03 July 2021

Hate speech Proposals 3 to 6: are you likely to be causing incitement to discrimination? Who says

Having gone through Proposals 1 and 2, I have looked at 3 to 6 and there is more to be concerned about.

Proposal Three is simply an increase in penalties to fines of up to $50,000 and up to three years’ imprisonment, up from $7,000 and three months.  For threats these new penalties are reasonable, but given I reject elements of the proposals themselves, this becomes moot. It's notable that this penalty is higher than the following actual crimes of violence:

Assault on a child (S.194 Crimes Act)

Assault on a person in a family relationship (S.195 Crimes Act) (domestic violence)

Common assault (S.196 Crimes Act)

It is the same as assault with intent to injure or aggravated assault. So the Government thinks intentionally injuring someone's body is no more serious than injuring their feelings. 

Proposal Four would see the S.61 civil offence wording similar to that of the Proposal Two criminal wording, but also retain the existing provision of bringing a group into contempt would be retained. If you have issues with Proposal Two then they parallel Proposal Four.  

Proposal Five would see the Human Rights Act prohibit “incitement of others to discriminate” simply to align it with the International Covenant on Civil and Political Rights. Abiding by an international treaty is not an argument in and of itself for reform, as it should be advanced on its actual merits.  The proposal chillingly says: 

Under this proposal, section 61 would also make speech that is likely to cause incitement to discrimination unlawful

So the law would mean Police would have to decide if speech is “likely to cause incitement to discrimination”, and of course it applies to the long list of groups, including political and ethical belief. 

Imagine that, the state deciding not if you intended to incite discrimination but that you are likely to cause incitement to discrimination. Frankly, much of what the Maori Party says lately may do just that, but so might columns written about race, gender and identity. So-called “TERFs” will be deemed as likely to cause incitement to discrimination (if Proposal Six continues), but so will strict Catholics. Of course there are those who think that not being 100% compliant with UN treaties is somehow an act of turpitude, but given the UN accepts membership from a jurisdiction that incarcerates small children as political parents for the crimes of their parents, none should be churlish about simply laughing at claims of moral superiority.  

It is not the role of the state to punish people for making speech based on some probability that it will incite someone to discriminate against another, particularly on grounds of political belief.  To hell with such an illiberal attitude to what people say or write.

Finally Proposal Six, which seeks to expand “sex” to include “gender, gender expression and gender identity” to S.21 of the Human Rights Act.  Given that some trans-activists regard any challenge to be an act of hatred, the scope for this to be abused is considerable. There is a case to say that people should not be legally required to accept a purely self-identified change of gender, or that birth certificates should not be altered to remove any reference to biological sex at birth.  Some women are uncomfortable with biological men who identify as women being allowed into spaces declared for women, and they should not be regarded as inciting hate for expressing their concerns.  Nobody should threaten or incite threats against people regardless of gender identity or expression, but adding this category to any laws constraining speech beyond that is not the role of the state - the state does not exist to protect people from being insulted. 

Overall the proposals by the Ardern Government are chilling in their breadth and depth.  If the intention is to better protect people from threats or incitement to violence, then the scope of the proposals should be much much tighter, but that is clearly not the intention.  The intention is to prohibit "hatred" and promoting "hatred" against groups, some of which are defined by immutable characteristics, some reflect personal choices (marital, employment, family status), some reflect matters of conscience (religion, politics or ethics). Yet it goes further than that, it seeks to prohibit communications that Police (for it is they who enforce these laws) will interpret as being likely to cause incitement to discrimination.

At a bare minimum if these changes proceeded excluding political belief and ethical belief, they would be notably less dangerous, but there is a much more fundamental question at stake here. Beyond threats of violence or inciting threats, what rights should the state be protecting people from being violated?  Do you want the Police to arrest people for insulting others, particularly insulting them online?  Do you want films, novels, letters, conversations to get you criminalised because someone thinks you are likely to cause someone to be encouraged to discriminate against a group?  

If you are an activist for Palestine (I am not), are you happy that your incessant opposition to Israel could be likely to incite hatred of Jews?  If you are an activist for Maori sovereignty, are you happy that your constant portrayal of Pakeha as colonisers, privileged and racist is likely to incite hatred against them? If you are an activist for Hong Kong democracy, are you happy that your portrayal of the Chinese Communist Party could be likely to incite hatred against Chinese people? If you are an activist against honour killings are you happy that your concern over Salafist teachings could mean you incite hatred against Muslims generally? In all cases because Police think so?

In the past decade or more the prevailing culture has shifted to one of ever growing intolerance of people having opinions that some disagree with. It has been predominantly driven by a far left almost Leninist approach to disagreement.  Those who challenge Maori seats in local government are called "racist" as a kneejerk pejorative, those who question trans-women engaging in womens' sports are "transphobic".  Those advancing these changes are almost certainly of the philosophical perspective that supports these perspectives, that regards classical liberal positions on individual freedom and rights to be at best archaic, or at worst somehow white supremacist and misogynist.  

There are crumbs of sense in these proposals. There should be clarity around laws that prohibit threats or incitement to threaten people on any grounds, but there is neither a need for the other changes, nor are they compatible with an open, vibrant, liberal democracy. Whether you are libertarian, conservative or a left wing radical, or a believer in any religion, or none, or if you hold an ethical position that many find outrageous, you should fear these changes, and you should oppose them.

You have until 6 August to oppose these changes, you need to tell the Minister of Justice and the Government what you think.  

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