Another anti-protest law

National has introduced its new anti-homeless law to Parliament, and it will receive a first reading next week (which puts them up against it if they want it to pass before the election). The law is a disgusting piece of social cleansing, drafted to enable the police to hide the consequences of National's failed economic policies. But its worse than that, because in addition to enabling social cleansing, it is also, like their anti-boy-racer law, an anti-protest law. The new "move-on" order powers apply not just to people begging or rough sleeping (which is bad enough), but also to anyone "behaving in a manner that is disorderly, intimidating, or threatening", "behaving in a manner that is disruptive" (being "disruptive", whatever the fuck that means, is not a criminal offence), "unreasonably obstructing, hindering, or preventing someone from entering or leaving a place where a lawful trade, business, or occupation is being conducted", or "breaching the peace".

As noted previously, the government and police have a habit of regarding protest as inherently disorderly and disruptive, if not as a "breach of the peace". And the application to the common protest tactic of blockading a building is obvious.

Fascinatingly, the bill's BORA vet finds that the anti-begging and anti-rough sleeping provisions are disproportionate limitations on the freedoms of expression and movement, but does not consider the obvious application to protests at all. Which both shows a distinct lack of imagination and is a complete dereliction of duty on the Attorney-General's part.

This law can be used to limit fundamental rights to protest. Given police attitudes, it will inevitably be used to do so. If that is not the intent, then it needs a Terrorism Suppression Act-style clause excluding its application to any protest, strike, or lockout. If the regime fails to add one, then we should regard the suppression of protest as their intent, and the destruction of our democracy as their ultimate goal. It is that simple.

"Papers, please" for the internet

Yesterday the Education and Workforce Committee released its report into online harm to young people, recommending (among other things) a ban on social media for young people. Which, in practice, means "age-verification", mandatory identification and registration of social media users, and banning VPNs to prevent evasion. Basically "papers, please" tp use the internet. There are all sorts of reasons why this is a terrible idea - not least because the companies doing it are poor custodians of our personal information, if not trojan horses doing shady shit for fascists - but I'll focus on the simple one: there are already countries where people are forced to register and be identifiable to the state to use social media, and which ban VPNs to prevent evasion. They're tyrannies like Russia and Iran. And while "making sure the state can tell who says what" is not the ostensible purpose of the policy, its a very obvious side-effect, one which needs to be seriously considered. And when you look back at its history - press licensing, government observation of public meetings - its tyranny all the way down. But apparently tyranny is the bipartiasn position of our two status quo political parties now...

Meanwhile, we have an example from right next door in Australia that none of this works, and that it drives kids to use even more dangerous technologies (ChatGPT, FFS, which sycophantically reinforces user delusions, driving them to psychosis and suicide, or Roblox, which is so notorious as a site for predators that child safety on it has its own wikipedia article). And we also have examples from the UK, where the regulatory burden of complying with moderation requirements of their Online Safety Act has forced the shutdown of small internet forums. This has a very real impact on the freedom of expression of adults, but apparently, none of that matters: any amount of collateral damage is acceptable to our parliament of tyrants.

I was lucky enough to grow up in Aotearoa when it was still free. When the state couldn't say "papers, please" to you on the street, or on the internet. Our two major political parties now seem to be colluding to eliminate that freedom. Neither of them deserve your vote. And if they pass this law, like other tyrannies, their state deserves neither your support or your loyalty.

(There are other suggestions in the report which are worth pursuing, such as adopting the EU Digital Services Act model of making platforms responsible for online harm, regulating algorithims so they can't shovel shit onto our feeds, banning non-consensual deepfake pornography, and aligning online and offline advertising restrictions. Sadly, those are the bits parliament is likely to chuck out, in favour of the stupid, simple and intrusive age ban / identification requirement, because our MPs prefer easy headlines to doing the actual work of designing good regulation...)

Gagging the medical professions

Aotearoa has had a public health system since the First Labour Government in the 1930s. And for as long as it has existed, medical professionals have been speaking out about its failures, criticising cuts, and generally acting as a watchdog on government policy. This has been inconvenient to those governments, but the professional role of medical staff has always been respected, because it is recognised that - like academics - they have a duty to their patients and to the public.

...until now. Faced with a public health system collapsing due to systematic underfunding, National wants to silence medical professionals. Its Healthy Futures (Pae Ora) Amendment Bill (which is primarily about imposing white supremacy) includes a clause classifying Health NZ staff as public servants, and requiring them to uphold the principle of political neutrality.

This is a complete novelty in Aotearoa. As noted above, medical staff in the public health system have never been classified this way. And this isn't about a change in status - DHBs have been legally "crown agents" since the 2004 reorganisation and reclassification of the wider public sector with the Crown Entities act 2004, and were effectively in that position since their foundation in 2000 (as were their Area Health Board, Regional Health Authority, Crown Health Enterprise, and Hospital and Health Service predecessors). Instead, the motive is obviously to gag critics of the regime.

