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:
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:
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.
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