Graham Adams: Will Ardern Back Away From New “hate Speech” Laws?

The Prime Minister’s claim that further restrictions on freedom of expression would be popular looks wildly optimistic.

For a highly successful politician who prides herself on being an instinctual leader acutely aware of others’ feelings and views, Jacinda Ardern still manages to surprise with opinions that are way out of kilter with public sentiment.

Her cloth ears were vividly on show in 2017’s election campaign when she revived the possibility of a capital gains tax despite such a consistently unpopular policy having been finally abandoned by Andrew Little when he became Labour’s leader in 2014.

The ensuing uproar forced her onto the back foot — to the extent that nearly two years later she felt obliged to rule out such a tax for as long as she was leading the Labour Party.

Similarly, during last year’s election campaign anyone who had kept their ear to the ground outside the urban-liberal media bubble would have been surprised to hear her blithely tell journalists that she believed there would be “wide support” for expanding existing hate-speech laws to include religion.

Ardern, who had just unveiled a memorial plaque at Christchurch’s Al Noor mosque, added that she couldn’t understand why there would be resistance from other political parties. “I don’t see why there should be, and so that’s probably a question for every political party, but that’s certainly our view.”

When asked whether sexual orientation, age or disability could be included, she said, “Yeah.”

Less than three months after that September stand-up with journalists, her optimism about the popularity of placing further restrictions on what New Zealanders can say without their running the risk of criminal sanctions had noticeably cooled.

In December, after the Royal Commission of Inquiry into the Christchurch mosque massacres had recommended creating a new offence under the Crimes Act that would make it illegal to intentionally stir up hatred against racial or religious groups, Ardern told Parliament that she would work with all parties to try to close “the gaps in hate-speech legislation” — while admitting, “I know this is a contentious area, and we will work with determination to try to form that consensus if we can.”

So, within a few months, the Prime Minister had moved from asserting she believed there would be “wide support” for a law change — including from other political parties — to a tacit admission it was going to be a tougher battle.

Some have wondered if private surveys had tempered her optimism; last month, after the Royal Commission report had reignited the debate, political columnist Chris Trotter suggested that internal polling showing firm public opposition was behind the Labour government’s “ever-so-careful tip-toeing away from its earlier commitment to criminalise hate speech”.

Or maybe Ardern had just got around to speaking to Ministry of Justice chief executive Andrew Kibblewhite, who was reported as saying in March 2020 that hate speech was a “tricky thing” to navigate. He also said that the Human Rights Commission had led some of the work with the ministry as they wanted the conversation to happen away from the political fray, given it could easily be derailed with so many strongly held views.

One of the ministry’s aims, apparently, was to “avoid protests”.

Of course, with 65 seats in a 120-seat Parliament — and the Greens holding 10 votes to throw in behind her as well — Ardern is obviously in an unassailable position to press ahead quickly with the law change she promised no matter how many protests are mounted.

In its election manifesto, Labour pledged to “extend legal protections for groups that experience hate speech, including for reasons of religion, gender, disability or sexual orientation, by ensuring that we prohibit speech that is likely to incite others to feel hostility or contempt towards these groups under the Human Rights Act 1993”.

Similarly, the Greens have campaigned for several years on extending hate-speech laws to make them “inclusive and effective”, as their spokesperson Golriz Ghahraman put it in Parliament last month.

A pertinent question to ask right now, however, is exactly how determined Ardern will be to press ahead with law changes if she risks igniting a firestorm that could engulf her and her government.

She is no stranger, of course, to backing away from promises made on the campaign trail if fulfilling them might harm her preferred prime minister ratings. Indeed, she has become known for caution and conservatism rather than the transformational approach to government she trumpeted during the 2017 election campaign.

She is now seen by many as an often-timid manager who has deep convictions but frequently lacks the courage to fight for them.

And although it may seem impolite to say so, it is possibly not just courage that she lacks. Despite her many sterling qualities that are admired around the world, Ardern appears inadequately equipped to sell a policy as complex and divisive as new hate-speech laws — or indeed a capital gains tax — to a sceptical public.

The inadequacies of her grasp on the topics of free speech and hate speech were on full display in an interview in 2019 with Duncan Garner on The AM Show when she identified the “threshold” between reasonable criticism and hate speech as: “When you see it you know it.”

As Act leader David Seymour pointed out on the same programme, such a highly subjective test isn’t a workable basis for a law restricting what New Zealanders can say.

Ardern also claimed in the interview that any new legislation would not impinge on freedom of speech, which is patently absurd. She also seemed not to know that inciting someone to commit violence is already an offence under the Crimes Act.