You might think that this would engage the right to freedom of expression affirmed by the BORA - and you'd be right. But weirdly, the Ministry of Justice, who did the BORA vet on the bill, didn't think so - they don't mention it, even to say it is a justified limitation. Though possibly this is because, as usual, they "ha[d] not yet received a final version of the Bill" (which should raise questions about the quality of the Ministry's BORA vetting process, and the quality of the advice on this core constitutional responsibility...)

What might a BORA vet have looked like? In the case of ordinary public servants, we accept that political neutrality and consequent restrictions on publicly criticising the government of the day are a justified limitation, because a neutral public service is an important public purpose, and the restrictions are proportionate. But ordinary public servants don't have a professional obligation to protect the public of medical staff, or a decades-long tradition of doing so. And the latter is relevant - as the Attorney-General noted in her section 7 report on the voter suppression provisions of the regime's Electoral Amendment Bill:

Expectations based on longstanding legislative settings are salient to judging potential prejudice and proportionality.

We have an expectation based on long-standing legislative settings that medical staff are free to act as critics of the public health system. They have been part of the wider state sector for nearly a century, and have always been free to speak. Restricting that right, when nothing meaningful has changed in terms of their status, therefore seems disproportionate.

The regime could have made a case that this change complies witht he BORA. The fact that they haven't even bothered speaks volumes. It must be rejected. If you'd like to speak up on it (or the other, racist changes in the bill), you can do so here.

National takes another step towards tyranny

Earlier in the month, the British government proscribed Palestine Action, a peaceful protest group, as a terrorist entity, over their effective protest action against British support for Israel's campaign of genocide in Gaza. Since then hundreds of people have been arrested for "supporting" them, some for simply holding a Palestinian flag. Its an appalling act of tyranny from a regime desperate to shut down criticism of its support for a genocidal regime. And now, the National government wants to bring that tyranny here, with a secret "consultation" on the Terrorism Suppression Act aimed at making designation easier and outlawing speaking in "support" of terrorist entities:

New Zealanders who publicly express support for terrorist groups could be charged with a criminal offence, as part of secretive proposals being considered by the Government.

[...]

The coalition Government is eyeing reforms to the law, with limited consultation currently taking place behind closed doors with a handpicked selection of groups and experts.

In a copy of the consultation document seen by Newsroom, the Ministry of Justice said the Government had agreed to progress “targeted amendments” to the law, which had not been substantively reviewed since its enactment.

The document said existing offences in the law “don’t capture the full range of behaviours or activities of concern that are part of the contemporary threat from terrorism”, and needed to be updated.

Among the changes being considered were making membership of a terrorist entity a criminal offence, creating new offences to capture public expressions of support for a terrorist act or designated entities (such as showing insignia or distributing propaganda), and modernising definitions for terms like “material support” to capture new online forms of support.

The consultation document also raised the possibility of a streamlined designation process, saying the current decision-making system was lengthy and the designation period was short.

You can read the consultation document here. Its odd that the NZCCL - Aotearoa's premier civil liberties organisation - was not consulted. But then, the whole point of this sort of "targeted consultation" is to exclude opposing voices, and insulate the process from criticism until it is rammed through parliament and is a fait accompli.

As for the merits: criminalising membership of a terrorist organisation does not sound unreasonable, except that such entities don't exactly have membership cards, and all the ways in which membership actually matters - recruiting, training, financing, providing material support, or enhancing the ability to carry out terrorist acts - are already all crimes. As for "public expressions of support", what is happening in the UK at the moment, where virtually any sign of opposition to Israel's genocide in Gaza or support for Palestine in general is being treated as support for a terrorist entity - shows the danger of that. And while the New Zealand government would claim that it is "different", its past actions show that they are not. Just this year, a government minister denounced an opposition MP as "support[ing] terrorism" over Gaza, and I recall him saying similar things about environmentalists opposing coal mines. These are the last people I would trust with stronger anti-terrorism powers.

The Ministry of Justice did not want to hear from Aotearoa about its secret plans. But you can tell them anyway. Read the discussion document, and send your feedback to nationalsecurity@justice.govt.nz by Friday 8 August 2025. While you're at it, tell them that in a democracy, consultations about fundamental civil liberties issues are public, not private.

This is what the IPCA's anti-protest laws mean

Back in February, the "Independent" Police Conduct Authority issued a radical, out-of-the-blue proposal to ban protests. The core of their proposal was a requirement for protesters to notify police well in advance of any protest action, and to obey whatever conditions police subsequently set or directions they made, with failure to do so being an arrestable offence. The latter proposal has since been adopted as a Member's Bill by a National MP, so its very much the regime's agenda as well.

