In spite of Labour’s back-down on 'Hate Speech', the debate looks set to rage on through election year, writes Chris Trotter

By Chris Trotter*

The Labour Government's wholesale retreat from its dangerously exposed positions on “Hate Speech” should be applauded. Had it remained committed to the hardline definitions it trailed before the public a year or so ago, Jacinda Ardern’s ministry would have been condemning itself to a battle it did not need to fight – and could not win.

The truth of the matter is that Labour’s dangerous dalliance with the Woke variant of Hate Speech has served no one but the Act Party, whose staunch defence of Freedom of Expression accounts for much of its impressive increase in electoral support.

One of the most pertinent questions put to Kiritapu Allan, the Cabinet Minister in whose name the watered-down legislation will be introduced, came from The Nation’s Rebecca Wright. What was it, she wanted to know, that prevented the Labour Government from implementing these measures when they were originally recommended by the Royal Commission of Inquiry into the Christchurch Mosque Shootings almost exactly two years ago?

As Wright pointed out, a great deal of political travail could have been avoided by the Labour Government if they’d simply accepted the Royal Commission’s recommendation to extend the already existing legal protections against the incitement of racial hatred to include religious communities. In the evil shadow of the Mosque Attacks, most New Zealanders would not have objected to proscribing the sort of language contained in the writings of the Norwegian mass killer, Anders Breivik, and his Australian disciple, Brenton Tarrant.

Like the legislation outlawing semi-automatic weapons, the protection of religious communities from verbal incitement to inflict serious bodily harm would likely have passed through Parliament swiftly and with a minimum of debate. An issue fraught with all manner of risky political and cultural side-bars could thus have been resolved: the legislated solution being generally perceived by New Zealanders as morally congruent to the problem which called it forth.

The Royal Commission’s recommendations regarding the current hate speech laws were as follows:

1.      sharpening the focus of the statutory language;

2.      adding religion to the list of protected characteristics;

3.      including electronic communications in the types of publication covered;

4.      including the offence in the Crimes Act rather than the Human Rights Act;

5.      increasing the maximum penalty from three months’ imprisonment to up to three years’ imprisonment; and

6.      adding “racial superiority, racial hatred and racial discrimination” to the list of grounds for classifying a publication as objectionable under the Films, Videos, and Publications Classification Act 1993.

With the obvious exceptions of recommendations 5 and 6, the Royal Commission’s suggestions were admirably moderate. After so many false starts, inept attempts at explaining the Labour Government’s thinking, and frightening proposals advanced by some of the more extreme actors in this drama, Minister Allan’s response is no less measured:

Currently, under the Human Rights Act 1993, it is illegal to publish or distribute threatening, abusive, or insulting words likely to ‘excite hostility against’ or ‘bring into contempt’ any group on the grounds of colour, race, ethnic or national origins. Those grounds will now be extended, in both the civil (section 61) and criminal (section 131) provisions, to cover religious belief.

Unfortunately, Ms Allan’s Royal Commission-inspired “solution” is unlikely to be as well-received in 2022/23 as it would have been in 2020. Closer to the tragedy, the manifold problems associated with exciting “hostility or ill-will against”, or, “bringing into contempt or ridicule” any group of persons living in New Zealand on account of their religious beliefs, would undoubtedly have been easier to overlook. Two years on, however, it will not be so easy.

While the average New Zealander might accept the criminalisation of language or behaviour which is intended to – and does – “threaten” faith communities, it is much less likely that they would accept people being criminally sanctioned for “abusing” and/or “insulting” people for their religious beliefs.

It is important to bear in mind as the debate rages over the Government’s proposed changes to the Human Rights Act, that the context out of which the demand for individual freedom of expression arose was first and foremost a religious one. It is one of the most problematic aspects of religious belief that it not only lays down strict rules for one’s own conduct, but also, almost invariably, the conduct of others. When the prize at stake is one’s immortal soul, being required to conform to some other person’s religious beliefs quickly assumes the character of an existential threat. People will kill their fellow human-beings for a whole lot less than their billet in eternity.

How would New Zealanders respond to the news that the state legislatures in the USA had passed laws making it illegal to excite hostility against or ridicule of the Christian religion? Would they consider that a necessary legal protection? Or would they condemn such a law as an outrageous curtailment of Americans’ freedom of expression? Unhappy with hypotheticals? Well then, what is the response of most New Zealanders to the sentences of death imposed upon those who insult the Prophet Mohammed in Muslim countries? (Or, in the case of Salman Rushdie, from well outside Muslim countries?)

On the questions of how best to save one’s soul, the liberal-democratic state has learned, usually by the hardest of ways, to take itself out of the conversation. It willingly grants its citizens the right to believe in all manner of deities, with all manner of strict rules and regulations concerning their worship, but it does not attempt to enforce the exemption of those same citizens from all manner of criticism, insult, and ridicule. Although the New Zealand state had not prosecuted anybody for a very long time for the crime of blasphemous libel, it nevertheless thought it appropriate to remove the offence entirely from its statutes. By what curious logic, therefore, does it now propose to reintroduce it under the cover of the Human Rights Act?

Significantly, the National Party has signalled its unwillingness to accept the extension of the Human Rights Act’s protections to include religious belief. Their argument, like Act’s, is that such an extension would constitute an unwarranted curtailment of New Zealanders’ freedom of expression. Labour faces a united Right on this issue, and with it the guarantee that the Free Speech versus Hate Speech debate will feature prominently in the run-up to the 2023 General Election.

As if that wasn’t bad enough, Labour also faces a year of angry protest from its left. Woke New Zealand (among whom we must include the leading lights of the Human Rights Commission itself) is outraged that Minister Allan and her colleagues have not extended the protection of the Human Rights Act to women, the LGBTQI community, and the disabled.

Contemplating the coming months of rancour and rebuke, Rebecca Wright’s question about why the Prime Minister and her government didn’t strike this particular wedge of iron when it was still red hot, only grows more pertinent – and the Government’s answer, all the more puzzling.

*Chris Trotter has been writing and commenting professionally about New Zealand politics for more than 30 years. He writes a weekly column for interest.co.nz. His work may also be found at http://bowalleyroad.blogspot.com.