Clear rules required for hate speech certainty

Kieran Madden

Kieran Madden

Auckland, August 10, 2021

                             
                                                                                  Kagenmi iStock/Getty Images

Imagine an Olympic sport where the rules were so vague that the athletes are not sure of what might disqualify them.

Our research into the government’s proposed hate speech laws showed that the proposals are a bit like this, they just don’t provide the certainty needed to be effective.

There are not just shiny medals at stake, some of the fundamental rights of our free, democratic society are on the line.

Sports and Rules

Sometimes sporting rules don’t seem fair, like the modern pentathlete who was randomly assigned a horse that refused to jump for an earlier competitor. Or harsh.

Watching one of the finalists in the 100-metre sprint final jumping the gun and getting instantly disqualified was gutting. But the athletes know the terms of engagement before they get to the competition.

Even in sports with more subjective elements like rhythmic gymnastics and equestrian dressage, athletes compete with confidence, knowing there are well-defined judging criteria and a jury of independent judges who tend to come to similar decisions.

What is important is that the rules are clear—that the athletes know what they are and are not allowed to do—that they have certainty. Good laws are the same, and as we argue in our submission, these proposals from the Government fail because while well-intentioned, they are vague, likely to be ineffective and insufficiently grounded in evidence.

Ambiguous Bill

As it stands, the proposal replaces words like hostility, ill-will, contempt and ridicule with “hatred.” This would limit the offence to the most extreme instances—which is good—by insinuating a strict definition of hatred. Unfortunately, the proposals do not offer how guidance for how “hatred” will be defined, with only the promise of another “consultation” for exact wording.

If the definition of hatred remains vague, there will be a chilling effect on free expression. Ordinary people will not know whether their genuinely held but potentially offensive views will be considered criminal. There’s also a chance the definition of hatred will be defined down, like the Canadian courts have done, to something like “looking down on or treating as inferior.”

No comparative international government has managed to land a satisfactory definition written in legislation; what makes this Government think they can? When asked by the media, neither the Minister of Justice nor the Prime Minister could answer who the law would apply to and which specific kinds of speech would be outlawed. Judges should be applying the law, not defining it after the fact.

No international evidence.

On top of this, there is just no international evidence that these laws would do what the Government is hoping. The only thing these proposals guarantee, unfortunately, is a reduction in our freedom of expression. This is why most people polled are against it, including vociferous opposition from the left.

A more socially cohesive New Zealand where people feel safe and that they belong is really important. The goal is good, but these hate speech proposals are not. These rules aren’t just or sport, and we must strongly oppose these proposals.

Kieran Madden is Research Manager at Maxim Institute, Auckland. This story has been sponsored by

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