New Zealand First MP Shane Jones has been pushing buttons, and some have called for the legality of his words to be tested in court. Based on the experience of Singapore, Professor Natasha Hamilton-Hart suggests it would be better to test them at the ballot box.
Shane Jones’s recent comments about Indian students have earned him rebukes from the Prime Minister, the Race Relations Commissioner, Indian community groups and media commentators.
Law professor Alexander Gillespie argued in a New Zealand Herald column that Jones may have violated the Human Rights Act 1993 and the Human Rights Commission should bring a legal case to test whether his words violate the Act.
“Racial disharmony” is covered in Section 61 of the Human Rights Act. It makes unlawful public speech that is “threatening, abusive, or insulting… likely to excite hostility against or bring into contempt any group of persons... on the ground of the colour, race, or ethnic or national origins of that group of persons”.
Those wanting to test Jones’s words in court are unclear as to what they ultimately think a court ruling will achieve.
If Jones is found to be outside the law, will he guard his speech in future and will others with similar opinions be deterred from voicing them? Alternatively, if his words are found to be lawful, would this provide ammunition for those who want to expand the scope of New Zealand’s hate speech and human rights laws?
Those advocating for the use of the law to curb racially offensive speech should be careful what they wish for. Countries that have extensive controls on speech in the name of avoiding discrimination and incitement to hostility against “protected” identity groups have not found them particularly effective.
In the United Kingdom, for example, officially-recorded hate crimes more than doubled between 2013 and 2018 – despite the panoply of UK and European laws against inciting racial or religious hatred.
Singapore may appear to offer a counterpoint. The country has long had stringent controls on speech and a government known to zealously enforce the law. The colonial-era Sedition Act of 1948 remains in force and criminalises speech with a “seditious tendency” – including speech that has a tendency “to promote feelings of ill-will and hostility between different races.”
In 1990, Singapore stepped up restrictions with the Maintenance of Religious Harmony Act, which was further extended in 2019. Taken together with laws on online expression of inflammatory opinion and “falsehood”, Singapore must have among the world’s most comprehensive array of legal controls against speech that could inflame religious or racial hostility.
Singapore’s leaders claim these laws are necessary to maintain peace, civility and cohesion in a multi-racial and multi-religious country. On measures such the avoidance of overt race-baiting by politicians or outbreaks of racially or religiously-motivated violence, Singapore has succeeded.
But Singapore also has extremely tight gun control laws, a powerful police force, and a tightly-controlled political arena, as well as tight controls on the media – including last years “fake news” laws, which require online media platforms to carry corrections or remove content the government deems to be false. Media risk fines of up to S$1million and up to 10 years in prison if found guilty of breaching the new laws.
There is no evidence that Singapore’s arsenal of legal measures against racially or religiously-offensive speech actually promote racial or religious cohesion. A 2019 survey of public opinion was touted in the local press as showing good and improving inter-racial trust and comfort.
Yet the same survey shows that the country is divided on these grounds. Among local-born Singaporeans, only between a third and two-thirds would be comfortable having a spouse from another racial group.
Over 35 percent of minority Malays reported discrimination at work “sometimes” or “often”, while 32 percent of Indians (also a minority) reported the same.
Legal restrictions on speech that incites racial hostility serve as a reminder of racial identity in a highly racialized society. Singaporeans have their “race” stamped on their government-issued identity cards. “Race” determines what “mother tongue” a child will be required to learn in school.
In my 10 years of living in Singapore, I was regularly asked to state my race: when applying for a job, going to the doctor and enrolling my son in childcare. “Ethnicity” is now sometimes substituted for “race”, but the reminder of group identity remains the same.
Singapore is not New Zealand. But Singapore shows that even the strongest of laws are no fix for discriminatory attitudes. Reaching for judicial opinion to rule on moral and political issues may in fact be perverse. The British Conservative Party is now promising a review of the UK’s Human Rights Act. Critics of the Act are asking for its repeal, partly on the grounds of judicial over-reach.
Professor Natasha Hamilton-Hart is Director of the New Zealand Asia Institute, and a Professor of Management and International Business at the University of Auckland.
The opinions expressed are those of the author.
- Asia Media Centre