See also: Hate-speech-and-hate-crime-related-legsilation-Companion-legal-paper which shows this Governments directional changes since the Human Rights Commission paper a year ago.
In July 2017, the Human Rights Commission issued a report recommending that “disharmonious speech” directed at religions be criminalised in New Zealand.
The suggestion was generally dismissed as being little more than ideological posturing – something far too threatening to our fundamental rights of free expression, and too sophomoric in its objectives to be given any currency. Indeed, over time, even its most aggressive advocates seemed to slink away from supporting the recommendation.
However, the just-released report of the royal commission into the Christchurch terrorist attack has shown that there is still a desire lurking in some corners for such restrictions on speech to be implemented.
The commission has resuscitated the notion of disharmonious speech, and has urged that the Government should repeal section 131 of the Human Rights Act 1993 “and insert a provision in the Crimes Act 1961 for an offence of inciting racial or religious disharmony, based on an intent to stir up, maintain or normalise hatred, through threatening, abusive or insulting communication with protected characteristics that include religious affiliation”.
Criminalising “hate” might be superficially seductive, but should this amendment to the Crimes Act be passed, the repercussions will be chilling. Unlike other prohibitions, such as exceeding the speed limit, theft, and so forth, there will be no precise definition in the legislation as to what constitutes disharmonious or hateful speech, and where the threshold of criminal speech lies.
Instead, it will be determined on a case-by-case basis, with the accused knowing whether they have broken the law only at the moment they are convicted.
No jurisdiction in any country has yet delivered an unambiguous definition of hate speech. Instead, it will be treated like the United States Supreme Court Justice Potter Stewart defined obscenity in 1964: “I know it when I see it.” The vagaries of judicial intuition hardly seem like a solid basis on which to convict New Zealanders.
Crucially, it is not “hate” directed against people that will be targeted by this recommended amendment. Rather, it will be hate targeted at religious beliefs that will attract penalties.
Criminalising those who might insult a religion is a frightening prospect. It has the potential to stifle opinions and discussion, and increase misunderstandings about people’s faiths. Instead of honest examinations of religions, the ensuing climate of caution will merely prop up and perpetuate creedal caricatures, with only the brave or unwise few prepared to probe and challenge them.
There is something fundamentally infantile in trying to build a legislative wall around a belief system, as a means of shielding it from criticism. What if the tenets of a religion deserve ridicule or contempt?
Should we be free, for example, to direct our hate towards those pagan Norse religions that practised ritualised rape – or would such criticism be an incitement of religious disharmony? And what if a religion preaches some form of racism? Surely, stirring up contempt for such beliefs should almost be obligatory.
Of course, it is naive in the extreme to believe that “hate” can be mitigated by laws. Criminalising hateful views does not extinguish them. On the contrary, anyone with even a passing knowledge of history will be aware that prohibition simply drives opprobrious opinions underground, where they become transfigured, and then emerge in newly codified forms that camouflage their hate and consequently make them much harder to tackle.
The liberty to hold our own opinions, to debate them openly with others, to change our views, and to chisel out some truth from it all, is one of the great inheritances of the Enlightenment, and has been one of the most potent weapons in centuries of campaigns to achieve social justice (the abolition of slavery, the civil rights movement in the United States, and the anti-apartheid movement in South Africa are all examples where disharmonious speech directed at systems of belief led to millions of people’s lives being improved).
Make no mistake, there is something deeply sinister in the plans to criminalise speech according to a definition that no jurist can even define with sufficient precision.
And if what’s past is prologue, the recommended changes to the Crimes Act will have a suffocating effect on the free expression of honestly held views.
- Paul Moon.
Response from the Human Rights Commission:
With respect, the Human Rights Commission did not recommend that “disharmonious speech” directed at religions be criminalised in New Zealand, as Dr Moon contends above. In our 2017 report we recommended the Government review the adequacy of legislation in addressing and sanctioning hate speech and incitement to racial disharmony, including disharmonious speech targeted at the religion and beliefs of ethnic minority communities; and following that review, make any changes necessary. The commission is yet to state any formal position on changes to the Human Rights Act beyond providing a resource with an overview of the legal framework on hate speech in 2019.