Consultation on the government’s controversial proposal to make changes to our “hate speech” laws closed on Friday, but the debate is likely to carry on for a good while yet. Here, workers’ advocate Matt McCarten argues for fewer restrictions on speech, not more.

When a government decides to stop citizens saying what they think, it never ends well for democracy.

Our government wants to make “hate speech” punishable by up to three years in prison. Interestingly, a thug who assaults someone with the intention of causing them physical harm gets the same sentence. Common assault gets a maximum of 12 months. How does that make any sense?

The Ministry of Justice has opened a consultation process on their proposal. I assume the architects of the proposed changes mean well. But this is a law that will have unintended consequences. 

Supporters argue that we must close down those who spread hate. I understand the intent. After the Christchurch massacre, New Zealanders quite rightly want to stop bad actors from spewing poison that incites violence. 

But will these changes do that? Would they have prevented Christchurch? I doubt it. 

Take a look at the UK, where the hate speech law sounds a lot like the change that’s being considered. There, it’s a criminal offence for a person to use “threatening, abusive or insulting words” if the person intends to “stir up racial hatred”, or in the circumstances racial hatred is likely to be stirred as a result. 

That’s pretty much the wording being proposed here. It will be a crime to “intentionally incite/stir up, maintain or normalise hatred” through “threatening, abusive or insulting communications, including inciting violence” against protected groups.

It’s already a criminal offence in New Zealand, under Section 131 of the Human Rights Act (Inciting Racial Disharmony), to publish or distribute written material or to use words which are “threatening, abusive, or insulting” with the intent “to excite hostility or ill-will against, or bring into contempt or ridicule, any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins of that group”. 

(But note, there’s only ever been one prosecution under Section 131 — and two claims under Section 61, which provides for civil claims.)

Supporters say the proposed changes are relatively minor. They’re tightening up the language to make it clearer and easier to understand, narrowing the range of speech captured so that it’s only the worst of the worst — and, for consistency, adding to the range of protected groups so that it includes, in particular, religious communities, and trans, gender-diverse and intersex people.

Moving the offence to the Crimes Act — and increasing the maximum sentence from three months to three years — is supposed to signal a more serious approach to hate speech. It’s an attempt to change the culture. 

But hate speech is hard to get right in law, and even harder to police. 

How will we make sure that only the worst of the worst speech is captured by these changes? There’s a lot riding on how it’ll be defined. But no matter how precise the definition and how high the bar, it will be a judgment call. 

And guess who’ll be making those judgment calls in the first instance? The cops. They’ll be deciding who gets arrested. Bloody hell. When even our own justice minister and prime minister have struggled to clearly spell out where the lines should be drawn, how are police supposed to get it right?

As someone who’s been detained and arrested by police for holding union actions, I have no confidence in letting any state’s uniformed enforcement officers make those decisions. 

What about when John Minto led the anti-Springbok tour protests in 1981 and attacked the supporters of apartheid? Was that hate speech? Decades later, the same man organised a very noisy denunciation of an Israeli tennis player who said she was proud to have served in her country’s army in occupying Palestine. Was that also an example of hate speech? 

It depends, doesn’t it, on what your personal opinions are at any time.

For example, a protest group attacking the Catholic Church for deliberately harbouring paedophiles. Are they talking hate? What about the Catholic Church saying that women having abortions are wicked and going to hell? Talking hate? 

You see what I mean. The proposed solution is far worse than the problem. Do we really feel we have to be protected from someone espousing nonsense or even venom? 

When the state thinks it needs to decide what ideas can be said or heard, it’s inevitably used to suppress voices that the powerful don’t want us to hear. One in three countries in the world are at this very moment using suppression laws to silence opponents. 

Of course, people will say it would never happen here. But it already does.

In my day job, I fight for workers’ rights. The current New Zealand laws gives enormous power to the owners of capital to suppress workers’ voices. 

Recently, an exploited worker and his supporters wanted to picket their abusers’ wedding. I admit it was a bit over the top, but it was a serious case that had been going on for months. 

The employer’s lawyer got an urgent injunction to stop any actions. But it went further than that. Not only was any public activity banned, but no one was permitted to talk about it in the media. 

