite:

      Freedom of expression is an important value that this Government defends. It is enshrined in the New Zealand Bill of Rights Act 1990, alongside freedom from discrimination. An aim of these proposals is to better protect these rights, including the rights of people who are the targets of hate speech to express themselves freely. The Bill of Rights Act allows for justifiable limits on rights, balanced against others’ rights and interests.

  2. Anker 2

    Ok MS I may not be as well informed as I should be about this.

    But two very concerning things leap out of me. Feel free to correct me if I am wrong.

    1. The insulting bit. If I say something that a group feels insults them, then they can complain to the police.
    2. If they complain to the police, the police could determine that the insult reaches a thresehold and potentially I could be jailed for three years.

    As I have commented on FB I have gender critical views. In the UK women have faced dire consequnces for expressing these views. I am not comfortable that I will be protected under the new law and frankly I don't want to be a test case.

    The other thing is this will drive hate speech underground. People will be very resentful about that. Is that going to make them feel better towards the group they have expressed hate towards???????? I don't think so. And what is going to happen if you throw said people in jail for three years. They will come out reformed and say, yeah I was wrong, this xxxxx group of people are really great, I made a mistake. Yeah right.

    So please feel free to shoot me down in flames……I would love to be reassured that there is nothing to see here. All good.

    • Visubversa 2.1

      We have seen what has happened in the UK – Harry Miller (Fair Cop). Maya Forstater etc. Fortunately, the Court in the Forstater case found that gender critical views per se were not hate speech (and neither were views opposing it). There is no good definition of "gender identity" that does not involve circular reasoning, and even less of a good definition for "sex expression".

    • lprent 2.2

      If they complain to the police, the police could determine that the insult reaches a threshold and potentially I could be jailed for three years.

      No you are completely wrong.

      You have left out the courts, the defence, and for that matter just having sufficient evidence to even bring forward the charge.

      Given the potential jail term I'd guess that would have to go before the crown law office which is overseen by the solicitor-general and putting prosecutions on behalf of the attorney-general. Generally none of bodies gets happy about putting forward cases in front of the court that they don't think are winnable.

      We simply don't allow the police to bring forward serious charges and convict without a judicial process. You'll find a lot of police complaining about the constraints binding their summary judgements.

      The other thing is this will drive hate speech underground. People will be very resentful about that.

      If someone is advocating actions against groups that would be winnable in court under this law, then I really don't give a shit about their feelings. I'm more interested in making sure that they don't have the capability to kill people in a massacre.

      Making threats that potentially could cause violence against a group is exactly the same as threatening a individual as far as I am concerned.

      It sounds like the legal system is catching up to the same rules that we have on this site.

      • Cricklewood 2.2.1

        Where I see the issue with this law sitting, is that is is going to be very subjective without very clear guidelines written into the law Police etc are going to default to 'let the courts decide' in order to get precedent established.

        The financial cost of engaging a lawyer to defend yourself will be in many cases ruinous even if it never makes it to a courtroom.

        Having the Prime minister and relevant minister saying contradictory things in public is also unhelpful.

        'Making threats that potentially could cause violence against a group is exactly the same as threatening a individual as far as I am concerned.'

        That seems a really easy fix to already existing law that would tidy things up somewhat.

        • lprent 2.2.1.1

          Yeah, that is my concern as well.

          Front-loading the precedent is pretty damn painful when you're the person that it is being focused on. I have pointed that out in other comments.

          With the police, it usually won't be too much of an issue. I'd generally expect them to only deal with clear-cut examples of danger and sufficient evidence. Mostly they will use such laws to deal with egregious examples.

          With complainants who are reasonably responsible I'd expect that they won't get too far past wanting the police to communicate their views to the enablers like this site or facebook or whatever. If the police choose to not want to take the case forward because they don't think that they can win and where they don't think there is a danger, then the complainants will probably be grumpy but probably satisfied that the other side gets the message.

          The ones that I worry about are the nuisance complainants taking private prosecution cases under the law. Those get costly and long very fast because they're typically run by legal idiots with a tendency to go bankrupt rather than paying court costs.

          • Cricklewood 2.2.1.1.1

            Yeah real risk of fuckwits on both sides trying to run private prosecutions…

        • Graeme 2.2.1.2

          That seems a really easy fix to already existing law that would tidy things up somewhat.

          And once submissions are considered that could be the outcome. But sometimes the obvious 'simple' solution has hidden knobs on it, so we have this discussion document and submission process to test the ideas.

          I just wish people could be more civil in the conduct of the discussion, but then we probably wouldn't have hate speech either.

      • Anker 2.2.2

        Yes of course all the steps in between from the police visiting me, to charges being pressed, going to court, being found guilty.

        The whole thing would be enormously stressful. As it has likely been for Maya Forstator Harry Miller and now the women in Scotland who spent two hours or so being interviewed by the police and now faces charges. Amongst her "crimes" putting suffergette ribbons on a fence. Oh but people who made the complaint said they looked like nooses and therefore were inciting violence against trans people.

        I would seriously encourage people to read what has been happening in the UK in these cases. Its bloody chilling. And interesting no one has said on this thread, no you will be fine expressing gender critical views (which are mostly saying things like I believe there are only two sexes and that biological sex trumps gender identity. This is along the lines of what Maya Forstator said and she lost her job as a result.

        • nukefacts 2.2.2.1

          @Anker – so right there! It's the chilling effect that will have the worst impact I think. Chilling speech is the same as shutting down free speech, which pushes a range of views underground just to prevent the sort of expense, stress and being 'tarred with the same brush' effect we see even if a prosecution is unsuccessful. This is golden ammunition for the culture war righties to push their barrow and divide society.

