Bryce Edwards
democracyproject.nz
Dr Bryce Edwards is Political Analyst in Residence at Victoria University of Wellington. He is the director of the Democracy Project.
Whenever governments attempt to regulate political speech and activity, the results often end up being problematic and potentially harmful to democracy and debate. Regardless of how good the intentions, such reforms often bring complications, confusion, and unintended ill-effects. That means any laws around “hate speech” need to be extremely clear and well thought out.
Unfortunately, this simply isn’t the case with the Government’s new proposals. This has been made obvious over the last few days by both the Prime Minister and Justice Minister in their botched explanations of the reforms in interviews. It seems neither have a good understanding of their own reforms, and their statements suggest that the proposed laws might have a chilling impact on society and political activity.
The Government’s own goal in selling the reforms
Justice Minister Kris Faafoi gave an interview on Saturday in which it was apparent that he wasn’t up to speed on what his rules would do, and he wasn’t willing to properly discuss their outcomes – see Dan Satherley and Tova O’Brien’s Could Millennials be jailed for hating on Boomers? Kris Faafoi answers tough questions about the new hate speech proposals.
In this interview, the Minister was presented with several real and hypothetical cases of speech that might be offensive, to help the public understand in what circumstances the new rules would lead to criminal prosecution. One example was younger generations hating older ones because of the way they’ve influenced politics to gain a monopoly on house ownership. Kris Faafoi admitted that “potentially” a prosecution against such activists could occur.
Another example was the anti-homosexual statements of rugby player Israel Folau, who the Minister said might also be prosecuted if the reforms were in place. Generally, however, Faafoi expressed an unwillingness to clarify what would and wouldn’t be subject to prosecution under his rules.
Prime Minister Jacinda Ardern was interviewed on the AM Show yesterday, and attempted to defend the proposal. But she got a number of details wrong. This is explained in Tova O’Brien’s must-read evisceration of the Prime Minister’s performance on this issue – see: Jacinda Ardern has misled the public and shut down debate on hate speech laws. She describes the PM’s interview as “the most magnificent own goal”.
O’Brien goes through all the aspects that Ardern got wrong in the interview. Here’s her opening paragraph:
“Jacinda Ardern is wrong about her own hate speech law. Completely and utterly wrong. Not only is the Prime Minister wrong about the basic facts of the proposal, she was wrong to shut down debate on hate speech on The AM Show this morning with her glib, inaccurate dismissals.”
She asks how the new hate speech laws would be enforced if even the politicians can’t understand them:
“The Prime Minister and Ministers develop policy and set policy directions for law. If they don’t understand the policy direction and intent of the law, how can they expect the judiciary to interpret and apply the law?”
O’Brien also pushes back at Ardern’s insistence that hypothetical questions about what will and won’t be classified by police as unlawful hate speech are not possible, saying:
“to help us understand the implications of the law change, we need to understand when it could be applied. Using a range of examples is one way to achieve that. It is on the government to be clear about how the law could be applied and so far the Prime Minister and her Justice Minister are completely at odds.”
The Herald’s Audrey Young has also been highly critical of the lack of understanding of the proposals shown by Ardern and Faafoi, as well as their reluctance to discuss hypotheticals – see: Jacinda Ardern gets it wrong on hate speech proposal (paywalled).
Young says Ardern “said that it was not the job of the politicians to decide what a court would or would not decide. That is not good enough for a law which embodies a potential collision of rights, the right to live and participate freely and the right freedom of expression. The detail matters hugely. She and Faafoi would have a much better chance of persuading the public if they a) got the facts right, and b) were prepared to discuss hypothetical examples so the public had a good idea of what is intended by the proposals”.
Faafoi’s inability to clarify examples of unlawful speech has also been criticised by Act leader David Seymour, who points out that this reluctance will ultimately make it more difficult for the judiciary in dealing with the new laws – see Dan Satherley’s Act’s David Seymour slams ‘out of his depth’ Kris Faafoi on hate speech proposals.
Here’s Seymour’s main point:
“When interpreting the law, courts often look to speeches from the minister responsible to see what Parliament really intended a law to mean… They won’t get any help from Kris Faafoi, who couldn’t answer what speech was likely to face prosecution… That’s because he can’t say”.
Seymour also makes a useful point about the difficulties with this sort of policing of speech:
“Hate speech is subjective and politicised. Faafoi knows Police will end up facing pressure to prosecute people with unpopular views.”
Legal commentator Graeme Edgeler is also concerned about the Government’s stance against hypothetical questions like those posed by Tova O’Brien, saying:
“The most obvious concern is that the Government has not been clear about what it thinks the law will actually ban, and worryingly the Minister of Justice doesn’t seem to think he has a role in deciding what types of things this law would make illegal, nor more importantly, what types of things it would not make illegal”
– see: The Government’s proposed decriminalisation of racist hate speech.
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