By Russell Palmer of RNZ
New hate speech law proposals from the Government are a bit confusing, and some of the debate so far seems to have muddied the waters, reducing something that began as an effort to combat racism, terrorism and hatred to name calling and taunts by politicians.
Prime Minister Jacinda Ardern and Justice Minister Kris Faafoi contradicted each other about what the proposals said, and Ardern has admitted the Government could have been clearer in its communications.
Some worthy efforts have been made to tackle the substance of the proposals, but RNZ's Mediawatch noted much of the initial coverage focused on this political argy-bargy.
Instead, we'll look at exactly what the six proposals say - one proposal at a time, with a focus specifically on what new laws would look like - then explore why it's so confusing and what happens next.
Before we get started, bear in mind there are already some other laws that apply to harmful speech, including the Summary Offences Act 1981, the Broadcasting Act 1989, the Harmful Digital Communications Act 2015, the Harassment Act 1997 and the Films, Videos, and Publications Classifications Act 1993.
Keep in mind also that none of what has been proposed is final - the ministry is seeking feedback and there's no guarantee the law, if it is enacted, will look like this. At this point it's not a law, it's not an act, it's not even a bill.
Instead, it's a discussion document aimed at seeking opinions before the ministry comes up with a law change, after that was recommended by the Royal Commission of Inquiry into the Christchurch Mosque attacks.
Less than three weeks remain in this round of consultation, with submissions closing on August 6.
The commission identified some gaps in the current laws that leave some people facing regular abuse with no way to have the courts do anything about it.
It also suggested increasing penalties imposed for hate-motivated crimes, but that is not dealt with by the proposals below.
The Justice Ministry's discussion document largely focuses on the problems of the current laws and what the new laws aim to do, but - and this is perhaps one reason for the confusion - most of it largely does not give the specific wording of what is being proposed. This makes reading the document somewhat like having a set of directions without knowing where you're going to end up.
However, in the second appendix is a chart which includes the six proposed changes to be made, what the current laws are like, and a section of notes on each proposal (but not in that order).
To keep it simple we'll largely focus on the result.
Proposal 1: Who it applies to
The wording of both section 61 and the proposed new section 131 (see Proposal 2 below) would be changed so that they apply to communications aimed at certain groups of persons in or coming to Aotearoa New Zealand who are protected from discrimination by section 21 of the Human Rights Act.
Instead of outlawing certain communications about people based on colour, race, ethnicity or nationality alone, the law would protect the groups protected from discrimination under section 21 of the Human Rights Act.
That could include discrimination on the basis of:
• Sex or sexual orientation *
• Marital status or family status
• Religious belief or ethical belief
• Colour, race, ethnicity, nationality or citizenship
• Political opinion
• Employment status (including receiving a government benefit)
* See also Proposal 6 for trans inclusion
Despite the concrete way the proposal is worded in this section of the document, the Government is seeking feedback on which groups from the above should be included under hate speech laws, noting on page four it "may include some or all of the other grounds in the Human Rights Act".
While Ardern initially told Newshub that political opinion would not be covered by hate speech and later in Parliament said Cabinet had decided to exclude political opinion from the proposals, the discussion document does not safeguard political opinion specifically.
When questioned in Parliament, Ardern would not rule out political opinion falling under these laws, saying it would depend on consultation with the public.
Safe to say it's an ongoing discussion.
Proposal 2: The (new) crime
It would be a crime to:
1. intentionally incite/stir up, maintain or normalise hatred
2. against any group protected from discrimination by section 21 of the Human Rights Act
3. through threatening, abusive or insulting communications, including inciting violence
4. made by any means
This is arguably the big one and comes with the largest series of notes of any of the proposals.
It would replace the current criminal law in the Human Rights Act (section 131) with a new provision in the Crimes Act, aiming to make the law clearer and simpler. Whether it succeeds at that or not is debatable.
For now, just remember that this proposal basically boils down to four requirements. To be considered a hate crime, communication must:
Intentionally (this is important) incite/stir up, maintain or normalise hatred using abuse, insults or threats (including inciting violence) against at least one of the groups identified in proposal 1.
For a successful prosecution, it would have to include all four of these things.
