The Supreme Court heard the appeal from the Court of Appeal’s judgment on Monday 21 and Tuesday 22 February 2022.
Jack Hodder QC advanced our case at common law, arguing that before a public body can cancel a venue hire agreement in the face of the threat of a heckler’s veto, it needs to have cogent and informed evidence following proper investigation and consultation. That submission relied upon recent and leading authorities on free speech from Australia, Canada, the European Union, the United Kingdom and the United States.
A number of the judges were concerned about health and safety, and the need to protect the bodily integrity of those involved with an event. We argued that health and safety obligations have a ‘reasonableness’ element and must be read in light of free speech rights. Our lawyers accepted that bodily integrity is an important consideration but argued that it must be balanced against free speech and cannot justify limiting free speech unless the risk is very serious.
Professor Philip Joseph argued our case under the New Zealand Bill of Rights Act 1990. He told the Court they were required to make their own assessment of whether the limits placed on free speech were justified. He said the Court could not rely on the assessment by RFAL because it had not undertaken the required balancing exercise. He said that RFAL had opted for the “nuclear option” by cancelling the venue hire agreement.
The Council argued that the High Court was correct to find that RFAL was not subject to judicial review or the New Zealand Bill of Rights Act. There were few questions on this topic from the Court. But the Chief Justice was interested in how RFAL’s commercial decision-making might be affected. Mr Hodder explained that there would be no impact on the ability to, for example, charge fees because that would not involve controlling the content of speech.
The Chief Justice also asked what impact remote participation might have on free speech. The Council suggested that society may no longer need to tolerate a level of disorder in order to facilitate free speech. We strongly rejected that suggestion and emphasised the importance of in-person communication for dialogue and protest.
Distinguished Professor Paul Spoonley, a long-time observer of the far-Right and supporter of new hate speech legislation, and Elliot Ikilei, deputy leader of the New Conservatives met to debate hate speech legislation on June 29th at Victoria University. Prof Spoonley no doubt feels deeply that new legislation will better protect minority groups and his concern and energy directed this goal is commendable, but having listened to him a number of times now, his arguments tend to lack depth and explanation and rely on broad assumptions, dare I say even characterisations, of minority groups.
The organisers of the event were the Shalom Students Association and Prof Spoonley focused on the spike in antisemitism around the world especially since 2015/ 16, and an increased need to protect our Jewish community*. Sadly, he never articulated exactly how hate speech legislation would prevent future atrocities. He’s in good company, the Human Rights Commission Chief Commissioner Paul S. Hunt hasn’t managed an explanation either, failing spectacularly in a 2019 RNZ interview with Kim Hill. We were left to assume that Prof Spoonley believes potentially dangerous racists will simply put down their pens at the introduction of new laws, shrug their shoulders and quietly find something better to do with their time. As speech restrictions are invariably a violation of democracy and equality, we really need to understand exactly how they will be effective.
Another striking thing about Prof Spoonley is, for all his professed knowledge of the far-Right, and concern about antisemitism, he doesn’t seem to understand that this ancient hatred is also a conspiracy theory making it a particularly complex form of racism. Advertising that it is no longer legal to express your displeasure at Jewish influence plays directly into ‘Jewish control’ narratives, potentially making the far-Right mission seemingly more urgent to the most deranged. In the Christchurch terrorist’s manifesto, the killer explicitly states that his murderous act will hopefully beget more chaos due to the illiberal policies the government would likely implement. Add the martyr complex embedded in these movements and one has every reason to fear new laws could serve as a provocation. Why is Prof. Spoonley confident this wouldn’t be the case?
Prof Spoonley’s closing address placed new hate speech legislation in the context of our changing demographics and this, to me, was the most disappointing aspect of his showing the other night. Does Prof. Spoonley really believe that multicultural nations demand illiberal speech laws in order to work? And if we are facing acute divisions, as he suggests, wouldn’t it be counter intuitive to hand advantage to select factions? And what does it say about attitudes towards minority groups among sections of academia when Prof. Spoonley suggests hateful speech silences members of minority groups from contributing to the wider debate? Plenty of people, from all walks of life, shy away from engaging online due to the intensity of the discourse. I’m a member of a minority group who is more than happy to jump in and give as good as I get, and I have plenty of Muslim and other friends who are just as confrontational. The narrative of the wall flower minority member is already a rather well-established, convenient trope among academics of Spoonley’s ilk that denies the strength and diversity within these groups.
