Legal Beagle by Graeme Edgeler

I was alerted late last week to the fact that John Campbell had used one of my earlier pieces in questioning the Prime Minister about the Government’s hate speech proposals, in particular focussing the lack of clarity in the Government’s announcements. Thanks John!

One issue that Campbell raised, that I haven’t yet addressed here, is the proposal that protections from hate speech might be extended to groups defined by their political opinion. This is a particularly controversial aspect of the government’s proposed changes, with even people strongly supportive of hate speech reform concerned about overreach. While the Government agreed in principle that hate speech protections should be expanded to all the protected classes in the Human Rights Act, it has more recently appears to be in two minds. Most (perhaps even all) of the strong defences of widening the protections against hate speech I have read, say they are concerned that expanding protections to groups defined by their politics: they agree the criminal offence should expand from the race/nationality/ethnicity it currently covers to other grounds such a religion, sex/gender, and sexuality, but think expanding to all of the grounds may be going too far. Victoria University’s Dr. Edward Clark has suggested that the grounds contained in the Harmful Digital Communications Act might be a compromise.

I remain sceptical of the government’s hate speech proposals: I don’t believe the government has made the case for them, and I especially don’t believe it has explained nearly well enough the expression it wants its laws to cover, nor more importantly, the expression it wants to leave alone. I am very much open to the idea perhaps we shouldn’t change the law at all.

But if we do change the laws, the question of political opinion is one point on which I have most strongly formed an opinion. Any new hate speech protections should absolutely extend to every single one of the protected grounds in the Human Rights Act, including political opinion.

I suspect I may be the only person who has said this.

Opposition to the expansion of hate speech offences to political opinion often rests on the idea that expressions of political opinion should not be regulated by the criminal law. I agree. But expansion of hate speech offences to political opinion isn’t (or shouldn’t be!) about expressions of political opinion, it should be about – like the rest of any proper hate speech law – about expressions of hatred: hatred directed toward groups of people based on their status, and perhaps likely* to inspire hatred by others toward them as well.

(*the current proposal does not include a requirement that to be criminal, hate speech would actually have to be likely to incite hatred, which is one thing the Government has raised for discussion. The Royal Commission said it shouldn’t – because the bar of stirring up hatred is so high, intention should be enough – but I suspect this is one area the Government will reconsider.)

Any justifiable hate speech law will only capture the worst of what might colloquially be called hate speech. We’re not talking about speech that directly encourages violence (that is hopefully dealt with elsewhere), but it would cover speech which may create a culture in which violence can flourish. This is speech which might lead to people being emboldened to abuse others in public, and which accordingly may cause people to retreat from public life and public spaces.

Ultimately – with the Christchurch terror attacks in the background – we are talking about speech said to increase the likelihood of terrorism and genocide. The aim is only to catch the worst of the worst, the most vile, hatred-inspiring speech. If the government’s intention really is to only proscribe the very worst type of hate speech, then there should be no concern about protecting beneficiaries, or unmarried people, or holders of particular political opinions. You will, of course, still be able to inspire ridicule and contempt, which is proposed to be decriminalised. Maybe that’s still not enough, but that debate is about the scope of the offence, not the groups it protects.

There are three basic question to address when formulating a general hate speech offence like the Government is proposing:

1. What expression should be covered? (the government says published material that is threatening, abusive or insulting)
2. Whom must the expression be about? (the government says, at present, the classes of people protected from unlawful discrimination under the Human Rights Act)
3. What intention and consequence the expression must be conveyed with? (the government proposal is with the intention of stirring up hatred, although with the likelihood of hatred being stirred up irrelevant)

In assessing whether the law goes too far, we are mostly looking at point three. The use of insult in the answer to the first question concerns some people, but were you to remove the words "threatening, abusive or insulting" entirely, and replace them with “publishes or communicates any words or material” you wouldn’t greatly expand the scope of banned expression, because point three is so limiting. If extending point two to cover groups of people defined by their political opinion causes you concern, your problem is really with either point one or point three: you are concerned that we will capture too much speech, and that the standard has been set too low. If we were only catching the worst speech, extending the protection to groups defined by their political opinion should not be a problem.

This suggested amendment has its genesis in the Report of the Royal Commission of Inquiry into the terrorist attack on Christchurch masjidain. While there is no evidence that the Christchurch terrorist was radicalised in New Zealand (and ample evidence he wasn’t), the New Zealand Government wishes to play its part in reducing the risk of radicalisation in the future. The theory is, if New Zealand plays its part, and other countries do their bit as well, then maybe if not eliminating terrorism, it may nonetheless be reduced.

Now, maybe the evidence it will work is weak. Maybe evidence suggests that criminalising more hate speech may in fact increase the radicalisation of people who feel at the margins, but the point is: the aim of the law is to (hopefully) reduce terrorism, by lessening an environment in which radicalisation may flourish.

And if that is the aim, and the law is tightly drawn to focus on the worst speech which might lead to that, and is not focussed on common impoliteness, or political or religious debate or criticism (even harshly phrased, perhaps likely to lead to ridicule), and it recognises that it should even be permissible to inspire hatred of say a religion, or of a political opinion, if your expression does not also inspire hatred of people who share that religion, or opinion (that’s a difficult line to draw in practice, but it is one the proposal does, albeit only implicitly), then the law itself shouldn’t be the problem.

If you have correctly calibrated the law being doing all of those things, then why would you not want to protect the group of people defined by their status as refugees, or as unemployed, or having a particular political opinion? What type of speech is it that you – with so narrowly defined a law – want to permit that such a law would prohibit? What speech about a group of people defined by their race, or their religion or their sexuality, is it you want to prohibit, but you think would be absolutely fine if directed at members of the Green Party, or supporters of immigration and multiculturalism, or some other political opinion?