        • lprent 2.2.2.2

          Amongst her "crimes" putting suffergette ribbons on a fence. Oh but people who made the complaint said they looked like nooses and therefore were inciting violence against trans people.

          I'm afraid that is part of protesting or any action. You have to own the risks of doing things that look ok to you but look bloody dangerous to others.

          Ask anyone who knows firearms and who sees even a toy gun pointed toward them. I know that I have to suppress my natural instinct to pound anyone doing that. Perfectly innocent to the idiot with the lifelike toy. But a perceptual threat to anyone who knows firearms.

          Of course selectively omitting things like whose fence it is on doesn't help make your case. I suspect that the reason that the police would only bring charges based solely on the facts you presented because of whose fence the ribbons were on.

          If the fence was what I suspect than I'd prosecute the thoughtless miscreant as well. The police would have little choice.

          If you want to protest, then it is your responsibility to do it within known clear legal bounds like property boundaries. As soon as you walk outside them then you're limiting the discretion of the police. Almost any complainant who has a clear legal bound that is overstepped and who wishes to press the complaint can force police to charge.

          The trick as a protester is to not provide the grounds for complainants to be able to push charges through. If you don't then effectively it is your choice either through stupid ignorance or deliberate.

          • weka 2.2.2.2.1

            Did Miller put the ribbon in the fence, or did she just tweet a picture of it?

            Not sure putting a political ribbon on a specific person's fence is sufficient for arrest, but in this case I assume the real life and twitter activity surrounding this is a factor for the police. Still not convinced about Miller's arrest if she was tweeting rather benignly, but we will see when the court case runs I guess.

            • lprent 2.2.2.2.1.1

              Did Miller put the ribbon in the fence, or did she just tweet a picture of it?

              I have no idea – as I said I didn't look at the case (there wasn't a link that I saw). I do know that the circumstances as described by Anker would be unlikely to cause charges to be laid either here or in the UK. There will be something more specific that caused the police to decide to press charges.

              Not sure putting a political ribbon on a specific person's fence is sufficient for arrest…

              Sure it is.

              Property offences are the most likely cause of a charge in any protest. If you stay in public spaces it is unlikely.

              If you block access to property from a public space then it gets pretty likely.

              If you actually interfere with a private property or a person and the complainant chooses to press it and there is clear evidence about who did it what (eg a camera caught you clearly or there were police present) then you're legal dead meat and pretty much need to depend mostly on pleas about sentencing.

              Getting arrested is of course different to getting charged. Both here and in the UK, the police can arrest you simply because you’re creating a disturbance that looks like it might escalate. That is why we have laws that are effectively ‘breach of the peace’ level that may be used at any time.

              These are up to individual police and their tolerance for paperwork. The frequency tends to be monitored by annoyed NCOs at the station. The decision about having enough evidence to lay charges is also a station level decision.

          • Anker 2.2.2.2.2

            https://www.womenarehuman.com/transgender-activist-gets-woman-charged-with-hate-crime-for-posting-suffragist-ribbon/

            I wonder if people commenting on this site realize how the UK police have become politicized by Stonewall.

            Weka Miller just tweated a picture of the ribbon. The ribbon was in the suffergete colours purple, white and green. Why the police didn't say oh o.k. clearly the complainant mistook it. BTW said complainant who is a trans activist had recently said that Trans women should be able to conduct physical examinations of women who were the victims of sexual assault. That's right, biological males who identify as men should be allowed to conduct such examinations.

            • lprent 2.2.2.2.2.1

              Umm. On that last point? What does the current law say?

              I suspect that you'll find that there isn't any gender requirement about who can do those forensic examinations. There will probably be recommended procedures by different organisations.

              The reason that I say this is because I can remember when it was pretty unusual to have lots of female doctors around. Plus I remember that point in time forensic sexual assault examinations had to be done by doctors (ie believe there are still restrictions of who can do that kind of examination and have it accepted by the courts).

              I can also think of quite a few circumstances that there might be a shortage where the choices of examiner are slim.

              What I suspect you'll find is that there is a legal requirement that states that victim of sexual assault is given the choice about if they want to proceed with a examination when the possible alternatives (like gender of the examiner) are explained to them.

            • McFlock 2.2.2.2.2.2

              Well, google says half a dozen tweets (currently undisclosed) and the ribbon possibly took the shape of a noose, so I'm not sure the case is as clear-cut as all that.

      • Anker 2.2.3

        Lynn, I read it as it doen't need to carry the threat of violence.

        I commented here the other day about Rachel Steward, saying clearly it was totally unacceptable what she said and taking her gun licence away is appropriate.

        I don't think it is clear that you have to be inciting violence. I would never, ever condone that. Trans activists have an interesting use of the language where they equate "emotional violence" = violence. This is my concern.

        • lprent 2.2.3.1

          Trans activists have an interesting use of the language where they equate "emotional violence" = violence. This is my concern.

          If it isn't specified in the Act, then that is an argument that they'd have to get some agreement from police, crown prosecution, and the courts (or in a private prosecution – the courts). Sure that shift in usage could happen over time, but it is a lot of time to argue about what i means as well. But it is probably going to require quite a lot of change across of a lot of society first.

          Just think what the same underlying principle (emotional violence) would mean for things like married couples or families for instance. I've seen some pretty toxic families especially when it comes to gender and gender identity.

          But this legislation appears to be targeted less at the instigators of hate speech and more at the enablers and providers of mass dispersal of hate speech.

