Transport policy with a vacuum of critical analysis

Politicians love transport policy.  I used to think it was some throwback for the men who engaged in it, who as boys may have played with model planes, trains, cars or whatever, and perhaps didn't get a chance in adulthood to get to play with full sized equivalents, because they chose a different career path.  Yet women in politics are quite keen on it too, although in most cases it tends to reflect one side of politics - the desire for control.

Transport is a sector which almost everyone has an opinion about, because almost everyone travels on a regular basis whether it be short trips in town, commuting or long distance travel.  However, as in most sectors, a little knowledge isn't really enough to make informed decisions about what should actually happen (except for your own choices).  The problem with transport is that almost all politicians have just that - a little knowledge.

That's exactly what you can see today in New Zealand, and if you think I'm just picking on the Labour Government you're wrong.  The previous National led government was far from perfect, nor was the previous Labour led government. All of them have been unwinding what was around 20 years of reforms in transport policy that progressively reduced or removed political roles in the supply and prices of transport infrastructure and services.  It started under the Clark Government, which renationalised the railways and Air New Zealand, for quite different reasons (both of which were a result of its own failure to continue previous reforms), and undertook a series of reforms that increased political control over central government funding of roads and public transport.  It renewed Wellington commuter rail system, and poured hundreds of millions to revive Auckland's system.  The Key Government took that new politicised framework, and reprioritised it to large motorway projects (Roads of National Significance), but it also funded the electrification of Auckland's commuter rail system and the City Rail Link (underground rail loop) in Auckland.  

Now, of course, the Ardern Government is moving away from motorways and focusing on trams.  

It announced its "Government Policy Statement" which is effectively a way of declaring its priorities for spending the money collected from road user through fuel duty (which it wants to increase), road user charges (which it also wants to increase) and motor vehicle registrations and licensing fees.   Phil Twyford might have announced it, but Julie Anne Genter, former junior transport planner, has also been influential. 

To understand what it means you need to also understand that in transport policy there isn't an agreed single point of view as to what works best or the impact of different policy instruments.   

The market-oriented approach

On the one hand is a belief that allowing market mechanisms such as user pays, competition, private enterprise and choice for users will enable better outcomes overall.  Indeed, you can see the results of this in many parts of the transport sector.  In shipping, aviation, freight and even intercity passenger transport in New Zealand, there is a light handed approach to the role of government.  Advocates of a more market approach seek to move away from politically based funding of transport infrastructure and services, encouraging transport users to pay for the costs of the services they use, which also includes a move to forms of road pricing.  Advocates of a market based approach tend to consider that there is little reason for government entities to own or operate transport service providers and that there are merits in moving towards more private ownership of private infrastructure as well.  They regard the negative externalities of transport (congestion, accidents, pollution) as being able to be managed through more market mechanisms and technology, rather than by controlling user behaviour.  Market oriented advocates are neutral across transport modes or user decisions, as long as users pay for what they use.

New Zealand transport has a lot of the free market

Ports are all run as businesses, some with private ownership, and all shipping (except the Interislander - which is profitable in its own right anyway) is operated competitively by the private sector.  Prices are set by the operators depending on competition and demand.

Airports are largely all run as businesses, some are partially privatised, and the airline industry is completely open to competition.  Air NZ may be (just) majority state owned, but it receives no subsidies, and New Zealand has one of the world's most open aviation markets.  The main restrictions are bilateral ones, many have "Open Skies" agreements with NZ, others have limits on the number/capacity of flights.  Airlines set their own fares, which was not at all the case until the late 1980s.  Airways Corporation is still an SOE, but is not subject to any political interference.  Unlike some countries, such as the USA, the NZ aviation sector funds itself, with airlines paying airports and the Airways Corporation for their services.

