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The unintended consequences of the govt’s hate speech proposals

24 Nov 2022

| Author: David Harvey

The Minister of Justice has released the long-awaited “hate speech” proposals. The press release dated 19 November 2022 states: Currently, under the Human Rights Act 1993, it is illegal to publish or distribute threatening, abusive, or insulting words likely to ‘excite hostility against’ or ‘bring into contempt’ any group on the grounds of colour, race, ethnic or national origins. Those grounds will now be extended, in both the civil (s 61) and criminal (s 131) provisions to cover religious belief.”

This article considers the policy that has been announced and is a first-impression overview of the proposal. Before considering whether such changes need to be made – a different consideration to whether they should be made – it is important to understand how the Human Rights Act works in practice.

Sections 61 and 131

Sections 21 – 63 of the Human Rights Act prohibit several discriminatory practices in relation to various activities and services. Section 65 also prohibits indirect discrimination which is an effects-based form of activity. Victimisation or less favourable treatment based on making certain disclosures is prohibited by s 66. Discrimination in advertising, along with provisions dealing with sexual or racial harassment, are the subject of ss 67 and 69. The existing provisions relating to racial disharmony as a form of discrimination and racial harassment are contained in ss 61 and 63 of the Act.

There are two tests under s 61. One is an examination of the content of the communication. Is it threatening, abusive or insulting? If that has been established, the next test is to consider whether it is likely to excite hostility against or bring into contempt any group of people either in or coming to New Zealand on the ground of colour, race or ethnic or national origins.

Section 131 of the Human Rights Act creates the offence of inciting racial disharmony. Thus, the unlawfulness of the communication in s 61 becomes an offence under s 131. Pursuant to s 132, a prosecution for an offence under s 131 requires the approval of the Attorney-General. These provisions could well apply to “dangerous speech” – a term I prefer to the emotionally overburdened term “hate speech”. Is it necessary, therefore, to extend the existing categories in ss 61 and 131 to include religion?

Religion

Clearly if one were to add religion, threatening, abusive or insulting language about adherents of the Islamic faith would fall within the first limb of the s 61(1) test. But is it necessary that religion be added? And should this be simply because a religious group was targeted?

The difficulty with including threatening, abusive or insulting language against groups based upon religion means that not only would Islamaphobic “dangerous speech” be caught, but so too would the anti-Christian, anti-West, anti “crusader” rhetoric of radical Islamic jihadi groups be caught. Would the remarks by Winston Peters condemning the implementation of strict sharia law in Brunei that would allow the stoning of homosexuals and adulterers be considered speech that insults members of a religion?

A further difficulty with religious-based speech is that often there are doctrinal differences that can lead to strong differences of opinion that are strongly voiced. Often the consequences for doctrinal heresy will be identified as having certain consequences in the afterlife.

Doctrinal disputes, often expressed in strong terms, have been characteristics of religious discourse for centuries. Indeed, the history of the development of the freedom of expression and the freedom of the press was often in the context of religious debate and dissent.

It may be that adding a category of religion or religious groups will have unintended consequences and have the effect of stifling or chilling debate about religious belief. An example of the difficulty that may arise with restrictions on religious speech may be demonstrated by the statement “God is dead”. This relatively innocuous statement may be insulting or abusive to members of theist groups who would find a fundamental aspect of their belief system challenged.

For some groups such a statement may be an invitation to violence against the speaker. Yet the same statement could be insulting or abusive to atheists as well, simply because that for God to be dead presupposes the existence of God which challenges a fundamental aspect of atheist belief. This example illustrates the danger of placing religious discourse into the unlawful categories of discrimination.

If it were to be determined that religious groups would be added to those covered by s 61, stronger wording relating to the consequences of speech should be applicable to such groups. Instead of merely “exciting hostility against” or “bring into contempt” based upon religious differences, perhaps the wording should be “advocating and encouraging physical violence against”. This would be a much stronger test than exists at present under s 61 and recognises the importance of religious speech and doctrinal dispute.

At the moment, the test in the Human Rights Act is what may be called a “harmful tendency” test – an approach that is problematical in that there need be no immediacy of danger. This contrasts with the “immediacy” or “emergency” test requiring the speech to carry with it a threat of imminent danger of physical harm. This more stringent test would bring the speech within a justifiable limitation of the s 14 NZBORA guarantee of freedom of expression.

Those who advocate a “harmful tendency” test claim that although there may be no immediacy of harm, repetition of the message may elevate the risk. In my view, it would have to be proven that mere repetition removes the speech from the viewpoint-neutral harmful tendency position to that of immediacy of harm.

The UK approach

The issue of restrictions on religious speech are the subject of a specific exception in the UK. I refer to s 29J of the Public Order Act 1986 (United Kingdom), which provides: Nothing in this part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.

The Christchurch Royal Commission’s view was that such an exception would make the offence of inciting racial or religious disharmony – especially the latter – unworkable. This is correct if indeed it were deemed necessary to have religion included in the Human Rights Act categories. The UK exception goes to the quality of the discourse and recognises that religious debate can become passionate and heated. The exception does not go so far as to allow for the advocacy of violence or hostile action which would fulfil the immediacy or emergency test.

It could be argued that because the immediacy test targets consequences rather than content, an exception such as that appearing in s 28J is not required, in that s 29J merely states examples of freedom of expression which are likely to occur and have occurred over the centuries in religious debate. However, the inclusion of such an exception would provide protection for adherents of all religious faiths who wish to engage in the robust debate that often surrounds matters of belief.

Conclusion

Towards the end of her press release the minister made the following comment: Some of the debate on this topic over the last year been disappointing and at times deliberately divisive and misleading, particularly in regard to the proposals that were out for consultation. This is not, and never has been, about the government wanting to restrict free speech. There can be no doubt that this government characterises dissent or a contrary view as misleading or misinformation. The minister’s comment continues that hostility towards opposing views.

To characterise debate as “disappointing” fails to recognise the importance of debate and the contending views that are present in the community. Her last sentence is naïve in the extreme. The proposed amendment, while constituting a significant retreat from early pronouncements on the subject of “hate speech”, is all about a restriction on freedom of expression – a concept that is wider than “freedom of speech”.

People should not only be able to articulate a point of view. Others have a right to hear it. Perhaps the minister needs to be made aware of the fact that the s 14 NZBORA guarantee not only protects the outward flow of communication – the act of communicating or articulating an idea – but the inward flow as well – the reception of a communication.

In my opinion, the proposed change has not been justified and should not be the subject of an amendment to the Human Rights Act. ■

David Harvey is a retired District Court judge ■

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