Prime Minister Jacinda Ardern said political opinion was not part of the proposal. Photo / Mark Mitchell
Prime Minister Jacinda Ardern said political opinion was not part of the proposal. Photo / Mark Mitchell
OPINION:
In the four days since the Government outlined changes to "hate speech" law, it has become obvious from comments by the Prime Minister, Jacinda Ardern, that she does not understand them.
She and the minister in charge of the process, Kris Faafoi, need to up their game considerably ifthey want a fair debate.
Ardern does not understand the extent of what is proposed, as was evident by her comments on the AM show today. She was factually wrong when she said the proposals don't include political opinion.
She also gave the wrong impression that the threshold of the proposed changes to the law were around comments that incited violence against religious groups.
She mentioned incitement to violence at least six times in insisting that the threshold for prosecution would be extremely high.
The current law and proposed law are not about violence or inciting people to take action.
She also suggested that putting various hypothetical scenarios to Faafoi - as Tova O'Brien did on The Nation - such as asking whether millennials inciting hatred against boomers would qualify was "trivialising" the issue.
She said that it was not the job of the politicians to decide what a court would or would not decide.
That is not good enough for a law which embodies a potential collision of rights, the right to live and participate freely and the right freedom of expression. The detail matters hugely.
She and Faafoi would have a much better chance of persuading the public if they a) got the facts right, and b) were prepared to discuss hypothetical examples so the public had a good idea of what is intended by the proposals.
Justice Minister Kris Faafoi and Prime Minister Jacinda Ardern. Photo / Mark Mitchell
But when she does not even know that inciting hatred of groups on the basis of "political opinion" falls into the proposal, it would be hard to know whether to trust the answer.
For example, would a strident critic who incited hate towards a political party founded on, say, anti-vax conspiracy theories, be liable for prosecution? Or that too trivial an example?
There will be clear cases of what is "in" or "out". We need a better sense of what they are as well as the "grey."
Faafoi in his capacity as Justice Minister issued a public discussion document on Friday ahead of drafting laws to deal with "hate speech".
The public has one month to discuss them – although presumably longer once the law is drafted and is before a select committee.
The notion of tightening existing "hate speech" laws and introducing "hate crimes" into the statute books is not new.
But the terrorist attack on the Christchurch mosques and the Royal Commission report's recommendations have expedited the consideration of extending hate speech laws by the Government.
Justice Minister Kris Faafoi. Photo / Mark Mitchell
One of the most important and controversial parts of the proposals is about changing the current criminal provisions of the Human Rights Act (Section 131) whereby it is currently a criminal offence to incite racial disharmony by publishing words that are 1) threatening abusive or insulting; 2) likely to excite hostility or ill-will against or bring into contempt or ridicule any group on the grounds of colour, race, or ethnic or national origins; and 3) intended to excite such hostility, ill-will, contempt or ridicule.
If someone were convicted under those provisions – and there have been next to no prosecutions – the offender would be punishable by up to three months imprisonment or a fine of up to $7000.
The word "hate" is not mentioned in that provision, nor in any part of the Human Rights Act 1993.
Under proposed changes, the terms "hostility," "ill-will," "contempt" and "ridicule" as mentioned above, would be replaced by the term "hatred" which the Royal Commission argued with some merit would be narrower and simpler.
The requirement of an "intention" to incitement hatred would be kept; and it would prohibit speech which "maintains or normalises" hatred as well as speech which incites or stirs up hatred.
It would create the new criminal provision in the Crimes Act - where serious offences are set out.
Jacinda Ardern said it's not up to politicians to decide what courts might or might not do with the proposed law. Photo / Mark Tantrum
The other major change to the criminal provision (take note Prime Minister) is the expansion of the limited range of groups protected from hate speech under the law. At present, offences are limited to people inciting hostility on the grounds of colour, race, ethnic or national origins.
It does not include religion, which concerned the Royal Commission.
The proposal is that it be widened to include all those groups listed under Section 21 of the Human Rights Act which are protected from discrimination. That means people could be liable to a criminal prosecution for hate speech directed at groups on the grounds of sex, marital status, religious belief, ethical belief, colour, race, ethnic or national origins, disability, age, political opinion, employment status, and family status, with new provisions planned to include sex characteristics and intersex status, and gender including gender expression and gender identity.
Fines would be increased to $50,000 and maximum imprisonment increased from three months to three years.
The Ministry of Justice's detailed assessment on the public discussion document warned there was a risk people may misunderstand.
Jacinda Ardern told Duncan Garner that people were misinterpreting the law. Ironically, it was about the only thing she got right.
She needs to get a better handle on the proposals in order to credibly argue for them.
