Clear boundaries required for hate speech law

By Kieran Madden August 12, 2021

Imagine a tennis game where the players walk out to find that the court has no clearly marked lines. They are told to estimate where the top of the missing “net” would be as they play—referees will tell them if they guessed right only after they’ve made their shot. Our research into the Government’s proposed hate speech laws showed that the proposals are a bit like this, they just don’t provide the certainty needed to be effective. And there’s not just sporting glory at stake, some of the fundamental rights of our free, democratic society are on the line.

Sometimes sporting rules don’t seem fair, like the modern pentathlete at the Tokyo 2020 Olympics who was randomly assigned a horse that refused to jump for an earlier competitor. Or harsh. Watching one of the finalists in the 100 metre sprint final jumping the gun and getting instantly disqualified was gutting. But the athletes know the terms of engagement before they get to the competition. Even sports with more subjective elements like rhythmic gymnastics and equestrian dressage, athletes compete with confidence, knowing there are well-defined judging criteria and a jury of independent judges who tend to come to similar decisions.

What is important is that the rules are clear—that the athletes know what they are and are not allowed to do—that they have certainty. Good laws are the same

What is important is that the rules are clear—that the athletes know what they are and are not allowed to do—that they have certainty. Good laws are the same, and as we argue in our submission, these proposals from the Government fail in this respect. While well-intentioned, they are vague, likely to be ineffective, and insufficiently grounded in evidence.

As it stands, the proposal replaces words like hostility, ill-will, contempt and ridicule with “hatred.” This would limit the offense to the most extreme instances—which is good—by insinuating a strict definition of hatred. Unfortunately, the proposals do not offer how guidance for how “hatred” will be defined, with only the promise of another “consultation” for exact wording.

If the definition of hatred remains vague in hate speech law, there will be a chilling effect on free expression. Ordinary people will not know whether their genuinely held but potentially offensive views will be considered criminal. There’s also a chance the definition of hatred will be defined down, like the Canadian courts have done, to something like “looking down on or treating as inferior.”

If the definition of hatred remains vague, there will be a chilling effect on free expression.

No comparative international government has managed to land a satisfactory definition written in legislation—what makes this Government think they can? When asked by the media, neither the Minister of Justice nor the Prime Minister could answer who the law would apply to and which specific kinds of speech would be outlawed. Judges should be applying the law, not defining it after the fact.

On top of this, there is just no international evidence that these laws would do what the Government is hoping. The only thing these proposals guarantee, unfortunately, is a reduction in our freedom of expression. This is why most people polled are against it, including vociferous opposition from the left.

A more socially cohesive New Zealand where people feel safe and that they belong is really important. The goal is good, but these hate speech proposals are not. These rules won’t just be for sport, and we must strongly oppose these proposals.

go back

Maxim Institute is an independent charitable trust that relies on the generous support of families, community groups, trusts, and individuals—without them, we wouldn’t exist.

We’d love to have you join our Community of Supporters. We need people like you to help us continue this work—and to grow it—so we can respond to today’s challenges and opportunities and help create a better future for the next generation.