It's on the land that the role of politicians is most intrusive.  Yet in many areas they have little role.  For freight transport (on road), there are no significant barriers to entry and operators set their own prices depending on competition and demand.  Goods move around the country and in cities with relatively few restrictions, except some limits on road use due to noise and limits to the network.  For passenger transport between cities, besides aviation, most people drive, but for those who don't, coach services operate as an open market, with competition and prices set by the market.   Even though Kiwirail is state-owned (and has received well over $1 billion in new capital from the past two governments), it operates non-commuter passenger services as a business and is the same with freight.  It just happens to not be able to charge some of its freight customers enough to pay for the renewal of its infrastructure - which is where your taxes come in.  The taxi sector too is reasonably open, which is why Uber has been able to set up successfully too.

Now you're going to say - hang on, the roads are all government.  That's true, but it's also important to separate the roads into what are two networks. Firstly, the state highways (this includes all motorways). These are fully funded by road users from fuel taxes and road user charges.  All revenue from those charges goes into the National Land Transport Fund, and road user charges are set to recover the higher costs heavier vehicles impose on the road network, through greater wear and tear.  Secondly, the local roads. On average about half of the money spent on council roads comes from the National Land Transport Fund, the remainder from local rates.  Some argue that this means local roads are "subsidised", but there is an argument for ratepayer funding of local roads, because the presence and standard of local roads influences property values.  They could be seen as a proxy for an access charge to the road network for property owners.  However, it's not as if local roads typically "compete" with other transport modes like railways.  It is state highways that do that.

So all public roads are dependent on funding from the National Land Transport Fund allocated by the NZ Transport Agency, which also happens to manage the state highways.  Local roads are also dependent on ratepayer funding. This is far removed from the United States which funds a reasonable proportion of road spending from general taxes, or on the other hand from the UK, where road funding is around a quarter of the revenue raised from motoring taxes.  For NZ the emergence of taxpayer funding of roads has been a recent policy initiative, and not a welcome one.

The central-planners' approach

Unlike the advocates of a market oriented approach, central planners believe strongly in politically directed funding, regulation and provision of transport infrastructure and services.  They tend to be  advocates of central or local government owned and operated transport providers, and unquestionably support government ownership of transport infrastructure.  They seek control of service standards, frequencies, routes, fares and charges.  The primary focus of central planners is on urban transport, although they drift into intercity transport of people and goods as well.  They largely show limited interest in the shipping and aviation sectors.

The central planners are now heavily focused on environmental objectives, with strong enthusiasm for scheduled fixed-route public transport.  That's because they are particularly focused on inputs, on what infrastructure and services are provided.  This is interesting because the current generation of transport central planners like to think of themselves as showing "new thinking", because they reject the previous generation of central planners selection of inputs.  Both generations embrace the "predict and provide" methodology of deciding what transport infrastructure to build.  The difference is they disagree on the inputs.

The previous generation were strong advocates of building more roads, large urban motorways and car park buildings to accommodate the predicted unfettered growth in car traffic.  They weren't interested in road users really paying for those motorways (or at least not just the ones riding them, with the exception of tolls on some crossing), but saw the future as one where private car use could be accommodated in cities.  On the scale some planners predicted that was clearly neither going to be affordable, nor desirable, but when such roads were built they did encourage development at the locations they served, and by lowering the cost of driving (in terms of time and fuel), they helped generate demand (that's where the widely misused "if you build roads they just fill up with traffic" cliche comes from).  The "motorway planners" regarded public transport as antiquated and increasingly just existing for those who do not own cars, or in high density cities, accepted as commercial metro systems.

The current generation of planners are strong advocates of building more urban railways, building tram lines (now called "light rail") and uses buses to connect to these, as well as supporting cycling infrastructure.  However, most notably they also support measures to reduce the speed of other road traffic, by reallocating road space to trams, buses, bicycles and pedestrians, and to provide priority to the preferred modes (rail, bus, cycling, pedestrians), over cars, trucks and vans (freight isn't that important to the central planners - either it should go on rail or be moved at off peak times, or it is ignored altogether). The "public transport" planners regard private motoring as not just antiquated, but almost malignant. Some of the language used to describe motorists is either hostile or treats them as is need of help.  The term "car dependent" or "addicted to their cars", is language you'd expect of those who abuse narcotics, not people who choose a mode of transport.  It's designed to support a narrative that "if only" more money was spent on public transport, people could be "weaned away" (as they are children) from their cars.  For the central planners, the only choice worth making is away from driving.