It is instructive to contrast the terror attack in 2019 Christchurch terror attacks with the 2011 terror attack in Norway. There are a lot of similarities, with some suggestion that the Christchurch terrorist was inspired by the Norwegian terrorist. But there is an important distinction worth dwelling on.

The Christchurch terrorist selected his victims based on their religion. They were targeted because they were Muslim.

The bombing in Oslo was of a building housing the office of the Prime Minister. The victims on the island of Utøya were attending a summer camp as members of the Worker’s Youth League (a political group affiliated with the Norwegian Labour Party).

If we are truly intending to pass a law to diminish the likelihood of terrorism, is that really where we want to draw the line? Seeking to limit speech aimed at creating a culture which might inspire someone to attack a place of worship is justifiable, but limiting speech aimed at creating a culture which might inspire someone to attack a group defined by their support for multiculturism goes too far?

Now, maybe banning even the worst of the worst hate speech is actually a bad idea, or even counterproductive. But if you are sufficiently convinced it is a good idea that you support some version of the Government’s proposal (perhaps with “likely” added back or, or “insult” removed), why wouldn’t you want to expand the protection to all of the protected classes in the Human Rights Act?

I have in part, an ulterior motive here. A major concern is that the proposal will not be narrowly targeted, and will have the effect of banning speech that we would not want banned. If there is to be a law change, I want to ensure as far as possible that the law:

• Only bans the very worst, most hateful speech; and
• is clear, so that we all know what is banned, and what is not; and finally
• ensures that those involved in enforcing the law - police, prosecutors and Courts - are be strongly incentivised to not seek to push boundaries.

I think back to the Harmful Digital Communications Act. There were many concerns with the criminal offence it contains. While the civil process provides for a set of priciples that create a helpful balancing exercise, which explicitly recognises the important of freedom of expression and other societal interests in play in the public dissemination of ideas, the criminal offence is drafted in a way which does not. On its face, it does not protect fair and accurate reports of news in the public interest. Of course, while the offence should be fixed, in reality, I am not all that concerned that an online news report of say an allegation of sexual assault will actually lead to a conviction under the HDCA for intending to cause the perpetrator harm. I do not think a court would ever convict, even if you looked at the elements of the offence and determined “Yes, credibly accusing someone of rape is likely to cause them serious emotional distress.”

Select Committee submissions made on behalf of news media on the Harmful Digital Communications Bill strongly pushed against the idea that news media should be covered by it. They said that Broadcasting Standards, and Media Council guidelines were sufficient to protect the public from bad reporting.

While news media have exemptions from some laws (for example, you cannot make a privacy act request for information they hold about you obtained through their newsgathering activities, and they can attend court hearings in criminal cases, even when the public is excluded), I did not support one in the HDCA. The types of things that should be banned by a law like the Harmful Digital Communications Act are things that no news organisation should get remotely close to ever publishing. And if they do publish something that would appropriately see a non-journalist like me face criminal charges, they should face them too.

I want the courts to read down the overly broad criminal offence in the HDCA, and knowing that news media are there with the rest of us makes that much more likely. The inclusion of news media in the HDCA is protective against overly expansive rulings that unjustifiably reduce freedom of expression.

And maybe the inclusion of groups defined by their political opinion, will ensure that those drafting and enforcing hate speech laws will be appropriately circumspect, only targeting with the law what can truly be justified. Because we will be incentivised to permit harsh criticism of political opinions without that being held to be stirring up hatred of holders of those views, and because we will want to allow ridicule of them, then these things will also be protected in other areas, like discussion of religion, and any expanded hate speech law will not become a de facto blasphemy law.

But this really is secondary. If you could convince me that all of my other concerns about the hate speech reforms are wrong, and could prove that there is no risk of them being abused by Police, or misapplied by the Courts, and there would be no second order effects discouraging lawful speech, I would still want political opinion included, for the same reason that is already in the Human Rights Act.

There are difficult questions in discrimination law. But there are easy questions in discrimination. Some things are just more important.

Food is necessary for life, so supermarkets shouldn’t be permitted to refuse service to people with disabilities, or the unemployed. Housing is needed too, so landlords shouldn’t be permitted to refuse to rent to people because of their ethnicity.

Employment is more delicately balanced. Everyone should be able to get work, without a protected status being held against them, so you wouldn’t want a cleaning company to be able to refuse to hire someone because they were Muslim, but do you want to ban a church-run Christian-based after school programme from doing the same (perhaps yes, but only in some roles, not others)? Perhaps you do think that so long as a person can do the job, even that sort of role shouldn’t have a religious requirement (even if say, the appointment of a Minister of religion does). But that is a harder question, with a less obvious answer.

But where does protection for hate speech fall? If we’re truly capturing the worst of the worst speech: speech that when repeated often enough, by the wrong people, in the wrong way, makes genocide more likely, encourages terrorism, and makes random attacks and abuse more likely, then surely this is one of the easier questions?

These are groups that are protected from discrimination in employment, in access to housing and education and the provision of goods and services, etc. Are there really groups that we want to protect from such discrimination, but would be okay with them being subjected to culture-of-terrorism-enhancing speech?

I suggest not. If a group of people is unworthy of protection within a hate speech law designed to ensure social cohesion and the ability to take part without fear in daily and public life, then the problem isn’t the hate speech law, the problem is the list of protected groups in the Human Rights Act. If New Zealand is to expand its hate speech laws to protect other groups, it ought to protect all of the groups protected by section 21 of the Human Rights Act.

