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Political Opinion Should Be Excluded From Hate Speech Protections

The Human Rights Commission has largely endorsed the Government’s proposals to broaden protection against hate speech but does not want political opinion included.

In June the Ministry of Justice published a document with six proposed reforms to increase protection against speech that incites discrimination and hatred – often referred to as hate speech – and to provide clarity over what the law permits.

In its formal submission the Commission advised against including political opinion because of the direct connection to freedom of expression.

"Laws governing hate speech need to achieve a balance between protecting people from speech that incites discrimination and hatred and the right to freedom of expression,” says Chief Commissioner Paul Hunt.

“Hate speech laws are not intended to protect people from offence or to suppress ideas. Rather they are used to help protect vulnerable groups of people from speech – or other forms of communication – that is intended to encourage hatred and discrimination by others.”

The Commission’s submission states that the inclusion of political opinion within the incitement provisions may have a “chilling” effect on political debate, activism and public discourse.

Tangata whenua specifically in mind

In its submission the Commission also calls for Te Tiriti o Waitangi and human rights to be at the heart of the reforms.

Tangata whenua have been subject to racist hate speech in Aotearoa New Zealand for more than 180 years despite Te Tiriti o Waitangi guaranteeing tino rangatiratanga and equal rights of citizenship. These Tiriti promises are also reflected in international human rights standards, such as the right to self-determination and freedom from discrimination.

“These promises have been repeatedly breached and undermined by discriminatory and harmful speech, which fosters hostility and hatred towards tangata whenua,” Mr Hunt says.

“A person’s right to freedom of expression does not cancel another person’s right to be safe from speech that is intended to incite discrimination and hatred towards them.”

Proposed new laws apply only to incitement against groups

It is also important to note that both the civil and criminal incitement provisions of the proposed law are designed to apply to hate speech which has the effect of inciting hatred or hostility towards vulnerable groups, rather than individuals. This distinction is often lost in public debate. Harmful expression against individuals is caught by a range of other laws, including current criminal laws.

Given the limitations that both the civil and criminal incitement provisions place on freedom of expression, the Commission’s submission also favours the retention of a high threshold for liability. This ensures that limitations are proportionate, reasonable and justifiable in a free and democratic society, says Mr Hunt.

The Commission recognises that retention of this high threshold of liability means that offensive speech, which falls short of incitement to hatred or discrimination, will be lawful.

“The Commission is committed to redoubling its efforts to call out speech which is lawful, but unacceptable in our diverse, plural, inclusive, democratic society. This will include public education, public or private discussions, and active support for those who are made to feel unsafe and unwelcome.

“We welcome comments on how we can most appropriately respond to speech which is lawful but objectionable to the great majority of people in Aotearoa New Zealand,” says Mr Hunt.

In December 2020, the report by the Royal Commission of Inquiry into the terrorist attack on Christchurch mosques on 15 March 2019 made a number of recommendations to improve existing laws relating to hate speech.

In the previous year, the Commission researched and published a resource on the legal framework governing hate speech - Kōrero Whakamauāhara: Hate Speech. The resource includes definitions of hate speech and outlines the legal framework in New Zealand and in similar overseas jurisdictions.

In addition, during September and October 2019, the Commission arranged and facilitated engagements for communities who had experienced, or were at risk of experiencing, hate speech. These engagements helped to inform the Commission’s approach to hate speech.

Summary: HRC position on Ministry of Justice’s six proposals

Proposal one – increase the number of groups protected by the incitement provisions

The Commission broadly supports this proposal to increase the number of vulnerable groups protected. In the Commission’s view this would align our laws more closely with similar countries, eg Australia and Canada, as well as international human rights standards.

With the exception of political opinion, the Commission supports the inclusion of all the groups covered by the prohibited grounds of discrimination under the Human Rights Act.

Protection would be extended to include speech that incites discrimination and hatred based on sex, marital status, religion, ethical belief, disability, age, employment status, family status, sexual orientation and gender – in addition to colour, race, ethnic or national origins. See also proposal six.

Proposal two – replace the existing criminal provision with a new Crimes Act offence that is clearer and more effective

The Commission supports this proposal, and a change in the criminal provision to make the language more straightforward. The term ‘excite’ would be replaced with the terms ‘stir-up’ or ‘incite’. The terms ‘hostility’, ‘ill-will’, ‘contempt’ or ‘ridicule’ would be replaced with ‘hatred’.

The new terms, recommended by the Royal Commission of Inquiry into the terrorist attack on Christchurch masjidain, are also used in similar jurisdictions to New Zealand, eg Australia, the United Kingdom, Ireland and Canada.

Proposal three – increase the punishment of the criminal offence to up to 3 years imprisonment or a fine of up to $50,000 to better reflect its seriousness

In the Commission’s view, while the increase in punishment is significant, it is not excessive when compared to similar offences and criminal hate speech laws in other countries. However, the Commission recommends retaining the Attorney-General’s approval for prosecutions. This provides a safeguard against misuse and is present in the current law as well as criminal hate speech laws in similar jurisdictions.

Proposal four – change the language of the civil provision to better match the changes made to the criminal provision

The Commission supports this proposal to create consistency between the civil and criminal provisions of the law. It emphasises however, that the criminal provision will continue to differ from civil because it will include the intent to incite hatred

The current civil provision also requires a test based on whether a ‘reasonable person’ would think the ‘expression’ will cause others to feel hostile towards those targeted. This helps to establish the high threshold which the Commission considers necessary for freedom of expression.

This approach, however, does not consider the vulnerability and experiences of the targeted group. The Commission suggests the provision would be improved by taking into account the target group’s experience of harm and discrimination.

Proposal five – change the civil provision so that it makes “incitement to discrimination” against the law

The Commission supports this proposal, which would make the law consistent with international human rights treaties signed up to by New Zealand.

Proposal six – add to the grounds of discrimination in the Human Rights Act to clarify that trans, gender diverse and intersex people are protected from discrimination

The Commission supports this proposal to clarify the law, and has been seeking such changes since 2008 when it published To be who I am, a report into the discrimination experienced by transgender people. Additionally, as set out in our 2020 Prism report, the Commission recommends that the terms ‘gender identity’, ‘gender expression’, and ‘variations of sex characteristics’ be used.

The Commission also recommends that specific and distinct consideration is given to this proposal, as compared to the reforms set out in proposals one to five.

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