Some of the finer points of the hate speech proposals are still up in the air, with proactively released documents revealing what alternatives are still on the table, Marc Daalder reports
The Ministry of Justice says the proposed reforms to criminal hate speech law could still be narrowed, in a proactively released impact assessment.
Since Justice Minister Kris Faafoi put the proposals up for consultation in June, the finer details have been overshadowed by government ministers appearing not to understand the reforms and critics not engaging with the substance of the changes.
But a quietly released “interim impact statement”, produced prior to the consultation document going to Cabinet, offers insight into officials’ thinking about a handful of technical details that could play an outsized role in the usefulness of the law changes.
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One of the key revelations from this document is that speech might only be criminalised if it was likely to incite hatred. This provision exists in current law but was removed from the proposed reforms, which would just require intent to incite hatred without considering whether the communication was in fact likely to do so.
“Under the current law, the test requires that the speech is objectively likely to have the inciting effect in addition to being intended to have that effect. Due to the tight timeframes when responding to the Royal Commission recommendations, the Ministry of Justice has not provided full advice to the Government on whether to retain this element for the criminal provision,” officials wrote.
“The ministry intends to further assess the benefits and disadvantages of this element following consultation. It could be argued that removing this objective element might limit freedom of speech, honest opinion, art and debate by criminalising intent rather than harmful effects or a risk of harm. Retaining this element also appears to align better with guidance by the United Nations under the [International Covenant on Civil and Political Rights]. On the other hand, it would simplify the test.”
Officials also considered removing the requirement that hate speech be communicated with intent to incite, stir up, maintain or normalise hatred. They said this would simplify proposals – and some coverage of the reforms has focused on the difficulty of determining that intent.
However, justice officials ultimately said this was inadvisable. Almost all criminal offences require mens rea – criminal intent – and removing that requirement from these proposals could see over-broad enforcement of the laws.
“Most criminal offences require a mens rea (mental) element, because a criminal sanction is the most severe action in the law against harmful behaviour. Advice on the United Nations’ International Covenant on Civil and Political Rights (ICCPR) also states that only intentional behaviour should be captured by a criminal law,” officials wrote.
“Having the risk of criminalisation even where a person does not intend to incite others would also likely have a chilling effect on people’s decision to discuss topics freely. As such this would be a disproportionate limitation on freedom of speech.”
The document also discussed other options on the table for civil provisions, including aligning the wording of the criminal and civil proposals to both focus on inciting “hatred”.