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Political Roundup: Outlawing hate speech and hate crimes

by Dr Bryce Edwards

Dr Bryce Edwards.

Debates over regulating free speech, hate speech, and the treatment of hate crimes are now in full swing. The Government and a number of state institutions had already been keen to bolster laws around hate speech and hate crimes before the Christchurch terrorist attacks. Therefore, it’s hardly a surprise to see an announcement that the Ministry of Justice and the Human Rights Commission are fast-tracking their attempts to pursue reform in these areas. 

The announcement was covered by RNZ in a news report on Saturday, Little plans fast-track review of hate speech laws. Here’s the key part: “Justice Minister Andrew Little says he’s fast-tracking a law review which could see hate crimes made a new legal offence. He said the current law on hate speech was not thorough and strong enough and needed to change. Mr Little said the Christchurch shootings highlighted the need for a better mechanism to deal with incidents of hate speech and other hateful deeds. He has asked justice officials to look at the laws and he was also fast-tracking a scheduled Human Rights Act review.”

According to this report, Little believes that the current Harmful Digital Communications Act doesn’t properly deal with the “evil and hateful things that we’re seeing online”, and other laws that deal with hate speech and discrimination are also inadequate.

Little is reportedly sensitive to the needs of free speech to be balanced against harms: “There will be important issues to debate. There will be issues about what limit should be put on freedom of expression and freedom of speech… We should reflect on where the lines need to be drawn and therefore, whether the laws should be struck so that they’re effective and provide some protection to people who’re otherwise vulnerable.”

Another news report explains that under current laws, crimes involving hate and discrimination are already factored into the judicial process as “hate-motivated hostility can be considered an ‘aggravating factor’ in sentencing, and staff can note when a crime was motivated by a ‘common characteristic’ such as race, gender identity, sexual orientation, or religion” – see Michelle Duff’s Hate crime law review fast-tracked following Christchurch mosque shootings.

But these processes are, according to Little, “woefully inadequate” and “Since the events of March 15, we are more conscious of the impact of what we are seeing and we need to do better”. Therefore, according to the article, a decision needs to be made about whether “hate crime should be established as its own separate offence, as it is in the United Kingdom.”

The article also raises the issue of whether Police collect enough data about the victims of crime, which might allow analysis to be made about the extent to which hate crimes are a problem. According to Duff, “Police have also told Stuff they will review their policy on the collection of ethnicity data. This is currently collected for all alleged perpetrators, but not routinely collected for victims.” And Little has responded to this prior lack of information gathering with surprise, saying “I would have thought it would be useful data to have.”

Calls for new hate laws have been supported by many. One Muslim leader has spoken out recently about the need for such laws – see 1News’ report about Canterbury University Muslim Students Association president Bariz Shah’s argument for new laws: “Ideally I’d love for the Prime Minister to say that they’re inacting a new law which basically charges anyone who says any hate speech to anybody, whether it be Muslim or non-Muslim… anything along those lines would be very reassuring” – see: Calls for new anti-hate speech law from Christchurch Muslim student leader.

Shah does however point to limitations with such laws and suggests other solutions are needed: “Obviously this is not a long term solution because people who have these types of ideologies they’ll just go in hiding and they won’t express themselves. So the long term solution would be to provide people with knowledge.”

Academic expert on ethnicity and extremist politics, Massey University’s Paul Spoonley, is also very supportive of the introduction of specific laws to outlaw hate. Talking to Newstalk ZB, he said, “I don’t think we can delay, because if you delay, then the changes of something else occurring like the events of last week might be a possibility” – see: Govt urged to introduce separate hate speech laws.

Spoonley has been very active in the debate on hate speech, and in another article is cited explaining that hate speech “provides an enabling environment which green lights racial and religious vilification”. He says it’s a problem because it “provides unfiltered ideas and arguments for those who are pliable and interested. And it tells others what you have done and got away with” – see Michael Andrew’s Online hate speech ‘gives green light’ to attacks.