The IPCA's proposal was based in part on draconian Australian anti-protest laws. And there's a perfect example of what they mean in practice, with the possible blinding of a protestor by police in Sydney:

A former Greens candidate has been injured after allegedly resisting police arrest while picketing a business in Sydney’s west, with friends and family warned she may lose sight in her right eye.

The protest, which attracted between 50 and 60 people, sought to stop pedestrian access to a business that was accused by protesters of “supplying electroplating and surface coating services for a variety of applications including aerospace and defence technology” to Israel.

[...]

According to police, officers issued a move-on direction to the protesters at about 5.30am on Friday.

The force alleged the protest was “unauthorised”, as those involved had not given advanced notice nor submitted a form that protected them from being charged under anti-protest laws.

The key thing to realise here is that police may use "reasonable force" to effect an arrest. So creating an offence of "disobeying police" or "refusing to tell police your plans" is effectively a licence for police to beat people at will, an invitation to the sort of violent and brutal policing exemplified above. Or to the sort of violent and brutal policing we see in America, where police respond to protests with barrages of tear gas, rubber bullets, and baton charges, because apparently that's an appropriate response to people yelling and waving banners in the streets.

This sort of policing is profoundly incompatible with democracy. It is not the sort of policing we want to see here. And if the IPCA wants it, then they are no longer fit for purpose, and should be dissolved.

National is afraid of kids

As the government - or one of its Ministers, anyway - keeps reminding us, Parliament is meant to be a place of free speech, where MPs (but not apparently select committee witnesses) need to be able to robustly criticise government policy and hold Ministers to account. But Youth MPs at this week's Youth Parliament won't be able to experience this. Instead, they're being censored, to stop them from criticising the government:

Some young people taking part in Youth Parliament 2025 say they’ve been censored and told to avoid speaking on major political issues — including voting rights, climate action, pay equity and financial literacy — or being critical of ministers.

“We’ve been told to soften our language, drop key parts of our speeches, and avoid criticising certain ministers, as speaking out could ‘cause problems’,” said Nate Wilbourne, founder of Gen Z Aotearoa and Youth MP for Labour’s Damien O’Connor. “That isn’t guidance — it’s control.”

In a statement, the coalition of youth organisations accused the Ministry of Youth Development of censorship, saying decisions made by officials have undermined the event.

Youth MPs have been specifically banned from speaking on the issues that matter most to them, including voting rights, pay equity, and climate action. And they have been banned from clapping or "expressing dissent" in the chamber. The RNZ version of the story suggests that the Ministry of Youth Development is trying to enforce "political neutrality" on youth MPs - a standard which applies only to public servants, not young members of the public.

This is pathetic. But it is certainly revealing about what the regime is afraid of. And what they're afraid of are young people who overwhelmingly disagree with them freely expressing their views. But if they won't let youth MPs properly express themselves in Parliament, maybe they should do it outside, and make it clear how rotten this dogshit government is.

Parliamentary privilege is a threat to all of us

People are rightly outraged about psycho fascist Parmjeet Parmar "inquiring" about using the privileges committee to arbitrarily imprison her political opponents. As Chris Hipkins said yesterday, that is the sort of thing which happens in tinpot dictatorships, undemocratic and wrong, and a permanent stain on our Parliament. But its worse than that. Because parliamentary privilege doesn't only affect MPs, but all of us. Among the examples of contempts listed in the standing orders is:

reflecting on the character or conduct of the House or of a member in the member’s capacity as a member of the House.

Taken literally, this means that saying that Shane Jones is a corrupt mining industry stooge, or Winston is a senile old racist, or Casey Costello is a tobacco lobbyist, or David Seymour is a racist little incel are all contempts, punishable by parliament's private star chamber, the privileges committee. And its not just a theoretical problem: its not that many years since Matt Robson - then a private citizen, not an MP - was dragged before the privileges committee and forced to apologise for saying that Peter Dunne was in the pocket of the liquor and tobacco industries and had always faithfully delivered his vote for their interests.

That was outrageous enough when it was a mere apology. But now government MPs are discarding years of parliamentary precedent and openly speculating about throwing people in prison on the basis of pure political animus. That is beyond "outrageous"; it is a threat. A threat to every single one of us. Because "reflecting on the character and conduct of MPs in their capacity of MPs" is something we all do, and something we all should do. Our democracy is predicated on it. So when the government is "inquiring" about the ability of their kangaroo court to throw people in jail for breaching their bullshit "privileges", it sounds a lot like they are trying to outlaw democracy.

There is something we can do about this. Currently there is a bill before the House - the Parliament Bill - which would codify and re-enact the existing law around parliament, including parliamentary privilege. During its select committee hearings, several submitters raised the House's purported power to imprison for contempt, and recommended that they be explicitly repealed (just as its power to fine was limited in 2014). They were ignored. As a result, the House continues to claim the power to imprison people for up to two years (or maybe longer), for pretended offences like "making an MP feel bad", on the say-so of a kangaroo court which convicts on a partisan vote.

