Hate speech laws translated from legalese: What you need to know

Thursday, July 22nd, 2021

New hate speech law proposals from the government are a bit confusing, and some of the debate so far seems to have muddied the waters, reducing something that began as an effort to combat racism, terrorism and hatred to name calling and taunts by politicians.

Prime Minister Jacinda Ardern and Justice Minister Kris Faafoi contradicted each other about what the proposals said, and Ardern has admitted the government could have been clearer in its communications.

Some worthy efforts have been made to tackle the substance of the proposals, but RNZ’s Mediawatch noted much of the initial coverage focused on this political argie-bargie.

Instead, we’ll look at exactly what the six proposals say – one proposal at a time, with a focus specifically on what new laws would look like – then explore why it’s so confusing and what happens next.

Some provisos

Before we get started, bear in mind there are already some other laws that apply to harmful speech including the Summary Offences Act 1981, the Broadcasting Act 1989, the Harmful Digital Communications Act 2015, the Harassment Act 1997 and the Films, Videos, and Publications Classifications Act 1993.

Keep in mind also that none of what has been proposed is final – the ministry is seeking feedback and there’s no guarantee the law, if it is enacted, will look like this. At this point it’s not a law, it’s not an Act, it’s not even a Bill.

Instead, it’s a discussion document aimed at seeking opinions before the ministry comes up with a law change, after that was recommended by the Royal Commission of Inquiry into the Christchurch Mosque attacks.

Less than three weeks remain on this round of consultation, with submissions closing on 6 August.

The commission identified some gaps in the current laws that leave some people facing regular abuse with no way to have the courts do anything about it.

It also suggested increasing penalties imposed for hate-motivated crimes, but that is not dealt with by the proposals below.

The Justice Ministry’s discussion document largely focuses on the problems of the current laws and what the new laws aim to do, but – and this is perhaps one reason for the confusion – most of it largely does not give the specific wording of what is being proposed. This makes reading the document somewhat like having a set of directions without knowing where you’re going to end up.

However, in the second appendix is a chart that includes the six proposed changes to be made, what the current laws are like, and a section of notes on each proposal (but not in that order).

To keep it simple we’ll largely focus on the result.

Proposal 1: Who it applies to

The wording of both section 61 and the proposed new section 131 (see Proposal 2 below) 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.

Instead of outlawing certain communications about people based on colour, race, ethnicity or nationality alone, the law would protect the groups protected from discrimination under section 21 of the Human Rights Act.

That could include discrimination on the basis of:

Sex or sexual orientation *
Marital status or family status
Religious belief or ethical belief
Colour, race, ethnicity, nationality or citizenship
Disability
Age
Political opinion
Employment status (including receiving a government benefit)
* See also, Proposal 6 for trans inclusion

Despite the concrete way the proposal is worded in this section of the document, the government is seeking feedback on which groups from the above should be included under hate speech laws, noting on page four it “may include some or all of the other grounds in the Human Rights Act”.

While Ardern initially told Newshub that political opinion would not be covered by hate speech and later in Parliament said Cabinet had decided to exclude political opinion from the proposals, the discussion document does not safeguard political opinion specifically.

When questioned in Parliament, Ardern would not rule out political opinion falling under these laws, saying it would depend on consultation with the public.

Safe to say it’s an ongoing discussion. Continue reading