Policing hate difficult
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. Katie Kenny reports.
The Government has promised to improve and amend hatespeech laws, and create new, hate-motivated offences in the wake of the mosque attacks.
However, nothing will be done withoutwidespread 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 ensure legislation relating to hate speech and crime is fit for purpose.
The commission found the current laws ‘‘neither appropriately capture the culpability of hatemotivated offending, nor provide workable mechanisms to dealwith hate speech’’.
The proposed changes
Currently, hate crime isn’t a standalone offence. What’s commonly referred to as a hate crime is an offencemotivated 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. Theywould 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.
The 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 longstanding, they pre-date March 15, and affect many groups in community including LGBTQI and religious groups,’’ Ardern said on Tuesday.
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 thatwould ever be possible.
National Party leader Judith Collinswas 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 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 previously said itwants to abolish the Human Rights Commission and repeal existing hate speech laws.
GreenMP 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.’’
Eenforcement matters
In June, Guled Mire, one of the organisers ofWellington’s Black Lives Matter protest, told me Facebook had done more to address online threats he’d received than the authorities. An Aucklandman, using what appeared to be his real name, sentMire messages telling him to ‘‘lay low, or else’’.
Facebook removed the account for violating its community standards, but officers toldMire 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 timewe 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 offencesmore serious could put police and prosecutors off pursuing charges. ‘‘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.
‘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 crimes are meant to be located.
‘‘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 . . .’’
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 focused 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 theweek after the Christchurch shootings, British media reported the number of antiMuslim hate crimes increased by 593 per cent.
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.
‘Long-standing issues’
Ardern was right in that hate speech and crime reform is a long-standing issue.
The IslamicWomen’s Council for years lobbied the government to address the discrimination and abuse their members faced daily. Nothing concrete was done.
Then-Justice Minister Andrew Little described the country’s hate speech laws as ‘‘woefully inadequate’’ and fast-tracked a review of 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 JusticeMinister Kris Faafoi says he hasn’t decided how orwhen 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 EmmanuelMacron, 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 socialmedia sites are willing to remove reported content that violates their own guidelines, they’re still falling short of properly policing hate, saysMassey University lecturer inmedia 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 Committee on the Elimination of Racial Discrimination, and the UN Human Rights Council 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, early in November, Stuff asked for the number of racially motivated complaints over the last six months, those figures weren’t readily accessible.