Submission on proposals against incitement of hatred and discrimination in Aotearoa New Zealand

The following is a submission I made to the Ministry of Justice on 28 July 2021 relating to planned amendments to legislation for the control of hate speech.

My name is Gavin Peter Ellis. I am a media researcher and consultant. Formerly, I was editor-in-chief of the New Zealand Herald and a senior lecturer in politics and communications at the University of Auckland. I hold a Doctor of Philosophy degree in political studies. I am the author of two books and numerous articles on media. I am currently engaged (with a colleague from Melbourne University) in a study of media coverage of the Christchurch mosque attacks and subsequent prosecution. Our first paper can be accessed at https://www.tandfonline.com/doi/full/10.1080/1177083X.2019.1705358. I am a former chair of the Media Freedom Committee ( a forum of all mainstream New Zealand media) and was recipient of the Commonwealth Astor Award for services to press freedom. In 2015 I was inducted as an Officer of the New Zealand Order of Merit for services to journalism.

I wish to make the following observations on proposals to amend legislation in relation to proposals against incitement and discrimination in Aotearoa New Zealand.

Proposal One: Change the language in the incitement provisions so that they protect more groups that are targeted by hateful speech

Extension beyond “colour, race, or ethnic or national origins” is appropriate. However, creating specific groups of people to which hate speech would have several avoidable consequences:

  1. There is a danger that unspecified individuals or groups would not be protected. Worse, it may give rise to a perception among some groups or individuals that they are not worthy of protection.
  2. Amending legislation will be required as new groups emerge that require protection.
  3. Specifying groups in the legislation gives rise to a ‘special status’ that potentially makes such groups over-sensitive to any criticism.

The proposal to expand coverage would be improved by abandoning  a group libel approach and replacing it with a general recognition that each human being has a right to be protected from speech that incites others to treat them in a manner that materially interferes with their ability to function as full members of society.

Proposal Two: Replace the existing criminal provision with a new criminal offence in the Crimes Act that is clearer and more effective

This proposal makes no distinction between primary incitement (i.e. the actions of the person or persons who first communicate the hateful speech) and those who might draw those acts to the attention of the public so they can be subjected to scrutiny.

I acknowledge that social media may be used by like-minded individuals to propagate hateful messages. These comments do not relate to such communication. The echo chamber is an acknowledged weapon in the hands of malcontents.

Rather, I refer to the legitimate right of people to be made aware of attempts to spread hateful speech in their midst. A healthy society is robust enough to debate such acts in a manner that does not give oxygen to the offenders.

The amendment to the Crimes Act should therefore include a news media exemption for the reporting of actions that may be an offence under the amended Act and the reaction to them. News media should be defined as organisations (and their representatives) who are bound by a code of ethics and who are subject to oversight by the Broadcasting Standards Authority or the Media Council of New Zealand.

Proposal Three: Increase the punishment for the criminal offence to up to three years’ imprisonment or a fine of up to $50,000 to better reflect its seriousness

The Christchurch mosque attacks brought home to every New Zealander the tragic consequences of hate. The present penalties are manifestly inadequate.

Proposal Four: Change the language of the civil incitement provision to better match the changes being made to the criminal provision

AND

Proposal Five: Change the civil provision so that it makes “incitement to discrimination” against the law

There is a considerable body of scholarship devoted to hate speech and the necessary tension it creates with the right to free speech. I do not intend to set out those arguments here as I believe the balance can be struck in the proposed legislation. There is, however, a significant caveat.

There is significant potential for unintended consequences within the language chosen to reflect the nation’s desire to prohibit communication that diminishes the perceived worth of people and lay them open to physical, psychological or economic harm.

I note (in Appendix 2 of the discussion document) that under proposal 2 “The exact wording of this provision will be determined following consultation”.  It goes on to say that “this includes whether to use the term “incite”, “stir up” or some other term with the same meaning”.

The need goes far beyond the choice of words ‘with the same meaning”. I submit there is a far more basic need: To submit to etymological scrutiny every word that contributes to the definition of hate and its derivatives.

If the proposed legislation does not interpret words (individually and collectively) in terms that carefully proscribe the limits of their meaning, this piece of intended law has the potential to realise many of the fears that have been publicly expressed. Such calamity is, of course, avoidable. There are a number of ways in which intended meaning can be articulated and unintended interpretations avoided.

In the United Kingdom, for example, the passage of the draft Online Safety Bill has involved almost serial rewriting of sections in attempts to better reflect the Government’s intentions and to assuage public anxieties. However, this iterative approach risks undermining confidence if the process does not result in demonstrable clarity of meaning.

The select committee process could be the forum in which various definitions and interpretations could be tested. However, the time devoted to that aspect of a Bill’s progress could be constrained by wider-ranging philosophical opposition to provisions.

I urge Government to consider the appointment of a panel of experts to examine, test, and define the language in material that forms the basis of a draft Bill. The intent of proposed legislation is evident from the discussion document. The role of the panel would be to ensure that the language used is fit for purpose.

The complexities of the English language form a starting point, beginning with the word ‘hate’ itself. If I hate racism, I am applauded for my positive attitude. If I hate Jews, I am antisemitic and deserve the opprobrium that should attract. Draft legislation should carefully exclude that which it does not wish to control.

Equally important is the manner in which the amendments to law describe actions that contravene the provisions. The “excitement of hostility” is vastly different to exciting one’s children. Words chosen to describe something that could result in three years’ imprisonment must be unambiguous.

The proposals refer to “communications…by any means”. Such an all-embracing term requires examination. Does it mean verbal, written, spoken communication in public gathering, in print, on air and on social media? Or does it include fleeting gestures, or satire?

I acknowledge that such matters could be determined by the courts but I submit that it is poor law that requires subsequent interpretation to determine its basic meaning and limits. Far better, I believe, to address those issues before the proposed amendments pass into law.

Hate speech and free speech are contestable concepts. Combine that with the layered and multifarious nature of multiple forms of communication, and the nuances and subtleties of the task are all too apparent. My own studies of propaganda and hate speech show they have reached challenging levels of sophistication.

We should not under-estimate the challenge that lies in legislation of this sort. What we are asking our legislators to do was articulated by American literary theorist Stanley Fish in a seminal essay There’s no such thing as free speech, and it’s a good thing, too: “Speech is never a value in and of itself but is always produced within the precincts of some assumed conception of the good to which it must yield in the event of conflict.”

If Parliament wishes to carve out that precinct within the Human Rights Act and the Crimes Act, the boundaries must be clearly set out…and understood.

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