December 2021
New Zealand Government proposal on “hate speech”":
It’s a mistake
by Prue Hyman
In my December 2020 article, published in Watchdog 155, I expressed doubts about Government intentions to make hate speech legislation much stronger. Since then, the area has hotted up and this article, published in Watchdog 158, is an update on events and proposals.
A cabinet paper went to the 2 December 2020 meeting and was followed by a Minister of Justice paper titled "Proposals Against Incitement Of Hatred And Discrimination" issued in June 2021, with public submissions to be made between 25 June and 6 August 2021. Nothing has yet appeared as a result of these submissions and we await with bated breath the final shape of the legislation.
The Minister of Justice's Introduction to his Ministry's paper included the following:
"The Human Rights Act 1993 prohibits speech that incites racial disharmony and prohibits discrimination against a person because of an aspect of their identity. Following a review by the Ministry of Justice and the recommendations of the Royal Commission of Inquiry into the terrorist attack at Christchurch masjidain on 15 March 2019, the Government is proposing changes to strengthen and clarify these protections".
"The Government is also proposing two further legislative changes to discrimination provisions more broadly... The proposals target the types of communication that seek to spread and entrench feelings of intolerance, prejudice, and hatred against groups in our society. All people are equal, and our society is made up of people with many different aspects to their identities. The incitement of hatred against a group based on a shared characteristic, such as ethnicity, religion, or sexuality, is an attack on our values of inclusiveness and diversity. Such incitement is intolerable and has no place in our society".
"Freedom of expression is an important value that this Government defends. It is enshrined in the New Zealand Bill of Rights Act 1990, alongside freedom from discrimination. An aim of these proposals is to better protect these rights, including the rights of people who are the targets of hate speech to express themselves freely. The Bill of Rights Act allows for justifiable limits on rights, balanced against others' rights and interests. These proposals seek to apply the incitement provisions more broadly to other groups that experience hate speech, such as religious groups and rainbow communities. The proposals do not lower the high threshold for criminalising speech or prevent public debate on important issues".
So how high is the threshold for criminalising speech?
This Introduction in itself contains contradictions or at least glosses over the need for considerable judgement of what is hateful communication and what is reasonable freedom of expression. How high is the threshold for criminalising speech? The paper included six Government proposals "intended to make Aotearoa New Zealand safer for everyone, by strengthening the provisions that protect groups from speech that incites hatred, and by improving protections against discrimination". The stated aims of the six proposals were to:
"Increase the number of groups of people that are protected by the incitement provisions, such as religious groups and rainbow communities.
Make it clearer what behaviour the law prohibits and increase the consequences for breaking the law.
Improve the protections for groups against wider discrimination".
In more detail, the six proposals were (still shortened):
"Changing the language in the incitement provisions in the Human Rights Act 1993 so that they protect more groups that are targeted by hateful speech
Replacing the existing criminal provision in the Human Rights Act 1993 with a new criminal offence in the Crimes Act 1961 that is clearer and more effective
Increasing the punishment for the criminal offence to better reflect its seriousness
Changing the language of the civil incitement provision to match the changes being made to the criminal provision
Changing the civil provision so that it makes 'incitement to discriminate' against the law
Adding to the grounds of discrimination in the Human Rights Act to clarify that trans, gender diverse and intersex people are protected from discrimination".
The paper stated that: "The Government has agreed in-principle to all of the proposals listed below. In-principle agreement means a broad general agreement to the proposals but not on detailed specific changes. This means the Government thinks the changes are a good idea but wants to hear what other people think before making a final decision and proposing legislation to change the law. The proposals may be changed based on feedback received".
The Case Against The Proposed Hate Speech Legislation
Given that paragraph in the paper, it is probably pie in the sky to think that any major changes will be made despite the number of submissions casting doubt on the strengthening of the laws, and in particular putting hate speech into the Crimes Act and increasing the potential penalties vastly. To have the maximum imprisonment period at three years, well above some maxima for violent crimes against individuals, seems absurd. And how incitement to discriminate is interpreted is anyone's guess.
I argued in my submission opposing the proposed extensions to the law that while the motivations provoked by the mosque attack and the subsequent report on them were understandable, the proposals were a kneejerk reaction. They would not prevent such an attack, nor did the proposals make it clear what behaviour the law would prohibit, as the aims indicate they are intended to. Only social change and education can help prevent such attacks - this needs painstaking efforts, not bad legislation.
The preamble to the proposals indicates that strengthening the legislative provisions would make Aotearoa/New Zealand safer for everyone. There is no evidence for this. Attempts to silence individuals and groups making points that some people label hate speech in no way makes the country safer. It attempts to allow only one side of important debates and simply assumes the other side is committing hate speech. One group's hate speech is another's reasoned argument. Attempts to define and have adequate criteria for what would be banned are doomed to failure.