It's all about emissions

Now the policy is singularly focused on climate change, despite existence of the Emissions Trading Scheme which means every time you refuel your car, or ride a bus or fly domestically, you are paying for your CO2 emissions. The Ardern Government thinks it is responsible for helping save the world by making it more expensive to own (the wrong) cars and use them, and to take money from you for driving and put it into their preferred modes of transport. Similarly the Vision Zero strategy around eliminating road fatalities is as much about making driving less convenient and less fast - enforcement of bad driving behaviour comes second to reducing speed limits and instituting speed bumps, because slower traffic is safer (it's also more competitive with modes that are demonstrably slower). 

That's why even if road transport emissions dropped dramatically because of takeup of electric vehicles and the like, that isn't good enough.  You see the policy is not so much about reducing emission, but reducing emissions the right way.  It doesn't matter that it makes no difference.

The moral imperative of the Ardern Government's transport policy is not one based on trusting people to make their own decisions, but rather to direct them and to spend money to provide choices that are approved and recommended (like the Te Huia train) having taken it from those that are not approved or recommended (car drivers and truck operators).  There is policy obscurity in that having concepts like "user-pays" or "economic efficiency" are not desired, because they don't deliver a tramline, nor do they deliver a bicycle bridge over Auckland harbour.

Is it because the Ardern generation are too young and too narrowed minded in their understanding of history (and too full of conceit about the capabilities of their power and the ability of the state to figure out what's best for everyone)?  Have they swallowed the hyperbolic nonsense of the Greens that the whole system is set up to "favour" driving, even though motorists buy their own vehicles and pay a much higher proportion of the costs of their transport choice than public transport users?  Do they really think the common people would be happier and better off if they only just walked and biked a lot?  Do they really think that many people don't use vehicles for their "legitimate purposes"?

That last point is instructive, because it shows the philosophical starting point of Ardern and Wood.  They think the ordinary folk make endlessly foolish decisions, and they need correcting.  So they will take their money and give them "correct" choices, like the slow train from Hamilton to.... Papakura (soon Puhinui... wow).  Like the slow tram down Dominion Road (maybe), which isn't really about relieving congestion, but about a vision around urban form (it doesn't matter that most jobs wont be accessible with the tram).  Now most recently the Let's Get Wellington Moving project which was once a collaboration between central and local government to plan a major uplift in road and public transport infrastructure, now relegated to proposing a pedestrian crossing on a part of SH1 near the airport of which one side is over a kilometre from anyone's home.

It's not quite the 1970s, it isn't illegal to send freight by road if there is a parallel rail line, and petrol prices aren't regulated, nor is Kiwirail a department yet - but any sense that users should drive spending and users should, by and large, pay for what infrastructure they use is evaporating.  This is a government that thinks it knows best.

Are the hate speech proposals anything more than ineptitude?

Jacinda Ardern has demonstrated since the last election that she isn’t a “do nothing” Prime Minister, she wants to be transformative. She has been elevated by the predominantly left-leaning media domestically and internationally as a political superstar, quite something for someone who led a party that came a fairly distant second in 2017 and only gained powered with the support of two other parties (and until the Christchurch terror attack was looking lacklustre in the polls).  She has capacity for emotional empathy, rather than hard-nosed policy, and it is the former that drives her to reform laws on hate speech.  It’s clear she despises, like any right-thinking people, the ideology that drove the shooter to commit mass murder on the basis of religious belief. The idea that there are people who speak, shout, type, write or otherwise express hatred to others is a mystery to her, and her philosophy of the purportedly kind, caring, maternalistic state runs through so much of what she does and says.

