Submissions open on bill related to hate crime and new work for Law Commission

Tue 17 Jan 2023

The government is inviting submissions on the Human Rights (Incitement on Ground of Religious Belief) Amendment Bill by 2 February 2023. The Law Commission is undertaking new work related to sex, gender and discrimination, and hate speech and hate crimes.

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Submissions open on the Human Rights (Incitement on Ground of Religious Belief) Amendment Bill

Update: On 8 February 2023 Prime Minister Chris Hipkins announced that the Human Rights (Incitement on Ground of Religious Belief) Amendment Bill would be withdrawn and the matter referred to the Law Commission.

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The Justice committee is accepting submissions on the Human Rights (Incitement on Ground of Religious Belief) Amendment Bill.

The closing date to make a submission is 2 February 2023.

The bill would amend the Human Rights Act 1993 to include faith-based communities in the existing protections against incitement. The Ministry of Justice noted:

"It is already illegal to publish or distribute threatening, abusive, or insulting words likely to ‘excite hostility against’ or ‘bring into contempt’ any group on the grounds of colour, race, ethnic or national origins.

Those grounds will be extended, in both the civil (section 61) and criminal (section 131) provisions, to cover religious belief."

The legislation is part of the government's work related to laws against incitement of hatred and discrimination in response to recommendations of the Royal Commission of Inquiry into the terrorist attack on Christchurch masjidain in 2019.

Newsroom has published a brief overview of New Zealand's hate speech laws and the proposed changes.

Community and advocate responses

Te Kāhui Tika Tangata | the Human Rights Commission has raised concerns about the proposed legislation, saying:

"Representatives of communities left out of the Government’s plans to tackle incitement have told Te Kāhui Tika Tangata, the Human Rights Commission, they have been left vulnerable by their exclusion."

While the Commission welcomed protection on religious grounds, the Commission called for protections to also "...include speech that incites hostility and hatred based on disability, sexual orientation and gender – in addition to the existing protections for colour, race, ethnic or national origins."

The Commission also highlighted Government responsibilities under Te Tiriti o Waitangi "...to protect Tangata Whenua communities from harmful speech, including takatāpui Māori (LGBTQ+ Māori), tāngata whaikaha (disabled people) and wāhine."

The Commission noted that extending protections for more groups to be able to seek help under the Human Rights Act would not change the legal test or threshold of what is unlawful, saying that "The threshold should not be confused with widening the protection to include the most vulnerable groups."

The Disabled Persons Assembly NZ has also raised concerns that the proposed legislation excludes banning hate speech and incitement of violence against the queer community, women and disabled people. Advocate Shaneel Lal has launched a petition calling for the government to include the queer community, women and disabled people under hate speech law changes.

See further comments from advocates and communities in the related media below.

Minister Allan spoke to Newshub about the proposed changes and the concerns raised by communities and advocates.

Law Commission to look at laws against incitement of hatred and discrimination

The Government has also asked the Law Commission | Te Aka Matua o te Ture to further review protections and legal responses related to incitement of hatred and discrimination. In announcing this work, Justice Minister Kiritapu Allan said:

“Until the Law Commission has done that work, there will be no changes to the definition of groups protected from discrimination, or any changes to how the existing legal regime against incitement operates in terms of thresholds, offences or penalties, as originally proposed.”

The December newsletter of the Law Commission | Te Aka Matua o te Ture noted that Minister Allan referred the following issues to the Commission to review:

"*Protections in the Human Rights Act 1993 for transgender people, non-binary people and people with diverse sex characteristics;

*Legal responses to hate-motivated offending (which is sometimes called “hate crime”);

*Legal responses to speech that expresses hostility towards, or contempt for, people who share a common characteristic (which is sometimes called “hate speech”)."

The Law Commission will do this work in 2 phases. The first phase will look at the protections in the Human Rights Act for transgender people, non-binary people and people with diverse sex characteristics. It will start on 16 January 2023. It will not examine hate speech or hate crime. You can learn more and subscribe for updates on this work on the Law Commission's Sex, Gender and Discrimination project webpage.

Update: In August 2023, The Law Commission published Terms of Reference for Ia Tangata | A Review of the Protections in the Human Rights Act 1993 for people who are transgender, people who are non-binary and people with innate variations of sex characteristics. The Law Commission expects to publish an Issues Paper in mid-2024 and to provide opportunities for public engagement, including submissions.

