There’s been a lot of wide-eyed scaremongering about this new hate speech proposal and, frankly, not much clarity from the Government about what it actually entails. So, I went and had a read. It’s only a few pages and easy enough to read – I recommend you have a look yourself.
So: what is being proposed and why does the Government want to make the changes?
The first set of proposals is from the Royal Commission into the March 15 attacks:
• expand the existing law against incitement to cover incitement against a religious group, or on the basis sex, gender, sexuality, and disability.
• change the wording of things that it is illegal to incite, replacing the terms “hostility”, “ill-will”, “contempt” and “ridicule” with “hatred” to make it clearer (it’s arguably a more relaxed standard), and put it in the Crimes Act with a longer maximum sentence (it’s already a crime in the Human Rights Act)
The Government is also asking whether to clarify that trans, gender diverse, and intersex people are protected from discrimination.
So far, so unexciting. Protect more groups from incitement and discrimination, make the wording clearer, move something from the Human Rights Act to the Crimes Act and increase the sentence.
National says they don’t want “speech beyond the threshold of ‘inciting violence” criminalised. But the Human Rights Act (passed under National) already makes it criminal to “excite hostility or ill-will against, or bring into contempt or ridicule” a protected group – so what’s the difference exchanging those terms for “hatred”? If anything, “incitement to hatred” is a higher bar. Not to mention, things like blackmail, perjury, and fraud – all illegal speech short of calling for violence. So, I honestly don’t know what they mean.
What I think does have the backs up of the people who totally don’t want to slur other groups but get really worried about any law that might restrict their ability to slur other groups is the proposal is to make incitement to discrimination a civil offence.
This phrase “incitement to discrimination” comes straight out of the 1966 International Covenant on Civil and Political Rights, which New Zealand ratified under Muldoon. The ICCPR requires us to ban “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”
So, hang on, why are we only now looking to put into law an international treaty we signed when disco was cool?
Well, we kinda already did. The Human Rights Act bans “matter or words likely 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.” That sort of covers incitement to discriminate, but not quite – and the Justice officials say it has hardly ever been used, despite hate speech clearly being a thing, so the current law is ineffective.
So, they want to slide “incitement to discriminate” into the existing s61 of the Human Rights Act – slightly widening the restriction that already exists.
But, Clint, what does discriminate mean? It could mean anything! Does it mean I can’t make fun of your combination grey hair and brown beard that makes you look, in the words of one client, “like a badger or other small woodland creature”.
Well, no. It only covers incitement to discriminate on grounds like sex, gender, religious belief, colour, race, ethnic or national origins, disability, or sexual orientation. It doesn’t cover non-protected categories such as the hair pigment challenged. And, crucially, it is about groups, not individuals.
It also means you can still call for venues to not host talks from TERFs or Nazis or socialists, if it takes your fancy. Political opinion isn’t listed as a category that it would be illegal to incite discrimination against and the politicians have been clear they don’t want to limit political discourse.
And, thankfully for the twitterati, it doesn’t make ‘being a dick’ illegal. The term discrimination is rigorously defined in the Human Rights Act already. This just makes inciting others to do it unlawful too – like how it is illegal to rob a bank and also illegal to incite someone else to rob a bank.
As Kris Faafoi puts in it the Cabinet Paper “examples of inciting discrimination of a group include encouraging their exclusion or unfavourable treatment in the provision of goods and services, rental housing, or employment. In my view, as it is unlawful to discriminate against population groups, it should also be unlawful to incite others to discriminate against these groups”.
That really doesn’t sound that scary. It brings our law into line with a treaty we adopted 33 years ago that makes clear that encouraging people to do stuff that is unlawful is itself unlawful.
There’s a lot of fearmongering from the kind of people who spend far too much time worrying about who strangers are having sex with that this is all somehow vague and creates a slippery slope and soon they won’t be able to write ‘Cindy is a commie’ on Twitter anymore. But there’s no undefined terms here – what discrimination means, what incitement means, what hatred means are all well-understood.
There’s always a line to be drawn between banning the kind of hate speech that, without directly calling for violence, inspired the March 15 terrorist while not making a criminal out of every drongo with a keyboard and a Facebook account. But nothing in these proposals looks like they’ve got that balance badly wrong.
And, hey, if you reckon differently, it’s only a proposal – engage with the detail and write a submission.
Clint Smith is a former senior staffer for the Labour and Green Parties and the owner of Victor Strategy and Communications. He has a law degree but he pretty much winged it, so, for god’s sake, don’t take this as legal advice.