The full text of our submission to the Justice Select Committee opposing the Human Rights (Incitement on Ground of Religious Belief) Amendment Bill.

Introduction

3. This bill is very simple – it adds “religious belief” to the list of protected attributes for both the civil and criminal hate speech provisions in the Human Rights Act.
4. Unfortunately in doing so it has ignored:
   1. The shortcomings in the current law concerning the definition of hate speech and what types of speech should qualify.
   2. The important differences between “religious belief” and other protected attributes that are inherent or immutable.
5. It has also ignored the recent consultation process run by the Ministry of Justice which was aiming to fix the first of these, and we hope was going to take into account the second as well.

Our position on hate speech laws

6. The New Zealand Council for Civil Liberties has a keen interest in freedom of expression as it has serious implications for our civil liberties. Our organisation was formed as a result of the 1951 waterfront lockout which included censorship laws allowing the government to punish people for sharing material in support of the waterfront workers.
7. We support freedom of expression both as a personal freedom that should not be unnecessarily limited by the state, and as a societal benefit that provides for the exchange of knowledge, information and ideas, including the types of communication necessary to the successful working of a democratic government. 
8. However we also recognise, in the words of New Zealand’s Bill of Rights Act, that these rights and freedoms may be reasonably limited “as can be demonstrably justified in a free and democratic society”. There are already a number of laws fettering free speech in New Zealand including hate speech provisions in the current Human Rights Act, defamation law, the actions of the Chief Censor, electoral law, and the Harmful Digital Communications Act. 
9. We recognise the harms that hate speech can cause, including the incitement of violence against a community and the way it can stop members of a community from exercising their own freedom of expression. These limit people’s liberty and participation in society.
10. It is our belief that any limits should only be for the worst forms of hate speech. They should not apply to speech that is a normal part of democratic debate, even when such debate might include criticism that upsets or insults. 
11. The limits currently defined in the Human Rights Act, “intent to excite hostility or ill-will against, or bring into contempt or ridicule”, are too wide and risk being used to suppress speech unreasonably.

Hate speech and religion

12. When it comes to deciding which groups should be protected by hate speech laws, we differentiate between protected characteristics that are inherent, such as race, gender, sexuality, and national origin, and those that are chosen such as political beliefs and religion. Of course, people are not simple and religion is often inextricably linked with race, culture, and national origin. It should also be obvious that anti-Muslim and anti-Jewish hate speech are significant problems in our world. This is a key difference from the other protected attributes and means that we need to treat religion differently.
13. As inherent qualities, we support adding the sex, gender identity, and disability to the protected grounds for hate speech, something that is not addressed by this amendment.
14. We believe it is important that people can criticise religion. Some religions are scams which prey on their followers. And even when they are established sincerely the values held might be anathema to others.
15. We support the right to criticise religion and are strongly opposed to any law that would prevent this. It is our belief that the proposed changes to the Human Rights Act would risk this. To use the language of the Act, we believe that people should be free to bring religions into contempt or ridicule without fear of a $7000 fine or 3 months in jail.
16. We have seen claims that these fears are over-wrought, and that there is no way that this law change could prevent criticism of religion and religious beliefs. To ensure that this is the case we recommend adding an additional clause making this clear. This might look something similar to the following:

For the avoidance of doubt, nothing in this section prohibits or restricts discussion or criticism of religions or religious beliefs.

Conclusion

17. In 2021, the Council supported the attempt to rewrite New Zealand’s hate speech laws to make them clearer and extend their protection to other groups, while at the same time ensuring that only the worst hate speech would be affected and freedom of expression would be protected as much as possible.
18. But we do not support this bill which maintains the existing poorly written definition of hate speech while extending its protection to religious belief, a category that requires more consideration than others to ensure that freedom of expression is maintained.
19. We recommend withdrawing this amendment, and finishing the consultation and drafting process for a well-considered and rights-protecting rewrite of the hate speech provisions in the Human Rights Act.
20. If Parliament is determined to pass the bill, we recommend adding an additional “for the avoidance of doubt” clause making it clear that this law does not restrict criticism of religion.

Recommendations

Recommendation 1
Withdraw this amendment in favour of continuing with the more extensive rewrite of New Zealand’s hate speech laws.

Recommendation 2
Add a “for the avoidance of doubt” clause to explicitly protect the right to criticise religion and religious belief.