Freedom of speech can never be absolute but the dangers of silencing debate mean that the grounds for limiting such freedom must be as narrow as possible and thoroughly justified. The New Zealand Bill of Rights Act 1990 specifies that freedom of expression "may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society".
"Precisely where the law sets those limits is a reflection of our core values as a society, including what value we place on tolerance, civility and inclusivity". But, of course, people, often judicial officers, have to interpret the reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. And it is hardly easy to identify our core values as a society, including what value we place on tolerance, civility and inclusivity in a way that would get general agreement.
Political correctness seems recently to have led to mild statements of opinion on controversial topics to be labelled as hate speech. The need to "feel safe" has been taken to extremes by several groups. The rounded phrases on this above are subject to vastly different interpretations. Currently, the groups objecting to a particular viewpoint are sometimes successful in having individuals deplatformed, lectures and conferences cancelled or spaces to hold them withdrawn. This is often done by owners of venues largely for fear of disruption and of how they will be labelled if they allow them to proceed.
Andrew Little rightly said there was a need for robust debate in this area and yet Ministers have been unable to answer questions about hypothetical situations and whether they would invoke the wrath of the law, which is not yet written. The issues of who gets to judge what is hate speech and on what criteria could be a nightmare for Police, lawyers and courts. I certainly do not feel sufficient trust in these institutions to give them this responsibility.
As David Cumin and Paul Moon put the situation on hate speech: "There is no good evidence that offensive language or challenges to ideas, however provocative or unreasonable, creates such severe harm as to require legislation... Even if we could define what is and what is not hateful and even if there were real harms caused and even if the laws were effective, giving power to the State to effectively govern speech is a dangerous precedent. Just as the Nazis were persecuted by hate speech laws in the Weimar Republic, they went on to implement their own suppression on expression...".
"The response to hate speech is not legislation, but better ideas expressed with more speech. Edmund Burke's famous quote 'all that is necessary for evil to triumph is for good men to do nothing' is a much better summation of the correct response to hateful ideas... We must rise above slogans and epithets, challenge disagreeable ideas with reason and fact. Our leaders must step above megaphone politics and engage with difficult topics honestly and openly and maturely. That is what will ultimately combat hate" NZ Herald, 17/8/18.
New Trade Union
The Free Speech Union has a council of academics, lawyers and commentators from both Left and Rightwing perspectives - "a group of New Zealanders from across the political spectrum who believe that free speech is a value worth defending". Its founding Council members are: Dr David Cumin - academic, Ashley Church - business leader, Patrick Corish - lawyer, Melissa Derby - academic, Stephen Franks - lawyer, Dane Giraud - writer and director, Rachel Poulain - writer, Chris Trotter - political commentator, Jordan Williams - lawyer (rather white and mainly male but an interesting mixture!).
The Free Speech Coalition which I mentioned in my Watchdog 155 article has changed into this trade union, registered as such. It says it has "a mission to fight for, protect, and expand New Zealanders' rights for freedom of speech, of conscience, and of intellectual inquiry. We envision a flourishing New Zealand civil society that values and protects vigorous debate, dissenting ideas, and freedom of speech as cultural cornerstones".
"As a trade union, we will promote members' collective employment interests with a particular focus on the protection of their freedom of speech from employer interference. If you feel that your job could be placed in jeopardy because of thoughts or opinions you express in your private life, or if you simply want the reassurance of having the support of a community dedicated to defending free speech, then become a member today. Free speech is the bedrock on which all our other freedoms rest, yet it is currently in greater peril than at any time since the Second World War".
They are scathing about the proposals. "We must confront bad ideas rather than criminalise them. Free speech is the context to the marketplace of ideas that allows us to find the truth and the best ideas... The proposed hate speech laws have been presented as a tool to promote social cohesion. Yet it is entirely unclear how this will be practically achieved by the legislation. The Free Speech Union is concerned that the introduction of such laws will have the opposite effect as legislating hatred out of existence is a hopeless expectation".
"The rationale for the law appears to be that speech at the 'more hateful' end of the spectrum can be successfully policed and subsequently limited (with a hefty prison sentence as a disincentive). In no way do the proposals address the underlying factors that might lead someone to engage in such speech in the first place. State suppression will not make strongly held beliefs that give rise to 'hate speech' go away. We're not, therefore, talking about a real remedy for racism or discrimination".