          So as importantly, it'd have to get past the site operators, ISPs, and other network providers. Many of whom, like this site, will just shut group hate speech down. But like the police, and courts they will take a fairly conservative approach to what is dangerous hate speech and tend to deal with words rather than throwing the full force of the law against it.

          What I'm concerned with this legislation is its use in nuisance complaints and the stifling nature of those on debate.

        • joe90 2.2.3.2

          Trans activists have an interesting use of the language where they equate "emotional violence" = violence. This is my concern.

          The term emotional violence, used to describe verbal and psychological violence and abuse, doesn't apply trans folk?

          • lprent 2.2.3.2.1

            Sure it would. If the courts agreed in the intent, the actions, the circumstances and under the legislation.

            However, they'd like to see some corroborating evidence that indicates that there was a actual threat as well. It is that convicting on criminal offenses almost always requires mens rea and actus reus. As well as being part of the conviction requirements it is even part of the requirements for making legislation on criminal offences.

          • Anker 2.2.3.2.2

            Yes of course. Anyone can feel emotionally abused. Anyone can experience emotional abuse. But it can be referred to as emotional violence. I have heard trans activists refer to it this way. Probably other people do as well.

            The question is, whether it would then be seen as a threat under this law if it was a subjective experience?

          • weka 2.2.3.2.3

            Of course emotional violence applies to all people.

            I think what Anker is getting at is the trans activist position that things like deadnaming or misgendering via pronouns or political discussion about whether people can literally change sex, is considered literal violence and kills trans people. Obviously it's not physical violence and often it's not even directed at a person or even a class of people, but is still named as literal, deadly violence.

            • lprent 2.2.3.2.3.1

              Obviously it's not physical violence and often it's not even directed at a person or even a class of people, but is still named as literal, deadly violence.

              Sure and I'd agree that even I tend to find it somewhere between persistently irritating to outright offensive myself (think of my first name).

              My point was that it is something that you'd have to get a court to agree with. One of the reasons that they're unlikely to go down that route is that legal arguments tend to be symmetric. A doctrine like that tends to get very dangerous if it becomes an excuse for violence.

              If you flipped it around and I used a persistent gender flipper based on my first name (Cameron Slater comes to mind) as a justified emotional violence defence on them, the courts wouldn't currently wear it.

              If they were having to use it as a cause of justified emotional violence the other way in the way that you say the trans community is postulating, then they'd probably have to allow it as part of a immediate threat defence against conviction.

              An attack with words currently isn't likely to be sufficient to prevent a conviction. It'd require other factors and evidence for them to be present.

              As it is, generally our courts will only allow it as a consideration on process of sentencing rather than the process of conviction.

              • Tabletennis

                New Zealand's Proposals Against Incitement of Hatred and Discrimination is seeking to criminalise gender critical beliefs.
                someone has made this accurate assessment:

                1. Afford female sex-based rights to men who claim to possess a "female gender identity".
                2. Make it a crime for women, lesbians, to treat men claiming a "female gender identity" as men and a crime to promote the rejection of, and objection to, the notion of "gender identity".

                This will have a chilling effect, it will effect women more than man and any time spent with police or in court is time spent away from home and work and costly. The fines and jail terms are clearly meant to declare you bankrupt as well

                Is discussing, before the courts a suffrage ribbon, merely a distraction from real problems that society faces ?

                • lprent

                  Is discussing, before the courts a suffrage ribbon, merely a distraction from real problems that society faces ?

                  You'd be amazed at what comes up in front of courts. Especially when it is associated with protests. I've helped a niece defend against charge of 'intimidation by loitering'. Summary offences s21 (1) (d). She was protesting on a public pavement about a store selling animal furs from a factory farm without blocking access.

                  It was eventually thrown out in an appeal in the high court where it was found that protesting was not 'loitering'.

                  The probable reason for the police using that loitering charge was that it was sufficient for the police to obtain a search warrant, seize computers, search them and hand them back with added viruses more than year later. Basically an intelligence gathering exercise using 17yo as a target and gaining her a conviction in the process.

                  The problem with the police using that charge and that got me involved was that it taking something designed in the law to deal with gang members hanging around to extract money – which was what the clause was put in to handle has nothing to do with protesting. The effect of letting that stand in court as precedent was to effectively stifle being able to protest damn near anywhere. All that was required to secure a conviction was to get a store owner or any other place of business to say that they felt intimidated. Same would have applied to unions.

                  That was a serious extension of the powers of the police.

                  Basically you have a strange idea of what is serious real problem. The most serious problem there is is to have an inability to protest, comment or make submission about real problems.

                  That involves not only the police having limits about what they do. It also involves protesters having more than an passing knowledge about their responsibilities as well. Clearly someone in the police thought that there was something in this case to justify putting someone on a charge. Most of the time the police have a reason for what they do (even if it is kind of weird).

                  I'd suggest that getting a idea about what and why that happened, finding a decent lawyer, and then either dealing with the charge is a far better idea than whining about how unfair it all is… If it is an overreach – then solve it as a precedence in court. Overreach is a serious problem and needs to be constrained early.

                  If it is the protesters fault then they need to learn from it and make sure they don't get stupidly caught out again. Just admit the mistake, plead guilty and go for diversion based on their previously exemplary record.

                  If it is ambiguous then why?

      • McFlock 2.2.4

        The other thing is that the nature of the legislation means that any prosecution, especially the first one, will be prominent. So even if Snr Sgt McWoke decides to lay charges because someone was "insulted" and whatever comment was therefore a hate crime, the charge will be reviewed by police HQ.