Elliot Ekilei, in starting off his night, wanted to make clear that he was not an academic and that his own positions would be informed by the streets and his years of activism in South Auckland. As pleasant as Elliot always is, it started to feel like a thinly veiled insult the longer he wrung this towel. Yet for all of Prof. Spoonley’s experience and knowledge I was left feeling there is still significant distance between himself and some of our minority groups. This gap in understanding won’t serve minorities very well. To his credit, Prof. Spoonley admitted we need more debate on the topic, and I would personally love to take him up on this, potentially on the Free Speech Coalition podcast. Professor Spoonley, the invitation is open.
* The NZ Jewish Council oppose new hate speech legislation which is something it would be good to hear Prof Spoonley address at some point.
Yesterday, a NZ comedian (I don’t like to name names. I prefer monikers inspired by people’s ethnic types and body fat indexes… Ah, shit. OK, I’ll name him…) Raybon Kan — did I mention he was a comedian — wrote an anti-Free speech piece for stuff.co.nz. He kicked-off, as every anti-speech screed-writer does, by clearing his throat with an affirmation of his personal commitment to Free Speech (he is a comedian after all) before using his 600 words to inform us he has nothing but scorn for the concept.
It took about one year but we got our two days in court. The judge heard our case against Auckland Council and they put up their best defence, as they should. Now we wait for a decision, expected by the end of the year.
The arguments were submitted in writing before they were presented to the judge in person, but they were able to be challenged and refined through questions from His Honour. While it was difficult to hear the words of my affidavit selectively used and abused by lawyers for Auckland Council, I understand their job is to give their client the best defence. And that they did, just as our lawyers presented our case in a convincing manner.
By John Drinnan
There is reason to be nervous about a new strategy for the Broadcasting Standards Authority to focus on “harm” when administering the codes. The new strategy is being developed in tandem with a government review of the legal approach to “hate”. “Hate” is like “harm” - a word that people will seek to define for their own purposes.
Radio New Zealand Mediawatch producer Colin Peacock interviewed BSA chairman Judge Bill Hastings (chief film censor from 1998 to 2010) and chief executive Belinda Moffatt about the change.
David Seymour’s proposal to abolish the Human Rights Commission reflects widespread suspicion that is has become a taxpayer-funded nest for people plotting to end the freedoms it was established to protect. As Janet Albrechtsen explained last week in The Australian, the same problem afflicts Australia. Instead of defending free speech the Australian Human Rights Commission has been among the institutions trying to punish people who challenge politically correct views.
The Australian is behind a strict pay-wall, so Janet has authorised the Free Speech Coalition to reproduce her article below. Unfortunately we cannot reproduce the long list of comments the article attracted.
Janet is a highly qualified lawyer but is best known for her journalism, having been a published commentator in most of Australia’s quality news media.Read more
With permission from Stuff's editors --
Selected parts of an Opinion piece by Damien Grant, contributor to Stuff and supporter of the Free Speech Coalition
"If you need evidence of why governments should not be trusted with regulating social media companies you only need to flick through the twenty four page advertorial masquerading as a report produced by the freshly minted Helen Clark Foundation last week."
"It isn't a long read, being mostly stock photos and images of Clark and Ardern, but its message is clear: new regulations are needed to prevent online hate speech in order to combat terrorism."
"Which may strike some readers as odd, as the west has been subjected to decades of terrorism that wasn't instigated by Neo-Nazis nor transphobes."Read more
- Dr David Cumin
I was asked to answer an important question at a recent event hosted by the Indian community in New Zealand: Is NZ a racist country?
The question was clearly based off a comment that Taika Waititi made in 2018 - calling New Zealand "racist as F*ck" - but the terror attacks in Christchurch on March 15th that have shocked our nation mean it is more important than ever to address the question.
It is very easy to point to historical examples of egregious racism in New Zealand. The poll tax on Chinese, banning Te Reo Maori from being spoken at schools, and preventing all but a few Jewish refugees from Europe are all examples of state-endorsed racism; not to mention the other crimes of colonialism against Maori.
