Roderick Mulgan on the hate speech laws

Roderick Mulgan writes:

When Parliament passes a law, MPs know what they mean and what the law will do – probably.

Sometimes, however, despite their best efforts and those of their professional drafters, language winds up in legislation which is not crystal clear.

Even simple things can be problematic: what does it mean to park a car, for instance? Does the engine have to be off? Is a fish an animal? Is the airport Koru Lounge a public place? Lawyers routinely deal with these questions and many more, and judges routinely give judgments on them.

A set of rules exists to extract meaning when ambiguous language is before a court and one of them is the obvious one: to look at Parliament’s intention. What did parliamentarians say they meant?

Especially important is the speech from the Minister. The courts pay much attention to this.

Recently the minister has struggled to say if insulting gay people or Baby Boomers will cross the line or not. What is he going to say when he stands up to introduce the bill? If he hadn’t worked it out before the public consultation stage, when might he get around to it?

The prime minister likewise struggled to answer when asked if it would be criminal to tell a Christian his religion was mad.

The point is not academic. The proposed law would not just criminalise the wrong sort of speech, it would provide for jail sentences that are longer (three years) than people get for significant assaults. It is important to know where the line is and yet nobody does.

It gets worse. Ardern articulated a handwashing “solution” to the problem, which appears to represent the Government’s view on how law works. As she put it, “it is not for us to determine what a court may or may not do” in assigning meanings – that’s what judges do.

Yes, that is what judges do, but only with the tools the law allows them, a key one of which is what the minister who shepherded the bill through Parliament said. If the record of his oratorical effort shows he thought that blaming Boomers for house prices might be a bridge too far, that has to go into the judicial interpretive mix.

So the inability of Ardern and Faafoi to answer even the most basic questions on the proposed law means that the judiciary will be far more likely to criminalise speech.

Our law on statutory interpretation (laid out at present in the Interpretation Act), which requires courts to give legislation a construction that best serves Parliament’s purpose, has been around about a century, but neither Ardern nor Faafoi seems to have noticed it.

One contributory problem is having a legally unqualified minister of justice in the first place, but after more than half a year in the job he should not be getting his nuts-and-bolts descriptions so very wrong. The “purposive rule” is our elementary legal canon of legislative interpretation, and Faafoi should have long ago educated himself on the basics of the justice system which he heads.

So sorry, Kris, but reassuring us that someone else decides doesn’t work. The person who decides is going to look straight back at you. By the well-worn constitutional process of courts following in the footsteps of Parliament, what you say – before enactment – the law is supposed to do will have a big impact on what it actually does.

At what point in the process are you going to work out what that is?

I don’t think you have to be a doctor to be Minister of Health. But I do think it is a good idea for only lawyers to be Ministers of Justice.

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