        Happened down here when a local bar manager played edgelord one time too many and the local police dug up "sedition". Almost certainly a case of "screw this guy, let's read the crimes act cover to cover and see what we can actually do him for".

        The charges got reviewed within the police hierarchy and withdrawn because they were stupid charges.

        Sure, it maybe gave the edgelord a sleepless night or two (not sure what the penalty for sedition was at the time, but capital punishment was off the table lol). But at least with the cops it doesn't always need to wait until trial for someone to call out the prosecuter for overreach.

    • Drowsy M. Kram 2.3

      Anker, sincerely hope no-one tries to (virtually) shoot you down in flames. Imho the proposals to enhance laws against the incitement of hatred are aspirational and largely about the well-being of various diverse minorities in NZ. Casual/thoughtless hating on minorities is ingrained (automatic and widespread) in NZ society – I've done my share.

      If any changes make it into NZ law, then I would hope that, for all the valid concerns about potential negative consequences, those changes might serve as a mirror to help us examine our own prejudices.

      'Racism is well and alive' in New Zealand – Race Relations Commissioner [24 Dec. 2020]
      "We are very supportive of separate hate crime legislation and we hope the government puts that through quickly in the new year," he said.

      "We are pleased police are collecting hate crime data now as well so that will strengthen the punishments for the people that continue to spread messages of hate."

      He [Race Relations Commissioner Meng Foon] said racism was deliberate.

      "There is an inherent hatred among people that are racist and I think it's a disease, that it can be brought out of people. However, some people are entrenched in their hatred and it's difficult to curb their behaviour."

      A hard day to be wahine Māori [24 Nov. 2020]
      She wrote with clarity and generosity about a violent, racist email she received while in the safety of her kāinga, surrounded by whānau. It’s heartbreaking to read, the man’s words are so full of hateful bile. He uses the n-word, and mutt. I wanted to roar.

      Auckland man challenging Human Rights Act after raising concerns over pastor’s anti-gay comments [14 June 2021]
      In 2017, Auckland pastor Logan Robertson delivered a sermon calling for gay people to be shot. It made headlines and shocked many, but there were no legal repercussions.

      Autistic and transgender: The intersection of two minority identities [15 Feb. 2021]
      It is no secret that transgender people face a lot of prejudice and discrimination as they move through the world, from misgendering and denial of their identity, transphobic hate speech, physical and sexual violence, and even discrimination in employment and healthcare.

      Controversial group wins court fight to hold public meeting in Palmerston North [26 June 2021]
      A statement from the Manawatū Lesbian and Gay Rights Association said it supported and empowered gay, lesbian, intersex, transgender, takatāpui, fa'afafine, asexual and bisexual communities and their whānau.

      The association was aware of Speak Up For Women and its causes.

      Unpacking the Crisis of Transmisogyny [1 Dec. 2020]
      As Julia Serano said, “So long as we refuse to accept that “woman” is a holistic concept, one that includes all people who experience themselves as women, our concept of womanhood will remain a mere reflection of our own personal experiences and biases rather than something based in the truly diverse world that surrounds us.

      • Anker 2.3.1

        I am aware drowsy that there is racism, sexism etc in NZ.

        Your last quote is interesting from Julia Serano. "so long as we refuse to accept that "woman" is a holistic concept and one that includes all people who expience themselves as women, our concept of womanhood will remain a mere refelction of our own personal experiences and biases rather than something based in the truly diverse world that surrounds us". This is under the trans of transmisogymy.

        This is a good example of what I am on about. In refusing to accept Julias definition of women (which is absolutely contestable) am I being transmisoginist? This is the implication I think, that I have to go along with their definition of what its is to be a woman. I find this problematic. I believe I am entitled to a different point of view. I think Julia is entitled to have her point of view too, but it becomes problematic if I am then deemed misogynistic unless I accept her definition. Could this then be seen as hate speech under the new law?

        • Drowsy M. Kram 2.3.1.1

          I am aware drowsy that there is racism, sexism etc in NZ.

          Yep, "there is racism, sexism" and "etc" (e.g. homo/bi/transphobia) aplenty in NZ.

          In refusing to accept Julias definition of women (which is absolutely contestable) am I being transmisoginist?

          Depends on your definition of women, and how you feel about women who might refuse to accept it – is there 'room' for more than one acceptible definition of 'women' in your worldview?

          I believe I am entitled to a different point of view.

          I believe that too, and all the more strongly when points of view aren't hateful.

          I'm only an observer, not qualified to comment on this and related matters (so will try not to comment again), but it seems to me counterproductive to pit women against one another in this way. In any case, views on these matters are changing faster than generations these day – it's possible that in the fullness of time such debates will be seen as storms in teacups.

          Spain’s Cabinet approves draft of transgender rights law [29 June 2021]
          The legal proposal has been controversial from the start, pitting against each other transgender rights activists and some feminists who believe that the law blurs the concept of biological sex.

          It had also opened an internal battle within the left-wing ruling coalition, with the leading Socialists aligning with the point of view of historical feminist activists and the minor member of the governing alliance, the far-left United We Can party, which strongly pushed for self-determination to prevail.

          https://www.quora.com/In-your-opinion-if-a-man-identifies-as-a-woman-should-they-be-able-to-enter-in-a-woman-s-bathroom-As-a-woman-would-it-bother-you

          Supreme Court gives victory to transgender student who sued to use bathroom
          "I am glad that my years-long fight to have my school see me for who I am is over. Being forced to use the nurse's room, a private bathroom, and the girl's room was humiliating for me, and having to go to out-of-the-way bathrooms severely interfered with my education," Grimm — who has since graduated — said in a statement Monday.