So, she thinks, it is entirely consistent with her vision of the big mother state that people be prohibited from being mean to others.  The original issue around the Human Rights Act is that the two key provisions, S.61 and S.131, only apply to “colour, race, ethnic and national origins”, but of course an attack on Muslims isn’t readily defined by this, as Muslims can be from any racial or ethnic background, with majority Muslim countries ranging from Bosnia-Hercegovina through to Indonesia geographically.  However, it’s not so simple to simply amend the law to add “religious belief” because the law as it stands is absurdly worded.

The current provisions prohibit expressions that are “threatening, abusive, or insulting” (S.61) or “with intent to excite hostility or ill-will against, or bring into contempt or ridicule” (S.131).  Few would argue with the term threatening, but insulting is awfully close to prohibiting calling people names. Whereas bringing into contempt or ridicule looks exactly like a ban on criticism or certain forms of humour.  Allowing a law change to prohibit intentionally ridiculing people because of their religion is almost a law against blasphemy.  Sure it’s not nice to ridicule people’s religion, but the right to ridicule religion came from the Enlightenment.

So Ardern’s proposals (one can’t assume that the empty headed Kris Faafoi had much agency over these proposals) are to replace “threatening, abusive or insulting” and “with intent to excite hostility or ill-will against, or bring into contempt or ridicule” with a much more simple provision: 

intentionally incite/stir up, maintain or normalise hatred… of protected groups… through threatening, abusive or insulting communications, including inciting violence

Working backwards I know no one who disagrees with laws against inciting violence, so clarifying this alone would be welcome, but why restrict it to protected groups?  Inciting violence against ANY group of people (with a defence of self defence to cover situations when a group might attack someone or their property) should be a crime.  Why would it not be? However the rest deserves very close scrutiny indeed.

The proposal seeks to prohibit certain actions being “threatening, abusive or insulting communications”, with certain intent “to incite/stir up, maintain or normalise hatred” of the listed protected groups.  The key word here is “hatred”.  What is hatred?

For hatred to be “incited” or “stirred up” it must already exist somewhat, and certainly “maintain” and “normalise” are for emotions that already exist, “normalise” implies that there is hatred that exists that the “bad person” wants to say is valid.

Ardern doesn’t think hatred should exist, at least not towards the protected groups.

Going back to the actions that are sought to be prohibited, few would argue against threats, but what about abuse or insults? The most confusing element of these proposals is exactly what the terms mean, how a judge or the Police will interpret them in practice, and to help inform that it is useful to understand exactly what Ardern and her acolytes (including the Greens) think is action that is insulting and abusive, or even threatening, and how they interpret hatred.  You see it is the jurisprudence of today and the intentions of Parliament and how that percolates into the Police and the judiciary that matters.

And we all know what that culture is.  It’s the culture that is seen in trans-activism, that deems feminists who are concerned about self-identified trans-women with penises convicted of sexual assault entering womens’ prisons, as TERFS and spreading hatred.  There’s no nuance, the feminists are directly accused of inciting hatred, rather than engaging in a debate about a sensitive issue.  

It’s the culture seen in race-activism, that declares an organisation or system “racist” if the outcomes are not proportionate to inputs by race, always according to the race or races the race-activists are concerned about (they blank out other minorities performing much better).  It’s racist to be focused on the correct answer in mathematics according to some race activists in the United States, so would insisting that students not pass unless they get problems solved correctly “stirring up hatred”? Is ridiculing such people seen as threatening? 

It’s the culture of sex-activism. The lack of equal proportions of women on company boards or the so-called “gender wage gap” if challenged is seen as sexist, because equality of opportunity is not the goal.  Unless outcomes are equal, the system is one with entrenched misogyny, although the lack of men in primary school teaching is not seen otherwise. Is questioning the gender wage gap “normalising hatred”? Is this seen as insulting communications?