One of the biggest problems Ardern faces is that nearly two years after a review of hate-speech laws was promised in the wake of the 2019 massacres, there is still no firm indication of what new legislation might look like. The Royal Commission’s recommendations, for example, cover only “colour, race, or ethnic or national origins or religion” but none of the other categories Ardern has previously cited. Is the likely maximum penalty really going to be three years’ prison as the commission suggests? Will the new law turn on the speaker’s intent or on offence taken? Who knows?

The promise former Justice Minister Andrew Little made in March 2019 to provide a “report for public comment” by the end of that year which would lead to “robust public discussion from all quarters” has never been fulfilled. In fact, it appears the Ministry of Justice and Human Rights Commission have mostly consulted with community groups that are likely to be in favour of more restrictive laws.

And there is still no credible offer of wider public consultation. After the Royal Commission’s report appeared, Arden wrote on The Spinoff: “We will be undertaking consultation with community groups and parties from right across Parliament to test these proposals before bringing forward legislative change. I do want to emphasise though, these are issues that are longstanding, they predate March 15, and they affect many members of the community, including our LGBTIQ community, and different and diverse religions.”

Testing the waters among selected community groups and party leaders in private is manifestly not the same as a “report for public comment”.

Unfortunately for Ardern, by leaving the public hanging for years about the likely shape of new hate-speech laws, she has created a vacuum that has allowed speculation to run rife about what they might entail. As a result, she now risks losing control of the debate entirely even before the likely extent and impact of any new laws have been established.

Last week, Martyn Bradbury wrote on his influential left-wing Daily Blog: “If NZ passes religious hate-speech laws, I’m afraid I will have no choice but to immediately break that law for the sake of our democracy… Many religious beliefs are ridiculous. Under this law, The Life of Brian would be considered hate speech.”

Bradbury has also argued that “gender identity hate-speech” laws will be used to make criminals of feminists who object publicly to trans-women competing with biological women in sport and having entry to women-only spaces.

The conservative Christian lobby group Family First is also strongly opposed — and has the evidence to prove it is not alone.
Earlier this month, it published the results of a poll of 1000 people by Curia Market Research in which respondents were asked: “Should it be a crime to publicly claim that sex is revealed at birth, and is not a matter of personal choice?” Seventy-three per cent were opposed. Seventeen per cent were unsure or refused to say; only nine per cent were clearly in favour.
What will make Ardern and Labour strategists blanch — if their own polling hasn’t already done so — is that the Curia results showed there was “little difference in view based on age, gender or political allegiance (including strong opposition to it being treated as a crime from Labour and Green voters)”.

Similarly, when asked, “Should it be a crime to publicly state a belief that marriage should only be between a man and woman?”, 80 per cent of respondents were opposed with only 12 per cent of respondents agreeing. Again, opposition was strong across all political allegiances.

Bob McCoskrie, Family First’s national director, concluded: “This latest polling confirms that despite the country’s horror at the terrorist act in Christchurch and the grotesque ideology behind it, the government does not have the support of New Zealanders for a radical transformation and expansion of ‘hate speech’ laws, and the government may actually alienate the very base that put them in power.”

Without firm indications of the form the legislation might take, critics like Family First are largely flying blind. It’s entirely possible that any new legislation might not allow prosecution for the examples they cited in their poll but in the absence of evidence to the contrary, who can say for sure?
Certainly, the fact that in December Muslim leaders and police strongly implied that a message written outside a mosque stating “Islam Is Right About Women” was hate speech will make many wonder whether opinion about religious beliefs and practices would indeed be caught in the net — despite Ardern’s assurance that it wouldn’t.

Like everyone else, the National Party has been obliged to adopt a “watch and wait” stance until they know exactly what they are dealing with but Judith Collins has made it clear that the National Party won’t support any further loss of freedom of speech without “a very compelling reason”.

And the Prime Minister has another, more formidable opponent to contend with: David Seymour. He has promised that Ardern will have a fierce battle on her hands, pledging: “If the government passes laws that allow punishment on the basis of opinion, Act will petition for a referendum to reverse those laws.”

After Seymour’s success last year in shepherding the End of Life Choice Act into law in the face of significant and well-funded opposition, there can be no doubt that Ardern would underestimate his ability to marshal support against her at her peril.

When a journalist asked Ardern at September’s stand-up: “What do you say to any politician or political party who wants to defend freedom of speech and believes that any expansion of those [laws] would threaten it?”, she responded with a beatific smile and raised arms, declaring triumphantly: “We take our lead from New Zealanders, our communities, and our societies…”

In fact, Ardern may be about to find out the hard way that most New Zealanders value freedom of speech much more deeply than she thought.

Graham Adams is a journalist, columnist and reviewer who has written for many of the country’s media outlets including Metro, North & South, Noted, The Spinoff and Newsroom

This article can be republished under a Creative Commons CC BY-ND 4.0 license. Attributions should include a link to the Democracy Project.

https://democracyproject.nz/

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