Complex law changes need cool heads, and serious consultation, to avoid overly strict interpretations by officials and pressure on the courts, writes Peter Dunne
A common aspect of politics is the rule of unintended consequences. It afflicts every government at some stage, no matter its composition or ideological flavour.
Stuff happens, as they say, and some plans, no matter how well conceived or intended, just do not turn out as expected. Worse, their consequences often cause more problems than the original problem they were intended to resolve.
The much-maligned Resource Management Act is a case in point. Hailed at the time of its development as a bold step forwards towards achieving balance between economic development end environmental sustainability, it was developed after a lengthy consultation process over the life of two governments. Its plan to compress the then-54 different pieces of planning and environmental legislation into one coherent and integrated law was welcomed as a major step forward. It was seen as resolving, in a balanced and once-and-for-all way, the tension there had been between the environment and development that had been such an issue during the “Think Big” projects of the late 1970s and early 1980s.
Yet, once implemented, the Resource Management Act and the case law that developed around it proved over time to be no less rigid and bureaucratic than the various disjointed pieces of legislation that preceded it. Instead of providing the balance that would allow environmentally sustainable development to proceed, it came to be seen as the obstacle that prevented any sort of development taking place.
Now, it is blamed for all manner of things from the housing crisis the country is facing, where it is held to be too rigid to allow councils to free-up the land they ought to be okaying for housing development, through to not assisting the achievement of climate change objectives because it lacks teeth in some critical areas.
But, above all, despite many attempts to streamline its administration, it is seen as too cumbersome and complex, largely because of the extraordinarily conservative attitudes of many local Council officers charged with administering the Act who are simply not brave enough to implement it as intended.
It is no surprise the present Government has decided to repeal it and start again, although it is too early to say with any confidence that the solutions likely to emerge will be any more effective. However, guided by the example of the Resource Management Act, the Government is likely to have a much a better awareness of the pitfalls to avoid.
In the same vein, the Privacy Act in its early years was a similar, though lesser, example. That legislation was conceived originally with a very narrow scope – to stop the intrusion into people’s privacy caused by unsolicited communications from all manner of commercial enterprises. In the early 1990s, the practice of mass data collection was still in its infancy, with many companies developing mailing lists of clients, which they then sold on to other businesses for their use. The net result was people were becoming bombarded with all manner of unsolicited approaches and materials from a wide range of sources and wanted to put a stop this this burgeoning intrusion into their lives. The Privacy Act’s laudable aim was to stop that by requiring that personal information – like addresses or phone numbers – could only be used for the purposes for which it was collected, and with the individual’s consent.
But timid officials quickly decided that effectively meant all personal information could only be made available in the most limited of circumstances which had ludicrous and often unfortunate consequences. Family members inquiring after a relative in hospital, for example, were denied information about their wellbeing because providing that might be a breach of the Privacy Act. Parents asking about their child’s progress at school were denied that information because to provide it could be a breach of the child’s privacy. MPs pursuing constituents’ cases were required to produce privacy waivers from the constituent before government agencies would even respond to them, despite the fact that the only way the MP could have known about the case and be advocating for the constituent was because the person had specifically asked them to do so.
There were many related examples where common-sense appeared to have been thrown out the window in the interests of protecting officials from responding to individual concerns. They all gave rise to the early fear that the Privacy Act would become a rigid block on citizens gaining information about what the state they knew about them and how they could be protected from that material being misused.
Thankfully, over the years and under successive Privacy Commissioners, a greater sense of practicality and common sense has prevailed, meaning those early excesses have been moderated and a sense of balance has prevailed. Consequently, the Privacy Act has not gone down the same path of disrepute as the Resource Management Act.
The current debate about what is called “hate speech” could become the latest example of a well-intentioned move that goes seriously off the rails. The concern about hate speech, accelerated by the response to the Christchurch Mosque slayings has been around for some years. At its heart, it is relatively simple – most people would agree we need rules to prevent the spread of false accusations, or incitements to discrimination or violence against segments of the community. Our libel and defamation laws, as well as certain provisions in the Human Rights Act already cover that ground, and there appears to be little contention about how they work.
Obviously, as identified by the Royal Commission into the Christchurch attacks, there are gaps in our current law and the Government is properly committed to addressing these. But its current proposals (and be clear they are only proposals at this stage and not draft legislation) go beyond that in a number of areas and, if carried through, have the potential to cause major concern, or even worse impose an unacceptably harsh limit on freedom of speech and thought in New Zealand. It is unlikely that is the Government’s intention, but it has not done a good job so far of explaining its proposals.
For example, the expression of individual thought could well come within the scope of what is proposed even if it goes no further than a casual observation, nor contains any incitement for anyone to do anything in response to that expression. That is an extremely broad sweep, and the potential inclusion of such instances within the new definition of hate speech does not appear to have been at all well thought out.
To make matters worse, after some initial uncertainty, the Prime Minister chillingly confirmed that it could include political opinion. But as an apparent sweetener she offered the even more worrying after thought that it would be up to the courts to decide whether the comments or opinions amounted to hate speech.
Frankly, that is the last thing we – and one suspects the courts – would want. The courts’ role is to administer and uphold the law passed by Parliament, not interpret what it really should mean - the way the Prime Minister suggested. Worse still, in such circumstances, the courts could end up effectively making the law based on their interpretations, rather than meeting Parliament’s expectations. Any suggestion that Parliament should surrender the nation’s sovereignty to the Courts is completely unacceptable from a democratic standpoint. It should be equally intolerable from a judicial standpoint, since it would place the country’s judges in an almost impossible position.
Now, to be fair, this is unlikely to be the outcome. The Government does seem to be seeking a solution to an important issue, which is commendable, but it does not need to rush that solution. There is time for a proper public consultation process and debate to occur before firm decisions are reached.
So, it is likely the Government’s present proposals will be refined considerably before they eventually go before Parliament. And even then, they will undergo full public scrutiny through a select committee process, with further adjustment likely after that. And that means some of the more extreme outcomes currently feared are most unlikely to eventuate.
However, that likelihood gives no cause for complacency – just yet. There are already instances where local and central government officials are acting in advance of what they think the hate speech law might look like. They are already making decisions based on the loose, often contradictory statements from ministers about what it might be. Like the Resource Management Act, the Privacy Act and other earlier examples of major reform, bureaucrats will not want to be caught out when it comes to administering any new hate speech law. Their aim will be to implement whatever Parliament eventually decides in the most cautious and from their perspective “safest” way they can.
An overly zealous implementation of any new hate speech law poses the biggest threat. Without extremely clear limits and guidelines on its application leaving bureaucrats and the courts to fill in the gaps, the risk of unintended consequences arising is high. And that, in turn, poses the greatest risk to our future freedom of speech, thought and opinion.
