Hate Speech: what happens next?

Will the Law Commission throw petrol on the bonfire?

The NZ Government announced on 2 August that it’s concluded its coordinated response to the Royal Commission of Inquiry into the Terrorist Attack on Christchurch Mosques, with just a few loose ends. So, what’s happening about the Royal Commission’s recommendations on hate speech and hate-motivated crimes? (The two recommendations are copied in full below).

One recommendation was to amend sections of the Summary Offences Act 1981 (concerning offensive behaviour or language, assault, wilful damage and intimidation) and sections of the Crimes Act 1961 (concerning assaults, arson, intentional damage) “to reflect the additional culpability of hate-motivated offending”. For example, it’s an offence to spray-paint graffiti onto someone’s property, but it’s surely something much worse if swastikas are spray-painted on a synagogue. Does that deserve a stronger penalty?

This matter has been handed over to the Law Commission for review. Let’s wait and see what the lawyers come up with.

The Royal Commission’s other recommendation concerned section 131 of the Human Rights Act 1993 (Inciting racial disharmony).

“The section as written unacceptably impinges on the right of freedom of expression. The words ‘excite hostility against or bring into contempt’ set a low liability threshold.”

I agree that section 131 should be repealed and rewritten. Its wording is too loose and could (if it weren’t for some common sense) be used to stifle freedom of expression.

The Royal Commission wanted section 131 to be replaced by a new section in the Crimes Act “for an offence of inciting racial or religious disharmony, based on an intent to stir up, maintain or normalise hatred, through threatening, abusive or insulting communication.”

The key terms are inciting disharmony, and not just saying something disagreeable or contemptuous over drinks. But what kinds of communication would be captured by the terms “threatening, abusive or insulting”?

And the Royal Commission agreed that any new law should cover religion as well as race. Others have argued that it should also cover gender. But why stop there? Why not include all prohibited grounds of discrimination, including political opinion?

The government has decided not to proceed with this recommendation, however. Indeed, the previous government threw it onto the post-Jacinda “bonfire”. The present lot are simply confirming that.

Now, I’m a defender of freedom of expression, but it seems a pity that this recommendation won’t be followed, as the present section 131 “unacceptably impinges on the right of freedom of expression”. The wording needs to be tightened up.

Ironically, no government wants to touch this now because the X mobs will start a fight about “hate speech versus free speech”.

No one’s trying to take away our free speech – at the moment. If you do say something racially offensive, you may face public disapproval – just think of Invercargill mayor Nobby Clark – but in New Zealand you’ll only face prosecution if you go truly extreme.

Freedom of expression is not enhanced by gratuitous insults, however. I don’t agree with those who defend knowingly insulting language on the grounds of free speech. Hence I won’t defend Nobby Clark from the public disapproval he’s been receiving. He should know better. Freedom comes with responsibilities. Liberty was never a licence to do and say whatever we please. Instead, we are most free when we exercise civil common sense and reason.

Sensible people try not to offend others. At the same time, no one can promise that a robust debate about ethics and politics (or, for that matter, academic peer-review) will never cause offence or hurt feelings. If one feels offended in such circumstances, then by all means say so, but a better reply is one that addresses the facts and the principles at stake.

Accusations of hate speech are often little more than: “I hate to hear that. How can I shut you up?” When a person can’t think of a convincing reply, the hate-speech accusation may be a last resort.

Just as people sometimes unwisely say things that cause offence, others may use their freedom of expression to object. We can’t protect offensive language from public disapproval. But prosecution would take it to another level altogether.

There’s a balance to be struck here. The law presently prohibits numerous speech-acts such as threats to kill, blackmail or fraudulent impersonation. The risk of a defamation suit is a real free-speech killer, I find. (Hence my cautious remarks about certain people.)

But the law could get tougher in cases where hateful words about race or religion accompany actual or intended harm to others. Where do people stand on this?

As a hypothetical example, should it be unlawful in NZ to post inflammatory comments on X either for or against protests in Wellington or, for that matter, either for or against anti–asylum-seeker riots in the UK? Should it be unlawful to amplify other people’s tweets of that nature – as Elon Musk himself is accused of doing? Was he “inciting disharmony”?

Relevant recommendations of the Royal Commission on Terrorist Attacks on Christchurch Mosques:

39. Amend legislation to create hate-motivated offences in:

• the Summary Offences Act 1981 that correspond with the existing offences of offensive behaviour or language, assault, wilful damage and intimidation; and

• the Crimes Act 1961 that correspond with the existing offences of assaults, arson and intentional damage.

40. Repeal section 131 of the Human Rights Act 1993 and insert a provision in the Crimes Act 1961 for an offence 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.

Note: Number 40 won’t be implemented.