          "Trans youth deserve to use the bathroom in peace without being humiliated and stigmatized by their own school boards and elected officials," he added.

          Paula Sone Williams – Pastor and author

          • Anker 2.3.1.1.1

            O.k. Drowsy. Did you know the 1993 human rights act specifies that women have specific rights to separate public toilets, change rooms for "public decency and safety.

            Are you a man? Cause if you are how dare you feel free to disrepect my rights.

            Oh and have a look at this click from the Wi Spa. How great is that? Not a man naked with his penis out in a womens spa with women and children.

            Protests ensued and the Trans activists were insisting on their rights for men who identified as women to have access to these women's only spaces.

            • Drowsy M. Kram 2.3.1.1.1.1

              Apologies Anker, please believe that I make an effort to respect the rights of all living things – any perceived disrespect is, for my part, unintentional. I understand there are concerns about an ‘extremist trans lobby’, but I'm not convinced that any such lobby is representative of the wider trans community.

              Transgender advocates: Stigma leading to alarming HIV rates
              Shea Cutliff says as a transgender woman, she’s faced plenty of hate and disrespect.

              We have to think about, we give more respect to inanimate objects than trans people sometimes,” said Cutliff.

              Fwiw, I'm uneasy about the "spike in transgender identification" among teenagers assigned female at birth, but all people identifying as 'trans' are deserving of our understanding and respect – just like everyone else, imho.

              Four years on, past critics are silent on whether fears around transgender human rights bill were founded [23 June 2021]
              Then, furor erupted around the bill, with media attention centring on University of Toronto psychology professor Jordan Peterson’s concerns of free speech and being compelled to employ certain words and gender-neutral terms.

              Legislation adding protection for transgender and gener-diverse people to the Human Rights Act was met with controversy and fear when it was in the House, but four years on, these concerns have remained unfounded, say MPs and experts.

              But what would they know.

              14. Increasing proportion of the UK population identifying as lesbian, gay, bisexual, and transgender
              The proportion of the UK population identifying as lesbian, gay or bisexual (LGB) increased from 1.6% in 2014 to 2.2% in 2018. Younger people, aged 16 to 24 years, were most likely to identify as LGB in 2018 (4.4%). There are regional variations, people in London were most likely to identify as LGB (2.8%), with people in the North East the least likely (1.8%).

              The UK government estimates that there are approximately 200,000 to 500,000 trans people in the UK. Referrals to the NHS Gender Identity Service show a steady increase with 2,728 patient referrals in 2019- and 2020.

              It’s an absolute minefield!
              https://www.verywellmind.com/what-is-deadnaming-and-why-is-it-harmful-5188575

              • weka

                It is a minefield. “I understand there are concerns about an ‘extremist trans lobby’, but I’m not convinced that any such lobby is representative of the wider trans community”Yes, this. The GCF position is not anti-trans, it’s about retaining women’s rights and part of that is critiquing trans activism, and the ideologies of transgenderism. Most people have no idea what that is and they tend to think it’s about being anti-trans or is a response to trans people generally. It’s not. (and yes, in addition, in feminism there are people who are bigoted against trans people, just like in feminism there is racism, ageism, homophobia etc, just like there are in any movement). I decided in the past few days I’m going to start calling trans activism ‘gender activism’ (and ideology) so as to make the distinction clearer.

                Gender activism/ideology is complex, has a long history, and the war between that and GCF is easily the weirdest and most intense dynamic I have ever seen in politics. Being trans is a wide range of experiences and and GA/I doesn’t cover all of those. You say below that you won’t comment again. I’d suggest instead to keep on with your reading and take a more listen and learn approach. There’s nothing wrong with your commenting, I see it more that many women who know what is going on in depth are frustrated to be having to cover the same ground over and over (and be called bigots in the process) while we are actually losing rights.

      • weka 2.3.2

        Can I ask if you understand just how offensive Julia Serano's position is to many women? Trying to get a sense of what the point of quoting that is in the context of this sub thread.

    • mickysavage 2.4

      Kia ora Ankler.

      But two very concerning things leap out of me. Feel free to correct me if I am wrong.

      1. The insulting bit. If I say something that a group feels insults them, then they can complain to the police.
      2. If they complain to the police, the police could determine that the insult reaches a thresehold and potentially I could be jailed for three years.

      It is already an offence to excite hostility against or bring into contempt any group of persons in or who may be coming to New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons.

      The new law makes the threshold arguably harder but increases the groups of people protected to include sex, marital status, religious belief, ethical belief, disability, the presence in the body of organisms capable of causing illness, age, political opinion, employment status, or family status.

      If you think that it should be an offence to engage in race hatred but not age hatred then you have the ability to say so.

      As to the second part the Attorney General has to approve prosecutions. This will mean that all but the most significant of breaches will not take up court time.

      • Tabletennis 2.4.1

        MS "The new law makes the threshold arguably harder but increases the groups of people protected to include sex, marital status, r…etc"

        The new law will read:
        " protected to include, sex characteristics and gender identity "
        Sex will be removed and replaced by an subjective hard to define gender identity.

        • Incognito 2.4.1.1

          The new law will read:

          " protected to include, sex characteristics and gender identity "

          Please point to the page in the Discussion Document where you found that piece of quoted text, thanks. NB I cannot find it!? Did you make it up?

          Secondly, the new law has not yet been written; there is a set of proposals on which Government is consulting.

          • weka 2.4.1.1.1

            I also can’t find it (nor in google). It refers to an actual thing in the document, but there’s not quote that matches.