However, the process for prosecution would largely not change.
Criminal cases - including under the current section 131 provision in the Human Rights Act - are prosecuted by police, and do not require a complaint to the Human Rights Commission, though the commission may refer matters to police if necessary. People can also bring complaints directly to police.
Prosecution also requires sign-off by the Attorney-General - the Government minister who is the principal law officer of the Crown - and the proposals say this provision would remain.
The proposal also makes clear that this would apply to any kind of communication including digital, something the current criminal law is vague on.
While the proposal document did not explicitly state what it means to "incite/stir up, maintain or normalise hatred", Ministry of Justice general manager of civil and constitutional policy Caroline Greaney explained that:
• Hatred implies extreme dislike or disgust
• Incite/stir up covers speech that causes other people to also feel hatred towards a group
• Maintain or normalise covers speech towards a protected group which builds on or reinforces already held feelings of hatred in others
As the discussion document notes, the current law uses four terms - hostility, ill will, contempt, and ridicule, which have broad meanings and could overlap - a problem this new law would aim to solve.
The document says using the term hatred rather than those terms was suggested by the Royal Commission to "narrow the meaning of the words" and notes the exact wording would be determined following consultation.
Ardern did say the proposals were about addressing incitement to violence, but later had to retract that - the proposals as stated do not reference inciting violence, instead relying on incitement to hate.
"The point I was making was that the critical element of incitement needs to be included," she said.
Proposal 3: The punishment
The new criminal provision in the Crimes Act would state that a person who commits the offence is liable on conviction to imprisonment for a term not exceeding three years' imprisonment or to a fine not exceeding $50,000.
This one is pretty clean-cut, but could be in plainer language: you get up to three years in prison or a fine up to $50,000 for breaking this law.
This is an increase from the current punishment of three months in prison or a fine up to $7000.
Proposal 4: Updating the civil provision
Under this proposal, "stirring up, maintaining or normalising hatred" would be added to section 61 alongside "excite hostility" and "bring into contempt". Any other changes to the provision have not been agreed and this would be looked at further after consultation. The current provision dates back to 1979 and if changes are agreed the new provision would be revised according to a modern drafting style. Like the criminal provision, it is expected that terms like 'publish', 'distribute' and 'written matter' are likely to require updating.
This would make changes to the Human Rights Act section 61, which is a civil provision. This means it's the law that handles disagreements between people, rather than relying on investigation and prosecution by police.
Civil cases are brought through the Human Rights Commission, often after complaints are laid. In general civil cases are often resolved out of court, and the punishment is usually payment of damages to the injured party and fines.
Section 61, in essence, says it's illegal to publish, broadcast or distribute words which threaten, abuse or insult people on the basis of colour, race, ethnicity or nationality and which is "likely to excite hostility against or bring into contempt" those people. (There is a little more to it, but these are the most relevant bits.)
This proposal would amend it to also say, basically, that "stirring up, maintaining or normalising hatred" against those people also falls under the same civil law. Keep in mind it would also be broadened to include groups in Proposals 1 and 6.
Media also have protections when making an accurate report of another person's racist communication.
The document says it is "desirable that 'hatred' be included in the civil provision so that civil liability is also imposed for communication that is the most serious and damaging".
Notes on the proposal also say it would bring section 61 into line with the new criminal provision outlined in proposal 2, but it's worth noting the threshold would be lower.
Specifically, people could make a complaint to the Human Rights Commission about someone without having to prove the defendant intended to incite hostility, and would only need to show the communication was "likely to" incite, maintain or normalise hatred.
Proposal 4 also signals further changes that might broaden the definitions so it clearly includes digital communication, and a modernisation of the legal language in the law.
It notes that such changes have not yet been signed off by the Government and, of course, would require further consultation.
This seems self-evident for a set of proposals that are not yet in the form of a bill, the difference is that while the Government has agreed in principle to the proposal above, it has not agreed on further changes the public may suggest.
"We are open to hearing people's views on whether other changes also have merit," Greaney said.
"For example, we want to know whether 'incite' or 'stir up' is easier to understand for people, and we're asking for views on whether other parts of the civil provision should also be changed."
