Political Opinion Should Be Excluded From Hate Speech Protections

Credit: Original article can be found here

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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