For a first-time list MP who made it into Parliament by the skin of her teeth, and is in a minor party that maybe is or isn’t in government (depending on what day it is and who you ask), Golriz Ghahraman sure gets a lot of attention. I’m loathe to add to it, but her self-appointed role as chief champion of hate speech law reform demands it.
Now, to pre-empt those who apparently consider skin pigmentation determines credentials to comment on this subject, I confess that my skin is some shade of white, though Hitler and his henchmen considered my people most definitely not white, as did the white supremacist gunman who massacred 11 of my people in a Pittsburgh synagogue last year. For those who can see past skin pigmentation, it’s worth remembering Jews (my family included) have a history of persecution and discrimination and that they are still vulnerable; in every Western country where hate crime statistics are maintained, Jews are increasingly disproportionately represented, more so than any other group. I’ve had quite a bit of hate mail (both snail mail and social media) and for those who think lived experience matters when discussing this issue, I believe I have enough of it.Read more
By Dane Giraud
It seems incredible now but there was a time when nearly every New Zealand suburb had a beautiful movie theatre. They could be rather baroque affairs too, with mezzanine levels and carpet on the walls. My locals were “The Starlight” in Hunters Corner, Papatoetoe, where I saw “Jaws”, “Raiders of the Lost Ark” (in possibly the greatest double-feature ever), “Rocky’s 2, 3 & 4” and “Return of The Jedi”. The first “Rocky” I saw at the “Orpheus” on Station Rd, Otahuhu, on a rare day out with my father.
Since at least 2017, the New Zealand Human Rights Commission has sought to broaden the definition of hate speech, seeing that existing laws had been "unable to be utilized in respect of religious hate speech directed at Muslim New Zealanders, who, for the most part, belong to a variety of ethnic minority communities in New Zealand”.
In the wake of the Christchurch terror attacks, Justice Minister Andrew Little has now pledged to work alongside the HRC to “fast-track” (a term you never want to hear when freedoms are at stake) a widespread review that would include deciding if hate speech (including the aforementioned religious hate speech) should be established as its own separate offense.
It was interesting (and potentially telling, regarding the HRC’s unhelpful ideological bent) that Jews weren’t mentioned in the 2017 HRC text considering how vulnerable we currently are to demonization from both the Hard-Left and Right. Internationally, more than 50% of the hate crimes recorded against a religious group are directed at Jews, who often make up less than 1% of a country’s population.Read more
Quilliette article - Banning Evil: In the Shadow of Christchurch, Quasi-Religious Myths Can Lead Us Astray
With permission from Quillette's editors--
By Michael Shermer, contributor to Quillette and publisher of Skeptic Magazine.
On March 15, a 28-year old an Australian gunman named Brenton Tarrant allegedly opened fire in two Christchurch, New Zealand mosques, killing 50 and wounding 50 more. It was the worst mass shooting in the history of that country. Prime Minister Jacinda Ardern, who was rightly praised for her response to the murders, declared: “While the nation grapples with a form of grief and anger that we have not experienced before, we are seeking answers.”
One answer took form a week later, when Ms. Ardern announced legislation that would ban all military-style semi-automatic weapons, assault rifles and high-capacity magazines. Will such gun-control measures work to reduce gun crime? Maybe. They did in Australia following a 1996 mass shooting in Tasmania in which 35 people were murdered. A 2006 follow-up study showed that in the 18 years prior to the ban, there had been 13 mass shootings. But in the decade following, there had been none. Gun culture is different in every country. But there is at least an arguable case to be made that the newly announced controls will make New Zealand a safer country.
By Dane Giraud -
The anti-speech mob ignore a simple fact; there is incredible diversity within minority groups. Therefore, we must keep society as open and as liberal as possible. The idea that our right to free speech must be tested against “competing rights” comes out of a worldview that minority rights conflict with that of the majority, when the most contentious battles far often happen within minority groups.
The UN Declaration of Human Rights (UNDHR) preamble recognizes that humans have an “inherent dignity” (women who sleep with me being a notable exception) and “equal and inalienable rights”. So, what’s with the bunk peddled by so many now that “rights” aren’t inalienable and that some rights are more equal than others?