If there is some group we decide we do not want protected from this, then we should be deleting it from the Human Rights Act. But I, for one, am fine with the list. We should protect the groups listed in s 21 from discrimination in their daily lives. And if we conclude hate speech laws will help, and will not risk doing more harm than good, we should not be passing a law to criminalise speech likely to increase the chance of another attack like that in Christchurch, while accepting that speech likely to increase the chance of an attack like that in Norway is the price we pay for living in a free society.

[This takes a while to get there, but I promise this is a part of my series on hate speech reform]

In 2013, the National government introduced amendments to the Bail Act. These have been controversial over the last several years, as they seemingly led to a massive increase in the remand population.

Except there is no way its bail law did this. The Department of Corrections estimated that the amendment would increase the prison population by approximately 50 people. This was an excellent estimate, because they knew exactly how many people each year would be affected by the law change. For the vast majority of bail decisions, the Bail Amendment Bill would change nothing. The legal test was the same as it had been for years.

Basically the only people whom the law change affected were people charged with murder (less than 100 per year), and people charged with an offence from a specified list of particularly serious offences (to which National added six additional also serious offences), and who already had a conviction and prison sentence for one of those serious offences. This just isn’t many people. Corrections knew approximately how many people would have a harder time getting bail under the law change because it knew exactly how many people it would have effected the year before the change, and the year before that. Somewhere in the order of 100-200 people facing charges (many of whom were already denied bail, under then-existing laws). That group of say 200 people, 110 of whom were remanded in prison under the then-existing laws, and 90 of whom got bail would become a group where they estimated only 40 would get bail. The change was so minor, that National was running advertising taking credit for parts of the bail law Labour had enacted a decade earlier.

But apart from those couple of hundred, maybe, whom the law changed the test for bail, for the other 14,000-20,000 people facing serious charges each year the National government’s Bail Amendment Act changed absolutely nothing. The legal test for bail stayed the same.

But then the remand population skyrocketed. 1600 were in prison on remand just before it passed. 1800 a year later. 2200 the year after that. Then 2700. Then 3000. Then Labour got elected, and it stayed at that 3000 level over that first year. A year later however, it jumped to 3600. It’s dropped a little from that peak, but it’s still well over 3000. And all while the number of people charged with serious offences has dropped.

What happened? In some combination of Judges, Police and prosecutors, those involved in the bail process seemed to get the idea that – despite the law not changing for the vast majority of people charged – practices would have to change anyway. Judges seemed less inclined to grant bail, Police more likely to oppose it, and prosecutors more inclined to seek conditions that would delay release. Was it a direct or indirect reaction to Parliament’s actions, or to the Government’s rhetoric? Maybe. But the fact the law had changed in some small way preceded a substantial shift in practice. Someone got the hint that bail should be harder to get, and more and more people ended up serving time in remand prisons.

This should be on the mind of everyone considering a law change. You need to look not only at the direct effects of what you are proposing, but how they will change the culture and the incentives of those administering the law. It’s one of the major reasons I am concerned with proposals to amend hate speech laws. On their face, the Government’s proposals are relatively minor. In some respects, they would actually legalise some forms of “hate speech” that are currently criminal.

But what will be the second order effects? Will they change policing culture? For types of speech and conduct that are not actually regulated under the new law, will New Zealand Police, like their British counterparts, take it upon themselves to visit people at work over non-crime hate incidents?

Because New Zealand policing speech in a manner similar to that in the United Kingdom is what opponents of this law change fear.

Maybe New Zealand will chart its own course. We have before. About a decade ago, there was a concerted campaign in the United Kingdom to repeal an offence around insulting language. Police had used the existence of the offence to arrest someone who asked a mounted police officer “Do you realise your horse is gay” and to arrest a 16-year-old for holding up a placard which said “Scientology is a dangerous cult”. The criminal law should not be involved in such matters.

What was the offence?

As it was at the time, it was worded:

(1) A person is guilty of an offence if he—

(a) uses threatening, abusive or insulting words …, or

(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,

within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

The maximum penalty was a fine of £1,000.

You can see how an offence like this could be misused by Police. New Zealand mostly seems to avoided this sort of problem. New Zealand’s law has been inappropriately used by Police: a related law got Tiki Taane arrested for singing N.W.A’s “Fuck the Police”, but we just haven’t seen the ridiculous cases they have seen the UK. Given this difference, it is interesting to compare this New Zealand offence:

(1) Every person is liable to a fine not exceeding $1,000 who,—

…

(b) in any public place, addresses any words to any person intending to threaten, alarm, insult, or offend that person;…”:

The two laws cover basically the same ground. New Zealand’s law would not cover placards, but other than that the English law is perhaps more free-speech sensitive.

What words were banned in England? Threatening, abusive or insulting words.

And in New Zealand? “Any words”.

What intention or effect was required? In New Zealand: intent to threaten, alarm, insult, or offend the person addressed by the words.

In England? The words had to be likely to threaten, alarm, insult, or offend.

Yet enforcement in New Zealand differs greatly. In part, this is because the New Zealand Supreme Court has held that to come within this offence, the speech must be such as the create a risk to public order. But it is also that the Police and the Court don’t generally see themselves as being involved in policing the sort of speech that English police do.

Because here’s the thing: the law changes we’re looking at aren’t the one people should fear. There’s a bit of debate, but on balance, it may even move New Zealand’s laws in a pro-free speech direction. What matters is the culture. And the culture of New Zealand Police has been more speech friendly that that of their colleagues in England. What is primarily to be feared isn’t charges under the new law, but a change in approach to speech applying pre-existing laws.