            • Incognito 2.4.1.1.1.1

              Comments such as these don’t help and only confuse the debate, which is already hard enough as it is. I hope there’s a good explanation but the commenter has not come forward yet. Of course, the site was down for a few days.

              • weka

                I’m taking it as not understanding general debate culture on TS. They’re not alone in that 😉

        • weka 2.4.1.2

          TT, if you’re using double quotes, can you please provide a reference, and make sure it’s a direct quote not a paraphrasing (you can use single quotation marks for non quotes).

          “Sex will be removed and replaced by an subjective hard to define gender identity”

          I was going to say that’s not right. My reading is that the proposal is to include gender identity, and intersex, and to replace ‘sex’ with ‘sex characteristics’. There’s no explanation of why or what sex characteristics means. But actually you may be right. If by ‘sex characteristics’ they mean secondary sex characteristics, this essentially hard wires into the Bill that TWAW (trans women are women) literally, and women (females) ceases to be a protected characteristic in and of itself. I don’t know what the intention is with the change of wording, but there’s reason for concern.

          • Tabletennis 2.4.1.2.1

            Weka, I learn as I go, but thanks for the comment.
            the intention to change the wording in the law …

            –The [HR] Commission takes the view that “sex” includes “gender identity” (although, contrary to the impression given by the submission, this issue has not yet been determined by New Zealand courts).30

            The authors of a leading human rights text regard the question whether “sex” includes “gender identity” as a “one of the most difficult issues associated with the term ‘sex.’”31 Yet the Commission has not acknowledged it as an issue at all.

            A growing body of scholarship highlights the potential for conflict between women’s human rights and “gender identity” rights32. Gender identity rights are singular in the way in which they seek not only to protect a marginalised group (transgender people), but to redefine an existing marginalised group (women). —

            https://speakupforwomen.nz/letter-to-tracey-martin/

  3. Pat 3

    Subjective law is bad and dangerous law……and our Justice system is already both overloaded and prohibitively expensive.

  4. Sanctuary 4

    A heteroclite coalition desperately seeking relevance is spreading fake news and lies with the connivance of a right wing media utterly bored with covid and longing for the court politics.

    Martyn Bradbury has a meltdown and goes off to the la la land of Muriel Newman, Chris Trotter takes up arms with Don Brash. Jesters of the world unite, and prate your golden minute on the stage!

    • GreenBus 4.1

      TDB has gone bonkers over this, whipped into a frenzy by the author. Absolute rubbish is flying in all directions feeding an army of right wing trolls. It's painful to watch.

      The Standard is holding to excellent quality articles and logical debate so far IMO. I now think I understand the importance of moderation and the moderator can stop people losing it.

  5. lprent 5

    However, University of Otago law professor Andrew Geddis says that’s not entirely true. While it is already a crime to incite specific acts of violence (like calling on people to torch someone’s house) and it is a crime to threaten to kill specific individuals, he says it is not currently illegal to threaten to kill members of a general group.

    That is a hole that needs to be fixed. I'd love to see anyone who'd like to disagree with this. They and anyone else who thinks that threatening whole groups of people because of their ethnicity, gender or religion does not deserve to be prosecuted, convicted and flung into jail for their own good before they start waving weapons around. And that is before you look at their victims.

    When you look at the wholesale massacres like those in the US or complete maniacs like the one on the London bridge a couple of years ago, you realise the demented dimwits who say things that would violate most of these proposed changes or who spend their time reading and listening to them will often result in them taking violent action.

    Now that I've had a look through the proposed changes, I'm less concerned about that side of it. Anyone who does hate speech against specified general groups suggesting violence in any form (which is the primary focus of the legislation) needs to be looked at, weapons removed, and their associations looked at. All part of the responsibility of owning your own views balanced against the safety of society.

    What I'm interested in is the degree with which it could stifle debate. While the police would have a buffer through the crown prosecution and afterwards the court system against arbitrary misuse of these laws, it won't stop nuisance mischief makers.

    I've had several spurious Harmful Digital Communications complaints against this site since 2015. Each appears to have been to have been a bluff. Those have been relatively easy to fend off by requesting the exact specific ground(s) under the provisions in the Act. That is because the Act required the complainant to be specific under the Act before I was required to pass the complaint to whoever it was directed at. In essence the nuisance complainants don't appear to have wanted to follow the provisions of the Act.

    The danger with the HDCA has been with the arbitrary power of the courts to put in court orders on request without having to hear anything on the case from the parties affected by the order.

    The way that the courts operate, it could literally be months (or even years of status hearings) before a substantive hearing is made where all parties could put their legal views in front of a judge to rescind any orders. This is particularly the case where the police don't bring the prosecution, but an individual or groups brings it as a private prosecution or civil action.

    This isn't a hypothetical for me. This is effectively what happened to me with a criminal private prosecution made by Dermot Nottingham about a post on this site. He also did it against two news outlets and another blog.

    The merits of the case weren't even looked at until over a year later. That was because the judge chose not to hear immediately from the defendants. It finally went to court about a year later after innumerable status hearings that Nottingham fudged by simply saying that he wasn't ready.

    Two cases were dropped because Nottingham was unable to maintain presence in status hearings in Dunedin and costs were ordered against him.

    In Auckland, one of the news defendants up here defending in court, after Nottingham had spent several days waffling in court, simply stated that they didn't have any ownership or management on the NZ Herald at the time of the article. My lawyer simply said that Nottingham hadn't proven or even shown that I had anything to do with The Standard let alone the post in question.

    The merits of the action simply weren't looked at because Dermot Nottingham is hopeless at the basic process of law and failed to make the basis of a case – establishing that he had charged the correct people. He seemed to think that it depended of the number of inches of photocopied paper he provided and arguments that appeared to come off US network TV shows.