They conclude that: "the proposals put forward by the Ministry of Justice are dangerously vague and unworkable. It is impossible to define the term 'hate', or how it will be used by the Police and courts and so it is likely to result in subjective assents and 'mob rule' prosecutorial decisions. The inclusion of these laws in the Crimes Act represents a significant, unwarranted 'levelling-up' of the current legislation, despite the fact the Government has not outlined the need for such a disproportionate increase. Three years imprisonment is in no way commensurate with the objective harm caused".
"Criminal law is about action. The only 'thought' component previously included relates to quantifiably outlining intention to commit an action. This law digs deeper behind the intention into the thought, which is the point at which thought becomes criminal ... Finally, hate speech laws don't reduce hate - they just send it into the dark and underground where it is harder to identify... We call on the Government to reject these proposed changes and maintain New Zealand's commitment to the civil liberties of conscience, opinion, speech, and expression". I agree with them.
Another controversial point is whether political opinion should be included. Graeme Edgeler at Publicaddress.net discusses the hate speech area in a thoughtful manner and argues the case for inclusion of political opinion in the protected list - and hopes that the fears about including it would narrow the scope of the legislation. "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".
"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?". Edgeler's doubts about changing the law rightly extend also to its likely cultural effects. In the UK, the Police have enthusiastically decided to prosecute people for speech in cases which most people would think perfectly reasonable.
Sensitive Area
One sensitive area relates to Māori opinions and reactions to them. Seven Auckland University academic scientists in 2021 wrote a letter to the Listener on science, including Māori science. The New Zealand Association of Scientists, the Tertiary Education Union (TEU), the Royal Society, and the Universities, including Auckland's Vice Chancellor, quickly condemned the letter. The Free Speech Union, alarmed by this, put out a public statement, referring to the universities' role as a critic and conscience of society where the expression of ideas without fear of persecution is crucial.
FSU said that Vice Chancellor Professor Freshwater, asserting that "mātauranga Māori [is] a distinctive and valuable knowledge system", implied they had disrespected it. Yet the academics' letter did not disagree with this. FSU went on: "Scholars within a university frequently disagree, and the role of the university itself is to maintain the ground on which that disagreement can take place, in good faith and in a scholarly fashion. That means that the university, like the FSU, ought to take a neutral stance, to defend unequivocally the right and duty of its academics to make good-faith arguments, and to defend them from unfair attacks on their reputations".
"Instead, Professor Freshwater's statement has made it more difficult for academics at her university to voice honestly-held views on contentious topics in the future... It is lamentable that the Vice Chancellor of the University of Auckland and the TEU have taken such strong stances against the letter to the Listener, rather than encouraging respectful debate".
"In this context their comments about free expression come across as hollow platitudes. The net effect of the comments will be to chill scholarly debate, not to promote it". While this dispute is not in the legal system, it is certainly a threat to the careers of the academic staff involved, which could act as a deterrent to themselves and others putting their heads above the parapets again.
David Bromell has written a series of seven thoughtful working papers entitled "After Christchurch: Hate, Harm And The Limits Of Censorship". He concludes that: "Any proposal to regulate private communication, or to protect social groups and their beliefs, values and practices from criticism and offence, exacts too high a price because of the extent to which this restricts the right to freedom of opinion and expression ...".
"Passing laws does not, in any case, solve complex social problems, and in a free, open and democratic society, agonistic respect and toleration are preferable to 'calling out', 'cancel culture' and de-platforming. The State can deploy its expressive and not only its coercive powers, and encourage and support counter-speech as an alternative and/or complement to prohibition and censorship...".
"We have to learn to live together - and to take each other seriously as fellow citizens and human persons of equal dignity and worth". This is from David Bromell's paper, April 2021
The attempt to silence and punish those opposed to fashionable wisdom which Bromell refers to is the most chilling aspect of current events - women labelled as TERFs (trans exclusionary radical feminists) have been particularly subject to this and this particular aspect of the hate speech proposals are discussed next.
Impact Of Proposals On Women In General And Lesbians In Particular
The first and last proposals would have major effects on women. While it is fair enough clearly to give protection to transgender people, this should not be at the expense of women. Sex and sexual orientation are currently in the Human Rights Act and must remain. Adding "gender identity" is problematic. It is a contested concept and is not well understood. The problem, though, is that while discrimination on the grounds of sex would still be illegal, if the transgender political position was accepted, transwomen would be regarded as belonging to the sex women.
This would erode the rights of women in general and lesbians in particular. Ironically, the Government argues that human rights law against discrimination on the basis of sex does already protect against discrimination because of gender identity or gender expression, or people's sex characteristics or intersex status, "but considers that the law could be clearer about this. The law would change to specifically cover these aspects of gender and sex". Hence the last proposal above. But "these aspects of gender and sex" is confusing, confounding the two concepts.
