Hate speech is about to get a lot more criminalised with much stronger penalties. It’s worth going back to what the Royal Commission actually considered, since that’s the basis of proposing this law. The Royal Commission in fact found that trying to protect religion from very strong opinions is simply not a good idea:
… we acknowledge that there are distinct freedom of expression issues if sharing a particular religious belief system is treated as a protected characteristic. There is a strong tradition in New Zealand (as in many other countries) that religious belief systems are open to debate and that this can be vigorous. Strongly expressed challenges to a religious belief system may also amount to criticism of those who adhere to it.” (Vol. 4 para 49)
They saw how unwieldy and impractical such a law was in the United Kingdom, and concluded:
For this reason we do not support the introduction of an equivalent provision to New Zealand law.”
They do say that a tweak to section 61 of the Human Rights Act to include “electronic communications” would be a good idea. I agree. They also recommend a new section into the Crimes Act 1961 with up to three years jail for:
intent to stir up, maintain or normalise hatred against any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins or religion of that group of persons;” and “says or otherwise publishes or communicates any words or material that explicitly or implicitly calls for violence against or is otherwise, threatening, abusive, or insulting to such group of persons.”
Not sure why it had to be specific to just those categories, but I’ll let that go for now. It would be worth considering. We already have organised groups who plan and incite violence against other similar cells in our community. They also deal drugs, and the Police are doing a pretty average job to decrease their power – but Police aren’t seeking new legislative powers to combat these little terror cells. But they do stroll our streets in daylight fully identifying themselves and their threat of terror. There’s no ‘lone wolf’ terror threat from these ****, and that illegal weapons are used by these terrorists are well attested in court records. No need for more laws against incitement to terror when court approved wiretaps and informants are well used already. Regrettably I find myself on the same side as our effective Leader of the Opposition David Seymour who said recently:
Democracy and the ability to have civil and honest conversations is already becoming imperilled, which is why this is the worst possible way to empower lynch mobs who choose to take offence at ideas they don’t support.”
And even more weirdly, it’s now the Pentagon military chiefs who are having to defend free speech as radical ideas from censorious United States politicians:
If we look back on the origins of the Labour Party, there are plenty of photographs of Michael Joseph Savage and others bringing in some of the most volatile ideological concepts that society had then known, standing in front of crowds declaiming against capitalism in front of thousands of workers. Strike after violent bloody strike from Waihi onwards saw gradual growth in support for the Socialist Party, Independent Political Labour League, United labour League, and whole bunches of pretty muscular and aggressive unions. They spoke to those gathered thousands to specifically incite rebellion against specific companies, specific bosses, imperialism generally and compulsory military service, and their pamphlets and cartoons were by today’s standards outrageously slanderous. I doubt the Labour Party would have been able to exist today if this proposed control of speech had occurred then. We know what the bosses and rulers would have done, because they actually did it.
Where would we be now if such freedom of expression had been stopped?
New Zealand is extraordinarily fortunate that since the 1880s Maori leadership haven’t incited military violence to resist the early state. I’m tempted to say that such incitement is coded into the Haka we now use before Rugby games. But we have instead in New Zealand a very long tradition of civil society resistance that leads to renewal.
Do we need to go through the Springbok Tour resistance, and how much force the state put against protest, and how much force was organised by the protesters? This is how the state deploys the law when it feels like it.
The key difference between violent resistance in our history since the New Zealand wars, and the Christchurch Massacre, was not the regulation of speech but the collection of semiautomatic weapons and ammunition to carry out the murders. The buyback was a good idea and I hope Police continue to use its provisions.
We already have the capacity to remove speech which is so harmful that it should be removed, through the Chief Censor. Yesterday he ordered a specific cartoon of Muslims to be removed, and it was done. No law needed to be changed for that.
In recent weeks we have seen blowback against something as otherwise timid as resistance by cyclists against the dominance of car users and the assets freely given to them, versus their own safety despite ample evidence that they have a disproportionately high injury and death rate. Civil disobedience of this very mild form generated a storm of reaction. This illustrates how brittle resistance is, and how society polices against it well and truly enough without a further change of law. So we need our existing freedom of expression protected more, not less.
Let’s re-state this human right.
The right to freedom of expression is recognised as a human right under article 19 of the Universal Declaration of Human Rights and recognised in international human rights law in the International Covenant on Civil and Political Rights. That’s relevant to us right here. For sites like The Standard, we allow people to be called wankers and cunts, and then we scorch them like they’ve never been scorched before, edit them, and send them to the free expression sinbin. That’s waaaay before they start targeting threats to incite violent acts against any group. No law should seek to limit what society already polices well by itself.
That right is specifically enabled by the New Zealand Bill of Rights Act 1990 which affirms that “everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.” It’s very hard to see how this proposed law will be consistent with BORA. Granted, no right is unlimited.
The best signal that we don’t need this law, was in how New Zealand reacted to the massacre in the first place. We all rallied round. As the Minister of Ethnic Affairs Priyanca Radhakrishnan said herself at the media conference proposing the bill: “We are generally regarded as a country with a high level of social cohesion and we’ve see that as a team of 5 million has largely come together to rally around both in the aftermath of March 15 and also during the Covid-19 lockdown.”
But she claims that remaining underlying vulnerabilities need this extra control of expression. She didn’t show evidence for that.
We actually know where the main weakness of New Zealand lay to protect us on that day, and it lay instead in our ineffective intelligence community – who really got away from this scot free. The terms of reference for their reform were ludicrously narrow, so we’ll never hear adequate truth on it. The Commission found that
Public sector agencies involved in the conter-terrorism effort are not set up to collect and aggregate information like medical and firearms licensing records. Looking back to 2014, the intelligence and security agencies were in a fragile state. A rebuilding exercise did not get underway until mid-2016 and was still unfinished when the terrorist attack took place in 2019.”
The Commission didn’t find that they could have stopped it, but didn’t answer the question of whether they could have if they were structured and resourced better to do so.
It was not our freedom of speech laws that failed to protect our Muslim community in 2019: it was the state.