How confusion over hate speech law prompted rethink: Prime Minister Jacinda Ardern vows to 'get the change right'

Hate speech laws were supposed to be ready by now but after confusion and "strong feedback" the Government is giving it a rethink. 

In June last year, Justice Minister Kris Faafoi launched a discussion document outlining the Government's plan to create new hate speech laws in response to the Royal Commission of Inquiry into the 2019 Christchurch terror attack. 

The first proposal was to broaden protection under the Human Rights Act. It currently prohibits hatred incited against people because of their colour, race, or ethnic origin. The law would be expanded to include religious groups and rainbow communities.

The Government also proposed a new criminal offence for intentionally inciting, stirring up or normalising hatred against any specific group of people, by being threatening, abusive or insulting, including by inciting violence. 

The new criminal offence in the Crimes Act would replace the existing criminal provision in the Human Rights Act, which the Government felt was "unclear and could go further to protect those who may be subject to the incitement of hatred". 

A further proposal was to increase the punishment for the criminal offence from three months' imprisonment or a fine of up to $7000, to up to three years' imprisonment or a fine of up to $50,000. 

What went wrong?

While the Government had good intentions, with Faafoi expressing his desire to build much-needed "social cohesion" after the March 15 terror attack, it soon became evident the proposals were not clear enough. 

Faafoi, appearing on Newshub Nation in June last year, couldn't distinguish with clarity the difference between speech that would be considered freedom of expression and speech that would result in a prison sentence.    

For example, Faafoi couldn't say with certainty if Millennials could be prosecuted for expressing hatred towards Baby Boomers over ballooning house prices.

"If it's an opinion on a particular group then it depends on what you say. If your intent is to incite hatred against them then, potentially," Faafoi told the Nation. 

The Prime Minister later that month got in hot water when, defending Faafoi, she told AM the hate speech proposals would only be enforced on those "inciting violence and hatred". 

But that was wrong. The discussion document is clear: under the changes, a person would break the law if they intentionally stirred up hatred by being threatening, abusive or even just insulting.  

Then came the viral 'Karen' debate in July, sparked by National's Judith Collins who suggested that the 'Karen' insult - often used to describe white middle-aged women who become confrontational when they don't get their way - could land someone in prison.

Ardern brushed it off, but prominent constitutional lawyer and former ACT MP Stephen Franks later said the 'Karen' insult "absolutely could" fall under hate speech, as per the proposals.   

What happens now?

The intent of the Government's hate speech proposals was to "foster greater social cohesion in Aotearoa so that it is a place where everyone feels that they belong", as Faafoi wrote in the introduction of the discussion document. 

But "strong feedback" from the public has prompted a rethink of the proposals and Faafoi, speaking to the Nation again earlier this month, was unable to commit to passing hate speech laws this term. 

"I think as you would have seen from the public reaction... I think it showed us that much more care needed to be taken to make sure that the intent is genuine to make sure those laws land in the right place," Faafoi said. 

"One of the things that came out of the concern of the reaction to us undertaking that work is that it actually kind of whipped up the very thing that we were trying to prevent."

Faafoi couldn't say for sure if, for example, signs held up at the Parliament protest against COVID-19 vaccine mandates - such as an image of Ardern compared to Hitler or "hang em' high" written on the forecourt - would be deemed hate speech. 

"That would depend. As I say, the regime is not in place. I'm not going to get myself into a situation where we were in the previous Nation interview where we start nickel and diming everything. 

"It's important that that stream of work continues because of the commitment we made at the Royal Commission but I'm not about to go and do that and start inflaming the very situation that we're trying to prevent."

Ardern, speaking at the Beehive last week, said she wanted the proposals "to be embraced because they're going to make a difference on the ground". 

Justice Minister Kris Faafoi and Prime Minister Jacinda Ardern.
Justice Minister Kris Faafoi and Prime Minister Jacinda Ardern. Photo credit: Getty Images

"We want to make sure that we're also responsive to the recommendations of the [Royal] Commission and that our advisory group, including members of the Muslim community, support those changes," Ardern said.

"We had strong feedback in the consultation. We need to work through that. We're committed to change. We just want to make sure we get the change right."

Faafoi said he was "expecting some advice soon about timeframes". 

"We're going through a bit of work there because I think the reaction to the discussion document that was released last year wasn't necessarily helpful to the debate and I think we've got to make sure we can do that in a safe way.

"I would hope we can progress that a long way but I think the reaction that we found and the technicalities and the complexity of those issues necessitate us having a good look at it but we're still committed to making sure we deal with it because it is one of the recommendations from the Royal Commission."

ACT leader David Seymour says the proposals would have "created a divided and hateful society where 'cancel culture' would spiral out of control". 

"Faafoi won't commit to passing his proposed hate speech laws this term despite previously saying he would. This is a huge win for New Zealanders who are sick of this Government interfering with every part of their lives."

National's justice spokesperson Paul Goldsmith welcomed the rethink. 

"National will always err on the side of free speech. There is a very high bar before we should narrow it. The best response to speech that people don't like, is more speech - not bans and police investigations."