Tova O'Brien: Jacinda Ardern has misled the public and shut down debate on hate speech laws

Opinion 28/06/2021

This opinion piece was written by Newshub's political editor Tova O'Brien  and originally appeared on Newshub's website.

OPINION: Jacinda Ardern is wrong about her own hate speech law. Completely and utterly wrong.

Not only is the Prime Minister wrong about the basic facts of the proposal, she was wrong to shut down debate on hate speech on The AM Show this morning with her glib, inaccurate dismissals. 

The Prime Minister and Ministers develop policy and set policy directions for law. If they don’t understand the policy direction and intent of the law, how can they expect the judiciary to interpret and apply the law? 

On Newshub Nation we questioned the Justice Minister about the proposed changes and tested his policy direction and intent with examples. He conceded that, for example, if millennials expressed hatred towards boomers they could potentially be found liable for hate speech. 

Ardern is now contesting that, saying the law will only apply if it ‘incites violence’. That is wrong, the proposed threshold is as low as ‘insulting’ someone. 

The Prime Minister was dismissive about the interview and said we were trivialising the need for the law change - the terror attacks on March 15. 

It is insulting and irresponsible to pit journalists - or anyone who questions or debates the legislation - as somehow being in opposition to the needs of the victims of March 15th. 

If Jacinda Ardern wants to be the only voice who can have a say on the proposed hate speech changes - let’s fact check some of what she said on The AM Show this morning and you can decide whether she should have the only and ultimate say. 

"It’s about inciting violence and abuse against a whole group of people"

Wrong. According to the discussion document:

"The law would change so that a person who intentionally incites, stirs up, maintains or normalises hatred against any specific group of people based on a characteristic listed in Proposal One, would break the law if they did so by being threatening, abusive or insulting, including by inciting violence."

So someone who intentionally stirs up or normalises hatred by being insulting would break the law.

"Some of the examples feel like a trivialisation of that"

Wrong. No one is trivialising what happened on March 15th. I personally believe the law needs to be strengthened off the back of the recommendations from the Royal Commission of Inquiry but to help us understand the implications of the law change, we need to understand when it could be applied. Using a range of examples is one way to achieve that. It is on the government to be clear about how the law could be applied and so far the Prime Minister and her Justice Minister are completely at odds. 

"In the interview from the Nation they implied political opinion is included it is not"

Wrong. The proposal seeks to protect more groups. According to the discussion document, "this may include some or all of the other grounds in the Human Rights Act. These grounds are listed in section 21 of the Act".

Section 21 of the Act includes:

(j) political opinion, which includes the lack of a particular political opinion or any political opinion: 

Sure political opinion might be nixed during the consultation phase but it hasn’t been yet so is the Prime Minister making unilateral decisions about what will or won’t result from this consultation? In which case why are we bothering with the discussion document?

The example we put to Kris Faafoi testing political opinion is whether a journalist writing an opinion piece titled, Jacinda Ardern is Dictator, could see the journalist liable. Hmmm.

"This is about extreme speech where you’re inciting violence and hatred against an entire group of people" 

Wrong. See above.

When host Duncan Garner put forward an example of offending a staunch christian by saying christianity is over the top and mad. The Prime Minister said it wouldn't be included because, "You’re not inciting someone to go out and take his life"

What??? Wrong. She’s now re-re-writing the law on the hoof, strengthening her already made up threshold of ‘inciting violence’ to now be inciting death. This is getting weirder by the second. 

"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"

Wrong. The Executive (including the Prime Minister and Cabinet) develops policy direction. If a Minister can’t answer basic questions about the direction of a proposed policy or how the law could be applied we may as well get rid of all ministers. They’d be rendered redundant. 

"This is about trying to incite people to take action and activity against a group, the bar is high"

Is it? Because her Justice Minister made it sound like the bar could be quite low. 

Which is precisely why we need to be able to have debate, discuss examples and question how the law could be applied. 

By misleading the public and then shutting down debate Jacinda Ardern has struck the most magnificent own goal, totally playing into the hands of critics of the proposed changes who think it will stymie free speech. 

Tova O'Brien is Newshub's political editor.