Where are our hate speech laws?

Warning: contains descriptions of racism, racist violence and racist images.

Yesterday, the white supremacist terrorist who carried out the Christchurch mosque attacks was sentenced to life imprisonment without parole.

It’s time for all of us who are not Muslim to provide our love and support to our Muslim whānau and stand in solidarity with the victims – after they courageously shared their stories of pain, heartbreak, love, strength and resilience – in their fight for justice to be served.

But while we may celebrate the criminal justice system for giving the terrorist the strongest available punishment, which it has never given before, it might also be a good time for us to take a moment to think about how well our government has responded to the attacks – in particular, the steps it has taken to stop similar attacks of Islamophobic hate from happening again. In other words, we need to ask ourselves: what laws and policies have the government implemented to protect Muslim communities, and peoples of colour in general, from future acts of extremist right wing, white supremacist terrorism?

Parliament’s immediate response to the attacks was to tighten our gun laws. The day after the attacks, the prime minister, Jacinda Ardern, announced that our gun laws were about to change and on April 1, 2019, a bill was introduced to do just that. The bill was rushed through parliament with opposition from the Act Party only, and became law within 10 days. The Arms (Prohibited Firearms, Magazines, and Parts) Amendment Act 2019 banned semi-automatic firearms, magazines and parts that can be used to assemble prohibited firearms, and also offered an amnesty for prohibited firearms, magazines and parts to be surrendered to licensed dealers and the New Zealand Police, with a $1 billion buy-back scheme to compensate owners.

In wanting to tighten gun law even further, Ardern and police minister Stuart Nash announced in September 2019 that the government would be introducing a bill to create a firearms register in order to stop the flow of guns to criminal groups, and the Arms Amendment Act 2020 was enacted in June 2020.

Then on October 18, 2019, the government, specifically the police commissioner at the time, Mike Bush, announced the most peculiar action it would take in response to the attacks – launching Armed Response Team (ART) trials. Bush’s rationale for the trials taking place in Counties Manukau, Waikato and Canterbury was: “The police’s mission is that New Zealand is the safest country. Following the events of 15 March in Christchurch, our operating environment has changed.”

The irony of launching an armed police programme (which has proven to disproportionately harm people of colour in the US) in response to a white supremacist terrorist attack wasn’t lost on Māori, Pasifika and other peoples of colour, who immediately protested the trial for leading to the racist “militarisation” and “Americanisation” of our police. While the injustice of this apparent response to the attacks was clear from the outset, it was not until the killing of George Floyd six months later, in May 2020 (and the resulting resurgence of the Black Lives Matter movement worldwide), that activists of the Arms Down Movement were able to pressure the police commissioner into announcing the end of the ART trials on June 9, 2020.

While these laws show that the government was willing and able to respond to the gun violence aspect, one cannot help but ask – what has been done to address the white supremacist, Islamophobic hate that drove the attacks and to stop these ideas from proliferating in the first place?

Unfortunately, this is where our government is failing – and it’s not because it’s not able, but because it’s not willing.

While the prime minister was swift and effective in initiating the Christchurch Call to get governments and tech companies around the world to work together to “eliminate terrorist and violent extremist content online”, it is still failing to address the underlying issue of rampant Islamophobia, right-wing extremism and white supremacy in New Zealand.

On March 30, 2019, 15 days after the attack, justice minister Andrew Little acknowledged that the attacks showed that New Zealand had developed a climate that is “tolerant of harmful discriminatory expression” in which minority ethnic and religious communities, such as the Muslim community, are regularly subject to hate speech online and offline. Therefore, as a matter of priority, Little said the government was fast-tracking a review of our “woefully inadequate” hate speech laws and exploring how hate crimes could be made an offence in New Zealand.

However, by the next year, the government had still not introduced any bills or specific plans to reform New Zealand’s hate speech laws. On March 13, 2020, Little announced that a number of options for reform were now “working their way through the cabinet process” and said “the review of our hate speech laws are in the final stages. I expect there will be an announcement in a matter of weeks.” At this point, Ministry of Justice chief executive Andrew Kibblewhite said hate speech was a “tricky thing” to navigate and that reform needed to be a “slow process” due to concerns about limiting the freedom of expression, stating:

“In reality, you want to have a conversation with New Zealanders about what is the right balance between the government, politicians and officials. We want society to have a conversation about this and avoid protests. You’ve got to think quite deeply and thoughtfully about it.”

No further announcement was made by the government until June 25, 2020, when Little indicated that the reforms would need to happen after the election, saying: “We don’t have any draft or amending legislation but the ideas and thoughts about what we can do, and what might change, are the subject of discussions between partners.”