It’s the culture promoting permanent welfare dependency. Some on the left promote a guaranteed minimum income or perpetual increases in welfare benefits for those who don’t find work that they want. Is claiming that someone who has been on welfare for years is lazy or that the welfare state is parasitical inciting hatred against people on welfare?  Why is receiving taxpayer money seen as being deserving of protection, but having money taken from you by the government not?  

Finally, it’s the culture of blasphemy.  Charlie Hebdo has produced many magazine covers grotesquely insulting of religious figures.  There is little doubt that many adherents of those religions regard them to be insulting or even abusive and would argue that they are intended to incite hatred.  Could the law even be turned on itself by arguing that the likes of Charlie Hebdo are inciting hatred from Muslims against them as a provocation?  The same can be said of the Life of Brian, which some Christians may interpret as inciting hatred against them, through ridicule and insults to their religion.  It’s not hard to tell which of these is more likely to be seen as falling foul of the law.

One of Charlie Hebdo's highly offensive covers

And that’s just some of the protected categories.  Most of them are ridiculous.  What should be by far the biggest concern is that the very idea of including these protected categories got not only past officials, but past Ministers and the Prime Minister.

What mindset thinks it is ok to make hatred of groups according to political or ethical opinion illegal?  

There can be only two possible conclusions, mind-numbing stupidity or a sinister and disturbing set of beliefs about the limits of a free society.  With this government both are entirely plausible.  There is no shortage of very poor quality policy initiatives, whether it be the Climate Change Commission, housing, He Puapua, Fair Pay Agreements or the mess around large scale managed isolation vacancies whilst foreigners, and much much more.  

So it is quite likely that the Ministry of Justice lacks institutional capability to actually remove political and ethical beliefs from this discussion paper, but it must have gone through senior managers.  By what logical contortion can anyone defend criminalising hatred against Nazis?  This is what professional civil servants are meant to do, protect Ministers from doing anything stupid.

Because it’s abundantly clear neither Kris Faafoi nor his own Chief of Staff and advisors are capable of it.  He’s most certainly well out of his depth as Minister of Justice, it being utterly laughable that he is expected to lead a major legal reform.  Which then comes to the Prime Minister.  How could DPMC let this go through, how could Ardern and her advisors think it was right to criminalise hatred against people who think (for example), that sex between adults and children should be encouraged (e.g, groups like NAMBLA), or that human beings should progressively wipe themselves out (the voluntary human extinction movement), or the Khmer Rouge (a political group)?  Are they inept letting this get through, or just a bunch of woke morons who discuss and debate issues like some sort of mutually reinforcing circle of intellectual onanism?  Is it new age stupidity that thinks hatred is always wrong?

I’d like to think it isn’t sinister.  If Ardern et al genuinely think it might be a good idea to ban hatred by political group, they want to sanitise all political and ethical discussion to abolish “hatred” of ANY opinion.  It’s classic moral relativism, that all ideas are equally valid and ok, and nobody should “hate” people for having opinions that offend them.  This seems unlikely, not least because the dominant philosophical thread of this government and indeed the political mainstream is to not think all ideas are equally valid and ok, but rather a culture of wanting to suppress opinions that cause offence. I suspect Ardern doesn’t want to criminalise hatred against feminists against trans-gender radicalism (it’s not radicalism, it’s mainstream), but she does want to criminalise feminists hating trans-gender radicalism.  I suspect she doesn’t want to criminalise hating Nazis, but she does want to criminalise hating the Labour Party.  

The proposals should be scrapped, and much more simple reforms be instituted.  It should be abundantly clear that threatening behaviour whether communications or actions should be illegal, and that threatening behaviour should be towards individuals or ANY group of individuals defined by the person threatening.  They should not be defined by category.  Threatening Muslims, Green Party members, real estate agents, golfers, buskers or redheads should all be illegal, enough with the identitarian slicing and splicing people by categories.  Threats should include abuse that is threatening.

Creating a new law against hatred should be abandoned.  Ardern should sack Faafoi and appoint someone competent to be Minister of Justice, and that Minister should send shivers through the Ministry of justice that it dared propose such authoritarian rubbish that is seen in this discussion document.

