The New Zealand Law Society | Te Kāhui Ture o Aotearoa was one of the record-breaking number of submissions filed in response to the government’s discussion document on proposals against incitement of hatred and discrimination.
The Law Society’s submission was prepared by the Criminal Law and Human Rights and Privacy Committees, following a call for feedback. It supports efforts to create greater social cohesion, but stresses that the right to freedom of expession must be safeguarded and any limitation on it must be demonstrably justified.
Our submission made the following key points:
- It is crucial that the legislation identifies very clearly what will, or will not, be prohibited behaviour.
- It must also be clear that it is not the ideas that are targeted by the legislation. It is the way they are publicly expressed, and the effect that may have on others.
- The effect should be assessed on whether the expression incites hatred towards the group. It should not be assessed on whether the group to which the expression is made is offended.
- There must be an evidential basis for deciding to broaden the groups included in section 61 and 131. Some of the grounds may not justify a limitation on freedom of expression.
- The new and amended provisions must be carefully drafted. Care must be taken to clearly define terms such as ‘hatred’ so that only expressions at the serious end of the spectrum are caught and to ensure effective enforcement and ‘discrimination’ so that discrimination which has no element of ill-will, and lawful discrimination permitted by other relevant laws, are not caught.
- We prefer using the words ‘incite’ and ‘incitement,’ rather than ‘stir up’.
- The terms ‘maintain’ and ‘normalise’ should not be included as a part of the new offence. They may unintentionally lower the threshold and widen the range of behaviours which can be caught. For example, would failing to condemn expressions inciting hatred amount to ‘maintaining’ and ‘normalising’ and therefore require prosecution?
- We support retaining the requirement for the Attorney General to consent to prosecution of these offences.
- We support extending the Human Rights Act to prohibit discrimination of transgender, gender diverse and intersex people.
The 15,000 submissions will now be assessed and the government will decide whether or not to progress to draft legislation.
The Law Society will, no doubt, make submissions to the Justice Select Committee if a Bill is introduced. We will call for comments when we get to that stage.