The article was first published by the Democracy Project
On the campaign trail last year, Prime Minister Jacinda Ardern raised eyebrows when she blithely told journalists she expected "wide support" for expanding existing hate-speech laws to include religion.
When asked whether sexual orientation, age or disability could be included, she said, "Yeah."
The PM, who had just unveiled a memorial plaque at Christchurch's Al Noor mosque, added that she couldn't understand why there would be resistance from other political parties. "I don't see why there should be, and so that's probably a question for every political party, but that's certainly our view."
After a firestorm erupted last week with the announcement of a new hate speech offence to be included in the Crimes Act that carries a maximum penalty of three years' jail and a $50,000 fine, her display of confidence last September seems not so much naive as completely deluded.
The fiery reaction was entirely predictable for anyone who understands New Zealanders' passive-aggressive relationship with authority. While most will tolerate stringent restrictions on their freedom in times of emergency — such as during war or at the height of a pandemic — a marked hostility to being told what we can say or how to behave lurks not far beneath.
The furious opposition to Helen Clark's anti-smacking law in 2007 should have given Ardern at least a tiny clue as to how her hate-speech proposals might be received.
Firm opposition to the proposed changes — which would expand the list of protected groups to include not only religion but possibly also sexuality, gender, age, disability and employment status — has come from across the political spectrum, ranging from John Minto on the left to Richard Prebble and Family First on the right and numerous other critics in between.
It would have helped immensely, of course, if both Ardern and her Minister of Justice, Kris Faafoi, had been able to answer questions put to them by television journalists about the scope and implications of the law changes, but both politicians — faced with perfectly reasonable queries about real-life situations — failed miserably.
Ardern was adamant initially that political opinion would not be added as a protected category but later admitted it could be.
The fact neither politician had taken the time to inform themselves fully about changes that have been under discussion for several years represents an extraordinary dereliction of duty — as well as being deeply insulting to voters who are concerned about having fundamental freedoms curtailed.
Ardern has realised she is in trouble. As Act leader David Seymour put it, she is "twisting and turning" on hate speech so much "she could almost qualify to represent New Zealand in gymnastics" in her attempts to get safely out of harm's way.
Her first line of defence is the classic Pontius Pilate manoeuvre of shifting responsibility away from herself. If she isn't identified as the driving force in the push for a law change, it will seem much less like a personal failure if the intense public reaction forces a backdown.
Interviewed last week, she said: "The reason we're having this debate is because the Royal Commission of Inquiry [into the mosque attacks] said to the New Zealand Government, 'You need to include religion.'"
It is a sentiment she has repeated in Parliament but the Royal Commission's report was released publicly on December 8 last year while new hate speech laws were promised within weeks of the mosque attacks in 2019.
Ardern also campaigned on extending legal protections for groups that experience hate speech before last year's election in October.
As well as trying to shift responsibility to the Royal Commission, Ardern appears to be looking to guarantee a way out for herself by declaring that such a law change requires bipartisan support.
Speaking to RNZ, she managed to roll together her principal lines of defence in a single — albeit convoluted — sentence: "So I would reach out to those across all sides of the House and say, 'Look, given we have been called on to do this, I'd be very interested in what their view is and what they would see as being a way to make sure that we are bringing in those who were at the most extreme end of an experience.'"
In that interview, she acknowledged bipartisan support was needed to ensure any legislation of this kind was going to endure. And in answering National Party leader Judith Collins in the House, she reinforced that view by saying: "Ultimately, I want these provisions to last as long as the last [hate speech] provisions, which are broadly similar and were introduced 50 years ago."
Yet Ardern knows already — and has for some time — that National and Act are implacably opposed. Last week, David Seymour described the moves as "cancel culture on steroids"; in April, he began a series of free speech meetings the length of the country to oppose any expansion of existing restrictions; in his Address in Reply last November he pledged to gather signatures for a citizens' initiated referendum to overturn any law that mandated new restrictions on free speech.
Last September, after Ardern's visit to the Al Noor mosque, Collins was emphatic she wouldn't support any further loss of freedom of speech. "I'm very clear that our human rights legislation already deals with what needs to be dealt with."
She also promised last week that National would repeal any such law if a government she led came to power, and described the debate as "a total cluster, frankly, and the government needs to stop this now and back away".
Her justice spokesman, Simon Bridges, slated the proposals as "Orwellian".
So, if Ardern knows there is absolutely no chance of bipartisan support across Parliament's divide, why is she continuing to run this particular line? The only plausible explanation for a Prime Minister holding an outright majority is that she is looking to avoid humiliation over a backdown by blaming the lack of support by the Opposition.
In what looks like another move to ease her path away from enacting hate-speech legislation, Ardern is also emphasising that the proposals are a "discussion document". Presumably this is an attempt to make the proposed law change look more tentative than many suspect was intended before the extent and intensity of opposition were revealed.
If Ardern had wanted a thorough discussion of the proposals with a genuine intention to listen and respond, she would have made sure that the window for the public's input was much wider than the six weeks allowed.
Giving the public only until August 6 to make submissions on the changes came as a surprise to Canterbury University law dean Ursula Cheer. As she told RNZ: "I would have thought for a very complex consultation and proposed changes to a law like this, it would be a bit longer. I would have thought to the end of August at least."
The fact that the opportunity for public comment is so short — and indeed that the public has been kept in the dark for so long — appears to be no accident. The Ministry of Justice has obviously not been as sanguine about the popularity of a law change as Ardern professed to be when campaigning.
The ministry has been quietly consulting "affected groups" — including the Muslim community — for some time, in a process driven behind the scenes by the Human Rights Commission, which has long been in favour of more restrictions on speech.
As the Ministry of Justice put it: "In 2019, the Ministry of Justice and the Human Rights Commission met with groups that are most likely to be targeted by hate speech to better understand their experiences and views." Of course, they are the very groups most likely to be firmly in favour of a law change.
In March 2020, the Ministry of Justice chief executive Andrew Kibblewhite said that hate speech was a "tricky thing" to navigate. One of the ministry's aims was to "have a conversation about this and avoid protests".
Kibblewhite was reported as saying that the Human Rights Commission had led some of the work around a law change alongside the ministry as it wanted the conversation to happen away from the political fray — given that a proposed law change could easily be derailed with so many strongly held views.
The kind of strongly held views, in fact, that have erupted into public view this week and which look as if they might derail the Prime Minister's cherished plans after all.
Graham Adams is a journalist, columnist and reviewer who has written for Metro, North & South, Noted, The Spinoff and Newsroom.