You have under four weeks to make a submission - you should do it here.  

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.  

New laws on hate speech: Proposal Two, a consolidation of law against threats or another step too far?

 So Proposal One will prohibit publishing, broadcasting or using words in a public place that are threatening, abusive, or insulting to anyone on the grounds of a wide range of factors. It would also prohibit expressions with intent to excite hostility or ill-will against or bring into contempt or ridicule on a wide range of grounds. These grounds include political opinion, ethical opinion and religious belief, all of which should send chills down the spines of anyone who even claims to be remotely liberal.  

Threats and abuse are actions that give rise for concern, but the state does not exist to protect people from being insulted because of what they think.  Likewise, exciting hostility (which is threatening) also gives rise for concern, but ill-will, contempt and ridicule are entirely legitimate emotions against political ideologies, ethical positions and religious dogmatism. Christians should not be protected from Monty Python, which intends to ridicule their religion, but neither should Muslims be protected from Charlie Hebdo. I shouldn’t even have to explain why political and ethical positions shouldn’t be protected.

So what about Proposal Two?

This is where it gets a little complicated, because it proposes to amend one of the Sections discussed in Proposal One by replacing it altogether.

It proposes to replace the criminal provision in the Human Rights Act (S.131) with a provision in the Crimes Act and replace the words “excite hostility, ill will, bring into contempt or ridicule” with “incite” or “stir up” “hatred.  

It would be a crime to:

1. intentionally incite/stir up, maintain or normalise hatred

2. against any group protected from discrimination by section 21 of the Human Rights Act

3. through threatening, abusive or insulting communications, including inciting violence

4. made by any means.

This has a kernel of merit. There should be clear provisions on inciting violence, but it should not be confined to groups listed in S.21 of the Human Rights Act, it should apply to ANYONE. Similar threatening communications should be illegal as it is threatening an initiation of force. 

However, it once again wants to criminalise abuse and insults if the intention is to incite hatred. However, once again, why should there be protection on the grounds of political belief or ethical belief? Why shouldn’t people hate communists, advocates of sex with children or ISIS? What is morally wrong with inciting hatred against groups that advocate violence against others? The obvious question is what about all other groups? Should the law make it a crime to stir up hatred against groups based on immutable characteristics? Most importantly, where does religion fit into this?  Religion is sometimes an identity equivalent to ethnic identity. After all, the divisions in Northern Ireland aren’t really about the source of interpretation of scripture, but a form of tribalism – and such hatred is utterly toxic and irrational. Yet religion itself is a source of power, and ethical and political belief, and so should not be protected from those who hate those beliefs. Dr. Richard Dawkins and the late Christopher Hitchens both regarded all religions will contempt and even hatred, so why should that be at risk of prohibition? Indeed why should similar beliefs by the religious against atheists also be prohibited?

However there is more to this.  How will inciting hatred be interpreted? Is challenging Maori ethno-nationalism going to be seen as inciting hatred against Maori? Is challenging trans-gender activism going to seen as stirring up hatred against trans-gender people?  How much of an incentive is there for protected groups to claim this is exactly what critics are seeking to do?  If the answers to this are unclear, then this proposal should be rejected as well.

I'm all for a clear criminal provision on inciting violence and expressing threats to anyone (of any form of initiated force or fraud), but the idea there should be a law against promoting hatred against groups defined by what members of those groups think, or that it can be used to shut down criticism of what people think because it is claimed to be about their protected status is fundamentally illiberal and unacceptable in a free society.

New laws on hate speech: An honest attempt to protect people or a sinister effort to erode free speech?

As a libertarian my instincts are for the highest levels of freedom of speech. However as with all freedoms its limits lie where they infringe on the rights of others. Libertarians aren’t anarchists, you can’t “do what you want” when it initiates force or fraud against another. As your rights are to be free from violence against you or your property (and your property includes intellectual property and your reputation), then the appropriate limits on freedom of speech are those that violate the rights of another. There are laws on these violations already.