Proposal 5: More updating of the civil provision
Under this proposal, section 61 would also make speech that is likely to cause incitement to discrimination unlawful, alongside:
1. the excitement of hostility
2. bringing into contempt, and
3. stirring up, normalising or maintaining hatred
This one adds "speech that is likely to cause incitement to discrimination" to the list of things section 61 outlaws.
Using "likelihood" as a threshold means people cannot avoid punishment by saying they were not successful or that they were only preaching to the converted.
It means people could face legal action for communication that could lead others to discriminate against the groups protected by the updated section 21, and aims to have the law match with the United Nations' International Covenant on Civil and Political Rights, which New Zealand is signed up to.
The Covenant states: "Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law."
However, it also guarantees the right to hold opinions without interference, and the right to freedom of expression.
Proposal 6: Trans inclusion
Under this proposal, the ground of "sex" would be amended to also include "sex characteristics and intersex status". There would also be a new ground of "gender including gender expression and gender identity".
This would update the language of Section 21 (as seen in Proposal 1) to consider and include discrimination against trans, gender-diverse and intersex people.
With all that in mind, the final wording of the section 61 civil law, under these proposals, would be something like the following.
People can bring complaints against others for making communications which:
• Are likely to cause incitement to discriminate against,
• Stir up, maintain or normalise hatred against,
• Excite hostility against, or
• Bring into contempt
• The groups outlined in section 21, including trans, gender-diverse and intersex people, as determined after consultation.
The new Crimes Act law - punishable with potential for three years in jail or a fine up to $50,000, and prosecuted by police - would have a higher threshold.
Police would need to show the person intended to incite, maintain or normalise hatred, and there is no option of prosecuting for exciting hostility, bringing into contempt, or inciting discrimination.
Media law barrister Steven Price also notes questions remain over whether police also need to show that hatred was actually caused.
He notes the Government's regulatory impact statement did identify this concern, saying the issue "should be covered in the consultation" but the discussion document did not in fact address it.
Who decides, and where next
When questioned about the proposals, Faafoi said it was not for him to decide how the law was interpreted.
While it's true that interpretation of the law is a job for the courts, it has been argued the Government should know what their proposed law actually proposes.
If the proposal is vague enough that the Government can't give a firm answer, that makes the job of the courts - and the prosecuting police or crown law office - very difficult. Indeed, courts sometimes refer to ministers' statements in the House when interpreting laws.
Many laws are generated by the Government or - in the case of members' bills - an MP. They start as a policy with a firm idea and direction from the people who want to make it happen, then they get drafted into a bill to go through Parliament.
These proposals are nowhere near that point. They have not yet been before the Parliamentary Counsel Office (PCO), which specialises in drafting laws and has a focus on specific wording.
The PCO's job is to review the policy being proposed, ask tricky legal questions and get the wording just right to mould the policy into a bill to be presented to Parliament so it can be considered and go through the parliamentary process.
In this case however - and despite Labour getting ahead of the mosque attacks inquiry by campaigning on tackling the issue during the election - the Royal Commission suggested making changes, which resulted in this set of proposals from the ministry.
Greaney said while the Government thought the changes were a good idea, it wanted to know whether they met society's expectations before deciding whether, and how, to change the law.
"We want the public's feedback around the terminology before Cabinet makes final decisions and asks Parliamentary Counsel Office to start drafting," she said.
"We are seeking views on the proposals now because we know that there is a high level of public interest. We want to test the proposals and get public feedback and suggestions for improvement. The proposals could change based on the feedback we get."
Greaney notes that once consultation is complete, the next step will be for the ministry to apply the public's feedback to its proposals, take that to the PCO and have it drafted into law, and once that's done it will go through further consultation at select committee.
The question is whether an informed debate can really be had about an issue without a good understanding of what's at stake, what the law would look like, and how it would be applied.
Perhaps tellingly, Greaney says there has been "no decision about what legal definitions or drafting should be included in legislation", and the ministry's redacted regulatory impact statement says consultation "can also lead to better understanding of the proposals and their objectives".
And that raises the question of whether having such a debate, without a full set of ground rules, will just further muddy the waters on an important but already divisive topic.