Criminalising hate speech: New Zealand considers policing hateful expression.

1556500597354Manawatu Muslim Association president Riyaz Rahman says there is still work to be done on curbing hate speech.

Last year, a human rights taskforce was assembled to tackle what authorities considered was a growing issue.

Anecdotally, hate-motivated speech and acts were on the rise. Around three in 10 Kiwis reported viewing abuse online. In the real world, there seemed to be more reports of incidents – a beer can and an abusive tirade hurled at a Muslim woman here, an attempted racist assault there.

Staff from the Human Rights Commission (HRC), Netsafe, and UNESCO began meeting with researchers and Government departments in an attempt to understand if New Zealand’s hate speech laws were strong and relevant enough in an age of cyber-abuse and rising online tribalism.

Proponents of free speech were incensed. The public conversation swirled.

The taskforce quietly disbanded.

“We dropped the work,” says distinguished professor Paul Spoonley, of Massey University, who wrote a briefing paper for the group last year. “There just seemed to be no public appetite for change, and we didn’t think we’d get anywhere.

“Then, March 15 happened.”

The terrorist attacks on two Christchurch mosques, in which 50 people were killed, have brought questions of whether New Zealand is doing enough to legislate against racial and religiously-motivated attacks to the fore.

For those in minority advocacy groups, and the Human Rights Commission, the answer is a clear no.

Justice Minister Andrew Little has signalled his agreement, telling Stuff in March he would fast-track a review of the existing legislation governing hate speech – primarily the Human Rights Act and the Harmful Digital Communications Act.

He would also consider sections of the Crimes Act, and did not rule out establishing “hate crime” as a separate offence, as it is currently in the United Kingdom.

Opponents, including ACT MP David Seymour and conservative think-tank the Maxim Institute, say free speech is a basic tenet of democracy and any hasty tightening of the law threatens to trample that right.

The right to freedom of expression is enshrined in the Bill of Rights Act. But should that overshadow people’s right to be safe? And where’s the line?

‘A gauge of our society’

?It’s 12.30pm in Palmerston North, and the door of the local Islamic Centre is wide open. Outside, Anglican priest Reverend Andy Hickman scoffs a samosa from the nearby halal dairy as he talks to Manawat? Muslim Association spokesman Zulfiqar Butt.

Since March 15, the association has been floored by the community’s empathetic response. Butt scrawls through his phone, displaying pictures of rows after rows of flowers left by locals outside the mosque.

But, president Riyaz Rahman says, there is still work to be done. While most people are supportive, there have been hate-motivated incidents, too – such as a swastika-clad man loitering outside the mosque and a taxi driver who was racially abused and called a terrorist.

The association, along with its umbrella organisation the Federation of Islamic Associations of New Zealand (FIANZ), thinks more needs to be done to monitor the spread of hate. They are advocating for hate speech laws to be clarified, and want police to begin routinely recording hate crimes at the very least.

“It is mainly to gauge the state of our society. Sometimes we think we are living in a very harmonious society but these things exist, and we need to know how big the issues are,” Rahman says.

“I think the freedom of expression that we have does not allow for hate to be curbed. Sometimes we’re not able to identify the problem – there needs to be a line drawn somewhere so we know what is what.”

Currently, “hate crime” is not a specific offence in New Zealand, and incidents are not recorded.

This is in stark contrast to countries such as Germany, the United Kingdom and the United States, where departments such as the Home Office and the FBI gather and publish annual statistics on hate crime and agencies exist to deal with this alone.

Since 2002, hostility against someone on the basis of a “common characteristic” – race, nationality, religion, gender identity, sexual orientation, age, or disability – can be considered as an aggravating factor in sentencing. Essentially, the penalty can be harsher if it has been proven the crime was motivated by hatred. But it’s unclear how often this is used, as the data is not collected.

Police also have the ability to note when they believe a crime is hate-fuelled. But this isn’t mandatory or routine either. And, while the ethnicity of the perpetrator is recorded, that of the victim is not.

Take the incident of April 10 in Christchurch, where a man in a Trump t-shirt allegedly hurled abuse at members of the Muslim community gathered at Masjid Al Noor on Deans Ave.

Two armed police were present, but did not arrest the man. He was arrested the next day, and charged with disorderly behaviour. Canterbury police district commander Superintendent John Price later said he should have been arrested at the scene.

In terms of statistics, there is no way of differentiating this from any other offence.

The Human Rights Commission and ethnic minority groups have been calling for this to change since at least 2016, saying there would be a way of police recording hate-fuelled crimes through their own processes, without it needing to be established as a separate offence under the Crimes Act.

The HRC’s chief legal advisor Janet Anderson Bidois says police could alter their recording systems without needing a law change. “We need that front end data, and these are discussions that need to be had quickly.”

But others think more specific legislation is needed. FIANZ spokesman Dr Anwar Ghani says hate crime laws such as those introduced in the United Kingdom are long overdue.

If attacks based on a victim’s religion or race were expressly outlawed, people would feel more confident to report to police, and police to make arrests, Ghani says.

“A lot of people, because there’s no law, think there’s nothing that can be done so they don’t come forward. A number of our members have been subjected to physical and verbal abuse, but they’ve thought as a new immigrant to this country they’ve just got to get through this.

“It’s more prevalent than we would like to think.”

