Bob Edlin: Now ‘binding’ has been defined, what's the meaning of ‘hate speech’

The Government seemed to be in a bind about the cannabis referendum to be held at the general election next year.  The dilemma was about whether the referendum should be binding.

Referencing a leaked cabinet paper, National Party drug reform spokeswoman Paula Bennett threw doubt on how binding the referendum would be. 

National declined to release the paper to protect the source (something of an impediment when it comes to establishing the credibility of claims against political opponents) but said only one of four referendum options due to be discussed by Cabinet yesterday might compel the Government to act on the outcome.

The other three possibilities would not be technically “binding” because the government would not be obliged to act on them.

Justice Minister Andrew Little didn’t reassure voters that binding means binding when he said he would be better able to demonstrate what binding means once Cabinet had made a decision.

He told RNZ the government stood by its commitment to hold a binding referendum alongside the 2020 election, but he suggested the word “binding” could have several interpretations.

“We made the decision at the end of last year for a binding referendum. That decision remains,” he said.

 “[But] once Cabinet has made its decisions, and we’re in a position to announce the next phase … we’ll be able to explain what ‘binding’ actually means.”

Mr Little said the best time to offer that “clarity” would be after the final decision and announcement which he expected would be in “fairly short order”.

 “You can’t bind a future parliament. Existing legislation can be amended or repealed at any time so I think we do need to have clarity about what binding means” .

At Point of Order, accordingly, we breathlessly awaited this press release from the Beehive for clarification:

 The Government has announced details of how New Zealanders will choose whether or not to legalise and regulate cannabis, said Justice Minister Andrew Little.

The Coalition Government is committed to a health-based approach to drugs, to minimise harm and take control away from criminals. The referendum is a commitment in the Labour-Green Confidence and Supply Agreement, as well as a longstanding commitment from New Zealand First to hold a referendum on the issue.

“There will be a clear choice for New Zealanders in a referendum at the 2020 General Election. Cabinet has agreed there will be a simple Yes/No question on the basis of a draft piece of legislation.

“That draft legislation will include:

A minimum age of 20 to use and purchase recreational cannabis,

Regulations and commercial supply controls,

Limited home-growing options,

A public education programme,

Stakeholder engagement.

“Officials are now empowered to draft the legislation with stakeholder input, and the Electoral Commission will draft the referendum question to appear on the ballot.

“The voters’ choice will be binding because all of the parties that make up the current Government have committed to abide by the outcome.

“We hope and expect the National Party will also commit to respecting the voters’ decision.

“I have today released the actual paper considered by Cabinet,” said Andrew Little.

The Justice Minister also confirmed there will be no other government initiated referendums at the next election.

So that’s sorted then … or is it?

Our attention was drawn to a Newshub report headed Jacinda Ardern tempers expectations of binding cannabis referendum.

Although it preceded Little’s announcement, the PM told The AM Show she thinks New Zealand should decide, but it’s going to be up to whatever Parliament forms in 2020 to make the final call.

“I’m going to leave the details to the Minister of Justice who’s going to be making an announcement today. Keeping in mind though that of course our Parliament is always sovereign.

“That of course means that you can go as far as you can with commitments but ultimately, every new Parliament is able to dictate what it does.”

Now we know that binding might not mean binding – for the reasons both Ardern and Little have given – we keenly await the Beehive announcement that explains the meaning of “hate speech” for statutory purposes.

Our concerns have been heightened by Little saying (in an ODT article titled “Time for a just appraisal‘) he has asked the Ministry of Justice to work with the Human Rights Commission “to examine whether our laws properly balance the issues of freedom of speech and hate speech”.

Joss Miller, a retired Dunedin lawyer commening on this, is bothered (with good cause) by Little’s fussing about hate speech:

 “He outlines our country’s tradition of free speech, the applicable legislation and the importance of robust public debate even if some might find comments offensive or disagreeable.

He notes “we already have laws to protect against what we call ‘hate speech”’, but it is implicit in his comments that he envisages an expansion of this.

What the Justice Minister doesn’t mention are the controversial hate speech laws that exist in Europe and the UK, which are extremely broad and have had the effect of silencing legitimate speech. Individuals making relatively benign remarks have been prosecuted under this legislation. A situation surely we would not want to see in New Zealand. Mr Little talks of “a robust public discussion from all quarters” on these issues.

However, the real danger to meddling in our sound and proven speech laws is that institutions, agencies and interest groups with their own social and political agendas will likely have a disproportionate influence that is not in the national interest. There will be some whose sole intent is to undermine the free speech we already enjoy.

Miller hoped the Justice Minister was aware that free speech is already under threat in our country.

There have been situations in universities where some speakers have been shut down by groups or individuals unwilling to let them speak.

Last year, Massey University’s vice-chancellor, Jan Thomas, prevented Don Brash from speaking on campus allegedly because she had security concerns. It transpired that the real reason was she held a distaste for his views and effectively acted as a censor. Likewise, Auckland Mayor Phil Goff publicly disparaged two Canadian speakers and prevented them from using a council venue.

There is nothing wrong with our current laws, Miller concluded – free speech should be protected, not restricted.

But it looks ominously like Little will come up with a definition for “hate speech” that does erode our rights on this matter and seriously constrains public debate on vital issues.

Bob Edlin is a veteran journalist and editor for the Point of Order blog HERE.