It is crucial that sex and gender not be conflated. Transgender people experience their bodily sex and psychological identity as in conflict. Identifying as female does not make one a woman. For women, it is their sex that underpins centuries of discrimination and oppression. Gender is the set of social categories, norms and superimposed on female bodies. Feminists have worked to smash stereotypes and eliminate binary sex roles, apart from reproduction, not to suggest people try to hop across the divide.
At present the Human Rights Act allows exclusion of non-female bodies from certain spaces: Section 43 secures "the maintenance of separate facilities for each sex on the ground of public decency or public safety". This includes: "the holding of courses, or the provision of counselling, restricted to persons of a particular sex, race, ethnic or national origin, or sexual orientation where highly personal matters, such as sexual matters or the prevention of violence, are involved". It also allows for "the exclusion of persons of one sex from participation in any competitive sporting activity in which the strength, stamina, or physique of competitors is relevant". It allows for segregated accommodation and education facilities.
What is needed is to keep sex in the legislation and define it as biological to ensure that women keep the protections already guaranteed. There must be situations where male-bodied but female-identifying persons can be excluded from female safe spaces. Transgender people could also be guaranteed safety and privacy, but not always in a female space (e.g., a spa, an open changing room; in employment where touching women's bodies is involved). If gender expression was added, it should certainly not be regarded as hate speech when feminists take issue with transwomen being regarded simply as women in all respects.
Trans-activist lobby groups appear to regard sex as no longer relevant and seek to remove it from law and practice in favour of gender identity. Their position under which transwomen are regarded simply as women has already been accepted by many organisations. It has been used to attack many feminist and lesbian organisations by attempting to silence our concerns and block the hire of public facilities to discuss the issues.
It has largely succeeded in persuading most NZ media to describe our legitimate concerns as hate speech. Defence of women's existing sex-based rights can in no way be termed hate speech. A recent High Court decision correctly ruled that the group Speak Up for Women, a feminist group which questions the transgender agenda, was in no way a hate group.
Yet organisations including the media are scared to give their ideas any credence or even to publish them. NZME withdrew newspaper advertisements which simply featured the definition of the word woman as adult human female and added "say 'no' to sex self-identification", giving the speakupforwomen.nz Website address. More than a thousand Free Speech Union supporters wrote to NZME to object to this censorship.
Some young women who might in the past have been labelled tomboys and might become lesbians are being persuaded that they are really men and start to transition. Anyone, including their parents, counsellors, or lesbian groups, attempting to discuss the options with them, including watchful waiting until they are old enough to be sure of their identity, might be falsely accused of hate speech under these proposals.
This is supplemented by the Conversion Practices Prohibition Legislation Bill 2021, which covers both sexual orientation and gender identity, and outlaws 'conversion practices' which attempt to stop people identifying as they choose. There is a case for such legislation with regard to attempts to change people's sexual orientation. However, extending the legislation to cover an inability to discuss other options than accepting that boys or girls should be able at a very young age to express their gender identification through taking puberty blockers and go on to even more aggressive treatments is a very different matter.
At the same time as hate speech proposals and conversion therapy legislation are under consideration, the Births, Marriages, Deaths and Relationships Registration (BMDRR) legislation Supplementary Order Paper (SOP) 59 proposes to replace medically-verified changes of legal sex on a birth certificate with simple self-identification.
The Crown Law Office has acknowledged that women's facilities need to have accurate information on a person's biological sex in order to protect women's sex-based entitlements, facilities, services, roles and opportunities but this is already vanishing, as many organisations adopt self-identification without even passage of the law. But their advice was ignored.
Strange Bedfellows & Strange Times
The Conversion Therapy and BMDRR (SOP 59) bills are both at the Select Committee stage. They are vehemently supported by Labour and the Greens. Their Select Committee members have behaved insultingly to organisations and individuals presenting in opposition to the Bills, whereas National and ACT are doubtful about the legislation and behave respectably. As I said in Watchdog 155, it feels horrible to be angry with the Left and have the Right as bedfellows. Along with the prospective hate speech laws, this triumvirate of bills could take women's rights back many years.
Women are being told to self-censor and acquiesce in language change which refers to them as "uterus-havers", "birthing bodies", pregnant people and, as headlined recently by the Lancet, "bodies with vaginas". Those who reject this demeaning redefinition of women are told to "be kind"! The December 2020 Cabinet Paper on hate speech stated, under gender implications, that the proposals in the legislation "seek to better protect women and rainbow communities from hateful speech that incites others to feelings such as ill will or contempt".
Quite the reverse given that objecting to these linguistic perversions is attacked as hate speech towards transgender people. These are strange times. Violence and its incitement are of course to be deplored, but this does not justify attempting to stifle debate. When the hate speech legislation is introduced, many of us will be opposing it. ■