England has a hate speech law somewhat like our current one. with a few differences (eg it uses the “stir up” language the Government proposes to move toward), but few (if any) of over-reaching ridiculous UK prosecutions or arrests you’ve heard about in news stories are actually hate speech prosecutions. Police in England have prosecuted people for posting rap lyrics on Instagram, for posting a video on YouTube of a dog giving a nazi salute, and an evangelist for displaying a large sign saying “Jesus Gives Peace, Jesus is Alive, Stop Immorality, Stop Homosexuality, Stop Lesbianism, Jesus is Lord". None of these were hate speech prosecutions under the type of incitement law the Government is consulting on. These were prosecutions under standard offensive language laws, or communications laws like we have in New Zealand. Actual hate speech prosecutions, of the stirring up hatred kind, have tended to be of so-called hate preachers, like Abu Hamza, or people like this guy.

The major difference in New Zealand, is that our Police mostly don’t react that way. Of course, the UK wasn’t always this way. At some point, police started acting differently, and directors of public prosecutions started acting differently, and everyone started more rigorously applying those laws, and then magistrates started convicting people. And the laws they were applying had not actually changed. Just like the bail laws had not changed for literally 99% of the people facing serious charges in New Zealand courts.

But remand rates still doubled.

I am generally sceptical of laws regulating speech, especially those that impose criminal penalties, the consequences can be perverse, and can sometimes even make things worse for those whom they seek to protect. But I try not to allow my reflexive scepticism to be reflexive opposition, and it can sometimes be helpful therefore, to explore the argument for change.

If you are someone supportive of the idea that the marketplace of ideas is the best means to root out offensive ideas, that the best response to bad speech is good speech and more speech, there is even something here for you. Hate speech can create an environment in which speech from minorities – speech that ought to be welcomed by the marketplace of ideas – becomes less likely. The fear of abuse, of threats or harassment, but even just highly unpleasant response, can discourage speech. Could banning speech that engenders such hatred – speech that silences voices, speech that attacks the marketplace of ideas that opponents of hate speech regulation are trying to protect – actually reinforce that marketplace, by allowing those who may otherwise have been marginalised to join the conversation?

That is one of the reasons for, and benefits of, laws against defamation. Defamation interferes with the free exchange of ideas. Defaming opponents in the marketplace of ideas can be a means to silence them: "don’t listen to him, he’s a liar", or “she’s a fraud, and lying about her qualifications". Why wouldn’t we want to seek the same regulation of the hate speech that can silence others?

Hate speech properly understood is bad. That “properly understood” is doing a lot of work, but I hope I can get some agreement that there are some types of speech that diminish social cohesion in profoundly negative ways, and without any societal benefit.

An example we might like to consider is the preacher here. You can express even very firm religious doctrine against same-sex marriage without using the word ‘bullet’. This isn’t a case where the bad done by expression outweighs the good, it is that there is no good in the expression at all (*there might still be bad done by banning it, but we’ll address that later). As a principle, there is some expression the existence of which is an unalloyed bad.

We ban all sorts of speech, for all sorts of reasons. Some of those bans involve criminal laws: we ban death threats, and fraud, and conspiracies to import drugs; others are regulated through civil processes, such as claims in defamation and privacy, and obscure torts like interference with contractual relations.

Which isn’t to say that that speech should necessarily be regulated (much less criminalised), but as a general proposition, I hope this can be accepted: society would be better off if some particularly bad speech happened less or not at all.

For hate speech specifically, the concern is about speech that dehumanises others, that encourages others to view other groups as less human. At its highest, it is speech that, when repeated often enough, by the wrong people, in the wrong way, makes genocide more likely, encourages terrorism, and makes random attacks and abuse more likely. If there are groups of people felt to be deserving of scorn, of contempt, and of hatred, by enough people, then some people (perhaps just a small minority) may act on that hatred: yelling epithets in the street, engaging in acts of vandalism to homes, businesses, places of worship or graves, or harassment and idle and not-so-idle threats.

This is detrimental to social cohesion. People who live in a place like New Zealand should not be made to feel that they do not belong, should not be made to fear that taking part in public life will lead to threats and should not have to fundamentally change their lives to avoid attempts at victimisation. And hate speech can make this happen. I gave an example last year:

A Muslim mother wishes to take her children to the beach on hot summer day. Her beliefs dictate that she should be modestly dressed in public, but she still wants to swim with her kids, so wears a burkini. At the beach, she’s verbally accosted by someone yelling “Go Back to Islam”, and other derogatory comments indicating she doesn’t belong in New Zealand. Now, maybe this is the type of speech we have to live with in a pluralistic society. But we shouldn’t pretend there is no harm. Her kids have heard it. Maybe they were worried for her safety, in the same way that someone who hears a threat may fear for someone’s safety. Maybe they’re now scared to go to the beach, in case that bad man (or someone like him) is there.

Speech which causes someone to change their public life – not going to the beach because their kids are scared of being accosted; or deciding to drive to the supermarket instead of walking because someone on the direct route yells out the n-word or the (other) f-word every time they walk past – is harmful. And it is a harm that might be justifiably regulated.

The hate speech reforms, however, do not directly deal with this. Abusive speech is covered, but only to the extent that it encourages group hatred. These things can potentially be charged under general criminal laws, but amendments to make such things easier to prosecute under either harassment laws, or as intimidation isn’t part of this proposal.