This cannot be allowed to stand. Parmjeet Parmar's "inquiry" turns this power from a theoretical historical anachronism to an active threat to each and every one of us. It is an active threat to our democracy and our liberty. It must be repealed.

(And while we're at it: in 2014 we also explicitly said that the House cannot expel a member, because of the impact of such a decision on democracy. Suspensions have a similar impact, so its time we legislatively limited them as well, to a maximum term of three days. Parliament clearly needs its wings clipped, and its time we did some clipping).

Update: Graeme Edgeler has already drafted the required amendment paper. So, which MP wants to stand up and move it?

Police want to ban protests

The "Independent" Police Conduct Authority issued a radical report today, a Review of the policing of public protests in New Zealand, in which they propose a complete rewrite of protest law, to restrict public protests and enable the police to ban them at a whim. Protest organisers would be forced to notify police of their intention to hold a protest (and would be liable for police overtime if reality moved faster than the police's sclerotic bureaucracy); police could impose conditions about who could do (or say) what and where; violating those conditions would be a crime; and there would be new criminal offences for protesting against "critical infrastructure" and picketing private residences (the latter something the Supreme Court has found to be legal, and which the police are particularly sore about because the target of the protest in that case was an abusive cop). The proposals are a serious and direct threat to the right to protest in Aotearoa, and are explicitly based on laws from anti-democratic regimes such as the UK and Australia.

Its a huge overstepping of their powers by the IPCA, whose functions include hearing complaints and making recommendations on "apparent misconduct or neglect of duty by a Police employee, or any Police practice, policy, or procedure", but do not include "law reform" or "giving policy advice", and perhaps in recognition of that, the recommendations are framed as recommendations that the police propose these changes (so: the IPCA laundering their views through the police. But see later...) As the New Zealand Council for Civil Liberties' Thomas Beagle puts it, "Has the IPCA got confused into believing that the PC in their name is for Public Conduct rather than Police Conduct?"

Except its worse than that. Because when you dig into how the IPCA came to do this questionably legal "thematic review", they say:

the need to undertake this review was discussed and agreed with Police from an early stage, and some components of the review have been conducted jointly with Police.

...which invites the conclusion that the police are in fact laundering their policy preferences through the IPCA, which is collaborating with them to give these anti-democratic proposals an imprimatur of "independence". So, the police are laundering through the IPCA, who are laundering through the police, but its cops all the way down. And this shoddy deceit by a supposedly "independent" oversight body makes it crystal clear which side they are really on.

So who else did the IPCA consult in this review? The Ministry of Justice and Department of Internal Affairs, and "stakeholders", including "frontline officers" and "academic and policing experts" from New Zealand and "comparable jurisdictions including the United Kingdom, Northern Ireland and some Australian states". Given their anti-democratic record, the latter are the absolute last people I would ask about protest rights, and the fact that they were consulted suggests a predetermination to suppress protest. Meanwhile, note who is absent from that list: protestors and civil society groups. They've done a big report on how protest law isn't working (for who?), while failing to consult the major "users" (for want of a better word) of that law. And its hard to escape the conclusion that this affected the outcome significantly.

How? Well, the report starts with a summary of protest law, starting with the international and domestic human rights framework, including Article 21 (right of peaceful assembly) of the ICCPR and sections 14 (freedom of expression), 16 (freedom of peaceful assembly), and 17 (freedom of association) of the New Zealand Bill of Rights Act. The latter of course are subject "to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". And this is where it gets weird, because the IPCA - which is led by a High Court Judge and whose members are a pair of former senior public servants with experience across the justice and police portfolios - pretends not to understand the law, with repeated statements that what constitutes a "justified limitation" is unclear:

there is no general legislative definition of what reasonable limitations might look like, nor how reasonable limitations might be applied in the protest context

There is of course 35 years of jurisprudence on both of these things, including a detailed framework for the assessment of justified limitations, and a pile of caselaw around protest rights. The IPCA even refers to that caselaw later in the report, but largely to pretend that the law is "uncertain" when it is not. Largely they seem to be whining that when stuff gets to court, police decisions are overturned. Which, again, is a clear sign of bias from the IPCA.

They keep hammering this idea that the law is "imprecise", quoting the UNHRC's General Comment No. 37 on Article 21 (Right of peaceful assembly) that protest laws be

sufficiently precise to allow members of society to decide how to regulate their conduct and may not confer unfettered or sweeping discretion on those charged with their enforcement.

And this is where their failure to consult protest groups really shows. Because if you asked kiwis what we are allowed to do, we would say it is perfectly clear: we are allowed to protest peacefully (and as GC37 notes, "Mere pushing and shoving or disruption of vehicular or pedestrian movement or daily activities do not amount to “violence”"). Protest groups who trespass or block roads are not doing it because they think it is legal - to the contrary, they know it is not, and they expect arrest, and maybe prosecution. And that's one of the many tactics of protest, and All In The Game.

