New Zealand Government’s Proposed “Hate Speech” Law Attacks Free Speech

Against a backdrop of rising social tensions, widening inequality and emerging resistance by the working class to austerity, New Zealand’s Labour Party-Greens government is preparing new “hate speech” laws that will severely limit free speech and muzzle political dissent.

The Justice Ministry last month released a discussion document, “Proposals against incitement and discrimination,” for a six-week public “consultation” period before legislation is finalised and taken to parliament. The document, which invites responses to six vaguely worded proposals, reveals no precise text of the foreshadowed law, although planning is doubtless well advanced.

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Labour intends to alter two sections of the Human Rights Act 1993, which currently outlaws communications that are intended “to excite hostility or ill-will against, or bring into contempt or ridicule” any group on grounds of their colour, race, or ethnic or national origins. The proposed changes expand the list of “protected” groups to include those based on gender, religion, sexuality, marital status, age, employment status and political opinion.

The changes will apply to Section 61 of the Act, which contains civil provisions against inciting hostility on the basis of race or ethnicity, and Section 131 which make such activities a criminal offence. Under the reworked Section 61 any person who “encourages others” to treat members of a protected group worse or differently than others would be breaking the law and could trigger a complaint to the Human Rights Commission.

Section 131 will become a new offence within the Crimes Act, where it will have substantially increased penalties. The maximum fine is lifted from $7,000 to $50,000, and the maximum term of imprisonment raised from three months to three years.

The new section will specify that anyone who “intentionally incites, stirs up, maintains or normalises hatred” against a protected group breaks the law if they do so by being “threatening, abusive or insulting, including by inciting violence,” regardless of whether this is done verbally, in writing or online.

The terms used are vague and open to interpretation. What counts as “normalising hatred” or “abusive language” will be determined by the state.

Under the Bill of Rights Act 1990, everyone has the right to freedom of expression, including the freedom to “seek, receive, and impart information and opinions of any kind in any form.” However, several long-standing legal provisions already restrict what people can say or publish. The Summary Offenses Act 1981 makes it illegal to use racist slurs. The Harmful Digital Communications Act 2015 regulates “extreme” tweets or Facebook messages while film classification rules target “harmful” material and content that “breaches society’s standards.”

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In fact, the government’s discussion document pays scant attention to the basic democratic right of freedom of speech, and has nothing to say about how it should be protected. In two brief paragraphs, the Justice Ministry baldly asserts that legal limits on free speech are “justified in a free and democratic society.” The law preventing “incitement” will, it declares, prohibit the expression of “attitudes” that are “incompatible with human rights and Aotearoa New Zealand’s democratic values.”

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Justice Minister Kris Faafoi has, unsurprisingly, been evasive about how the law might operate. Asked by Newshub reporter Tova O’Brien whether younger people “hating” older “Boomers” for the high cost of housing was “hate speech,” Faafoi replied that “potentially” such statements could trigger prosecutions. Prominent rugby player Israel Folau could also, he admitted, face prosecution if he was in NZ for his repeated anti-gay statements. Faafoi said that ultimately police would decide what prosecutions to take.

The law has been justified as a response to the March 2019 terror attack in Christchurch, in which 51 people were massacred in two mosques by the fascist Brenton Tarrant. Last year’s Royal Commission of Inquiry into the attack recommended stronger penalties for “hate speech” and to include religion as a protected category, in order to foster “social cohesion” and “prevent… the development of harmful radicalising ideologies and downstream violent extremism.”

Nobody should believe that the law will be used solely, or even primarily, against the extreme right. After initially denying it, Prime Minister Ardern admitted that “political opinion” could be declared a protected category. Section 21 of the Act currently lists “political opinion” among the prohibited grounds for “discrimination.” On this basis, the new law would make it unlawful to “insult” or “incite” hatred towards a group or party because of their political program or views.

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