Rather, the law is aimed at reducing the environment in which people can feel comfortable engaging in such behaviour. If people are encouraged to hate others, the theory is, these sorts of problems become more likely. If the environment of hate leads to environment of abuse, and threats, the marketplace of ideas falls down.

There’s an argument against hate speech regulation, which takes pretty much the same line. Adopting laws against hate speech – even narrowly targeted, may in fact increase abuse. That marginalised groups may get the blame for laws against hate speech, that prosecution of hate speech offences may provide platforms for speech that might otherwise fall into obscurity, and create sympathy for those speakers, rather than contempt.

Unfortunately, this is where my attempts to steelman hate speech laws falls down a little. I can point to countries that have tightly targeted hate speech laws, whom we might learn from in drafting any amendments here, but I simply cannot tell you whether any of them have actually worked. The arguments above are all theory. Common sense theory in lots of places, and in many respects backed by evidence of the harms of hate speech, but evidence that hate speech regulation has had positive effects, actually reducing hate crimes and abuse is something I haven’t seen.

But then, we regulate all sorts of things we accept are bad, without necessarily being sure that the second order consequences of the ban will see a reduction in other bad things. We criminalise threats without being sure that violence decreases when threats are prosecuted, because threats are so bad, and have such negative consequences on the victims of threats, that the imposition of criminal consequences is felt justified. This goes for a lot of the crimes we have where words form the basis of the charge.

Maybe some hate speech is so bad, that criminalising it on its own, even without being sure of other benefits is justified. A properly targeted hate speech law, narrowly tailored to the worst most dehumanising hate speech, could be justifiable irrespective of the second order consequences.

The report of the Royal Commission of Inquiry into the terrorist attack on Christchurch masjidain, notes considerations favouring the creation of hate speech offences include:

the promotion of social cohesion;

the desirability of limiting speech that encourages hostility that may result in harms such as discrimination and abuse, fears of physical harm and actual violence;

It notes that these need to be weighed against consideration of:

the importance of freedom of expression; and

ensuring that the law can practically be enforced.

In a related paper, The Royal Commission also considered the adverse consequences of hate speech:

Adverse consequences and victims of hate speech

14 In deciding whether hate speech offences are a reasonable limit on the right to freedom of expression, the adverse consequences of hate speech are relevant.

15 We were provided with a draft Ministry of Justice document that sets out the evidence base it has established during its review of hate speech legislation. That document lists the impacts of hate speech as including:

a) Psychological harm of hate speech – It has been claimed that hate speech causes psychological harm to individuals, and that its presence in society reinforces the racist status quo. This is consistent with findings that suggest individuals subjected to non-physical discrimination suffer harm to their physical and mental health.

b) Impact of hate speech on human dignity and public goods such as inclusive society – Jeremy Waldron argues that hate speech should be regulated as part of our commitment to human dignity, inclusion and respect for members of marginalised communities. Denigration of a marginalised community through hate speech undermines a public good that can and should be protected – the basic assurance of inclusion in society for all members.

c) Impact of hate speech on behaviour of affected people – Some commentators have argued that hate speech causes those who are subject to hatred to retract from society and remain as silent and invisible as possible.

d) Impact of hate speech on New Zealanders generally – A Netsafe survey conducted in 2018 on the impact of online hate speech found that one in ten adults have been personally targeted by online hate speech. Of those targeted, about 60 percent reported a negative impact from the experience. Most reported being affected emotionally but also exhibiting changes in their behaviour. A third of those targeted reported not being affected. Descriptions of emotional impact included anger, sadness, fear and frustration. For some, online hate also affected their social interactions, sleep and/or work.

e) The link between hate speech on the internet and hate crimes – A study commissioned by InternetNZ concluded that the case for the link between hate speech on the internet and hate crimes has been well made, however more research is needed to understand the details.

Maybe that is enough?

The case against hate speech reform will follow in a later post, but I will note one point here.

The types of hate speech that most impact on individuals’ access to the marketplace of idea – the emailed death wishes, and implied threats, the street abuse and harassment that may cause people to alter their lives, to not take their kids to the beach, and to try to avoid becoming public figures speaking on issues of importance for fear of their lives become measurably worse through personal attacks  – that personalised targeted hate speech with identifiable victims?

This proposal doesn’t deal with it at all.

The hate speech reforms are instead designed to stop the creation of an environment where these things can occur, but appear to assume that the laws that deal with these things directly are adequate. I have no idea why.

In what will hopefully be the first of the number of posts on the government’s hate speech proposals, I have a look at what they actually cover. You may have guessed from the title of this piece that there is some confusion. Certainly, the government is still working through the details, with a public consultation process having just started. But some aspects of the proposal have been under-explained, so here’s a Q&A to kick things off. 

What’s this about hate speech?

The New Zealand Government has released has public discussion document around proposals to reform the two hate speech provisions in the Human Rights Act. The proposals have been well-signalled, with the Report of the Royal Commission of Inquiry into the terrorist attack on Christchurch masjidain containing some of the discussion around changes that it thought should be made.

Before we get to the changes, what are the current laws?

New Zealand has a number of general laws that can be used to prosecute what is sometimes called hate speech, including laws against disorderly and offensive conduct language, against harmful digital communications, and for particularly serious speech, censorship legislation.

This proposal doesn’t alter these laws. It addresses two laws in the Human Rights Act 1993: one a criminal offence and the other a civil claim (like defamation).

Tell me about the current criminal law.

