Unexpectedly, Justice Minister/SIS Minister Andrew Little has proven to be something of a loose cannon in the government’s response to the mosque attacks. Allegedly a safe pair of hands, Little initially tried to pre-empt criticism of the security services by publicly absolving their performance of blame even before an inquiry into their role had been set up. By doing so, he eroded the credibility of the government’s early preference for an in-house ministerial inquiry that would have been mainly focussed on the shooter’s actions and background. This allowed Act and National to call for a more wide-ranging Royal Commission which PM Jacinda Ardern then quickly embraced.

Even so, it does seem as though the Police actions on March 15 will not be scrutinised by the Royal Commission. That’s unfortunate, since there is still no definitive timeline of the Police actions on the day, and two different timeframes (36 minutes and 21 minutes) between the first call for help and the arrest of the shooter, have been put by Police into the public arena.

Secondly, Little has managed to scramble his initial discussion of the “hate crimes” issue almost as badly. By promising to “fast track” the government’s legislative response to hate crimes and discrimination Little made the exercise sound (potentially at least) like an attack on freedom of expression, as much as it would hopefully create a better protective shield for the vulnerable members of the community. By doing so, Little again provided Act’s David Seymour and National’s Simon Bridges with a platform, this time on which to present themselves as the thoughtful champions of free speech and the moderating influence upon Labour indulging in its Big Brother inclinations. Belatedly, Little has since stressed the government’s own sensitivity to the free speech implications of any changes, and he has clarified that “fast track” actually means having proposals on the table for consideration by the end of 2019. Fast and urgent, but slow and considered.

Hate crimes

Obviously, deterring hate speech and outlawing hate crime has the aim of providing better protections to vulnerable persons and communities, but without unduly restricting the public’s rights to free expression. It isn’t an easy balance to strike. As the US Justice Department has pointed out, “hate” can be a misleading term. In a “hate crime” legal context, it doesn’t mean merely rage or anger or general dislike. (That’s because no-one can be prosecuted simply for their beliefs.) Also, while many people can be highly offended by beliefs that are untrue – or which are based on false stereotypes – it is not a crime to express offensive beliefs, or to join with others who share such views. By the same token, sincerely held beliefs can’t be used to justify a subsequent crime. One distinctive problem with hate crimes is that the ripple effects tend to go out beyond the immediate victim:

Hate crimes have a broader effect than most other kinds of violent crime. A hate crime victimizes not only the immediate target but also impacts every member of the group that the direct victim represents. Hate crimes affect families, communities, and sometimes the entire nation.

Still, the situation is relatively straightforward when a recognized “crime” is involved (eg assault, threats, vandalism, rape, murder, property damage etc) or the intention exists to commit such a crime. Here, the “hate” element has to do with the victim being chosen because of their race, nationality, ethnicity, disability, religion, gender or gender identification. Currently, our Sentencing Act enables the consideration of those and other aggravating factors.

Beyond that point, the rules and the enforcement process get a lot murkier. The US Justice Department makes a distinction between the traditional sort of hate crimes and what it calls “bias incidents or hate incidents” – which involve acts of hostility motivated by racism, religious intolerance, or other prejudice, but which do not necessarily involve criminal activity. Examples include verbal abuse, certain types of graffiti, and the distribution of hate-group literature. In some states, some Police departments are required to keep a register of bias/hate incidents. If our Royal Commission of inquiry finds it desirable – and its terms of reference enable it to address Police practice in any meaningful way – a similar requirement could be introduced here. But there will still always be a grey area where “ intimidation” has to amount to undue “coercion” and where “menacing” has to be felt to engender fear at levels that justify a Police response.

With hate speech, it is maybe worth keeping in mind that this is not purely a hate crime vs free speech issue. Speech has never been entirely free, under the law. Some language (obscenity) some speech in some contexts (eg yelling “fire” in a crowded theatre) and some types of threat have always been illegal. Theoretically, the online expression of hate speech should fall under the Harmful Digital Communications Act, but given (a) the superheated and extravagant nature of much “normal” online debate and (b) the extent to which hate content online originates from offshore, the New Zealand law doesn’t currently offer much in the way of a defensive shield. Moreover, regulating speech online to the point where hate speech and/or the perception of it was entirely eliminated would require a surveillance apparatus and enforcement powers like those more commonly found in totalitarian states than in social democracies. Online, the cure may be almost as mad as the disease.

