Graham Adams: Kris Faafoi is too busy to discuss proposals for hate-speech laws

The Minister of Justice appears to have gone into hiding. Graham Adams provides an update on how the public debate on hate speech regulation is going, especially in terms of whether political opinion should or shouldn’t receive an exemption from new laws - first published 16 July.

It fell to RNZ to break the news to the nation late last week that the Minister of Justice, Kris Faafoi, had “gone to ground”. Despite making repeated requests to interview him about proposals to expand hate-speech laws, the public broadcaster has been told the minister in charge of managing their introduction is too busy — even during a three-week parliamentary recess — to discuss them.

With her Minister of Justice having gone AWOL ever since a disastrous television interview on the topic a month ago, the Prime Minister’s call for a national debate has lurched from a shambles into farce. The government allowed only six weeks for public submissions and now — with less than two weeks to go until the August 6 deadline — the cat has apparently got Faafoi’s tongue in an iron grip.

On Newshub Nation in late June, Faafoi failed to offer coherent explanations of what kinds of speech would likely fall foul of a new law — including whether Millennials could be prosecuted for expressing hatred against Boomers because of house prices, or whether someone claiming that homosexuals are destined for hell would be liable for prosecution.

Extraordinarily, he maintained that although he was the Justice Minister, it wasn’t up to him to clarify such matters. Rather, that would be a decision for the police. Exactly how a lowly police constable might be expected to do what has clearly foxed the Minister of Justice remains unexplained.

Given his dismal performance in that interview, it is perhaps not entirely surprising Faafoi is now allergic to fronting the media (despite the fact he has worked as a television journalist himself). Nevertheless, he has had a full four weeks since his train-wreck television interview to come to grips with the ramifications of any new law — and presumably the further benefit of having read submissions from the public outlining what they think of the proposals as well.

The inescapable fact of the matter is that neither Faafoi nor the Prime Minister appears well equipped intellectually to lead a debate on such a complicated and demanding topic. Jacinda Ardern — who in 2019 defined hate speech as “When you see it you know it” — accused Faafoi’s interviewer of “trivialising” the issue by pressing him to specify what sort of statements could result in penalties of up to three years in jail or a $50,000 fine.

Like her Justice minister, Ardern has made it clear that she doesn’t think it is a politician’s role to decide exactly where the boundaries lie. As she told an interviewer: “He [Kris Faafoi] was pepper-potted with a bunch of examples and it’s not for us to determine what a court may or may not do.”

The unfortunate conclusion that lawyer and former Act MP Stephen Franks has come to is that both the Prime Minister and Minister of Justice are well out of their depth “constitutionally and in terms of analytical capacity”.

In a recent article published by the Auckland District Law Society, Franks was quoted as saying: “Neither shows normal understanding of the role of legislation or the legislator: the elementary requirement for the rule of law that the citizen be able to know in advance from written rules how the law will apply to them and their actions, and are predictable in application to unexpected or novel circumstances. It shows disdain for the protection our law is supposed to provide against the temptation of all in power to make up the rules as they go.”

Auckland University of Technology history professor Paul Moon was similarly worried: “If a minister of the Crown is planning to introduce legislation in this area, there is a minimum expectation that that minister would be familiar with the issues raised by the proposed legislation and the provisions of existing legislation, in this case around speech. It seems that some senior members of the government are not as well briefed on this issue as they ought to be and this is concerning.”

And if Ardern and Faafoi can’t even offer convincing examples of what kinds of speech might or might not be deemed criminally hateful, they should count themselves extremely lucky that no interviewer has been cruel enough to ask them more challenging philosophical questions about the proposed changes.

One obvious question is why political opinion should be excluded if religious beliefs are included — which they almost certainly will be after the Royal Commission of Inquiry into the mosque murders recommended they should be and the Labour Party manifesto promised they would be.

Religions, of course, are ideologies just as political doctrines are — even if the former are rooted in the supernatural realm and the latter in the secular. Both often involve deeply held convictions about how society should be organised; followers of both systems of belief are sometimes willing to die for the cause; they often inspire loyalties that are passed within families from generation to generation; and both political and religious adherents are constantly imploring others to accept the righteousness and necessity of their views.

Furthermore, the two are often intertwined with religious beliefs that form the basis of political programmes.