Section 131 of the Human Rights Act creates a criminal offence if you do some combination of the following five things:

• publish written material, or use words in a public place (you need one of these)
• if those words are threatening, abusive or insulting (you need one of these)
• And those words that are likely to
  • excite hostility; or
  • or excite ill-will against; or
  • or bring into contempt; or

• • or bring into ridicule
    (and one of these)
• And that excitation or bringing is against a group of persons in New Zealand on the ground of their colour, or race, or ethnic or national origins (and one of these).
• And you intend those words to excite hostility; or to excite ill-will against; or bring into contempt; or bring into ridicule such a group of person (and one of these).

Do one option from each of these things above, and you have committed an offence for which Police can prosecute you. If convicted you can be imprisoned for up to three months, or fined up to $7000. No-one has ever been prosecuted for this in New Zealand, although there was one prosecution under the similar offence under the law that the Human Rights Act replaced.

Importantly, this offence covers speech about groups. Speech directed at individuals mostly isn't covered by this law, nor by the proposals for change. If you are looking for legislation to deal with things like racist or otherwise bigoted street harassment, this is not it.

And the Government is looking at expanding this criminal offence?

No. Also yes, but mostly no. The Government is proposing to decriminalise most of this speech. Under the Government’s proposal, what replaced this criminal offence would not make it criminal to excite hostility against say a race using threatening, abusing or insulting words, it it would not be criminal to excite ill-will against them, nor to bring them into contempt, nor to bring them into ridicule.

It would only be criminal to publish written material or use words to stir up hatred against them. Both the Royal Commission and the Government consider this is less restrictive on freedom of expression. I am inclined to agree. The Royal Commission saw the current prohibitions as unjustified, and considered that criminalising only a small subset of especially harmful speech, likely to engender hatred, was justifiable, but they think the harm caused by that type of speech is worse than the law currently recognises.

Is that the only change planned to the criminal offence?

No, there is some proposed expansion of the law, so as well as increasing the standard to hatred, rather than lesser things like ridicule, and changing the verb from excite (which the Royal Commission noted is somewhat archaic) to “stir up or maintain”, the Government is looking at moving the crime to the Crimes Act and increasing the penalty to three years imprisonment (both to recognise its seriousness), and this is the big change: bringing in other protected grounds (like religion, sex and gender, and possibly all of the other grounds of discrimination in the Human Rights Act).

Is including other grounds of discriminatin what opponents are concerned about?

I think so. There are other concerns, about enforcement, about clarity, and about possible changes in culture, but if we're talking about opposition to the proposed legislative change, most of it has focused on that final bit: extending the protections of hate speech to other classes like religion, and gender expression.

The proposed extension of the criminal offence (and the civil process to other grounds of discrimination) has some opponents worried that political or religious criticism may become fraught (would the Jyllands-Posten Muhammad cartoons be illegal; would Israel Folau’s Facebook paraphrase of Paul’s letter to the Galations?), or that people may be arrested and charged for relatively minor offence (eg misgendering). They’re aware of some things that have happened in other countries, primarily the United Kingdom, such as the 16-year-old who was arrested (but not charged) for having a placard that said “Scientology is a dangerous cult”). They don’t want to risk that happen here.

Does the proposed law cover that?

I don’t think so, but I’d be more confident in that conclusion if the Government was clearer about its intentions. The Government seems very open to the idea– despite what the Royal Commission said about reducing what is actually prohibited – that things like these might be prohibited. When recently interviewed by Tova O’Brien on The Nation, the Minister of Justice was reluctant to comment on a range of hypotheticals. The Government should be answering questions like this.

What about the other changes being looked at?

The proposal suggests that the current process for civil liability should have similar changes – although it is possible that civil liability would remain for not only hatred-engendering speech, but also lesser things like incitement to ridicule or contempt.

They would also extend the provisions around civil liability to include incitement to discriminate. Discrimination is already illegal (people can be sued for discriminating against others), this proposal would extend civil liability to those who encourage such discrimination.

The Government has also announced its intention to clarify the grounds of discrimination to include trans, gender diverse and intersex people (it is generally agreed that they are already protected under the prohibition against sex discrimination, but this would make it explicit).

The proposal would also make the the laws technologically neutral, as it is not clear, for example, that online publications are currently covered.

What next?

The Ministry of Justice has commenced a public engagement process on the Proposals against incitement of hatred and discrimination. Members of the public can have their say until Friday 6 August 2021.

And that covers the change you talk about above?

Yes. And some of the detail too, although this is pre-legislation consultation, so we aren't being consulted on a bill, like we would at a select committee. That will come later.

You can engage with the consultation process here.

What concerns remain? Why would someone oppose this law?

I'm still not convinced, and I hope to cover this in more details in future posts, but a big reason to oppose a change like this is the same reason to oppose any expansion of the criminal law. Imprisoning people is really harmful. Convicting people is really harmful. Prosecuting them is harmful. Being arrested, and even just being visited by police is harmful. If you are a person sympathetic toward the prison abolition movement, there are major red flags here. There are also all of the standard concerns about the focus of police discretion. Will those charged under this law be disproportionately brown, or  poor, like with most other laws?

The most obvious concern is that the Government has not been clear about what it thinks the law will actually ban, and worryingly the Minister of Justice doesn’t seem to think he has a role in deciding what types of things this law would make illegal, nor more importantly, what types of things it would not make illegal.

In particular, the Government doesn’t appear to understand, and has never seemed to articulate what I described above – that its proposal as currently articulated (and as explained by the Royal Commission) decriminalises a bunch of currently criminal speech. It knows it is extending protections to cover other grounds of discrimination, but hasn’t grasped its proposal would move regulation of some sorts of hate speech that are currently prosecutable, to civil proceedings. And if the Government doesn’t realise this, and if the Government will not answer hypotheticals like those Tova O’Brien put to the Minister of Justice, people are right to be concerned.