And here’s the real kicker. It was a secret order. We couldn’t even say the suppression order existed. To rub salt into the wounds, the exploited victim was ordered to pay the boss $3,000 for their legal costs in getting the order. 

Because the order had no end date, when the lawyer met with me, he said they would never settle the case and they’d tie it up in the courts for years. And because we could never talk about it, his client would get away with it. 

He was very pleased with himself. We had little choice but to settle the case for a lesser outcome that it deserved. The victim was prevented from getting justice because the state suppressed his right to tell his story. 

In another case, I was arrested on a peaceful educational union picket to publicise the mistreatment of an international corporation’s employees. The workers weren’t even on strike. I was released within an hour because it was nonsense. What was interesting was that the arresting cops said they were told to arrest the participants because the corporate bosses phoned to say we were upsetting their customers inside. 

When the arrest didn’t work, the corporation took me to the High Court claiming my soapbox actions were affecting their business. I refused to play the game and the court ruled I had to pay $40,000 costs. 

I was told that if I didn’t pay up, my house would be taken off me. When I laughed in their face, they then said they would seek imprisonment. I was looking forward to a forced break. 

For several months, they sent me an invoice. I’d scrawl “F**K OFF” on it and send it back without a stamp. They eventually gave up. Similar tactics by other employers have had the same results. 

Since April, I’ve had five legal threats of defamation actions against me. It’s intended to silence stories of exploitation. No chance of that. Nothing I write is not true. But the current laws say that even if what someone says is true, it’s not a full defence. It’s also based on whether it’s hurtful to the guilty employer. But that’s kind of the point. 

These sorts of actions terrify most people. They agree to withdraw their previous comments even though they’re true. They then pay several thousands in legal costs. The guilty rich and powerful win — and victims are silenced.

Here’s another worry. Present employment laws permit employers to prevent their employees from sharing their work conditions or pay rates with another employee. 

After I took a case where a woman had been fired for sharing, I dug deeper. I found that the woman and brown people were paid on average one third less than the white men for the same jobs. They kept that secret for years because no one was allowed to talk. 

My point of raising these real examples is to warn that any laws that restrict free speech will inevitably be used against the rights of ordinary citizens.  

If we look again at the UK, where the maximum sentence for hate speech carries seven years, we see multiple examples of police overreach, where police have taken it upon themselves to visit people at work over the types of speech and conduct that aren’t actually covered by the law. 

As lawyer Liam Hehir writes here:

Barely a week goes by without news reports of officious authorities overstepping the mark when it comes to the use of the law to harass those suspected of saying something offensive.  

Very few of these instances result in a prosecution (there have been some shockers) but in each case the law created a permission structure that allowed police to harass citizens for the crime of saying something somebody else didn’t like. Importantly, no violent crimes seem to have been prevented from all this.

So there’s been a culture change all right, but not for the better. 

And meantime, ordinary people are put through the legal wringer — because, even if the courts eventually decide there’s no case to answer, for those unlucky enough to be caught up in it, the process itself is the punishment.

So when my mates on the left say we need legislation to stop hate, my response is: we don’t. The current changes will stop people from saying what they think. Frankly, that’s worse.

Ideas we don’t like can make us uncomfortable. Every change in society requires debate. People say stupid things. Only through discussion can we win the hearts and minds of others, and then, eventually, society adopts these new ideas as a new norm. Do people really believe we should have censors determining what we can say and hear?

Suppressing voices is always worse than having a few idiots mouthing off. I’ll leave with one example for lefties to think about. 

I was brought up on the history of the infamous 1951 lockout. Port workers throughout the country were locked out and the government brought in suppression orders that made it a crime to tell their stories. 

So the workers set up secret presses to try and put their side. These presses were closed by police raids. Anyone who supported the workers or their families was arrested. After 151 days, the workers and their union were smashed. 

Ironically, the present Auckland Trades Hall was funded by the money the government took from the union’s funds after they deregistered the union. That’s a story that makes some uncomfortable, too. 

Anyone with knowledge of history knows that suppression laws will eventually be used by the powerful against the weak. Free speech is not a left versus right debate. It’s about protecting democracy and civil society.

© E-Tangata, 2021