Bryce Edwards: Why Labour capitulated on hate speech laws

The Labour Government is currently fighting on multiple fronts that threaten its popularity in the run-up to next year’s election.

Therefore, when a call had to be made about whether to push through divisive and poorly-designed hate speech laws, there really was no decision for Justice Minister Kiri Allan to make – the reforms had to be severely watered down.

On Saturday Allan announced that the Government had decided to ditch the majority of its hate speech reforms. Of six proposed changes to the law, only one will proceed – adding the category of “religion” to groups currently protected under the Human Rights Act.

Labour lost the debate and capitulated

The Government had previously been keen to go much further than this. There is an argument that the current definition of hate speech in the law makes prosecutions too difficult because the threshold for the courts to convict is far too high. The Royal Commission on the Christchurch Mosque Shootings argued that the current law “does not provide a credible foundation for prosecution”.

The Labour Government, therefore, proposed last year a thorough reform of hate speech laws. But what they came up with was full of serious problems, provoking a backlash.

This was most vividly exposed when both the Prime Minister and Minister of Justice were unable to explain the reforms to the public. Labour politicians couldn’t promise that the reforms wouldn’t lead to prosecutions for examples such as young people blaming the “Boomer” generation for monopolising housing wealth.

Unsurprisingly the public was not won over by Labour’s proposed reforms. The only authoritative public survey that has been carried out on the hate speech proposals – commissioned last year by the Free Speech Union, and carried out by Curia Research – showed 43 per cent surveyed either strongly or somewhat opposed, 31 per cent somewhat or strongly in favour, and 15 per cent neutral.

Notably, the survey showed that lower socio-economic voters were much less supportive of the reforms. And historically and globally this is also the case – groups with the less power in society are most keen to retain political freedoms such as free speech.

The left is divided on free speech

Labour’s reform efforts were dealt a further blow when so many leftwing voices came out in opposition to their plans. The Government had probably assumed that only the political right would oppose the clampdowns on speech. But when leftwing voices like Matt McCarten and Chris Trotter came out strongly opposed, this seriously undermined the moral authority of the reforms.

They pointed to the importance of free political speech for the advance of progressive causes and the fight against oppression. The victims of state clampdowns on speech and politics have historically been the poor, trade unions, the left, and those fighting for change.

Nonetheless, the left was split on speech issues. The more middle-class or “woke” parts of the left were much keener on speech clampdowns. Green Party voters were the most supportive – with polling showing that 55 per cent of Greens wanted the reforms implemented.

Labour’s decision to capitulate has disappointed liberals

Labour was therefore heading into a divisive election-year culture war that it couldn’t win, and there was no appetite for such a fight. Instead, the Government wanted to get the issue off the agenda as quickly and quietly as possible.

Hence Allan made the announcement on Saturday morning, and the Government has tried to quieten the debate ever since. Even the Green Party has been relatively restrained in its reaction – they put out a press release noting the party’s disappointment, but have generally helped Labour reduce public debate over the capitulation by not protesting too loudly.

Others have been extremely disappointed. The exclusion of gender or gender-diverse groups from being afforded the same protection as religious groups is very disappointing for journalists like Newsroom’s Marc Daalder. He wrote this week that the new reforms “are the worst of all worlds”, might actually make things worse, and “vulnerable communities facing violent language with no legal recourse on a regular basis will remain unprotected”.

Executive Director of Auckland Pride, Max Tweedie, was especially disappointed in Deputy Prime Minister Grant Robertson, going on the AM Show to say that the openly gay politician “knows the impact that [hate speech] has and he knows that he could do something to fix that.”

The new “blasphemy” law proposed by Labour

The Government has not been able to entirely ditch the hate speech law reforms – they promised to make changes in response to the Royal Commission’s inquiry into the mosque attacks. Therefore, they are extending the protection of the existing hate speech laws which pertain to race, ethnicity and national origin, so that they now include religion.

Even this might not prove to be entirely straightforward or uncontroversial. Some are already characterising this as a return to blasphemous libel laws – which the Government actually repealed three years ago. The Minister has characterised this as protecting “religious beliefs” from hatred.

Of course, there are genuine questions to be asked about whether this could lead to prosecutions for those mocking and criticising religion. Even without prosecutions, the reforms could silence debate on religion.

It might also raise questions on why some “vulnerable communities” should be protected and not others. Kiri Allan has justified leaving out gender from protection apparently on the basis that it could make those protected a target for abuse. But if this is the case, then why not the same logic for religious communities?

Nonetheless, it’s good that the Minister of Justice has listened to the concerns of those pointing out flaws in what has been proposed. After years of work on this issue, and plenty of wasted political capital, the Labour Government seems set to finally move on. But it’s not clear that the right lessons have yet been learned.

Dr Bryce Edwards is Political Analyst in Residence at Victoria University of Wellington. He is the director of the Democracy Project.