Instead, the people who seem to have an unclear understanding of the law here are those charged with enforcing it. But rather than educating themselves, with better training and a nationally consistent approach, they would rather limit our rights, limit our democracy, gag us, essentially for their own convenience. And it is for their own convenience, as their complaints about the overtime costs of policing protests, or having to manage traffic for a march down Riccarton Road, or their question about whether "the availability of staff and the impact of their deployment on other Police operations... is relevant to an assessment of reasonable limitations on protest activity" show.

The police are basically demanding the very "unfettered or sweeping discretion" to shut down protest the UN HRC rules out, as well as financial penalties against those who do not cooperate in their oppression. We should not let them do it. All political parties should denounce this assault on our right to protest. And those that don't should be vigorously de-elected.

More anti-protest law from Labour

Just before Parliament was dissolved for the election, Labour introduced legislation to "get tough" on ramraiders, promising to jail kids, database them for the rest of their lives, and generally kick young people. Among the provisions was one which would make videoing or livestreaming an offence an aggravating factor at sentencing (resulting in a greater punishment) - a provision which can obviously be used against political protest. Now, they've followed up their desperate "tough on crime" campaign with a promise to "get tough" on gang convoys. But it turns out that can be used against political protest too:

Labour's proposal to give police new powers to seize vehicles involved in gang convoys could be used if there is a large procession that is disrupting people's lives, the party's police spokesperson says.

The party's policy document released on Thursday morning said the proposed changes would target gang convoys "which have an intimidation factor of their own". Police would be able to take action if there is a "breach of road laws by gang members" in two or more vehicles.

Ginny Andersen, Labour's police spokesperson, was asked on Thursday if the proposal allowed police to seize vehicles involved in convoy-style protests, like those held by Brian Tamaki's group or by Groundswell.

She said the new legislation is intended "for when there are large-scale convoys going through public roads and they are disrupting people's daily lives and people going about their daily business".

Police would have discretion for when they use the legislation, Andersen said.

Labour leader Chris Hipkins said police would "consider things like protest, for example, where people are breaking the rules".

It is clear from both Andersen and Hipkins' comments that this is not a mistake, or an unintended bug, but an intentional feature. And combined with their earlier legislation, it forms a clear pattern: Labour is trying to criminalise protest. That is why they will never get my vote. And they should not get yours either.

"Prominent political figure" meets Parliamentary Privilege

Earlier in the year we saw the usual story: a "prominent political figure" (who was not an MP) had been charged with some unpleasant crimes, and had had their name suppressed. And then the story got even more outrageous, when a judge decided that he would not be identified until after the election, and neither would the party he was associated with - effectively denying us crucial information which might affect our votes. At the time I pointed out that this was untenable, with potentially horrific effects on the legitimacy of any government which included that party, as well as our democratic institutions. But it looks like we've dodged that bullet, because in Question Time today Te Pāti Māori MP Rawiri Waititi effectively identified "prominent political figure" and the party he was associated with. From Hansard:

Does the Prime Minister agree with a judgment that we've got the leader of ACT chiming in about law and order but is first to get name suppression for his president for heinous crimes?

[You can watch the video (which includes an assist from ACT's David Seymour) here (start at 4m 30s)]

Waititi's question is absolutely protected by Parliamentary Privilege, and its for Parliament to judge whether he committed contempt. But that Privilege also protects the Hansard report and video above, as well as any delayed communication of those proceedings - like this blog post. While that protection is only "qualified", it generally means people are free to report and comment on the proceeding, provided they do not act in bad faith or with ill will, or "abus[e] the occasion of communication" (whatever that means). In this case, the person is still facing trial, so I'm not going to name them. But we should absolutely scrutinise the consistency of ACT's actions in seeking suppression with its stated positions on free speech, as well as its decisions about who holds office in the party, and we should judge them for it at the ballot box.

A tyrannical move in France

The internet is how people communicate now, and social media has become a natural platform for sharing dissent and organising protests. As a result, one of the first things tyrants do when facing mass opposition is shut it down, with blocks on specific platforms, or just a system-wide blackout. We've seen such attacks on the public's right to free expression in places like Iran, Egypt, Myanmar, and India. And now, faced with widespread protests against police murder and institutional racism, Emmanuel Macron is suggesting that France follow suit:

Emmanuel Macron is facing a backlash after threatening to cut off social media networks as a means of stopping the spread of violence during periods of unrest.

Élysée officials and government ministers responded on Wednesday by insisting the president was not threatening a “general blackout” but instead the “occasional and temporary” suspension of platforms.

