The Government has significantly watered down its hate speech reform and will now just make a single change aimed at protecting religious communities.
It's a far cry from six key proposals unveiled by the Government in June last year as part of the response to the Royal Commission of Inquiry into the Christchurch terror attack.
The Government initially wanted to create new protections for members of different groups, like those of religious groups and for those of different genders, sexualities and disabilities. A new criminal offence would have been created in the Crimes Act that was clearer and easier to understand.
But after more than 19,000 submissions, Cabinet has agreed to throw most of that over to the Law Commission to consider and instead only make one immediate change - to protect religious groups.
Under the Human Rights Act, there are two sections relating to "racial disharmony". One is for criminal matters and another is for civil.
Currently, it's illegal to publish written material, broadcast content or use words that are "threatening, abusive or insulting" in a manner that is "likely to excite hostility or ill-will against, or bring into contempt or ridicule, any such group of persons in New Zealand" on the basis of colour, race, ethnicity, or national origin.
Importantly, for someone to commit the offence, there has to be "intent" to bring about that reaction towards that racial "group". Someone saying something insulting about an individual's race with no intent to cause others to be hostile towards them isn't captured by that specific provision.
No prosecution can happen without the consent of the Attorney-General.
The Government is wanting to extend that provision to now include religious beliefs. The same change will be made in the civil section of the legislation.
A Bill will be introduced into Parliament soon with the hope of it passing during the current parliamentary term. It will be subject to a full Select Committee process.
No further change in the wording of the legislation or the threshold for the offence has been flagged.
The Government had previously proposed that a new criminal offence would replace the words "hostility", "ill-will", "contempt" and "ridicule" with "hatred."
"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 Government's 2021 discussion document said.
"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 Government had also proposed increasing the penalties for inciting disharmony - currently a fine of up to $7000 or three months in prison - and clarifying that trans, gender diverse and intersex people are protected from discrimination.
Those changes weren't mentioned in Justice Minister Kiri Allan's announcement on Saturday.
Instead, she's asked the Law Commission to "undertake an independent and thorough first principles review of legal responses to hate-motivated offending, and of speech that expresses hostility towards, or contempt for, people who share a common characteristic".
"This will include whether further protections should be afforded to specific groups, including the Rainbow and disabled communities."
Allan argued these issues are "complicated" and the Law Commission's review would "ensure any further changes to the incitement provisions meet society’s expectations and needs".
"As demonstrated many times previously, such as with abortion law, the Law Commission is well equipped to take on a complex and sensitive issue, and carefully consider how the law should be shaped in response to it."
Both National and ACT have confirmed that despite the watering down, they still won't support the legislation.
"It is actually quite a significant reduction of free expression and free speech," National's Paul Goldsmith said of the proposal on Saturday,
"The phrase that the minister used, in consultation with us, was 'religious belief'. When you go to beliefs it's a much broader area and the human rights legislation that they're basing it on… includes 'insult' and 'ridicule' and, quite frankly, nobody wants to be insulted or ridiculed but that is actually an important part of expression."
In a letter to Allan on Friday, Goldsmith made a similar point.
"We do not support the proposal, because it would significantly narrow the scope of free speech and expression in our country. People may not enjoy having their religious beliefs insulted or ridiculed, or held in contempt, but the ability for people to be able to do that in a free society is important. In a free society it should be ok to ridicule religious beliefs."
ACT's David Seymour said the new proposal isn' "compatible with a free and open society and ACT will repeal them".
"Preventing freedom of expression on religious grounds is a significant restriction. It is important that we are allowed to call out examples of religious persecution without fear of being prosecuted," he said.
"Freedom of expression is one of the most important values our society has. We can only solve our most pressing problems in an open society in which free thought and open enquiry are encouraged."
