Policing hate: What are the proposed changes and will they make a difference?

When Tarrant toured Europe he only saw the public face of Islam, faithful Muslims following the koran, terrorising and beheading the Jews and Christians as Mohammad had commanded them to. But what he didn’t see was the tens of thousands of Muslims who leave Islam after getting an education and reading the koran for themselves for the first time. It’s not what their imams tell them it is, so they go to the earliest sources, which are also not what they are claimed to be. So they try and go to the earliest Arabic text, then they have to decide which rasm… As their leading scholars say, the narrative has holes in it, their emperor has no clothes on. So now, we are not allowed to talk about the truth, because it may hurt peoples feelings, and the imams will be out of work.

Many are concerned hate speech laws and new hate crimes will infringe on rights to freedom. But experts says it’s possible the recommendations don’t go far enough, and there’s little suggestion teenagers will be criminalised for silly tweets. National Correspondent Katie Kenny reports.

The Government has promised to improve and amend hate speech laws, and create new, hate-motivated offences in the wake of the March 15, 2019 terror attacks.

However, nothing will be done without widespread consultation, Prime Minister Jacinda Ardern has said. Meaning it’s fair to ask whether anything will be done at all.

On Tuesday, the Royal Commission of Inquiry made public its 44 recommendations, including the need to make sure legislation relating to hate speech and crime is fit for purpose.

The commission found the current laws “neither appropriately capture the culpability of hate-motivated offending, nor provide workable mechanisms to deal with hate speech”

The proposed changes

Currently, hate crime isn’t a standalone offence in New Zealand. What’s commonly referred to as a hate crime is an offence that’s been motivated by hostility, which is considered an aggravating factor under the Sentencing Act 2002.

The commission recommended the creation of new, hate-motivated offences in the Summary Offences Act 1981 and the Crimes Act 1961 and hate-motivated offences for assault, arson and intentional damage that correspond with existing offences in the Crimes Act.

It also recommended changes to current hate speech laws, which are confusing and rarely used.

In short, the changes would see the legal language “sharpened” and religion added to the list of protected characteristics. They would also repeal and replace the section in the Human Rights Act 1993 relating to racial disharmony with a new, equivalent offence in the Crimes Act.

But unlike hate crime (such as a hate-motivated assault), hate speech is not always so obviously illegal. The line between legitimately criminalised hate speech and a vigorous exercise of the right to express opinion can be blurry.

New Zealand’s Bill of Rights Act 1990 says everyone has the right to freedom of expression, “including the freedom to seek, receive, and impart information and opinions of any kind in any form”. This right is limited only by, “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.

Of course, one person’s idea of “reasonable limits” may differ from another’s.

“These are issues that are long-standing, they pre-date March 15 and affect many groups in community including LGBTQI and religious groups,” Ardern said on Tuesday.

The Human Rights Commission would be “boosted” and laws would be changed, she said.

Police also announced Te Raranga, The Weave, to “drive improvements in frontline police practice to identify, record, and manage hate crime”.

“I know this is a contentious area, and we will work with determination to try and form that consensus if we can,” Ardern said.

But the broad spectrum of views among political parties raises questions of whether that would ever be possible.

National Party leader Judith Collins said she was wary of the proposed changes: “In principle, we support strengthening the role of our security and intelligence agencies but we must tread carefully to safeguard New Zealanders’ rights and liberties.”

ACT party leader David Seymour at Parliament on Tuesday said it would be “wrong to introduce British-style hate speech laws without even the exemptions for free and fair debate that those laws have in Britain”. ACT has previously said it wants to abolish the Human Rights Commission and repeal existing hate speech laws.

Green MP and former-refugee, Golriz Ghahraman responded: “We will update our hate speech laws to be inclusive and effective, as the Green Party has campaigned on for over two years.”

Hagen Hopkins/Getty Images
Prime Minister Jacinda Ardern has apologised on behalf of the Government after the release of the Royal Commission’s report into the Christchurch shootings.

Changing the law won’t necessarily change how it’s enforced

In June, Guled Mire, one of the organisers of Wellington’s Black Lives Matter protest, told me Facebook had done more to address online threats he’d received than the authorities.

An Auckland man, using what appeared to be his real name, sent Mire messages telling him to “lay low, or else”.

Facebook removed the account for violating the site’s community standards, but officers told Mire there was nothing they could do because there was no identifiable risk to his safety.

Victoria University law lecturer Dr Eddie Clark says it’s about time we acknowledged hate speech can cause harm.

“There’s some argument we should only regulate hate speech when it’s directly tied to causing physical violence. But that’s just not the way we deal with speech liability in other contexts.”

He notes the Harmful Digital Communications Act 2015 doesn’t require a link to physical harm, nor do defamation or privacy laws.