    Now that is all amusing. But it took more than a year for the case to be examined and a bit more to deal with his appeal. We supported some people from other cases in bankrupting Nottingham for failing to pay court costs (around $30k in my case as I remember it).

    I can't see anything in this proposed legislation that would prevent another legal idiot with a spurious grudge creating a spurious case that costs the same or wastes a similar amount of time. With the police, it is possible to present evidence before charges are placed, have the prosecution looks at if the case is winnable, and to have someone vaguely competent for the judges to deal with. Basically deal with someone who is vaguely rational.

    However a private prosecution using this law or others provide none of these things unless the laws provide a specific basis with which to test the merits of a case before a charge is made to the court.

    How does this proposed law prevents nuisance cases being brought forward, especially ones that affect media or simple discussion over third party providers like this site.

    • weka 5.1

      It's the suppression of debate, malicious complaints, and who gets to decide who is protected and who isn't that bothers me.

      For instance, the UK examples appear to be initiated by people laying complaints on the basis of tweets to specific police departments that hold a position aligned with trans activism and don't align with gender critical feminists. That's political af, and gender critical feminists are slowly making legal in roads to sort that out, but in the meantime people's lives are being massively negatively impacted. Including those that have a complaint made, the police at their door and all the stress of the process that follows (which is what Anker was referring to I think).

      There's an interesting case in the UK of a trans activist posting a tweet (more than one I think) with a picture of a multi shot firearm and saying they needed target practice in reference to a list of terfs. The university that they were a student at tweeted in support of trans people in reply to the tweet.

      There might be better write ups than this, but this I found quickly.

      https://www.sickchirpse.com/brunel-university-student-threat-violence-terfs/

      The Uni tweet was later removed by the uni and a statement was made about referring to police, but the pertinent point here is the *social context. Both how that social context is developing, what is happening in institutions in response, and how this is impacting on legal processes and law development.

      I'm somewhat hopeful that NZ has more sense than this, but I'm also seeing the same degree of polarisation over the sex/gender wars that I expect there to be issues even if not to the same degree as in the UK.

      Still don't know why the proposals are suggesting removing sex as a group and replacing it with sex characteristics.

      • Nic the NZer 5.1.1

        This. Most of the follow through in the UK and Canada are basically amateur interpretations of the new statutes and what they imply. This is why Kris Faafoi's interpretations are a bad sign for this write up, because his will not be the worst interpretation applied outside a legal context either.

        If the Israel Faleou example was to lead to his imprisonment (an example which was not rejected) you can understand how chilling the proposal is intended to be. Its unpopular, but I don't even agree his beliefs should have impacted his Rugby contract.

        Same for the Sunlait guy, working in milk powder seems like a good occupation for him to be primarily preoccupied with. Fine for his videos to be taken down, but do we really want to free up more time for this occupation?

        And why did the UK police have officers assigned to talk to people about their tweets? I mean really the police department should understand that their scope ends with enforceable laws.

      • lprent 5.1.2

        There’s an interesting case in the UK of a trans activist posting a tweet (more than one I think) with a picture of a multi shot firearm and saying they needed target practice in reference to a list of terfs. The university that they were a student at tweeted in support of trans people in reply to the tweet.

        The Brunel Uni person almost certainly got caught by the twofer tweet scam. Put their name in a completely separate tweet to the offensive one – then that is all they see. So they responded to a general request about policy of the university about trans students with a copy of their policy. Had nothing to do with first tweet.

        The real problem here (apart from the idiot with the ego inflater) is whoever was silly enough to conflate a response to tweet 2 with it supporting tweet 1. Whoever made that a thing was either net stupid or just interested in making mischief. Either way they deserve a bit of education.

        The fool with the ego inflater deserves a visit from the police for making threats and a police examination and probable of all of their 'weapons' to see if any of them are real – a process that could take months.


        Still don't know why the proposals are suggesting removing sex as a group and replacing it with sex characteristics.

        Because if you're going to change legislation, then it pays to make it general enough to cover all cases.

        Sex characteristics means that it covers everything from celibates (incel or otherwise) to the obsessively promiscuous of any gender. From genetic gender to gender that someone feels comfortable with. From people who form sexual groups as couples to those who want to do a large communal free for all. People who like robots for sex to whatever shows up next. All of which are sexual characteristics that someone will hate on.

        It makes it easier to do enabling legislation to do it once rather than to keep updating the legislation. If you want to see the effect, then have a look at the expanse of enabling legislation – try that in the homosexual lay reform acts, or cibil union, or my favourite – the bill of rights amendments through just about all legislation.

  6. lprent 6

    Looking at the constraints

    A new provision would be added to the Crimes Act, which would create a new offence with four key elements. It would be a crime to:

    1. intentionally incite/stir up, maintain or normalise hatred
    2. against any group protected from discrimination by section 21 of the Human Rights Act
    3. through threatening, abusive or insulting communications, including inciting violence
    4. made by any means.

    The exact wording of this provision will be determined following consultation. This includes whether to use the term “incite”, “stir up” or some other term with the same meaning.

    I'm reasonably happy with those.

    Extending it to protecting groups is no different to protecting individuals – which is covered by current criminal offences.

    'Intentionally' is a key word protecting idiots who do such things accidentally. It also gives the required wiggle room for police to 'educate' and warn.

    That is always important because a lot of people lack the required empathy to see how others will perceive what they are doing as abuse or a threat.

