Law Society voices support for Human Rights Act extension in government submission

The New Zealand Law Society | Te Kāhui Ture o Aotearoa has voiced support for the extension of the Human Rights Act to cover discrimination against transgender, gender diverse and intersex people in its submission to the New Zealand government’s discussion document on proposals against incitement of hatred and discrimination.

The organisation’s submission, which was drafted by its criminal law and human rights and privacy committees, is one of a “record-breaking” 15,000 submissions made following the government’s request for feedback on potential legislation.

The Law Society said that through the submission, it supported efforts to improve social cohesion but also emphasised the protection of the right to freedom of expression. Any limitation, it said, must be “demonstrably justified.”

“It is crucial that the legislation identifies very clearly what will, or will not, be prohibited behaviour,” the organisation wrote in the submission. “It must also be clear that it is not the ideas that are targeted by the legislation. It is the way they are publicly expressed, and the effect that may have on others.”

The Law Society noted that terms must be clearly defined in the legislation to distinguish what is serious discrimination.

“The new and amended provisions must be carefully drafted. Care must be taken to clearly define terms such as ‘hatred’ so that only expressions at the serious end of the spectrum are caught and to ensure effective enforcement and ‘discrimination’ so that discrimination which has no element of ill-will, and lawful discrimination permitted by other relevant laws, are not caught,” the organisation said.

The other key points made by the Law Society are outlined as follows:

• The effect should be assessed on whether the expression incites hatred towards the group. It should not be assessed on whether the group to which the expression is made is offended
• There must be an evidential basis for deciding to broaden the groups included in section 61 and 131. Some of the grounds may not justify a limitation on freedom of expression
• The organisation prefers using the words ‘incite’ and ‘incitement,’ rather than ‘stir up’
• The terms ‘maintain’ and ‘normalise’ should not be included as a part of the new offence. They may unintentionally lower the threshold and widen the range of behaviours which can be caught. For example, would failing to condemn expressions inciting hatred amount to ‘maintaining’ and ‘normalising’ and therefore require prosecution?

The Law Society also backed the retention of the requirement that the attorney general should consent to the prosecution of related offences.

If a bill is introduced, the organisation said that it expects to make submissions to the justice select committee.