Expert opinion from Victoria University Wellington - Te Herenga Waka
Opinion: Justice Minister Paul Goldsmith has instructed the Law Commission to stop all work on changes to New Zealand’s hate speech legislation. This brought to a disappointing end a promise that the New Zealand government had made to minority communities that the disturbing and harmful rhetoric they faced would be addressed.
Instead of responding to the needs of the Muslim community that was the target of vile hatred on March 15, 2019, successive governments have bowed to radical free speech arguments and put the problem of fixing New Zealand’s hate speech legislation in the too hard basket.
The task of changing our hate speech laws had been given to our government by the Royal Commission into the 2019 terror attacks in Christchurch. The Royal Commission picked over the bones of this nightmare and told us we needed to strengthen our hate speech laws, to do better by the victims that day and the communities that face hate every day.
The Royal Commission argued New Zealand’s existing laws “do not appropriately recognise the culpability of hate-motivated offending, nor do they provide a workable mechanism to deal with hate speech”. For example, the Summary Offences Act can punish people for offensive, threatening, and insulting language, but this offence must occur in public, and cannot take place online.
The Harmful Digital Communications Act does apply online, but requires a specific victim, so doesn’t apply to communications that denigrate groups in general. While the Human Rights Act prohibits hate crimes, the legislation is so flawed that since 1993 New Zealand has seen only three legal cases brought under the relevant sections.
The Royal Commission recommended adding an offence to the Crimes Act of “inciting racial or religious disharmony, based on an intent to stir up, maintain or normalise hatred, through threatening, abusive or insulting communication with protected characteristics that include religious affiliation”, and changing the current penalty of three months in prison to three years.
While this would strengthen our hate speech laws, it would also narrow their use by changing the key words “hostility or ill-will”, which are very broad, to the much tighter “hatred”. The Ministry of Justice and the Human Rights Commission both wrote reports that engaged with the proposals and suggested ways forward.
Rather than put forward legislation, the previous Labour-led government passed this problem to the Law Commission, perhaps with the intent of producing better legislation, but it had the effect of burying the issue and associated politics. Once the election changed the government the proposal moved from ‘stalled’ to ‘done’, because the National Party, the Act Party, and New Zealand First all opposed the suggested changes. With Goldsmith’s announcement our patchwork system of laws around hate speech remain unsuitable for the modern world of hate.
Opponents celebrated the death of the reforms, believing that hate speech laws threaten their freedom of speech. But our basic rights – freedom of speech, freedom of assembly, freedom of movement, electoral rights, freedom from state oppression, rights to justice – are often in competition. Libel and defamation laws limit our ability to speak freely about others, electoral laws limit when and what we can say about elections, privacy laws limit the ability of others to share private information about us, and media regulations limit what journalists can say. We negotiate the ways that our rights are in competition with each other all the time. The question around hate speech laws is not whether free speech can ever be limited, but whether that limitation is justified for the benefits it presents to a free and fair society.
The benefits of hate speech laws accrue more to the victims of hate speech than the advocates of free speech that oppose those laws. According to the New Zealand Police, the number of hate incidents reported increased by 12 percent between 2022 and 2023. The total number in 2023 was 4711 – 13 incidents per day. Racial abuse made up 83 percent of those incidents, overwhelmingly targeting communities of colour.
The amount of extreme or violent content being reported to the Department of Internal Affairs also increased by 25 percent. Much of this content was driven by white identity-motivated ideologies. These statistics back up the uncomfortable message that we have heard from communities such as Māori, Pasifika, Asians, Muslims, that New Zealand is, to quote Taika Waititi, “racist as f**k”.
Those arguing that free speech trumps our need for hate laws tend not to be the victims of hate speech. They are rarely if ever the targets of hateful graffitti, do not get abused by passing cars, and do not feel unsafe because of the colour of their skin. Their advocacy of free speech over hate speech laws operates in this abstract space.
Alternatively, the targets of hate speech tell us that it is very real and that it negatively impacts them in multiple ways. Hate speech also cannot be dealt with by not ‘taking offence’.
Firstly, being offended is not the standard for hate speech legislation – it is the much narrower question of harm. But there is also plenty of evidence that hateful speech drives harmful behaviour. The fact that hate speech is often occurring online is no solace. We know that hate speech online migrates to offline behaviours that can often be violent.
The legal scholar Jeremy Waldron, writing in 2012, argued that hate speech laws were a positive rather than negative approach to resolving social issues. He suggests they represent a collective commitment to create a society where people’s dignity and rights to live their lives without facing the worst forms of abuse are upheld, rather than sacrificed on the altar of free speech. But rather than engage with that challenge, New Zealand has told those victims of hate that we will cling to a short-sighted understanding of free speech, rather than compromise that principled stand to respond to their real needs.
Your penultimate paragraph encapsulates the conundrum at the core of this debate. It seems that the major problem in the current climate is the difficulty in clearly defining what constitutes actual hate speech and an acceptable measurement for actual harm. There is probably little disagreement at the extreme end of the spectrum, but the ease with which groups and individuals claim that they are the victims of hate speech when to others what is being quoted is more along the lines of being offended would seem to underline this dilemma.
The Free Speech Union last year hosted a visit from a US supporter whom I recall admitted that speech designed to incite physical harm should be banned, but she was silent about, or ignorant of, mental harm. I think mental harm is as serious, or more serious, than physical harm. We need to worry about youth suicide, destruction of self-confidence, and anger against society in general, that hate speech can create for its victims.
Perhaps those who advocate for “hate” laws should first study the fiasco caused by the new law in Scotland. Police, having previously said they cannot prosecute “minor” crime through lack of resources, are now faced with an average one “hate” complaint a minute to investigate. Ironically many complaints were over comments the First Minister Humza Yousaf made himself about key positions in Scotland being held by “white” people (who actually comprise 96% of the population).
This article appears to proceed on the basis that the Royal Commission’s hate speech recommendations, or the previous government’s hate speech laws (which it did actually introduce) would have addressed interpersonal hate speech. They wouldn’t have, which I think is an important part of the conversation.