Why There Won’t Be a Culture War over Free Speech

Sunday’s announcement by Justice Minister Kiri Allan about forthcoming legislation on hate speech has sparked concerns that the country is headed for a second round of culture wars over free speech. As one journalist states today, Allan is “reigniting last year’s political firestorm”.
 
Some have suggested that Labour are about to make another attempt – after former Justice Minister Kris Faafoi had earlier put the hate speech law proposals on ice – to push through divisive and controversial legislation. Campaigners against hate speech have expressed their gratitude for Allan’s announcement, while free speech campaigners have warned that they are ready for a big fight.
 
The reality is likely to be much more prosaic – instead of Labour implementing far-reaching and radical reforms on speech regulation, Kiri Allan can be expected to simply make some tweaks to the current laws. Allan and Labour will be hoping a minimal or watered-down approach will satisfy those calling for hate speech to be suppressed more vehemently.
 
The background to the current hate speech law reform
 
The Labour Party has long been keen on tightening up laws on hate speech. And advocates for tighter rules on speech, such as the Human Rights Commission, have campaigned for government action.
 
But it was the 2019 Christchurch mosque attacks that resulted in 51 deaths that initiated the current reform programme. The subsequent Royal Commission of Inquiry recommended 44 changes, including reform of hate speech laws. The Commission report complained that the current laws do not “provide a workable mechanism to deal with hate speech”.
 
The Government agreed to implement these, with Minister Andrew Little being responsible for overseeing the response to the Commission report.
 
There are a number of possible areas that hate speech campaigners want changes on. The most basic reform is to adjust which groups in society should have legal protection from hate speech – i.e. what forms of speech can be criminalised. At the moment, hate speech laws only target discrimination on the basis of race, ethnicity or national origin. Religion is the most obvious missing category, with others also calling for gender and gender-diverse groups to be specified as needing protection from hate speech.
 
The Government has previously been keen to go much further than simply adding religion and gender to the groups to be protected from hate speech. There is an argument that the current definition of hate speech in the law makes prosecutions too difficult, because the threshold for the courts to convict is far too high. And as evidence of this, there has been only one prosecution for hate speech in the last three decades. The Royal Commission argued that the current law “does not provide a credible foundation for prosecution”.
 
The Labour Government therefore attempted last year to implement a thorough reform of hate speech laws, with the notion that the current rules are “not fit for purpose”. But what they proposed was full of serious problems, and produced a backlash.
 
This was most vividly exposed when both the Prime Minister and Minister of Justice were unable to explain the reforms to the public. Labour politicians couldn’t promise that the reforms wouldn’t lead to prosecutions for examples such as young people blaming the “Boomer” generation for monopolising housing wealth.
 
The moderate, watered-down fix on hate speech
 
There really is no chance that Labour wants to spark a culture war on free speech as it’s about to go into election year. It’s quite the opposite – the Government has an interest in getting this issue off the agenda as quickly and quietly as possible. As many commentators have rightly pointed out, a big debate about Government clamp-downs on political speech would not go down well in an election year.
 
It’s not surprising, and quite telling, that Labour is talking about wanting to obtain National’s support for their legislative changes. It points strongly to the likelihood that Labour has been developing a very moderate, or watered-down, fix for the hate speech problem.
 
The Prime Minister is reported as wanting to introduce “a slimmed down reform package” that National could support. As Newsroom’s Marc Daalder argues today, “To get National’s support, the reforms would have to be dramatically different from what was proposed last year.”
 
There are some clear signs that Labour wants to just focus on fixing the omission of religion from the current hate speech laws, with the PM saying: “I would have thought that amongst politicians there should be good support for saying, actually, you should not experience hate speech and incitement based on your religion. It’s a fairly simple concept”.
 
Ardern also told media this week that the Government is only aiming at minimal change: “Where there were issues last time was because there were other amendments around some of the thresholds in language that caused some concern, but let’s get back to our first principles on this one.”
 
It seems obvious from such statements that the upcoming reforms will simply add religion and gender to the list of protected groups, but won’t involve more radical changes to definitions of hate speech. We might also expect that the Government could modernise the legislation to take into account digital communication, and this is also likely to be uncontroversial.
 
The backlash from advocates of strong laws on hate speech
 
Justice Minister Kiri Allan made her announcement of hate speech reform this week on TVNZ’s Q+A, saying “I can make this promise to you, I will be making announcements on hate speech by the end of this year” and “I guarantee I will be introducing law I intend to have concluded and put into law by the next election”.
 
Allan had good political reasons for making this statement, and for keeping the details under wraps. The Government is under pressure to fulfill their promises for reform in this area, and this week the Government had to front up to the second He Whenua Taurikura hui on counter-terrorism and violent extremism, where they knew that would be challenged on this issue. Therefore, a pre-emptive announcement was necessary for this audience, as well as for the Labour Party conference this coming weekend.
 
Andrew Little is also under strong pressure from the Kapuia advisory group that he has established to consult with the Government over implementing the Royal Commission recommendations. The chair of Kapuia, Arihia Bennett, has made numerous complaints to Little about the Government’s “lack of clarity, a lack of funding or a lack of observable progress” in dealing with issues like hate speech.
 
Other voices for reform such as political commentator Morgan Godfery and Race Relations Commissioner Meng Foon have been demanding radical changes on speech regulation. Foon has accused the Government of “dragging its heels” on the reforms and saying that this was allowing “hate allowed to fester”.
 
Advocates of a much more radical clampdown on political speech are likely to be extremely disappointed by what the Government eventually announces. If the National Party is able to sign up to a minimal change to the legislation, the Green Party and others will almost certainly feel aggrieved that the Government isn’t taking a more radical approach, and Labour might well be accused of capitulating to the free speech brigade.
 
So although some are expecting free speech advocates and maybe even the National and Act parties to come out fighting against Labour’s upcoming reforms, it’s much more likely is that the advocates of radically-tightened laws on speech will have more cause to revolt against Labour’s mild changes.