The Government wants to make major changes to the laws governing hate speech, including the creation of a new criminal offence with harsher penalties and the protection of more minority groups.
In line with recommendations from the Royal Commission of Inquiry into the Christchurch terror attack, six key proposals have been revealed with the intention of strengthening protections against speech inciting hatred or discrimination.
The term 'hate speech' isn't used in law, but the changes seek to clarify what's illegal as well as increasing the consequences for those who break the law. The proposals focus on speech inciting hatred in other people towards a group, rather than towards one individual.
The Government on Friday released a discussion document outlining the six changes. The public will be able to give their feedback on them until August 6.
1. More groups protected
The first proposal is to make changes to the incitement provisions - civil and criminal - of the Human Rights Act, which currently only apply to speech targeting a group because of their "colour, race or ethnic or national origins".
Because others are also targeted by hate speech - including different religions, genders, sexualities and disabilities - the Government wants the wording of the provisions changed so more groups are protected.
"The Government considers that other groups that experience hateful speech could also be protected by the law, and is interested in views on the groups that should be protected by this change," the discussion document says.
"In practice, this means that if someone said or wrote something that met the other requirements in the law and was targeting a group based on a characteristic included, a complaint could be made to the Human Rights Commission or the Police. The Commission or the Police would then determine what actions to take."
2. New criminal offence
Under the Human Rights Act, it is a crime to incite racial disharmony. But that section is described in the discussion document as "complicated" and "difficult to understand'' with archaic and often repetitive language. It also doesn't apply to electronic communications.
It's proposed that a new offence is created in the Crimes Act which is clearer and easier to understand than what is currently in place. The words "hostility", "ill will", "contempt" and "ridicule" would simply be replaced with "hatred" - a key recommendation of the Royal Commission.
"The exact wording of this provision would be determined following consultation. This includes whether to use the term “incite”, “stir up” or some other term with the same meaning," the document says.
"This proposal would prohibit speech that maintains or normalises hatred, in addition, to speech that incites or stirs up hatred. This ensures that communications that may be aimed at people who may already hold extreme views would be unlawful."
The new offence would apply to all communications methods and only target extreme hate speech with an intention to cause others to "develop and strengthen hatred" towards a group.
By placing it in the Crimes Act, the Government hopes to "signal that this is a serious offence".
It would also apply to any new groups under the first proposal.
3. Harsher penalties
The current legislation - that being Section 131 of the Human Rights Act - says that anyone found guilty of inciting racial disharmony is liable for either a fine not exceeding $7000 or a maximum of three months in prison.
However, after looking at other criminal offences and considering the seriousness of the behaviour, the Government believes these penalties are too low, something the Royal Commission agreed with.
The proposal is for the maximum penalty for the new criminal offence to be three years in prison or a fine of up to $50,000.
4. Changing language in the civil provision in line with new offence
If inciting hatred was moved to the Crimes Act and the language clarified, the Government wants to ensure the language in the civil incitement provision of the Human Rights Act better matches it.
"This proposal would change the wording of the civil incitement provision to include 'inciting/stirring up, maintaining or normalising hatred' alongside the existing wording," the document says.
"There should be consistency between the civil and criminal provisions in the type of behaviour that is prohibited. It is desirable that 'hatred' be included in the civil provision so that civil liability is also imposed for communication that is the most serious and damaging."
5. Incitement to discrimination
New Zealand has signed up to the International Covenant on Civil and Political Rights which says "any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law".
However, "incitement to discrimination" is not currently prohibited in New Zealand law. The Government wants to change the civil provision to include it.
"This would make it unlawful to incite others to discriminate against members of those groups protected from discrimination by the Human Rights Act who will be covered by the incitement of hatred provision.
"Discriminate means to treat someone worse than others because of something about them, like their ethnicity or gender. Like Proposal Four, this would change the wording of the civil provision."
6. Clarify trans, gender diverse, and intersex people are protected from discrimination
The Human Rights Acts lists the grounds on which discrimination is prohibited, including "sex, which includes pregnancy and childbirth" and "sexual orientiation, which menas a heterosexual, homosexual, lesbian or bisexual orientation".
The Government doesn't believe the law is clear enough in noting that trans, gender diverse and intersex people are also protected from discrimination.
"The Government and the Human Rights Commission consider that the existing ground of 'sex' covers these groups, but 'sex' and 'gender' are different concepts and the law could be clearer," the discussion document says.
The final proposal would make changes to clarify this by changing the wording of the ground of "sex" to include "sex characteristics or intersex status" and adding a new ground of "gender including gender expression and gender identity".
"This would clarify that it is illegal to discriminate on the grounds of gender, gender expression, gender identity, sex characteristics or intersex status. We are aware of other wording that may be used such as 'variation of sex characteristics' or 'non-binary' as opposed to gender diverse."
The Government's also seeking feedback on whether this proposal "appropriately ensures takatāpui and other culturally specific gender identities are protected from discrimination".
Takatāpui is a traditional meaning for intimate companion of the same sex.
"It has been reclaimed to embrace all Māori who identify with diverse genders and sexualities such as whakawāhine, tangata ira tāne, lesbian, gay, bisexual, trans, intersex and queer.
"This proposal is not directly related to the incitement of hatred provisions. However, Proposal One could result in the incitement provisions being extended to protect trans, gender diverse and intersex people from speech that incites hatred.
"Engagement on this proposal is primarily aimed at ensuring that appropriate language is used in section 21 of the Act, as the Government considers this to be a clarification of the status quo rather than a fundamental change in the law."