In New Zealand, as just one example, the Christian Heritage Party, founded in 1989, was devoted to policies that were consistent with Christian values, such as repealing access to abortion. The Destiny Church led by Apostle Brian Tamaki is similarly dedicated to a Christian political programme.

Canterbury University Dean of Law Ursula Cheer describes the question of whether political opinion and religious belief can be distinguished in a meaningful way for the purposes of a hate speech law as “a classic problem for drafters of hate-speech laws”.

Professor Cheer says: “I think that often beliefs arising from religious faith and political beliefs cannot be disentangled. But I do believe it is pretty clear that anti-abortion beliefs are political beliefs and will give rise to political speech, no matter what their source. So the application of hate-speech laws must be very context dependent and disentangling can go on there — which is not to say it is always easy to do.”

For the record, Cheer makes it clear she is “not in favour of criminalising speech generally”.

“At best, I am ambivalent about it… I believe education will have more effect on day-to-day hate speech and that any criminal offence should not be seen as the answer in and of itself.”

And another complication for any new law, of course, is that religious beliefs are often hotly contested within religions themselves. As Act leader David Seymour points out: “There is also politics within religions. It is often the moderates within a religion who face censorship for criticising the extremists.”

At what point, then, does the politics of religion become political expression?

Barrister and legal commentator Graeme Edgeler, who has also expressed reservations about expanding the existing laws, has nevertheless argued the case for not excluding political opinion if the law is changed.

He asked: “What speech about a group of people defined by their race, or their religion or their sexuality is it you want to prohibit, but you think would be absolutely fine if directed at members of the Green Party, or supporters of immigration and multiculturalism, or some other political opinion?”

He compared the 51 Christchurch mosque murders committed by Brenton Tarrant in 2019 and those committed in 2011 by Anders Breivik (who later declared he had carried out “the most sophisticated and spectacular political attack in Europe since World War II” when he killed 77 people in Norway).

Edgeler wrote: “The Christchurch terrorist selected his victims based on their religion. They were targeted because they were Muslim.

“The bombing in Oslo was of a building housing the office of the Prime Minister. The victims on the island of Utøya were attending a summer camp as members of the Worker’s Youth League (a political group affiliated with the Norwegian Labour Party).”

“[So] seeking to limit speech aimed at creating a culture which might inspire someone to attack a place of worship is justifiable, but speech aimed at creating a culture which might inspire someone to attack a group defined by their support for multiculturism goes too far?”

Asked whether political opinion was likely to be included among the categories to be protected, Ardern initially ruled out that possibility emphatically. Later, however, when it was pointed out that the government’s official discussion document suggested all the prohibited grounds of discrimination in section 21 of the Human Rights Act — including political opinion — be included, the Prime Minister admitted that it could be.

When John Campbell asked her a week after Faafoi’s interview to explain the confusion — which he described as a ”shambles” — Ardern told him that Cabinet had had a discussion about each group mentioned in the Human Rights Act list, and the ministers decided they were “uncomfortable” with the inclusion of political opinion in hate-speech laws.

“We didn’t want [New Zealand] to be a place where satire tips into being wrongly interpreted,” the Prime Minister airily asserted — seemingly unaware that she was tacitly acknowledging that satirising religious belief might end up being criminalised under a new law if it were to be “wrongly interpreted”.

“We thought it safer that [political opinion] not be included,” she said. “So, we removed some of the references to it in the discussion document.”

“Safer”? “Uncomfortable”? Neither exactly qualifies as a compelling or rigorous assessment of why political speech should or shouldn’t be included in a major overhaul of long-standing rights to freedom of expression, particularly if religious belief is.

It is hard to imagine what unholy mix of obtuseness and hubris would allow any politician to enter such a challenging intellectual arena without being armed to the teeth with sound arguments and convincing evidence to persuade voters that expanding the existing hate speech laws is an excellent idea.

But here we are — with a Prime Minister and Justice Minister who have boldly rushed in where angels fear to tread.

And now at least one of them is refusing to join the public discussion they have called for as the prelude to a highly contentious law change.

Graham Adams is a journalist, columnist and reviewer who has written for many of the country’s media outlets including Metro, North & South, Noted, The Spinoff and Newsroom. This article was first published by the Democracy Project HERE.