With her backdown on hate speech, Kiri Allan has managed to alienate her allies while failing to convert the Opposition, Marc Daalder writes
Comment: The watered down, pared back hate speech proposals revealed by Justice Minister Kiri Allan on Saturday are the worst of all worlds.
Narrowing the scope of the protections to just religious groups will place a target on the backs of religious minorities in an election year, while leaving many other vulnerable communities unprotected.
Politically, Allan has alienated her allies in all of these communities, as well as the Green Party, the Human Rights Commission and other supporters of last year's more ambitious reforms.
Perhaps that would have been a worthwhile tradeoff if she had managed to garner the support of National and moderate opponents of the hate speech programme. Labour is keen to work across the aisle where it can, to ward off the possibility of its agenda being repealed by a National-led government after next year's election.
But those hopes were dashed mere minutes after Allan's announcement when National's justice spokesperson Paul Goldsmith said his party still wouldn't support any change to hate speech laws. The more fervent enemies of the hate speech reforms, like ACT and the Free Speech Union, were also quick to flag their continued opposition.
Now, Allan is left with a package of reforms that will satisfy no one. Free speech absolutists will continue to denounce the changes as human rights clampdown. And the vulnerable communities facing violent language with no legal recourse on a regular basis will remain unprotected.
The old political adage that a proposal which angers both the left and the right equally has probably landed in an appropriate middle ground doesn't apply here. There's a decent chance this milquetoast policy could do more harm than good - potentially even to the communities still due to receive protection under the law.
By singling out faith groups for added protections (alongside race, ethnicity and national origin which are already protected under the existing hate speech laws), Allan has placed a target on the back of religious minorities.
Already, the new proposals are being referred to as the return of "blasphemy laws". As Newsroom's explainer details, the laws would not prohibit disagreeing with or insulting religions, but the narrow scope of last year's proposals didn't stop hyperbolic fearmongering about government censorship and there's no reason to think the even narrower application of the new reforms would this time.
In fact, of the groups considered for protection from hate speech, religion may be the least relatable for the everyday New Zealander.
Most people know someone who is LGBT or disabled and who has faced discrimination as a result of that. Most people do not know members of a religious minority, given how few there are in New Zealand (less than 8 percent of the population) and how tight-knit their communities often are.
Of course, in responding to the recommendations of the Royal Commission into the March 15 terror attack, the Government couldn't have excluded faith communities from the hate speech reforms.
Still, expanding protections to a wider range of groups would have made the issue more salient for many and defused some of the attacks focused specifically on religion.
The decision to exclude rainbow and disabled communities, among others, also opens up the Government to uncomfortable questions about playing favourites.
Why should it remain legal to threaten gay men, as Auckland pastor Logan Robertson did in 2017 when he said he was "not against [gay people] getting married as long as a bullet goes through their head the moment they kiss", but illegal to make similar remarks about religious minorities?
Allan will never divulge the true reason for that decision - that it was a failed political attempt to get the National Party on-side - but has few excuses that hold water in lieu of this unpalatable truth.
Underlying all of this is the fact that even religious communities may not receive much protection from the reforms. Last year's proposal included a change to the threshold for what speech counts as hate speech.
As written in the Human Rights Act 1993, the definition of hate speech is really broad - encompassing words that are "threatening, abusive, or insulting" expressed with the intent to "excite hostility or ill-will against, or bring into contempt or ridicule" groups based on race, ethnicity, national origin or skin colour and with a likelihood that they will have that effect.
Courts have subsequently interpreted hate speech to be much narrower than what's spelled out in the legislation, because the definition as written would criminalise a vast array of legitimate (if distasteful) speech which should remain legal in a liberal democracy.
The result of this has been that there has only been a single successful prosecution for hate speech in New Zealand in the 29 years since the act was passed. That came last year, when Tauranga man Richard Jacobs posted a YouTube video calling for genocide and a race war against Māori.
The Government's original proposals would have raised the bar in the legislation, with the hopes that this new threshold would be applied by the courts as written. Thus, while tightening the written definition of hate speech, the Government hoped to encourage police to actually prosecute serious cases where they arose.
That change to thresholds was abandoned by Allan over the weekend. While religious groups will receive nominal protection from hate speech under the law, it will be the same toothless protection thus far enjoyed by racial and ethnic minorities. And to earn even this, they'll have to undergo the blistering scrutiny of the free speech absolutist outrage engine.
Hardly a good deal.
Nearly all of this political capitulation can be traced back to the impotent defence of last year's proposals by then-Justice Minister Kris Faafoi. While Faafoi had wanted to retire at the 2020 election, the Prime Minister asked him to stay on a little longer.
Across all of his portfolios after the election, Faafoi had pretty much checked out. That had serious consequences for those who had to pick up the pieces, like the new Broadcasting Minister Willie Jackson and Immigration Minister Michael Wood.
But it was the hate speech consultation where Faafoi's ineptness truly shined. The minister was unable even to say whether calling someone a "boomer" or a "Karen" would violate the proposed laws. It wouldn't, obviously, but the public never heard that from Faafoi.
As a result, the surrender on hate speech is almost unconditional. The majority of the output of three-and-a-half years of policy work is now being punted to the Law Commission, to do the same job over again.
For context on how completely the Government has given up on the reforms, consider the issue of gender diversity in the Human Rights Act.
The Government and Human Rights Commission already consider transgender, gender diverse and intersex people to be covered by the provisions which protect against discrimination - such as in housing or employment - on the basis of sex. However, this has never been tested in the courts and sex and gender are two distinct issues.
Alongside the hate speech changes, the Government last year proposed to amend the Human Rights Act to clarify that it is unlawful to discriminate against trans and intersex people in housing, employment, the provision of public services and other fora.
Even this minor tweak, which the Government itself says is just clarifying a view held since 2006 and not substantively changing the law, is part of the package being pawned off to the Law Commission.
It's unclear how long it will take for the commission to report back on the long list of issues referred to it, though someone else is likely to be in Allan's office by that stage. The report from the commission will undoubtedly be thoughtful and sensitive, and will likely gather dust on the shelves of successive justice ministers until the next terror attack forces a future government to consider and then once again capitulate on further hate speech reforms.
