Details of the long-awaited reforms of hate speech laws in the aftermath of the March 15 terror attack have been revealed in a December Cabinet paper obtained by Newsroom.
The paper, which seeks to “strengthen the protections against hate speech”, would move hate speech offences from the Human Rights Act to the Crimes Act and expand the penalties for breaching the law. Protections against incitement and hate speech would be extended from applying just to discrimination on racial, ethnic and national origin grounds to also include rainbow communities, religious minorities and those targeted on the basis of age or disability.
A review of the country’s hate speech laws had found the “scope of the provisions is too narrow – they do not protect groups such as religious groups or rainbow communities that are also targets of hate speech; the penalty and location of the criminal offence does not reflect the seriousness of the behaviour; the complaints process can be difficult to understand and access; and trans, gender diverse and intersex people are not explicitly protected by the Act”.
Justice Minister Kris Faafoi outlined six proposals in the Cabinet paper which would address these issues and implement recommendations from the Royal Commission of Inquiry into the March 15 terror attack.
The first proposal clarifies the wording of prohibited behaviour, to involve “the incitement of disharmony, based on an intent to stir up, maintain or normalise hatred, through threatening, abusive or insulting communications. This should include calls for violence against groups.”
The Royal Commission’s recommendation that the law be clarified to include electronic communications was satisfied by these changes, Faafoi wrote. Other proposals added heftier penalties if someone is convicted of hate speech and extend protections to more groups.
After Cabinet approved the proposals, they went out for consultation with affected communities.
Eddie Clark, a public law lecturer at Victoria University of Wellington who has studied New Zealand’s hate speech laws, said the bulk of the proposed changes were not particularly controversial.
“It does what the Royal Commission recommended: Slightly increased penalties, slightly narrower language, which I think is appropriate if you’re increasing penalties. Having a more closely tailored test for liability is probably appropriate,” he said.
The Royal Commission found that Section 131 of the Human Rights Act, which criminalises certain types of hate speech, “may have some value as a statement of what is and is not acceptable behaviour in New Zealand, but it is not practicable to enforce”. Similar issues applied to Section 61 of the act, which creates civil liability for hate speech.
Clark said Section 131 and Section 61 had each been used just a handful of times.
“If [Section 131] has been used, it’s literally once or twice. Section 61, the civil provisions, have been used – again, literally, you could count on one hand [the number of times it has been used] including its predecessor provision in the 1970s. And I think only once successfully,” he said.
“These things are just not really used.”
The reforms seek to change this by making more types of discrimination subject to the law, including hatred against religious belief, political belief and disability.
However, Clark was uncertain whether the changes would result in more prosecutions.
“The criminal hate speech threshold was – and will continue to be under this – very high. And for criminalising speech, that’s probably appropriate.”
Even if it were easier to prosecute people for hate speech with the new laws, culture change was needed so that authorities actually enforced the laws. Enforcement would also come with higher penalties under the proposal, raising the maximum prison sentence from three months to three years and the fine from $7,000 to $50,000.
“I believe that stronger penalties are needed to reflect the seriousness of the offence,” Faafoi wrote.
Political barriers
The Opposition has indicated it is opposed to changes to hate speech laws that would broaden liability.
“Because [the proposed reform] goes beyond the scope of the Royal Commission’s recommendations, the Government is sticking its head out further than it had to,” Clark said.
Adding in grounds beyond religious belief went even further than the Commission’s advice, he noted.
“A lot of this, to the extent that hate speech regulation will ever be uncontroversial, it’s reasonably uncontroversial. Putting in sex, age as well, disability, these sorts of things. But there’s some stuff in there – particularly political opinion – which we have had very little case law on.”
There was a risk that this provision could backfire and protect extreme political beliefs that target a specific religious or ethnic or gender group.
“I think that that’s a stretch, on the interpretation of political opinion, but it’s the sort of thing that raises free speech red flags. Political opinion is the sort of thing we should be able to extremely robustly debate,” he said.
In addition to adding in new prohibited grounds of discrimination, specific amendments were suggested to clarify the law’s applicability to anti-trans discrimination. A new ground of “gender, including gender identity and gender expression” would be created and the definition of “sex” would be amended to “explicitly include sex characteristics or intersex status”.
The Government has long maintained that transgender and gender-diverse people are covered by the Human Rights Act, but these changes would make that explicit. They would also apply to other issues detailed in the act, beyond just hate speech.
As well, the standard for civil liability would be expanded under the proposals to include cases where there has been “incitement to discrimination”, not just “incitement to hatred”.
“This could be a fairly significant amount more inclusive,” Clark said. That could be valuable, operating as a state rebuke of discrimination even on issues that don’t meet the threshold for criminal prosecution.