Update: In July 2023, the UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, Victor Madrigal Borloz, released the report Protection against violence and discrimination based on sexual orientation and gender identity (A/78/227). It looks at the impact of colonialism in violence and discrimination based on sexual orientation and gender identity, and how this relates to human rights. The report includes 12 recommendations for UN Member States. An easy to read version of the report is also available.

The second phase will look at Legal Responses to Hate. This project has not yet started. You can subscribe to updates from the Law Commission.

Background

The final report from the Royal Commission of Inquiry into the terrorist attack on Christchurch masjidain was publicly released in December 2020. In the recommendations (section 5.5), the report stated:

"New Zealand’s legal system does not adequately deal with hate crime and hate speech. The current laws do not appropriately recognise the culpability of hate-motivated offending, nor do they provide a workable mechanism to deal with hate speech. Change is required to both the law and New Zealand Police practice (Part 9, chapter 4)."

Part 9, Chapter 4 of the final report looked at areas for improvement in New Zealand's legal framework and Police practice to address hate crime and hate speech. In addition, the Royal Commission also published a paper about the concepts of hate speech and hate crime, New Zealand’s current laws and proposals for change.

In response to the recommendations of the Royal Commission, the Ministry of Justice ran a public consultation in 2021 on 6 proposals on existing law related to incitement of hatred and discrimination, sometimes referred to as hate speech or hate crimes. More than 19,000 submissions were received. The Ministry of Justice has provided a summary of the submissions on proposals against incitement of hatred and discrimination and a summary of the engagement for the consultation.

In December 2021 NZ Police published a report and action plan on improving their response to hate crime. Following the terror attacks on Christchurch masjidain, the Evidence Based Policing Centre held workshops with community groups, Police groups and partner organisations to better understand the incidence and impact of hate crime. Findings were published in the report, Improving our response to hate crime: Views and opinions of our people and our communities (2021). Police also published an Action Plan: Improving our Response to Hate Crime Report (November 2021).

In December 2019 the New Zealand Human Rights Commission published a resource on the legal framework governing hate speech - Kōrero Whakamauāhara: Hate Speech. The resource includes definitions of hate speech and outlines the legal framework in New Zealand and overseas.

Netsafe published research in 2019 about the personal experiences of adult New Zealanders in relation to online hate speech, and comparisons to Australia and Britain.

Related news

The Office of the United Nations High Commissioner for Human Rights (OHCHR) and the Equal Rights Trust published Protecting Minority Rights: A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation (2023). The Foreword notes:

"Based on an exhaustive analysis of international law and extensive consultations with experts from across the globe, it [the guide] provides clear, unequivocal guidance on the laws which States must adopt in order to fulfil their obligations to respect, protect and fulfil the rights to equality and non-discrimination."

The guide covers State obligations, content of comprehensive anti-discrimination law, protection of minority rights, discriminatory violence and hate crime, discrimination and expression, and obligations to address the root causes of discrimination.

In announcing the guide, independent United Nations experts issued the following call to action:

"*We call on all States which have yet to develop comprehensive anti-discrimination laws to make this a priority for the coming year.

*We urge States now developing, drafting or consulting on comprehensive anti-discrimination laws to accelerate the process; and

*We ask States which have enacted laws aiming to provide comprehensive protection to review these in order to ensure that they are effective and consistent with international law, and to ensure effective implementation and adequate remedies."

Adding gender to the Human Rights Act – what’s the big deal?, The Spinoff, 07.05.2024

Tikanga Māori and the rights and obligations of free speech, E-Tangata, 05.05.2024

Sexual orientation should be protected under hate speech laws, Te Kāhui Tika Tangata | Human Rights Commission media release, 10.04.2024

Tina Ngata: Why we walked away, E-Tangata, 07.04.2024

Dignity should never be sacrificed on the altar of free speech, Newsroom, 05.04.2024

‘The equivalent of verbal bullets’: Government urged to reconsider hate speech work, Waikato Times, 01.04.2024

The rise and rise of intolerance in the online world, The Press, 29.03.2024

Community at heart of hate response, SunLive, 21.11.2023

How an absolutist approach to free speech is obscuring hate speech, Stuff, 23.03.2023

FIANZ asks the Government for hate speech legislation funding, timeline, Stuff, 16.03.2023

Hate speech gone to 'never-never land' among concerns held by Muslim umbrella organisation, Stuff, 14.03.2023

Work must continue on hate speech law – Foon, Waatea News, 15.03.2023