Graham Hill
MA (Hons) LlB (Hons).

In mid-March when COVID-19 was imminent, our Minister of Justice stated that the ‘hate speech’ legislation was to be brought forward. Ideas for legislative change have existed since 2017 but the impetus for action arose due to the mosque shootings on the 15th of March last year.   

On one hand, amending sections 61 and 131 of the Human Rights Act 1993, to capture religious discrimination with the statutory present tests, and with the objective tests in Wall v Fairfax New Zealand Ltd [2018] NZHC 104, is not controversial. On the other hand, ‘Hate crime’ offences on the English model of the Public Order Act 1986 (UK) are.    

Contrary to earlier statements in 2018 and 2019 on the need for open discussion, public debate and data (on hate crimes), the senior clerisy (meaning: “Learned or literary people regarded as a social group or class” Oxford Dictionary) of the Ministry and the Human Rights Commission deemed that this would be done without public consultation.

No public consultation is on the grounds (according to the Chief Executive Officer of the Ministry), of not wanting matters “derailed”.

It is an elitist and paternalistic approach and one that was seen gurgling away in the Brexit debate.  

Few have commented on the non-consultation. Other pieces of legislation have been similarly passed with little comment. The Law Society and its specialist committee have to date been silent.

One of the few to speak out was Chris Trotter in his Daily Blog article of 21 February 2020, that wisely says:

“Building trust and amity between peoples is achieved by starting conversations- not by shutting them down.”    

Golriz Ghahraman, in Pantograph Punch – Freedom of Speech and Its Limits  has also stated that public debate is necessary:

It’s vital that the public is involved in a conversation about what speech meets the threshold for being restricted, and what mix of enforcement tools should be used …”

“Derailment” can be read as a euphemism for avoiding either disagreement or a process tested by public transparency. There will also be concern that there might be protests – formerly known as the right of assembly.

The approach leans towards the UK deference to “experts”, which is also a rhetorical device to forestall debate. In Court, expert testimony is invariably met by opposing expert testimony. 

Experts and their opinions are not politically value-free. Nor is there one “EXPERT” position. Experts are not an unimpeachable neutral moral force beyond public scrutiny when it comes to policy implementation. It is a political matter.

The same goes for the now in vogue elevation of ‘evidence’ as “the evidence” – which is not an on-high truth, but an object of interpretation. 

It is simply a rhetorical appeal to the fallacy of “higher authority” to deflect contradiction. 

The “weighing” that the Ministry says it is involved in, is not a public service issue. It (the public service) is not the moral guardian. It is a matter of political judgment.

Political judgement ought not be devolved to unelected experts.

If dissent and questioning is excluded and policy that emerges becomes law without public input, then we are no longer part of the Demos (meaning: a group of experts who provide advice and ideas on political, social or economic issues). It is “Black Box Democracy”. In simple terms, the inner workings remain a mystery to any outside obesrver).

Stalin’s Trofim Lysenko, who caused millions to die from starvation because he was an expert who wasn’t and expert, is a warning of expert fallibility once on top politically.

The Ministry’s approach is a Nanny State ‘Master Class in Maternalism’ and the short form paternalistic message is: 

“We know what is best for the ‘Common Good’” and “We won’t hear a word against it.”   

A debate is avoided because the moral clerisy, as shrinking violets, might find the “discussion”,  the “conversation”,  disharmonious — uncivil even — and of ‘horrid disagreement’ and thus ‘hateful’, but public debate should be ‘abrasive’.

Worse, the door is closed to robust and frank discussions on hate crimes, especially in determining what speech is ‘hateful’. This leads to the risk of politically weaponising state agencies to curate, cleanse and shut down unwelcome opinion.

The outcome of the Ministerial ‘chinwag’ does not appear from my inquiries and research to be heading to a Select Committee.  

