THOMAS CRANMER: Labour reintroduces blasphemy laws

The government repealed blasphemous libel laws three years ago but now looks set to re-introduce something remarkably similar. It is an amendment that not even the Royal Commission has recommended.  THOMAS  CRANMER writes-

As the government was labelled “reckless and irresponsible” on Wednesday for attempting to rush through 24 bills, some without public consultation, the chances of bad law being made is extremely high.

Already this week we have seen the Prime Minister and her Cabinet colleagues so badly exposed on the Water Services Entities Bill, that it has required Minister Mahuta to make an amendment in an effort to quell growing public concern about the scope of the Bill.

That amendment, by the way, is merely a drafting sleight of hand that doesn’t change the substance or scope of the Bill but more on that next week.

Given the speed at which the government is moving we can be sure that it is not the only wrinkle that will make its way through the House and onto the statute books.

Take, for instance, the much-watered-down amendment to the Human Rights Act. It’s been sold to the public by Minister Kiri Allan as a small amendment which will simply extend incitement laws to religion.

That will be achieved by extending both the civil (section 61) and criminal (section 131) provisions of the Act, to cover religious belief. What’s more, we are told that the Minister is merely following a recommendation from the Royal Commission report on the Christchurch terror attack.

It was, therefore, left to David Seymour to stand up in the House during Tuesday’s question time, and with the air of a student that’s just caught his teacher out, he had the following exchange with the Prime Minister:

David Seymour: Does she stand by the Government’s 2019 decision to repeal the offence of blasphemous libel because it was “Inconsistent with the freedom of expression as protected by the New Zealand Bill of Rights Act”?

Jacinda Ardern: We stand by the changes we made, but of course what we did not repeal was the Human Rights Act and the sections that currently protect, for instance, different ethnicities from those same provisions.

David Seymour: If the Government indeed thought it appropriate to remove the offence of blasphemous libel from the law books, by what logic is it now proposing to introduce a law that would criminalise insulting language directed at religious groups?

Jacinda Ardern: The member is misleading the public, and this is one of the issues about debating this, because what the member is not acknowledging is that we already have these sections in the Human Rights Act—it’s sections 61 and 131. What we are proposing is to add the word “religion”.

David Seymour: So can the Prime Minister please lead the people of New Zealand properly if I am misleading them: can she explain how it is logical to repeal a law against blasphemous libel and then introduce a law which makes it an offence to insult a religion?

Jacinda Ardern: What I am correcting the member on is the fact that the provision already exists. It already exists. We are simply adding to what is already incitement provisions on ethnic grounds, adding the word “religion”.

Kiri Allan: Can the Prime Minister confirm that what the Government’s decision is with respect to the Human Rights Act amendments made this week are about incitement and inciting others, not mere insulting or otherwise comments that the other member has said?

Jacinda Ardern: Yes, I can. And I can also confirm they are existing provisions under the Human Rights Act that apply to colour, race, or ethnicity. What we are proposing is to add the word “religion”. If the member believes that these provisions are wrong, then he should oppose the existing law, not simply the proposal. And I’m glad we have clarified that.

Seymour was, of course, correct to point out the government’s apparent U-turn on this matter. It was a mere three years ago that Andrew Little announced that the “archaic blasphemous libel offence” would be repealed given that “it raises potential Bill of Rights concerns. The obsolete provision has no place in a modern society which protects freedom of expression.”

Little pointed out that the last prosecution was in 1922 which arose from a paper’s publication of the poem Stand To: Good Friday Morn, by British soldier and war poet Siegfried Sassoon.

It was the last three lines that were judged offensive: “O Jesus, send me a wound to-day, And I’ll believe in Your bread and wine, And get my bloody old sins washed white!”

The jury found the publisher not guilty but they added that publication of such books as Sassoon’s should be discouraged.

The last time a prosecution was even considered in New Zealand was in 1998. It concerned the infamous Virgin in the Condom sculpture which was part of a touring exhibition from the British Council that featured at Te Papa two weeks after its opening.

Obviously, the Royal Commission knew this history – which is why it declared that section 131 of the Human Rights Act is not actually fit for purpose and sets too low a liability threshold.

Its actual recommendation was to “repeal section 131 of the Human Rights Act 1993 and insert a provision in the Crimes Act 1961 for an offence of inciting racial or religious disharmony, based on an intent to stir up, maintain or normalise hatred, through threatening, abusive or insulting communication with protected characteristics that include religious affiliation.”

It is, in fact, very similar to what King’s Counsel, Marie Dyhrberg, told Newshub Nation on Saturday.

The Royal Commission’s rationale for their recommendation was as follows:

Section 131 of the Human Rights Act 1993, which criminalises certain types of hate speech, is not fit for purpose. The section as written unacceptably impinges on the right of freedom of expression. The words ‘excite hostility against or bring into contempt’ set a low liability threshold. Accordingly it has invited rewriting by the courts, but in a way that has resulted in considerable uncertainty. More generally it does not provide a credible foundation for prosecution.

We propose a reframed offence that more accurately targets behaviour warranting criminal prosecution and that encompasses hate speech directed at religious affiliation.

This offence should be included in the Crimes Act, rather than the Human Rights Act, to reflect the seriousness of the offence and increase the resulting penalty. It should be reframed to focus on stirring up or provoking hatred against a group of persons defined by protected characteristics, which should include religious affiliation.

Sharpening the focus of the section 131 offence would mean that the offence would not discharge New Zealand’s obligations under article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination. Substantial compliance could be achieved if the definition of ‘objectionable’ in section 3 of the Films, Videos, and Publications Classification Act 1993 was amended to include racial superiority, racial hatred and racial discrimination. 

Thus even this smallest of amendments to an Act of Parliament is not going to achieve its desired result, and will inevitably need to be cleaned up when the Law Commission reports back on the other recommendations made by the Royal Commission.

• Thomas Cranmer is a pseudonym. This article was first posted on Cranmer’s Substack, public interest citizen journalism about politics, culture and law in New Zealand. You will find it at Labour reintroduces blasphemy laws – Cranmer’s Substack