In regards to this “discussion between partners”, Stuff reported the reforms were being stalled by New Zealand First and were also facing strong opposition from the Act Party, which claimed “it was wrong for the government to use the nation’s tragedy in Christchurch to try to shut down speech and debate”.

Freedom of expression (more commonly known as “free speech”) is regarded as one of the essential cornerstones of a free and fair democracy and a fundamental human right that governments must protect no matter what speech is expressed.

It’s this “no matter what” mentality that makes New Zealand’s hate speech framework “woefully inadequate” and in dire need of reform.

The inadequacy of our current laws was seen in 2018, when the high court rejected a claim of hate speech made by Labour MP Louisa Wall regarding racist cartoons negatively depicting Māori and Pasifika children. These cartoons were published in two Fairfax publications after the government announced a free breakfast in schools programmes for low-decile schools in response to grave child poverty rates.

Despite hearing compelling evidence from psychologists and Māori researchers explaining the real harm that negative stereotypes have on Māori and Pasifika wellbeing, both individually and societally, the High Court appeared to be more concerned with protecting Fairfax’s right to freedom of expression, and dismissed Wall’s claim, stating that: “…the ‘space’ within which issues can be raised and debated must be kept as broad as possible and it is not in the wider interests of society to confine publications only to those which do not shock, offend or disturb”.

The high court’s ruling upheld the decision of the Human Rights Review Tribunal, which commented on the central importance of freedom of expression in hearing the claim: “Contemporary forms of attacks on and challenges to the functioning of democratic institutions and the free communication of information and ideas highlight the critical need for a vigilant free press and on occasion the publication of that which may offend, shock or disturb. It is important the press continue to speak truth to power.”

As the high court and tribunal rulings demonstrate, free speech is seen by many to be an unconditional and absolute public good for society. If these free speech proponents ever acknowledge the harmful impacts of hate speech on marginalised groups, the underlying message seems to be that marginalised groups are expected to simply toughen up, not be offended and bear these harms for the good of the free and democratic society they live in. Of course, these free speech proponents give little to no consideration of the fact that hate speech violates another fundamental human right, the right to freedom from discrimination, because this is seen as a lesser right that is only important to people of lesser importance.

In this way, the right to freedom of expression/free speech is often weaponised against minorities by ultra-right-wing white supremacists, who utilise free speech arguments (like those accepted and adopted by the high court and tribunal) to manipulate left-leaning liberals into defending free speech, even hate speech, thus furthering their objectives to oppress and dominate. In 2017, public figures across the political spectrum – from right-wing conservatives like Don Brash and Sir Bob Jones, to Sir Geoffrey Palmer, Albert Wendt and Dame Tariana Turia – penned an open letter warning that freedom of speech was under threat at New Zealand’s universities, after a white nationalist student group called the “European Students Association” at the University of Auckland was closed down (in response to concerns by students of colour about the group’s racist purposes and plans).

But what free speech proponents (often privileged white people) don’t realise is that they actually have nothing to lose from effective hate speech regulation – just their ability to inflict harm without any consequences. While free speech proponents may then counter that free speech, including hate speech, is essential for political debate and the “marketplace of ideas”, it must be noted that these arguments are not only disingenuous, they are baseless, because so-called debates between the two sides actually don’t exist. This is because marginalised groups who are the subject of hate speech are rarely (if ever) able to have equal access to the same platforms due to pre-existing social and economic power imbalances. For them, the harms of hate speech are real and experienced every day, and not the theoretical exercise they tend to be for the “other side”.

In a heartbreaking piece published two days after the March 15 attacks, human rights activist and member of the Islamic Women’s Council, Anjum Rahman, explained in detail how the Muslim community warned, begged and pleaded with several government departments and officials to take action “against the rise of vitriol and the rise of the alt-right in New Zealand”. They were ignored for five years before the attacks happened.

Since the attacks, the government has made it seem that it’s listening and is committed to taking action to honour the victims of the attacks and prevent further acts of terrorism from happening. But as of now, in August 2020, it seems like it’s doomed to make the same mistakes again. If the government is genuinely committed to addressing the hate behind the attacks, it needs to appreciate that the gains of unregulated and unconditional free speech are artificial and imagined and that the harms in hate speech are anything but. The attacks were the most devastating reminder of that. In particular, for members and supporters of NZ First and Act, parties that are stalling or opposing the reforms, it’s time for you to realise that regardless of your conservative views, first and foremost you have a responsibility to our Muslim communities to show basic human decency and compassion and take real, meaningful action against hate.

Unlike our Muslim communities and other marginalised groups, you have nothing to lose.