The Human Rights Commission on the 13th of December 2019 published a paper on hate speech called Korero Whakaruhora – Hate Speech. It was put up as guidance for public discussion. But there has been a sharp u-turn from December.  The paper cites overseas legislation and several UN reports by its Special Rapporteurs. The legislation is seen by some UN writers as a last and serious step. The Human Rights Commission has failed to provide an evaluation of the pros and cons to inform a debate. There is not a ‘skerrick’ on the efficacy of hate speech legislation, and no reference to books by Nadine Strossen or Russel Blackford, where the non-efficacy of hate speech legislation has been noted.  

In the UK and the US for example, hate speech laws have ended up prosecuting the minorities it was supposed to protect. There is a naïve and paternalistic view that minorities are somehow exempt from expressions of racism and hate speech. Then there is police overreach where heckling can be prosecuted: R v Choudhury. The Commission’s guidance is of less value than it could have been.

Some UN reports desire to maintain the primacy of free speech. The UN has sought to do so by the Rabat Plan of Action and how Article 19 (3) is to be used and by evolving tests to safeguard free speech. There is literature on non-legal ‘bottom up’ social means to confront hate speech: counter speech, resilience and education whereby mores that form common sense truisms then shape the dominant social moral discourse.  Most people know that racial and sexual prejudices are not good things.

It is not for politically motivated prosecution and departments of state to cleanse and sanitise the polity of what it thinks is unacceptable or discordant speech.      

Debate risks being socially constrained in the name of therapeutic politics — a Woke fetish — as seen in the superficially well-meaning slogan “Be Kind”.  It puts off, circumscribes, displacing contestability and open argument by dissolving them into a syrupy solution of euphemisms of ‘civility’, ‘caring’ and ‘being kind’.

The unkind disagree and rock our boat. But equally the therapeutic risks slippage by defining pejoratively ‘disagreement’, ‘divisiveness’, ‘disharmony of ideas’ and ‘abrasion’, and in seeing debate as heresy that falls under the moral sledgehammer of “hate”.

Hate speech is foremost a colloquial and political term.  Its use in political discourse involves a sleight of hand to gain assent. “Hate” is a moral prejudgment, and thus politically loaded and primed. 

The Free Speech Coalition in its 31st of March 2019 Press Release defined the term “hate” extremely well:

The term ‘hate speech’ is deliberately extreme.  It has been designed to prejudice discussion.  It exploits the decency of ordinary people.  How could anyone not oppose ‘hate’?  …  Overseas examples often just give authorities the ability to say ‘it means what they say they want it to mean from time to time.

The US use of “lawfare” in US v Concorde Management to shut down speech is ominous, as is our government’s action in declining public debate on disharmonious speech.

I see the hate speech modelled on the UK Public Order Act 1986 as a parallel to promote lawfare. The UK experience of shutting down criticism of trans gender pronouns has more the look of punishing heresy.  

Hate speech is an extreme and loaded moral term which censors (and leads to self-censorship) language and impinges on other protected rights (freedom of conscience) by the risk of prosecution. If the definition of harm and upset was to extend to discord disharmony we would seem to be on a slippery political slope towards one particular political outlook that holds social relations as being based on oppressors and oppression fuelled by identity politics.  

Freedom of speech relates to freedom of conscience and thus to the dignity of the person. We have already had an incidence of Police in New Zealand inquiring of people’s thoughts in 2019 and it is not for prosecutors to lay politically oriented charges.  Without open discussion or details on the ambit of any change, we do not know what is currently happening with the existing legislation or even if a new Act based on the UK Public Order Act 1986 has been created. Hate crime on the UK model is a fraught concept jurisprudentially and is open to abuse politically.  

The normal legal battles and prosecution, which can and do carry stigma and life consequences, are bad enough. Not everyone has access to justice, despite the fiction that we do, to clear one’s name. The weighing of concerns is difficult. The difficulty rather points to the need that open debate is required, and not in camera chinwags with experts and public servants.

But not airing the issues even at the risk of disagreement and not getting assent of the Demos is more of an evil. To proceed otherwise is to commit a Rousseauan error.

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