Director Stephen Franks was quoted on Newshub about whether the insult 'Karen' would be considered 'hate speech' under the proposed law. To watch the story, click here
There is a lot of confusion about the proposals and what will be covered. To understand more about the background, what is proposed and the issues this will create, read our Explainer on the hate speech proposals -
Background
A Cabinet paper was released by the Minister of Justice detailing the Government’s plans to update New Zealand’s laws on “hate speech”.
The proposal adopts language taken directly from the list of recommendations of the Royal Commission of Inquiry into the 15 March terrorist attack but without the key protections present in the UK law the Commission wanted to copy.
The reform would move s 131 of the Human Rights Act, incitement of racial disharmony, to the Crimes Act. The proposal will expand criminal liability to cover all defined groups under s 21 of the Human Rights Act. There will be a new category to make gender and gender expression areas where discrimination is prohibited.
The Government also proposed a change to the civil law hate speech provision, s 61 of the HRA, but these notes focus on the proposed criminal provision.
Current law
NZ has many provisions creating liability for wrongful speech but we do not have a law described with the brand of “hate speech”. Acts governing harmful speech include the Harmful Digital Communications Act 2015, the Summary Offences Act 1981 and Films, Videos and Publications Classification Act 1993.
Section 131 of the Human Rights Act 1993 is the main existing example of a hate speech prohibition in New Zealand law today and the focus of the Government's proposals.
"131 Inciting racial disharmony
(1) Every person commits an offence and is liable on conviction to imprisonment for a term no exceeding 3 months or to a fine not exceeding $7,000 who, with intent to excite hostility or ill-will against, or bring into contempt or ridicule, any group of persons in New Zealand on the grounds of colour, race, or ethnic or national origins of that group of persons, -
(a) Publishes or distributes written matter which is threatening, abusive, or insulting; or
(b) Uses in any Public place (as defined in section 2(1) of the Summary Offences Act 1981), or within the hearing of any person in such public place, or at any meetings to which the public are invited or have access, words which are threatening, abusive, or insulting –
Being matter or words likely to excite hostility or ill-will against or bring into contempt or ridicule, any such group of persons in New Zealand on the ground of colour, race, or ethnic or national origins of that group of persons.
(2) For the purpose of this section, publishes or distributes and written matter have the meaning given to them in section 61 of this Act."
Prosecution requires consent from the Attorney-General. No prosecution has occurred under this section. The leading case on interpreting s 131 is the High Court case Wall v Fairfax [2018] NZHC 104. While Wall primarily dealt with s 61 of the HRA – it is applied to s 131’s similar language.
Wall ruled that the prohibited speech is limited to “relatively egregious” examples of expression which inspire enmity, extreme ill-will or likely result in a group being despised.
The audience to the speech also needs to be susceptible to persuasion – they need hostility or ill-will “excited” within them. Therefore, s 131 does not capture hateful speech preached to those who are already hostile or contemptuous towards a protected group.
The English Model as a reform blueprint
The proposal is inspired by a 2006 amendment to the UK’s Public Order Act 1986. The Commission’s final report suggests wording similar to s 29B of the Public Order Act. The relevant part –
"29B Use of words or behaviour or display of written material
(1) A person who uses threatening words or behaviour, or displays any written material which is threatening, is guilty of an offence if he intends thereby to stir up religious hatred or hatred on the grounds of sexual orientation."
The British legislation also has a special defence for this section under s 29J –
"29J Protection of freedom of expression
Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practicing their religion or belief system."
Regarding this protection, our Royal Commission stated: “[section 29J] has made prosecution for the offence of stirring up religious hatred practically impossible. For this reason [the Commission does] not support the introduction of an equivalent provision to New Zealand law.”
Without explanation, the Commission was confident that the new wording presented a high enough threshold for conviction that freedom of expression is essentially protected. However, the proposed language presents its own problems.
The proposed criminal hate speech provision
The Cabinet paper recommended adopting the language recommended by the Commission. Contemplating what a new criminal liability provision would look like, the Commission suggested;
"Every person commits and offence and is liable on conviction to imprisonment for a terms not exceeding three years who:
(a) With intent to stir up, maintain or normalize hatred against any group of person in New Zealand on the ground of the colour, race, or ethnic or national origins or religion of that group of persons;
(b) says or otherwise publishes or communicates any words or material that explicitly or implicitly calls for violence against or is otherwise, threatening, abusive, or insulting to such group of persons."
The Minister of Justice proposes expanding the protected categories to include all groups covered by s 21 of the Human Rights Act – which he recommends amending to include gender identity and expression.
With this proposal, the following test needs to be satisfied in order for a successful prosecution:
1) the accused must have intent to stir up, maintain, or normalise hatred;
2) that hatred must be directed at a group characterized by any of the grounds protected under section 21 of the HRA;
3) that accused says, publishes or otherwise communicates words or material
4) those words or material must include one of:
· an explicit call for violence against
· an implicit call for violence against
· be threatening;
· be abusive; or
· be insulting towards
the protected group under s 21 of the HRA.
As an example, a threshold for prosecution could be for speech alleged to “abuse or insults intended to normalize or maintain hatred directed at [choose your favoured group].
Proposed subsection (a)’s intention is the most confusing to the public. Intention will be circumstantial and will depend on the language used and its context. The intent will have to be to “stir up” or “maintain” or “normalise” hatred towards a protected group. These words are not defined. It is likely that current ‘critical theories’, which are ubiquitous in current academic and political circles, will be used to defining them.
The proposal removes s 131’s requirement for the communication to have the likely effect of “exciting hostility or ill-will” or bringing a group “into contempt or ridicule”. On the face of it, the effectiveness of the speech no longer matters. A remnant of this requirement may survive in a court’s analysis of whether something is “abusive” or “insulting” under proposed subsection (b).