The president’s comments came as ministers blamed young people using social media such as Snapchat and TikTok for organising and encouraging rioting and violence after the shooting dead of a teenager during a police traffic stop in a Paris suburb last week.

“We need to think about how young people use social networks, in the family, at school, the interdictions there should be … and when things get out of hand we may have to regulate them or cut them off,” Macron told a meeting of more than 250 mayors, whose municipalities were hit by the violence, on Tuesday.

Because obviously, only "young people" - non-pensioners? - use the internet nowdays...

This is simply not what democracies do. Instead, it is the action of a tyranny. Sadly, it seems like France is following Britain towards authoritarianism. The problem for Macron is that a government which walks away from democracy forfeits its legitimacy; if he behaves like a tyrant, there's no basis for complaint if he suffers a tyrant's fate.

Labour grovels to the bigots

In the wake of the March 15 terror attack, the inquiry recommended tougher hate-speech laws. And after dragging their feet on it for a full year, the government has basicly said "fuck that":

The Government has drastically watered down its hate speech reforms, Justice Minister Kiri Allan said on Saturday.

Proposed last year in response to the March 15 terror attack and the Royal Commission report that followed, the reforms were due to expand protections to women, religious groups and rainbow and disabled communities, among others. As it stands, only hate speech on the basis of race, skin colour or national origin is prohibited.

The reforms were also going to increase the maximum sentence for hate speech and raise the legal threshold for what might be considered hate speech so that only a narrower band of violent and threatening expression would be banned. The law currently forbids speech that is intended to "incite ill-will" against a group while the Government's proposals would have raised that bar to inciting "hatred".

However, Allan said, the scope of the reforms is now severely curtailed. Only religion will be added to the list of protected grounds and no further changes will be made to hate speech law.

On the plus side, Muslims will at least get some protection. On the minus side, groups who have been routinely targeted by both hate speech and the violence it incites will be left out. And all because Labour would rather grovel to bigots and throw their own supporters under the bus than stand up for its principles.

Fuck Labour. They're as useless as a proverbial useless thing. Grovelling to the rich, grovelling to farmers, grovelling to bigots and misogynists. If they won't do what they say they will, and will back away from their principles at the first sign that someone might disagree with them, what is the fucking point of them?

Hoist by his own petard

In 2017, in response to being criticised by anonymous bloggers, then-Samoan Prime Minister Tuila'epa Sa'ilele Malielegaoi restored the archaic colonial offence of criminal libel to Samoa's statute book, ramming it through parliament in under an hour. Now, he's being prosecuted under his own law [paywalled]:

Police have perused a file on a defamation complaint against the Opposition Leader and forwarded it to the Attorney General’s Office for review, as it has recommended the veteran politician be charged.

[...]

Police Commissioner Auapaau Logoitino Filipo said the investigation has been completed and referred to the Attorney General’s Office for review, when contacted by the Samoa Observer on Wednesday.

He confirmed that there are recommendations to press charges but it is subject to a review by the Attorney General’s Office.

But enjoyment at seeing a failed tyrant hoist by his own petard aside, this is bullshit. Defamation should not be a criminal offence. And that's even clearer when you look at what Tuila'epa is accused of:

Tuilaepa had accused Olo of ignoring Government policy and Treasury Instructions on the purchase of Government official vehicles when making purchases in Australia.

He claimed the Minister could have bought the vehicle locally at a discount price.

"Politician criticises other politician and accuses them of lying" is not something that should ever be any business of police. Samoa's new government should repeal Tuila'epa's law.

No freedom of speech in the UK

In the eighteenth century, the British government waged a campaign of repression against those calling for democracy and an end to the monarchy. Over two hundred years later, nothing has really changed:

A woman was arrested holding an anti-monarchy sign in Edinburgh today, before the Queen’s cortege arrived in the city.

[...]

She held a sign saying ‘f*** imperialism, abolish monarchy’.

Officers appeared behind her and took her away, prompting the crowd to applaud.

The police are saying there was "a breach of the peace". But peacefully holding a sign is not a breach of the peace, and in a free and democratic society citizens are expected to have tolerance for the views of others and their right to protest. But then, the whole problem here is that the UK is not a "free and democratic society" - it is a monarchy, a hereditary dictatorship in fancy dress. If UKanians want to be free, they need to fix that.

No freedom of speech in Vanuatu

Last year, Vanuatu passed a "cyber-libel" law. And predictably, its first targets are those trying to hold the government to account:

A police crackdown in Vanuatu that has seen people arrested for allegedly posting comments on social media speculating politicians were responsible for the country’s current Covid outbreak has raised serious concerns about freedom of speech in the Pacific country.

At least four people on two separate islands have been arrested as part of a major investigation by Vanuatu’s Serious Crime Unit in the last few weeks, including a factory worker, a printer, a business owner, and a Facebook page moderator. They face charges of cyber stalking, cyber slander, and cyber libel and face up to three years in prison and fines of up to three million Vatu (US$25,838).