In the same article, another academic, Camille Nakhid of AUT, is also quoted discussing what she sees as hate speech, which includes the concept that hate is intrinsic to our everyday life, saying “This country was founded on hate speech… I suppose they didn’t call it hate speech at the time, but the taking of Māori land, the denigration of people considered worthless, the marginalisation of their customs through laws and media, I’m still struggling to think why New Zealanders cannot see the correlation.”

In contrast, the article reports fellow AUT academic Paul Moon arguing that “while a desire for censorship was an instinctive response to hate-based events, it would not address the root cause of the problem”. He agrees that there is a need “to re-evaluate the limits of free speech in New Zealand”, but believes that “stifling speech could often create a dangerous climate of isolation” which could make things worse.

Moon says: “Censorship would be fruitless as a means of prevention because it addresses only a small part of the symptom, rather than the underlying cause.”

Opposition politicians are reacting with similar caution. Both the National and Act party leaders have been vocal this morning in pointing out that the problems of hate in society require a sophisticated response. Simon Bridges is backing Andrew Little’s plans to review the laws, saying “I think he is doing the right thing having a review” but emphasising that laws around speech and hate are “so fundamental to society that it can’t be rushed or fast-tracked” – see Jason Walls’ National Leader Simon Bridges backs hate speech review but warns against limiting free speech.

Bridges advocates that the Government “treads lightly on this”, because “Freedom of speech is so incredibly important to us as a society”, and “Where that line between free speech into that hateful and incitement of violence and the like is, is not easy”.

The same article quotes David Seymour on RNZ’s Morning Report, being even more alarmed by the Government’s plans, saying “When the Government makes it its role to start working out which opinions are right and which are wrong and which ones should be punished, that’s when you get into real difficulty”. Furthermore, according to Walls, Seymour argued that “a new hate crime law would exacerbate divisions and fail to stamp out prejudice in New Zealand”.

For more on Seymour’s views on hate crimes and hate speech regulation, as well as some background on the earlier debates on these matters in 2017, see Albert Redmore’s Act leader David Seymour says any possible hate crime laws would be divisive and ineffective.

Possibly the single best media item discussing the issue of hate speech and hate crimes is Sam Hurley’s Christchurch mosque shootings: Does New Zealand need hate speech laws after terror attacks? – which was published in the Herald prior to Andrew Little’s announcement.

The article is important because it provides detail on how the current laws work, and their inadequacies. Current legislation, such as the Human Rights Act, does in fact allow prosecutions – but the article points out that although it prohibits material that is “likely to excite hostility against or bring into contempt” against “people based on their colour, race, or ethnic or national origins”, “the law does not specifically mention discrimination based on religion, sexual orientation, gender or disability.”

Various cases are cited – such as the conviction in the 1970s of a man for “distributing a brochure around Auckland with a photo of Adolf Hitler and a quote from the Bible”, and then the failed High Court case against newspaper cartoons taken recently by Labour MP Louisa Wall.

Again, Paul Spoonley is quoted on the need for new hate crime laws to be balanced against political freedoms: “We need a severity test and of course that severity test shouldn’t be too low, we don’t want to infringe on free speech.”

University of Canterbury Law professor Ursula Cheer, who specialises in media, censorship, and political freedoms is also quoted, warning against a “knee-jerk reaction” of new laws, saying “I would rather the Government looked at what’s already there and decide whether any of that can be improved and made to work properly.” She’s against “over-criminalising society”, arguing that “You can’t reduce everyone in society to a child-like state.”

Cheer also points out that restrictions on speech in order to combat racism and hate, can actually have unintended consequences for politics: “You think [with hate speech laws] that you are getting people who might be an anti-Islamist … but you might also take in valid protest and discussion elsewhere.”

Finally, blogger David Farrar is also opposed to the establishment of specific hate crime laws that attempt to suppress hate speech, and points to a long list of disturbing outcomes from such laws in the UK, saying they are “a great example of how well intentioned laws end up criminalising many different types of speech” – see: Government looking to introduce hate speech laws.