    When I have time to moderate I always attempt to use the exact 'tone' of a comment that I think would be offensive and turn the same style personally against the person who made it. That is because I generally find that people wanting to dish "threatening, abusive or insulting communications" really dislike receiving them.

    I think it both builds a certain degree of empathy (and allows me to smooth out my frustration at having to intervene). I really don't like the idea of that capability being removed from the arsenal of how to moderate sites. Being polite to unthinking bigoted dimwits writing on our site really doesn't appeal to me. Merely kicking them off the site doesn't help in increasing the awareness and caution about how to live within the net.

    "made by any means" gets around the stupidities of the current law that require dodging through the censorship laws to get group threats off the net.

    My biggest issue with the legislative changes is about how it will be enforced. Making sure that it can't be easily weaponized. Making sure that it will do the job without having too many unpleasant side-effects.

  7. As usual, it all sounds good in theory but looks a lot less reasonable when you consider the real-world effects of putting emotions like 'hatred' into legislation.

    How that's played out in the UK is that police forces take hatred to mean whatever some relevant lobby group tells them it means, which then results in unsuspecting citizens finding PC Plod on their doorstep wanting to interview them about what was in their heart when they posted that tweet that someone's complained about. Even if they aren't prosecuted, the hapless alleged criminal then gets to spend months with a possible prosecution hanging over them, something that causes a lot of stress, and if they're smart they hire an expensive lawyer, something that causes them to haemorrhage money big-time.

    Anyone who thinks that couldn't happen here should have a look at NZ lobby groups calling Speak Up For Women a hate group, or NZ Police arbitrarily declaring Rachel Stewart's Twitter timeline "anti-transgender hatred." You bet it would play out the same here as in the UK.

    • Sacha 7.1

      Hatred in legal terms is not an emotion.

      • McFlock 7.1.1

        Also, several of the UK cases seem to be under S4a&5 of their public order act, which is essentially S4 of our summary offences act. We seem to have lower penalties though.

        Not only is the proposed legal change much more restricted than the current UK law, we already have a similar law here and have had it for decades. Don't be reckless about causing offence, kiddies.

      • Psycho Milt 7.1.2

        Hatred in legal terms is not an emotion.

        Where is hatred defined as a legal concept in NZ?

        In any case, my post was about how this has worked in practice in the UK, ie it's resulted in police harassment of ordinary people at the instigation of political activists. If people want to claim that the same thing wouldn't happen here if we make beliefs protected categories, what's the basis for that claim?

        • Sacha 7.1.2.1

          Hatred is a key component of the Chch Attack Commission report, the govt's discussion paper, and recent commentary on it by NZ lawyers like Graeme Edgeler and Steven Price.

          It is proposed to be used instead of similar words like 'hostility' and 'contempt' in existing related laws. It would be subject to feedback on the discussion document like everything else.

          In no sense however is it an 'emotion' in this context – nor the equivalent UK context either unless someone deliberately wants it to be for the purpose of their argument. A lot of that going on.

    • greywarshark 7.2

      Psycho M Good points to consider.

  8. AB 8

    As a rule of thumb, the people most concerned about a potential loss of free speech, have the least interesting things to say.

    • lprent 8.1

      As a rule of thumb, I'd say that the people most concerned about 'free speech' don't understand that there isn't and never has been such a thing.

      Certainly legally there are always constraints. Defamation is a constraint. So are treason laws and so on.

      Even in the cases where there aren't any legal constraints (in the anarchy of war for instance), the violent response to truly free speech is always there. For instance yelling at a bandit group or ill-disciplined militia about them being thieves and murderers is liable to draw a unwelcome response.

      Most people who cry about 'free speech' are clearly too stupid to understand what it means – that it is a slogan rather than some kind of natural law. Not to mention that it is a constrained concept even in American constitutional law that has little to nothing to do with NZ.

  9. Ed1 9

    There have been a few quotes from statements by Andrew Geddes, but I did not see a related url – sorry if I have missed it somewhere above, but could someone please post a link to the original article(s)?

  10. Dennis Frank 10

    If we get a law that makes use and circulation of the Bible and the Koran illegal in Aotearoa, I will be impressed. Anything less will be mere window-dressing. Easy to find examples of hate speech inciting violence in these two texts. From Google:

    Surah 3:151: “We shall cast terror into the hearts of those who disbelieve (all non-Muslims) …”

    Surah 2:191: “And kill them (non-Muslims) wherever you find them

    Surah 9:5: “Then kill the disbelievers (non-Muslims) wherever you find them

    https://www.jacksonville.com/article/20150203/OPINION/801238617

    "Not only do the Israelites in the Bible commit repeated acts of genocide and ethnic cleansing, but they do so under direct divine command. According to the first book of Samuel, God orders King Saul to strike at the Amalekite people, killing every man, woman, and child, and even wiping out their livestock (1 Samuel 15:2-3)."

    "God proclaims "I will make my arrows drunk with blood, and my sword shall devour flesh" (Deut. 32:42). We then turn to the full orgy of militarism, enslavement, and race war in the Books of Joshua and Judges. Moses himself reputedly authorized this campaign when he told his followers that, once they reached Canaan, they must annihilate all the peoples they find in the cities".

    http://archive.boston.com/bostonglobe/ideas/articles/2009/03/08/dark_passages/?page=3

    And that's just a quick sample! Proof of concept in a court of law, eh? But only if the current govt is credible. Watch this space…

    • Tabletennis 10.1

      "If we get a law that makes use and circulation of the Bible and the Koran illegal in Aotearoa, "

      oh how funny, the first thing we said at home was; should be cheaper to stay in hotels as they don't have to have the bible in every room.
      Oh no wait, religion is protected.

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