The charges relate to alleged comments on Facebook claiming that two politicians in the country had breached Covid quarantine protocols, one of which had played a role in the community transmission of the virus.

MPs violating quarantine and so spreading covid among the community is obviously a matter of huge public interest. But the law - or rather, the government - apparently doesn't recognise that, and instead views criticism and calls for accountability as a crime. Which is the sort of shit you'd expect in Putin's Russia, not a Pacific democracy.

A conviction for hate speech

The Herald reports that a man who recoded a violent rant calling for genocide of Māori has been convicted for hate speech:

Richard Jacobs, 44, filmed a video from his Pāpāmoa home in May last year where he called for the killing of Māori. The video was uploaded to YouTube.

In the video Jacobs spouted a diatribe of attacks against tangata whenua, labelling the race "overweight and unhealthy".

[...]

He then became markedly more violent, saying the Māori population "could be wiped out within a month". He threatened to burn down marae, said he knew how to kill and aimed a gun at the camera.

He was later charged with inciting racial disharmony - a rarely prosecuted offence under the Human Rights Act. He was also charged with knowingly making an objectionable publication.

He pleaded guilty to both charges.

The BORA's affirmation of the right to freedom of expression means that it is phenomenally difficult to prosecute for inciting racial disharmony, and this is only the second-ever case. But the penalty for that is only three months, so the bulk of his sentence (12 months' home detention and 300 hours of community work) was due to knowingly making an objectionable publication. Which I guess shows the opponents of a specific hate speech law the existing alternative: rather than risking three months in jail, they can risk 14 years, and be tainted by an offence normally reserved for child pornographers.

(In practice, the courts are highly unlikely to give 14 years for making a publication which is objectionable due to hate speech, as its considered less harmful than other types of objectionable material. But the maximum sets the scale of sentence, and in this case the offender was looking at two years as a default, which was then scaled down and turned into home detention by the guilty plea, mental health issues, and potential for rehabilitation. And contrary to Te Pati Māori's Debbie Ngarewa-Packer, that sentence isn't "a joke". Home detention is a real punishment, and a full year of it will not be easy).

Of course, publications are not the only vehicle for harm, which is why the Human Rights Act offence covers public speeches. Any broader hate speech law would need to cover them too. But given usual methods of distribution the Films, Videos, and Publications Classification Act 1993 might actually be good enough to deal with this problem.

Copyright term extension violates the BORA

Last night I did a last-minute submission on the international treaty examination of the UK-NZ Free Trade Agreement, focusing on the issue of Labour's sneaky extension of the copyright term. After making the obvious points that this was not in our interests (the FTA's National Interest Analysis is pretty explicit on that) and that it was undemocratic to make this sort of change via an FTA, I noticed that the NIA said there was "[n]o effect on human rights in New Zealand". Which led to another point: extending the copyright term violates the BORA.

Copyright is a restriction on freedom of expression. Restricting the right to disseminate and distribute copyrighted works to their owners is clearly a limitation on the right to receive and impart information affirmed in section 14 of the BORA. It does this so that creators can make money and earn a living, thus incentivising the creation of further works.

As we've seen in the case of vaccine mandates, a limitation on a right may be justifiable if it is a "reasonable limi[t] prescribed by law as can be demonstrably justified in a free and democratic society". This means that it must serve an important public purpose, and be rationally connected to and proportionate to that purpose, and impair the right no more than is reasonably necessary for that purpose.

Incentivising the creation of cultural works is clearly an important public purpose, and a limited period of exclusivity is clearly rationally connected to that purpose. The question is one of proportionality: how long should that period of exclusivity be? There is obviously a range of possible answers here, depending on how the copyright term is structured, but the important thing to note here is that we are talking about a change. And it is clear that if a longer term would not result in a greater incentive for the creation of new works, then it is disproportionate. And on that point, we can just look at the NIA, which says explicitly:

there is no evidence that increasing the term of protection for copyright and related rights would incentivise either the creation of new copyright works or the dissemination of older works (which are the primary policy goals of copyright protection).

This is effectively an admission of disproportionality, and therefore of inconsistency with the BORA. Under the BORA, Parliament is the first guardian of our rights, in that it is supposed to scrutinise proposed legislation and not pass laws which are inconsistent with it. It needs to do its job here, and reject England's copyright extension. And if it doesn't, then this seems to be a prime case for a declaration of inconsistency in future.