There are some other issues to be considered too, but are perhaps more in the details.

One example from the discussion document is that it notes that “This proposal does not include the requirement that the communication must be “likely to” incite, maintain or normalise hatred. This exists in the both section 61 and 131 currently (and is not proposed to be removed from section 61). The Royal Commission did not think it was a necessary element of a new offence.”

The Ministry of Justice says it is interested in feedback on this, but the rationale for imposing criminal liability on someone based on the harm they are doing, should probably be connected to the harm they are doing. If someone's speech is not likely to incite, maintain or normalise hatred, can there be a justification for punishing them for inciting, maintaining or normalising hatred?

We'll get into the weeds later, but you can have your say here.

I have amended my submission (thank you to linger for the typo spotting). It still isn't as full as I'd like (I don't really address the new terrorist training offences), but hopefully my submission on the Counter-Terrorism Lgislation Bill will still be useful. Hopefully others (perhaps the Free Speech Union?) will have had the time to address the general principles around control orders in particular.

I am particularly concerned that some of the changes haven't been publicly justified by the government, leaving me to wonder that the law change might be aimed at using terrorism laws against people in the future like those arrested during operation 8. Maybe that would be justified - the government hasn't been that open about what it actually thinks occured there, but if that is the aim, I really think they ought to say so.

My submission, now updated, follows for anyone interested

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The Justice Committee

Counter-Terrorism Legislation Bill

Submission of Graeme Edgeler

Introduction

1. My name is Graeme Edgeler. I am a Wellington barrister with an interest in constitutional law.

2. I thank the committee for the opportunity to make a written submission on the Counter-Terrorism Legislation Bill and look forward to appearing in person to supplement it.

3. I regret that other commitments have limited the amount of time I have had to devote to assessing this bill, but I hope my short comments will nonetheless be useful to the Committee.

Summary of Submissions

4. My principal submission is that the Committee should be careful before recommending that some aspects of the bill proceed. That is, of course, a given, but I do not think that a public case has been made for some of the changes the bill would make to New Zealand’s terrorism laws.

5. The explanations that have been provided by the Government for changes to the terrorism offence in particular, are unconvincing. I invite the committee to seek a briefing, in private if necessary, of the problems that have been encountered that make the changes necessary and desirable, because the explanations given do not stack up with publicly available evidence.

Clause 6: Amended Definition of Terrorist Act

6. Clause 6 would amend section 5 of the Terrorism Suppression Act. The bill’s explanatory note states this amendment is to “update the definition of terrorist act to improve clarity.”

7. The bill does not do this. The current definition of terrorist act is entirely clear. It is certainly drafted narrowly, but that was the intention of the original legislation and has been carried through subsequent amendments.

8. The definition of terrorist act would change in several ways, including:

• The requirement that terrorism be intended to induce terror in a civilian population is reduced to a requirement that fear is induced in a population.
• The alternative that the act intend to “unduly compel” a government to take action has been replaced with the requirement that an act of terror seek to “coerce” government action.
• Providing that actions that cause major damage to the national economy are covered, even if they fall short of devastating it.

9. These may be desirable changes, but section 5 as amended would be no clearer than the current law, which does not need clarification. Whether it needs widening is the question the Committee actually has before it. The proposed definition is relatively complex, but the amendment is equally as complex. The question then is: which is better?

10. The bill proposes not clarifying the definition of terrorism, but changing it, by widening it to include actions that fall short of the most serious actions that are covered by the current definition. This definition flows into all aspects of the legislation, making it easier to designate an organisation as a terrorist organisation, making it possible to prosecute people under counter-terrorism laws for actions that may previously have been illegal, but were not previously terrorism, and by widening what would otherwise be the scope of new offences.

11. There may be a case for this. If so, it is one that the Government has not made publicly.

12. I invite the Committee to seek a briefing on the reasons this change has been proposed. It is not, for example, a change that is required by new Security Council resolutions:

• Have there been occasions where the Government has looked at prosecuting something as terrorism, but decided against because of the current definition?
• Has the Government not acted to declare a particular organisation a terrorist entity when it would have preferred to have done so, but formed a view that it fell beyond the current law?
• Has the Government’s proposed change arisen not because some action was not taken in New Zealand, but because of problems identified in other jurisdictions with similar definitions to New Zealand’s current definition?

13. I simply do not know. I submit that you should find out.

14. In the aftermath of the then Solicitor-General’s decision to decline permission to prosecute the those arrested during Operation 8 under terrorism laws, he described the application of the Terrorism Suppression Act to New Zealand as “incoherent and unworkable”. That also describes the current draft of the bill.

15. The issue in that case was different (around what counted as membership, not what counted as terrorism), but if this law change is designed with that offending in mind, and is intended to bring within the current and new terrorism offences actions like those alleged to have occurred in Te Uruwera, then the Government should say so. If not, and it is not intended to cover such conduct, explanations of why that is would also be welcome.

16. I lack sufficient information to know whether this amendment is necessary, or what it hopes to achieve that is not covered by our current definition of terrorism. I invite the Committee to enquire.

Clause 7: New definition of carrying out and facilitating terrorist acts, expansion of terrorist act offence

17. The major change this bill would make to terrorism laws is expanding the terrorist act offence. If amended it would cover committing terrorist acts as now, but also expand more explicitly to attempts (which are currently illegal through general principles of criminal law), and even to encompass preparatory fall short of the offence of attempting to commit a terrorist act.