Under the Crimes Act, the vulnerable can find some (limited) protection from hate crimes. The definition of assault includes not only the act of applying force, but the threat to do so, including the conveying (to the intended victim) of one’s power to make that threat real. Also, section 306 of the Crimes Act has do with “threatening, conspiring and attempting to commit offences” and criminalises anyone who “sends or causes to be received, knowing the contents thereof, any letter or writing containing any threat to kill or do grievous bodily harm to any person.”

With hate crime, and hate speech then, there may well be some scope for adjusting the boundaries of what counts as “intimidation” – where co-ercion is involved or implied – and “menacing”, where the intention is to engender fear and subservience in the victim. Unfortunately though, when Parliament has tried to deal with this sort of thing in the recent past, ordinary civil liberties have gone out the window in favour of rank political posturing.

For example: twice in little more than ten years, Parliament has busied itself with the perils to public wellbeing posed by the wearing of gang insignia, initially within just the city limits of Whanganui. When that bizarre law was successfully challenged in court, Parliament responded in 2012 by outlawing the wearing of gang insignia on government premises and in state buildings nationwide. You'd maybe think that simple bylaws or trespass notices would have sufficed, but no… At the time, Simon Bridges was all about protecting the public from being menaced, and the civil liberties he’s currently concerned with didn’t get a look in:

Let me tell this House that they [gang members] can be personable, one on one. They can be articulate. They can be smart. They can be cunning, but together, and when they put their patch on, it is a very different story….. When gang members put the patch on, they become a different person. They put it on for one reason: to create fear and to intimidate others. There is no good reason, as I say, for gangs and there is no good reason for gang patches……We have contempt for them. We have contempt for what they do. They are thugs, they are rapists, they are drug dealers, and they are murderers. I wholeheartedly support anything that makes it difficult for them, against a trendy sort of liberal view that we have from the other side that somehow we should be apologists for them…etc etc

In moving the first reading of the 2012 Bill, Todd McClay said that since all the gangs covered by it would be named, any future government could also add further names to it. That has happened. Despite Labour strongly opposing the gang insignia legislation in 2012 as being shallow, unnecessary and tokenistic, the coalition government moved last year to add the Comancheros Motorcycle Club to the list of gangs covered by the legislation. Point being to all of this – if government is willing to protect the public from feeling intimidated by restricting the freedom of expression of bike gangs to wear what they like, then (for better and worse) it has set a precedent for action against the expressions of white supremacy. When the legislation outlawing the wearing of gang insignia in Whanganui was first being debated in Parliament, Green MP Metiria Turei presciently made this relevant point:

What about all those other gangs that cause problems? What about the members of white power gangs, for example, who do not wear patches but have their own funny little uniform of no hair, big boots, and tight pants? What will this House do about them? Will it ban boots and tight pants? Will it ban the shaving of people’s heads? No… so why should we pick on just the gangs that we can identify through their patches? The answer to that is that it is easy, and it sounds good to the public.

As Andrew Little has said, we have until December to find viable ways to criminalise expressions that (currently) do not meet the traditional tests of criminality – but which nevertheless have left vulnerable communities or persons feeling less safe. (Arguably, the repeated expression of hostile sentiments can serve to make an actual attack more likely.) Any pre-emptive law however, which tries to restrict expression in areas where strong social disagreement exists will still need to be even-handed. This requirement may not suit groups that feel they have historical grievances, or socio-economic inequality etc on their side. As the late US justice Antonin Scalia once famously wrote, the state has no authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensbury Rules. That’s one of the ironies. The pressure for change may have to do with expressions of hostile content, but the solutions –if they are to be enforceable – will probably need to be formulated in ways that are content neutral. There will be few easy political points to be scored from such formulations.

Flag-burning etc

Until the mosque attacks, the tide had been moving in the opposite direction – in favour of freedom of expression. As a society, we have become increasingly skeptical of the assertions by those in authority that the maintenance of public order requires limitations on certain forms of speech, protest and expressive action. Thus, the Supreme Court ruled in 2011 that flag-burning, even in the context of an Anzac Day commemoration, is protected action/expression under our Bill of Rights. The last gasp by the Court of Appeal in arguing otherwise had been covered at length in this Werewolf column.

As predicted in that column, that Court of Appeal judgment was subsequently overturned by the Supreme Court. Basically, the courts have become increasingly reluctant to protect the feelings of one group by criminalising the expressive actions of another group. In the wake of the mosque attacks, it is clear that something more than feelings can be at issue; but New Zealand is not alone in finding it difficult to decide whether ( and how) to change the relevant boundaries to a point where the expressions of hostility should be pre-emptively outlawed. History is full of examples where governments gave themselves the power to protect the public good by deciding which expressions are tolerable, and which are not. The process has usually ended badly.

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