Meanwhile, I'm wondering where the hell MFAT gets off on proposing a treaty which is inconsistent with our constitution (because that's what the BORA is: a key part of our constitution). The answer is probably that they just didn't think about it - FTA's are about money, not human rights. But its their job to think about it: the BORA imposes standing obligations on all branches of our government at all times. At the least, this means that it should not make agreements contrary to the BORA as a matter of public policy, but I would go further and argue that it does not have the legal power to make such agreements at all (basicly running the "contracts are subject to statutory obligations" line of Wyatt Co (NZ) Ltd v Queenstown-Lakes District Council, but on MFAT and the BORA, rather than on a local body and the OIA). Either way, MFAT appears to have overstepped here, and we need to know what safeguards they have to prevent them from doing so in future.

The government's hate speech proposals

Today the government released its proposals to criminalise hate speech. There's a full discussion document here, but the key change is to replace the current clause in the Human Rights Act with a wider one:

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

When I first read this in a news story this morning, I was worried by the presence of the word "insulting", because merely insulting people shouldn't be a criminal offence. But the first clause makes all the difference: this isn't about preventing offence, but about preventing hatred and social exclusion. As I noted when discussing the Human Rights Commission's initial report on the issue, laws against hate speech are about protecting people's right to participate in society and be themselves. Public insults and expressions of hatred can interfere with people's use of public space. If you can't go about your everyday business without being insulted and harassed, then that seems to be the sort of interference the law should protect against.

Exactly which characteristics will be protected is still up in the air, but it is going to be wider than the current grounds of "colour, race, or ethnic or national origins", and I'd expect it to at least include religion, sexual orientation, and gender identity. Religion is likely to be the most controversial of these: we don't want to re-establish blasphemous libel by the back door, or give a licence to religious fanatics to silence others (as they have attempted in the past). But I don't think it will be too difficult to craft appropriate legislation if the clear focus on the problem being inciting hatred and discrimination and preventing participation is maintained.

Also in the proposal: explicitly including gender expression and gender identity as prohibited grounds of discrimination in the Human Rights Act. The government already considers these to be covered by the ban on discrimination on the basis of sex, but given the rise in anti-trans bigotry, has now come round to the position that this needs to be stated explicitly. The protection is something we should all welcome, and should make it crystal clear that this bigotry is unacceptable.

An attack on parliamentary privilege

Today the Speaker referred the High Court judgement in Staples v Freeman to the Privileges Committee. Its not surprising. The court in its decision finds that a speech by Winston Peters in Parliament was defamatory. That seems to violate s11 of the Parliamentary Privilege Act 2014, which prohibits the courts from questioning or establishing facts on the basis of proceedings in Parliament. While it notes that Peters is protected by parliamentary privilege, it claims that "those who republish these statements outside Parliament, including Mr Peters, are not protected". This seems to ignore s17 and s19 of the Act, which protect broadcasts and fair reporting of parliamentary proceedings. It then assigns damages against the defendant for Peters' speech and a subsequent rebroadcast by Campbell Live, on the basis that the speech was effectively incited by the defendant. Again, this seems to violate the protections of parliamentary privilege. The decision was made after an undefended hearing, so privilege was never argued, but you'd still expect the judge to be aware of and appropriately cautious of it.

Parliamentary privilege exists so MPs can do their jobs. Holding their sources liable for what MP's say in parliament (and for subsequent reporting of those proceedings) seems to pose a pretty direct threat to that. To point out the obvious, no-one is going to expose wrongdoing to an MP if the cost is being bankrupted for doing so. So Parliament is right to be concerned. It is unclear whether they can intervene and appeal this decision; if not, or if it is upheld by the courts, I expect them to legislate immediately to overturn it.

Australia needs a Bill of Rights Act

Australia is one of the few western democracies not to have legal protection for fundamental human rights. The closest they come is recognising an implied right to freedom of political communication (but not other forms of freedom of expression) from the "representative government" clauses of their constitution. But some of the LNP's newly-appointed conservative judges don't think even that exists:

Freedom of speech may not be guaranteed by the Australian constitution, according to a conservative judge newly appointed to the high court.

In his judgment of a challenge to Australia’s foreign influence transparency scheme, Justice Simon Steward said freedom of political communication implied in the constitution may not exist and was not “settled law”.

The opinion could be seen as a shift towards more conservative legal interpretations after the former attorney general Christian Porter was lobbied to appoint more restrained, “black letter” judges to the court.

While the decision of one justice is unlikely to prompt more than 25 years of legal thinking to be overturned, it marks Steward as the most conservative high court judge since Dyson Heydon, who declared in 2013 that the implied freedom of speech was a “noble and idealistic enterprise which has failed, is failing, and will go on failing”.

This is one opinion of five in a case which ultimately upheld the government's foreign influence transparency law, but its still troubling. And with the LNP's continued American-style attempts at court-stacking, and the tendency of both parties to enact ever-more tyrannical legislation, Australians may wake up one day to learn that the only human right actually (weakly) legally recognised has been removed by judicial fiat.

The answer of course is formal recognition. Australia needs a proper Bill of Rights Act, to affirm and protect human rights. Sadly, that doesn't seem to be on either major political party's agenda.