That includes threats of violence, it includes inciting others to inflict violence (including property damage) and includes recording a crime as an accessory to that crime (this covers child pornography and filming rape or someone being assaulted “for fun”). One claim is that the law doesn’t cover threats of violence against groups, but a group is a collection of individuals, and if this is true then a simple amendment of the Crimes Act can be made, with S.174 adding to “person” the words “or group of persons”. S.306-308 also contain provisions around threats that are relevant, so they idea that somehow there is some yawning gap in the law that allows people to threaten others with violence is simply false. 

Is expressing hatred of someone a violation of that person’s rights, or more generally is expressing hatred for a group or class of people a violation of their rights? In and of itself no it isn’t. Hatred has come to be an emotion that the “kindness” state of Jacinda Ardern wants banned, but it is not an emotion without merit. In the right context, it is not only appropriate, but almost a moral imperative. Why would any decent person not hate Fred and Rosemary West, or “Dr” Mengele, or Saddam Hussein? If a defined class of people are waging violence against you or your loved ones, or even complete strangers why should you not hate them? Actual Nazis, the Khmer Rouge, ISIS, Al Qaeda, the Stasi, Japan’s wartime Imperial Army, a mafia family, a criminal gang.  

You don’t have a right to be protected from someone hating you as an individual or a member of a group. Indeed, this is a position held by many people across the political spectrum. Religious zealots hate non-believers, communists hate the bourgeoisie, trans-activists hate those they call TERFs, socialists hate “neo-liberals”, environmentalists hate fossil fuel producers and buyers of large utes, crime victims hate criminals, etc etc. You see hatred of others is a normal reaction to a passionate set of beliefs or a passionate belief in injustice. The issue is when such hatred is expressed as a threat, whether it be a direct threat to imminent violence or an implicit threat of violence or other action to prevent someone going about their lives peacefully. The fear generated by those expressing such threats, and by those touting bigoted views is palpable and contrary to the values of a rational, moral and liberal society.  The question is how to address such threats. Criminal law should protect people from threats of violence, but I’m very cautious about how far to take that. 

So there is hate speech law now, but the Ardern Government wants to go further. The stated purpose is to help prevent a repeat of the Christchurch Mosque Attack, but this hypothesis is questionable at best. Let’s look at the direct purpose of the proposed changes from the discussion document:

The proposals target the types of communication that seek to spread and entrench feelings of intolerance, prejudice, and hatred against groups in our society. All people are equal, and our society is made up of people with many different aspects to their identities. The incitement of hatred against a group based on a shared characteristic, such as ethnicity, religion, or sexuality, is an attack on our values of inclusiveness and diversity. Such incitement is intolerable and has no place in our society.

The idea that inciting hatred against a group based on a shared characteristic that is inherent to those people is certainly an attack on the values of a free liberal society and should have no place in a free society. However, if a shared characteristic is simply sharing an opinion, there that is a whole different situation. You can’t help race, sex or sexuality, but you can help what you think, and what some people think does not entitle them to be immune from hatred.

So the proposal is not about threats of violence, but about communications that are intended (intent matters after all) to spread and entrench (i.e., sustain) “feelings of tolerance, prejudice and hatred”. Now it’s easy to work out what these might be, the problem is what some might think these are. 

Is the column by Karl Du Fresne in the Spectator that talks of “Maorification” one that “entrenches” feelings of prejudice, or is it legitimate political commentary?

How about when Debbie Ngarewa-Packer describes in the NZ Herald NZers as either being tangata whenua, recovering racists and racists? Does that seek to spread feelings of intolerance against non-Maori?

Clearly there is no point asking Kris Faafoi, who doesn’t have a clue as the least qualified Minister of Justice for 13 years. The man's an idiot. Furthermore,  Jacinda Ardern thinks she shouldn’t be responsible for explaining what Cabinet’s decisions on new laws should mean in practice.  The nodding dogs of the Labour left and the Greens are all filing in behind her, so it is better to just read the proposals.  So in this post, I'll look at just one.