Police would not be interviewed for this story. In a statement, a spokeswoman said they were “engaged in ongoing conversations” with community leaders and representatives about how police record allegations of hate crime and crimes of prejudice. They were set to review policy on collecting ethnicity data for victims.

What about hate speech?

“Most New Zealanders don’t know what hate speech is, because they don’t encounter it,” says Spoonley, who has been studying it for years, alongside the evolution of the alt-Right.

Technically, the Council of Europe says it covers: “All forms of expression that spread, incite, promote, or justify racial hatred, xenophobic, anti-Semitism, or other forms of hatred based on intolerance.”

Distinguished Professor Paul Spoonley wants to see a public debate about hate speech, and social media platforms held to account.DAVID UNWIN/STUFF  Distinguished Professor Paul Spoonley wants to see a public debate about hate speech, and social media platforms held to account.

In New Zealand, many argue the laws are not specific enough.

The main legislation covering “hate speech” is the Human Rights Act (HRA) and the Harmful Digital Communications Act (HDCA).

Section 61 of the HRA prohibits the “incitement of disharmony” on the basis of race, ethnicity, colour or national origins. But the HRC has long called for its review, saying it has major omissions – currently, it doesn’t not cover hate for reasons of religion, gender, disability or sexual orientation.

The HRA is a civil law, not a criminal one. Cases can be resolved through mediation or taken to the Human Rights Review Tribunal – but with a current backlog of cases, this would be lucky to be heard within two years.

And the threshold is high. The most recent high-profile case concerned controversial cartoons published in The Press and The Marlborough Express in 2013, which featured negative depictions of M?ori and Pacific people.

MP Louisa Wall complained the cartoons, which portrayed M?ori and Pacific as welfare bludgers and negligent parents, were “insulting and ignorant put-downs.”

The tribunal ruled while the cartoons may have “offended, insulted or even angered”, they were “not likely to excite hostility against or bring into contempt any group of persons in New Zealand on the ground of their colour, race, or ethnic or national origins”. Wall also lost a 2017 High Court appeal.

Justice Minister Andrew Little.ROBERT KITCHIN/STUFF Justice Minister Andrew Little.

Hate speech is also restricted by the Harmful Digital Communications Act, which made cyber abuse a crime in 2015. For a successful prosecution, it has to be argued the material caused serious emotional distress to the victim.

This means comments like those made by rugby superstar Israel Folau – who posted on Instagram that hell awaits “drunks, homosexuals, adulterers, liars and fornicators” among others unless they repent – would fall short of breaking the law.

“It’s pretty offensive to much of the population, but that in and of itself is not an offence,” Netsafe chief executive Martin Cocker says. “We would prefer if people weren’t offensive, but we wouldn’t expect to see them prosecuted for it. We would expect to see them prosecuted for causing harm. We need to have thresholds that are consistent and enforceable, and it is important to protect free speech.”

While critics say “serious emotional distress” is too high a threshold, Cocker says the law is operating “pretty much as we hoped it would.” Netsafe deals with complaints that are not prosecuted, through mediation and helping the victim to have the content removed by a court order.

“It’s giving people a service they can access that is massively effective, and police are making prosecutions under the act.”

‘You have to ask, is it even working?’

Spoonley says the wording of our HRA is generally considered to be world-leading. The main issues are the omission of religious identity, disability, and gender and sexuality from Section 61. “It needs to be extended to other victims of hate speech.”

There are also questions about how useful it is in practice.The fact that the last successful prosecution under the act was in the late 1970s – for two neo-Nazis who were distributing anti-Semitic materials – suggests it’s rarely used, Spoonley says.

“You have to ask, is it even working?

“Our free speech environment is very permissive, which is partly because we haven’t really experienced the politics of the far right.”

Spoonley would like to see a debate about expanding Section 61 and whether the current legal framework is up to task, what the severity test is, and who makes the decisions.

“I do think the severity threshold needs to be quite high, you don’t want people who are offended to be laying complaints all the time.”

This is a concern promoted by proponents of free speech, like ACT MP David Seymour. He says the idea of any more restrictive laws are “terrifying” for democracy.

“Freedom of speech is a value in itself, being able to freely express ourselves is what it means to be human. Not only does it have an intrinsic value, but it has a practical value in that it allows us to solve problems and think of other ways to do things.

“When you think of social movements – how would feminism have happened if we didn’t have freedom of expression? And how do you define hate – are you not allowed to say things that other people find offensive?”

Both Seymour and Spoonley point out we already have all kinds of limitations on speech – defamation laws, the HDCA, and industry bodies like the Media Council and the Broadcasting Standards Authority.

But while Seymour considers these to be more than enough, Spoonley says it makes no sense to leave hate-fuelled discrimination out of the conversation. “I’m puzzled as to why race and religion should be treated any differently.”

Spoonley would also like to see social media platforms held to account.

In Germany, which has experienced the rise of hateful ideas, there are strict regulations – a law introduced in 2018 requires Facebook and Twitter to remove “obviously illegal” hate speech from its sites within 24 hours of notification or they can be fined up to €50 million ($84m).

“As a country, we are only really starting to think about what we require of these platforms.”

In the coming months, the Ministry of Justice will report back to Little on what might need to change.

The details remain murky, but in the aftermath of March 15, hate speech is now clearly back on the agenda.

Criminalising hate speech: New Zealand considers policing hateful expression

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