Since the March 15 terror attack, when the Government pledged a review of hate speech legislation, the issue has attracted more than its fair share of hyperbole and fearmongering.
Hate speech is a complex issue at the best of times, trying to strike the fine balance between the right to freedom of expression and the rights of people to live their lives freely without facing threats on the basis of their immutable characteristics.
Overcooked hate speech regulation can chill legitimate speech. But the absence of any prohibition on hate speech could allow intimidation and threats to chill the free expression of society’s most vulnerable.
While people may reasonably disagree on where the current law and the proposed changes to it fit within that balance, it’s hard to have an informed debate without the details.
This Newsroom explainer lays out the current state of the law, last year’s proposed reforms and the final version announced by Justice Minister Kiri Allan this weekend.
The law
New Zealand has had hate speech laws on the books in one form or another for decades. The current iteration came into effect in 1993, when the Human Rights Act was passed.
It creates civil remedies and criminal offences for “inciting racial disharmony”. If found guilty of the criminal offence, a person can be imprisoned for up to three months or made to pay a fine of up to $7000.
In order to have breached the law, a person has to have published, broadcast or said in public words which are “threatening, abusive, or insulting” that are “likely to excite hostility or ill-will against, or bring into contempt or ridicule” any group of people based on their skin colour, race, ethnicity or national origin while intending to do so.
Police must receive the permission of the Attorney-General to prosecute someone for hate speech, which isn’t usually required for other offences.
That aside, the threshold in the law is a pretty low bar and legal decisions have continually interpreted the provisions more narrowly.
For example, in 1985 when a predecessor to the current provisions was in effect, an Australian in New Zealand launched a civil case over a column mocking Australians in in the aftermath of the underarm bowling incident. The Equal Opportunities Tribunal decided the mere act of insulting behaviour likely to lead to ridicule of a group wasn’t enough to violate the provision.
“The word takes flavour and meaning from the surrounding words and on that basis ridicule means more than just ragging, chaffing or robust badinage. In our view it connotes belittling and denigrating in circumstances where the humorous aspect takes second place,” the tribunal found.
Given this consistent narrowing of the application of the law, there has only been one successful prosecution for inciting racial disharmony in the 29 years the Human Rights Act has been in effect. That came last year, when Tauranga man Richard Jacobs posted a YouTube video calling for genocide and a race war against Māori.
Because the existing hate speech provisions only protect people on the basis of race, ethnicity, skin colour and national origin, there’s a wide range of threatening behaviour which remains legal if directed against vulnerable groups rather than individuals.
A classic case is the 2017 incident involving Auckland pastor Logan Robertson. Police were unable to charge Robertson with any offence after he said he was “not against [gay people] getting married as long as a bullet goes through their head the moment they kiss” because it wasn’t a specific threat against a specific individual.
The first reform proposal
In June last year, then-Justice Minister Kris Faafoi announced the results of a two-year review of hate speech laws, launched after the Christchurch attack.
The review also took into account the findings of the Royal Commission into the terror attack, which recommended the Government move the hate speech offences into the Crimes Act, clarify the threshold from the current definition and make sure that religious groups are also protected.
The reforms Faafoi announced mostly followed those recommendations. Protections against inciting disharmony would be expanded not just to religious groups, but to other grounds which receives protection under other provisions of the human rights act: Disability, sex, age and so on.
Inciting disharmony would be moved into the Crimes Act with the punishment raised to three years in prison or a $50,000 fine.
The legal threshold would prohibit communications which are “threatening, abusive or insulting” made with an intent to “stir up, maintain or normalise hatred” – raising the bar from mere “ridicule” or “ill will”.
Lawyer Graeme Edgeler described the changes as decriminalising some forms of hate speech that currently violate the law. Everything that might fall under the “ill-will” and “hostility” categories, for example, would be decriminalised but not communications that meet the “hatred” threshold.
The new reform proposal
On Saturday, the new Justice Minister Kiri Allan announced the Government’s final hate speech proposal, after Faafoi’s reforms were met with significant backlash.
This will see the current provisions extended to cover religious belief. The same high bar as in the current law will be in place, so mere insults or disagreement with a faith won’t be prohibited.
All of the rest of Faafoi’s reforms will be referred to the Law Commission for a further review.
“These issues are complicated and the review will ensure any further changes to the incitement provisions meet society’s expectations and needs,” Allan said on Saturday.
“As demonstrated many times previously, such as with abortion law, the Law Commission is well equipped to take on a complex and sensitive issue, and carefully consider how the law should be shaped in response to it.”
Allan expects the limited reform to pass through Parliament before the election. It will be subject to a full select committee process.