“We need to start these discussions from the position that, we have freedom of speech, but it’s possible for speech to cause harm to people. The question then is how you uphold freedom of speech while reducing harm.”

He’s concerned making hate speech offences more serious could actually put police and prosecutors off pursuing charges.

“Entirely understandably, there’s a strong focus with speech-related offences on freedom of speech, particularly with criminal law. You need a very high threshold to criminalise opinion without a clear link to further harm.”

From Clark’s perspective, the report errs on the side of protecting people’s right to have an opinion, and fails to fully acknowledge the right of others to live without fear of discrimination and abuse in public.

Canterbury University/Supplied
Canterbury University’s dean of law Ursula Cheer says great care will be needed in drafting new hate speech legislation, to protect free speech.

‘Great care will be needed’

Professor Ursula Cheer, Canterbury University’s dean of law, says it makes sense to move hate speech criminal offences from the Human Rights Act into the Crimes Act, where all our crimes are meant to be located.

“From that perspective, the recommendation is a good idea,” she says. “However, great care will be needed to craft the offence so that it only criminalises speech which is motivated by real hatred, and does not simply capture stupid or reckless speech, which there is plenty of, especially online.

“As a society, we do not want to criminalise 16-year-olds, for example, who retweet things without thinking or engage in forms of showing off to their peers.”

Not only will the offence need to be carefully drafted but police will need training in how to investigate and then determine whether to prosecute the offence, she says.

Cheer also suggests creating special defences for parody or satire, “or at least include in the definition of the offence an exemption for general discussion, criticism or expressions of antipathy, dislike, ridicule, insult, or abuse of particular religions, or the beliefs or practices of its adherents, as they have in the United Kingdom” – otherwise, the media could also get caught out.

“We have no right not to be offended in New Zealand and the offence should be focussed on real hatred combined with threats.”

Plus, the existence of such offences hasn’t stopped crimes of hatred and racism from happening in the UK, she says.

In fact, in the week following the Christchurch shootings, British media reported the number of anti-Muslim hate crimes increased by 593 per cent. Figures from independent monitoring group Tell Mama showed 89 per cent of the incidents contained direct references to the shootings and featured gestures such as mimicking firearms being fired at Muslims.

For that reasons, the Government should also invest in opportunities for young Kiwis to learn about the value of ethnic and religious diversity and how to be good citizens – which is one of the “most important recommendation in the [commission’s] report”, Cheer says.

The commission emphasised the need to protect free speech when considering changes to hate speech legislation and creating a new hate-motivated offence.

‘Long-standing issues’

Ardern was right in that hate speech and crime reform is a long-standing issue.

In the days following the attacks in Christchurch, which killed 51 and injured dozens more, members of the Muslim community said they were shocked and angered but not surprised.

The Islamic Women’s Council for years lobbied the Government to address the discrimination and abuse their members faced on a daily basis. Nothing concrete was done.

“We had this growing sense of unease there was an increasing level of activity,” IWCNZ’s Anjum Rahman said at the time.

Then-Justice Minister Andrew Little described the country’s hate speech laws as “woefully inadequate” and fast-tracked a review existing hate speech legislation.

A year later, he was presented with options from the Justice Ministry and Human Rights Commission. He said to expect an announcement “within weeks”. But coalition discussions stalled, the election came and went, and the review remains unpublished.

New Justice Minister Kris Faafoi says he hasn’t decided how or when to release it, following the commission’s report.

Meanwhile, reports of online hate continue to climb, according to Netsafe, despite a spotlight on the role of social media in the mass shooting, which broadcast live on Facebook.

Shortly after March 15, 2019, Ardern along with French President Emmanuel Macron revealed the Christchurch Call to Action. The global pledge, so far signed by 48 countries, the European Commission, two international organisations, and eight technology companies, aims to end the spread of extremist content online.

But while social media sites are willing to remove reported content that violates their own guidelines, they’re still falling short of properly policing hate, says Massey University lecturer in media studies, Dr Kevin Veale.

”They’re either indifferent to it or actively profiting from it – and that’s the dimension of how things work that’s not currently considered by things like the Christchurch Call.”

Organisations such as the Human Rights Commission, the United Nations (UN) Committee on the Elimination of Racial Discrimination, and the UN Human Rights Council (HRC) have repeatedly asked for better recording of hate-motivated crimes in New Zealand, to gain better insight into the problem offline, too.

In October, in response to a request for information filed seven months prior, police confirmed they had improved IT systems to help officers identify flagged hate crime from when a call is received. A requirement to record “targeted protected characteristics” such as race or religion, via a drop-down menu, had also been introduced.

But when, at the beginning of November, Stuff asked for the number of racially-motivated complaints over the last six months, those figures weren’t readily accessible.

Policing hate: What are the proposed changes and will they make a difference?