Problems with ‘stir up’, ‘maintain’ and ‘normalise’
Stir up
Section 131 of the HRA currently addresses and intent to “excite” hostility or ill-will. The Commission believed that “excite” was an unusual usage in s 131. Without evidence they claim that replacing it with the British wording “stir up” will “sharpen up” the statutory language.
But what does “stir up” mean? Is it simply stirring the pot in seeking drama? Is it being outrageous in the sense of outrage comedy? This is not a legal term of art. It is colloquial – which means it is easier for those applying the definition to allege (and believe) that it means what they want it to mean. In other words, such definitions are more amenable to authorities who want to make up the rules as they go. “Stir up” is likely to capture more innocuous activities than most would expect the law to be concerned about.
The Commission stated that the current language of s 131 provides for a low liability threshold which was “being significantly increased by judicial interpretation but in ways that create considerable uncertainty.” We see nothing in the Commission’s report to show that their recommended wording will be any clearer. As the Minister of Justice and the Prime Minister have said when trying to defend ambiguity, no one will know how this law applies till the judges apply it.
Maintain
“Maintain” usually entails that a previous state exists to be reinforced. This appears to be a reaction to the decision in Wall that the current hate speech regime does not cover “preaching to the converted”. In most cases, “maintain” will be hard to prove for the prosecution because it will require showing that hatred of the alleged victim group is already present. It is unlikely to be used by prosecutors.
Normalise
The word “normalise” is the most problematic. It long preceded ‘wokeism’ but it is academic jargon. Interestingly it seems to us likely to be far less familiar to the general public than say “excite” as a synonym for provoke or engender or incite. It appears to have become widely used as a term of art in critical theory of various philosophical and sociological disciplines. It is commonly advocated for by Michel Foucault (the most cited academic in the humanities). Normalisation as a process can mean anything that contributes to getting people used to an idea, practice or value. For example – a preacher’s sermon about homosexuality or a distasteful joke could be seen as “normalising” cultural homophobia because it “others” homosexuals in the eyes the majority, presents them as an object of permissive ridicule, and re-enforces “heteronormativity”. This is mainstream academia.
That might apply even if the sermon was largely acknowledging and bewailing the fact that treatment of homosexuality as sin is no longer normal.
The Commission does not elaborate on its intentions with regard to normalization. It could be a blank slate from which Police and judges may import current academic critical theories directly into the law. We doubt that our Police and judiciary are equipped to identify and resist theories of this kind. They have come to dominate public discourse in academia, without empirical validation. They will be familiar to recent graduates joining the professions.
Hatred
“Hatred” is an amorphous term. It means different things to different people. The High Court’s Wall threshold test for “bringing into contempt” under the current legislative regime is a high threshold with the Court limiting it to speech which is “relatively egregious”. The test might be retro-fitted to define “hatred” in the proposal. But it is unknown if that will be considered sufficient in a post-mosque attack New Zealand.
The 25 June consultation announcement and discussion material introduces yet another set of terms that may be contemplated for encapsulation as law, or may be intended simply as illustrations of the intent of the government. For example, ‘inciting hostility” seems likely to stand alone as an intended target of the law, especially taken together with the stated objective of promoting “cohesion”.
Option of a jury trial
The proposal increases the maximum time of incarceration from three months to three years. This steep jump brings the offence past the two year threshold needed for the accused to elect a jury trial under s 50 of the Criminal Procedure Act.
The option of a jury trial may preserve some free speech protections, unless public sentiment has really moved to welcome the criminalization of speech that is unwelcome to the subjects. There is some legal view that juries can be less ‘woke’, and more protective of the accused. The prosecution will have to convince twelve people instead of one that speech falls within the criminal provision.
Interpretation of appropriate speech – a slippery slope
The general concern can be wrapped up in the term “concept creep”. This can be seen in the 2019 UK case of Forstater v CGD Europe where a British women’s employment contract was terminated allegedly due to her social media posts about transgender identity. She claimed the termination of her contract breached her rights under the UK’s Equality Act’s section 10 protection of philosophically held beliefs. This was rejected by the Tribunal. The Judge ruled Maya Forstater failed to satisfy the fifth criterion of the legal test for protected belief established in Grainger plc v Nicholson [2010] ICR 360, stating:
"The Claimant’s position is that even if a trans woman has a Gender Recognition Certificate, she cannot honestly describe herself as a women. That belief is not worthy of respect in a democratic society. It is incompatible with the human rights of other that have been identified and defined by the ECHR…"
Forstater successfully appealed. The Employment Appeal Tribunal ruled that her belief on gender identity was a protected belief – satisfying the Grainger test:
" …only those beliefs that would be an affront to [European Convention of Human Rights]principles in a manner akin to that of pursuing totalitarianism, of advocating Nazism, or espousing violence and hatred in the gravest forms, that should be capable of being not worthy of respect in a democratic society. Beliefs that are offensive shocking or even disturbing to others, and which fall into the less grave forms of hate speech would not be excluded from the protection. However, the manifestation of such beliefs may, depending on circumstances, justifiably be restricted…."
While Forstater won her appeal – the fact that courts (in the first instance) consider themselves competent to judge speech as unworthy in a democracy should give us pause. New Zealand courts might have decided the case differently. The Court of Appeal’s pursuit of a unique New Zealand approach to freedom of speech in the recent Moncrieff-Spittle v Regional Facilities Auckland decision indicates that New Zealand jurisprudence might differ from other common law countries in the future. How a uniquely New Zealand jurisprudence will be applied to the terms above could be detrimental to freedom of expression.
If you would like to understand more about Freedom of Speech issues, please contact Director Stephen Franks.
For a printable version of this backgrounder, please click here.