18. There are two important matters to consider here: (1) whether it is appropriate to criminalise preparation for terrorism where that preparation falls short of an attempt; and (2) the appropriate legislative language to use to achieve any desired change.

Attempted Terrorism and Preparatory Acts

19. Attempted terrorism is already illegal. It covers situations where a person does some (or omits to do something) for the purpose of committing a terrorist act. It covers all manner of things, including for example, obtaining weapons. Of course, even in circumstances where preparatory actions fall short of constituting an attempt to commit a particular act, those preparations may still be criminal under other laws, including conspiracy laws, or depending on what is done, weapons charges, etc.

20. In general, merely preparatory acts are too remote to constitute an attempt under criminal laws, so a person walking around a city to consider possible targets would probably not be covered, while a stake out of a specific target to gain intelligence may be illegal as an attempt.

21. I can appreciate the rationale behind expanding the scope of counter-terrorism laws to more remote preparation, but caution the committee that it should be careful before supporting the expansion of the criminal law into this new area. Even with very serious offences such as murder we do not criminalise merely preparatory actions that are not of themselves illegal.

22. Whether it is appropriate to do so in this context is a question the committee will need to ask itself, but I am again left wondering whether the intention of this law is to make more seriously criminal the actions of people like those arrested in Te Uruwera.

Drafting of the new offence provisions

23. With respect, the amendments make a mess of a relatively simple aspect of the current law.

24. New section 5A creates a new definition of carrying out a terrorist act, that defines itself as existing, by including situations where it expressly says it doesn’t. This should be avoided.

25. I can appreciate the intention behind the changes but suggest a complete redraft. In addition to the current offence of engaging in a terrorist act, which the bill proposes changing to carrying out, there are also new offences around planning or preparing to engage in a terrorist act, and credible threats.

26. The complicated language and drafting appears to arise from a desire to include all terrorist act related offending within a concept of carrying out a terrorist act, even where there was in fact no carrying out. This makes the definitions incoherent, and the offences difficult to follow. Section 6 should retain a definition of terrorist act, but the criminal offences should be created as separate offence, each having its own section:

• Section 6A should cover actually carrying out a terrorist act.
• Section 6B should cover attempting to carry out a terrorist act.
• Section 6C should cover making a credible threat.
• Section 6D should cover planning and preparing for a terrorist act, where those actions fall short of an attempt.

27. Appropriate penalties, reflecting the relative seriousness of each, should be applied.

28. A distinct concern arises with respect to proposed new section 5A(1)(b), which expands the definition of terrorism to cover credible threats. In the terrorism context, the concept of credible threats encompasses more than the making of threats and can include circumstances where Police etc. are concerned that terrorism may occur.

29. Given the drafting of 5A(1)(b), it appears it might cover situations where a credible threat is said to exist, rather than one where a credible threat is made.

30. Paragraphs (a), (c), and (d) all contain verbs. They criminalise, respectively: the planning, attempting, and carrying out of terrorist acts. Paragraph (b) does not contain a verb, and it could criminalise a state where a credible threat occurs, rather than where a credible threat has been made.

31. Criminal offences should revolve around actions people have taken, or omitted, not situations that exist. Whatever else happens with these sections, at the very least what is currently new s 5A(1)(b) should include be amended so it covers the making of a credible threat.

32. The offence provision (section 6A) also appears confused by what is intended to be covered, as its hierarchy of sentences is at odds with that which applies under ordinary New Zealand law. For general offences under New Zealand criminal law, the New Zealand approach is generally:

• Least serious is preparing to do something, which is not generally criminal.
• More serious is threatening to do something or conspiring to do something.
• More serious still is attempting to do something.
• Most serious is actually doing something.

33. The proposed amendment to section 8(2) provides for a life sentence for carrying out a terrorist act by a credible threat, while providing a maximum sentence of 10 years for attempted terrorism. I have no strong opinion on what maximum penalties should be provided, but a threat should not carry a greater penalty than an attempt.

Confusing language also present in new section 6B

34. New section 6B contains the same confusing definition, defining something as being carried out whether or not it is carried out and should be reworded as well.

Amendments to Control Orders Regime

35. I remain concerned about the control orders regime in general, but recognise that this bill will not be used to drastically curtail them. I encourage careful consideration of restrictions they impose, particularly on an interim basis, but have one matter of policy I consider is within the scope of the changes this bill would make.

36. New section 16A provides for an interim control order regime in respect of New Zealand prisoners. Subsection (2) of this section provides that the Commissioner of Police may make an application to the Court, without notice, if the Commissioner believes on reasonable grounds that a without notice application is appropriate in the circumstances.

37. This much is justified. The Commissioner should be able to apply without notice.

38. However the Court should not be bound by the Commissioner’s view, which the Bill would require. As drafted, the bill would preclude the Court from forming its own view on whether the application should be determined on notice or without notice.

39. This is inappropriate. Requiring that a Court adopt a particular process because an applicant has formed a particular view is contrary to judicial independence. After hearing from the Commissioner, and their reasons for seeking a without notice order, the Court should be able to form its own view over whether it should continue to hear the application without notice to the offender. New section 16A(2) should be amended accordingly.

40. It would be appropriate to amend section 15 (2) in a similar manner. This should be removed from both the bill, and the current legislation.

Conclusion

41. I thank the committee for the opportunity of presenting a submission on the Counter-Terrorism Legislation Bill. I urge the committee to consider the bill carefully, in particular the amendments to the definition of terrorist act.

42. If the intention of the bill is to more explicitly criminalise actions like those that were investigated as part of Operation 8, you and the government should say so. If that is not the intention of this legislation care should be taken to redraft it that that intention is clear.