Proposal One: Change the language in the incitement provisions in the Human Rights Act 1993 so that they protect more groups that are targeted by hateful speech. Under this proposal, more groups would be protected by the law if hatred was incited against them due to a characteristic that they have.

This is about Sections 61 and 131 of the Human Rights Act. Section 61 prohibits publishing or distributing written matter, or using words in a public place that are “threatening, abusive, or insulting” on the grounds of colour, race, ethnic and national origins. Section 131 prohibits “with intent to excite hostility or ill-will against, or bring into contempt or ridicule, any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins”. 

The Government wants to expand the groups this law “protects” from “insults” or from “contempt or ridicule” far beyond race and nationality. Consider the categories it wants to include:

• Sex (so no jokes about men, or women)

• Gender (no jokes about men who self-identify as women and look absurd)

• Marital status

• Religious belief (so yes that IS Life of Brian. Don’t intend to ridicule religion)

• Ethical belief (so don’t be ridiculing people who think abortion is murder, or who think pornography is good or evil, or that smacking is good practice, or etc etc)

• Disability (including carrying an infection)

• Age (don’t ridicule stupid young or old people)

• Political opinion (don’t bring communists or libertarians into contempt or else)

• Employment status (don’t bring into contempt people who are receiving taxpayers money)

• Family status (which includes “being a relative of a particular person” so you can’t ridicule a husband/wife/partner of a psychopath?)

• Sexual orientation.

Some of these are less objectionable than others, but the idea that there should be a prohibition on bringing into contempt or ridicule people because of their opinions is entirely outrageous.

Intending to bring into contempt any group of people on the grounds of their religious belief will be banned. That’s frankly outrageous. Fundamentalists of any religion should not be immune from insults or being brought into contempt because their beliefs are worthy of contempt.  This is blasphemy law through the back door. It goes further, you can’t ridicule entire groups because of their ethical belief (i.e., blood transfusions are evil, or vaccinating children is evil), nor can you ridicule people for their political beliefs.

This is frankly extraordinary. 

Given the Christchurch shooting was entirely motivated by religious hatred, if the law were to be about change to cover this, it would be simple enough to only prohibit threatening language regardless of the basis because nobody should be threatened.

This proposal alone should cause anyone who believes in liberal democracy and freedom of expression to go cold and simply reject this nonsense. 

To add insult to this, the discussion document assumes that there isn’t a legitimate point of view that outright opposes this proposal. It’s proposed questions are:

Do you agree that broadening the incitement provisions in this way will better protect these groups?

o Why or why not?

- In your opinion, which groups should be protected by this change?

- Do you think that there are any groups that experience hateful speech that would not be protected by this change?

The first question begs the question “protection from what”? From being ridiculed? Is the question ever asked why some groups should be protected from ridicule?

The second question is just “what groups” should this apply to.

The third question is “who else can we protect from being laughed at”?  I can see some saying “fat people, thin people, redheads, blondes, short people, people wearing revealing clothing, people wearing hats, types of occupation, types of recreational activity”.  I mean the list of groups is ENDLESS.

To hell with this Orwellian social-engineering philosophy to “protecting” people based on their opinions. There is a shred of value in asking why sex, disability and sexual orientation are not included in the current law, because those are characteristics that are essentially immutable, but almost every other element listed is a conscious characteristic.  At the very least this proposal will have a chilling effect on humour, but at worst it will make it illegal for me to say communists are either morons or psychopaths, or that Salafist Muslims are stone-age cretins, or that the Green Party are a bunch of loony leftie authoritarian control freaks.

And that’s just Proposal One….

It alone should cause you to make a submission before 6 August (see here for details).

By the way, good on both David Seymour and Judith Collins for taking this on, and also on the left, for Martyn Bradbury, who I scarcely agree with on anything, but he's right on this one.