When does hate speech become a criminal offence

Gareth Watkins made this Official Information request to New Zealand Police

The request was refused by New Zealand Police.

From: Gareth Watkins

Dear New Zealand Police,

Could you please supply me with the legal advice that you received in relation to NZ Police's investigation into Auckland Pastor Logan Robertson's broadcast comments:
"I'm not against them [homos] getting married as long as a bullet goes through their head the moment they kiss ...that's what should happen" (https://www.youtube.com/watch?v=SQX36Tqf...)

A police spokesperson issued a statement to Newshub on 18/8/2017 saying that "no criminal offence has been committed".

I'm interested in finding out at what point will the NZ Police consider hate speech a criminal offence and whether the threshold differs depending on which community the speech is directed at.

For your reference Newshub reports the unnamed police spokesperson as saying:
"We have considered the appropriate legislation and sought a legal opinion on the matter and we are not in a position to pursue the matter any further, as no criminal offence has been committed"

(http://www.newshub.co.nz/home/new-zealan...)

PS: I reside in New Zealand.

Yours faithfully,

Gareth Watkins

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From: MURRAY, Marcia
New Zealand Police

Dear Mr Watkins,

 

I refer to your Official Information Request which was submitted online
though [1]www.requests.fyi.org.nz on 18/08/2017, in which you requested to
be supplied with “the legal advice received in relation to NZ Police’s
investigation into Auckland Pastor Logan Robertson’s broadcast comments”
and “at what point will the NZ Police consider hate speech a criminal
offence and whether the threshold differs depending on which community the
speech is directed at”.

 

I have assessed your request.  

 

In order for NZ Police to satisfy itself that you are eligible under
section 12 of the Official Information Act 1982, Police requests that you
provide supporting information as to eligibility, such as: your New
Zealand postal address; personal email address indicating a NZ domain; NZ
phone number on which I can contact you; or any identity documentation. I
would be happy to receive further information by your replying to this
email address: [2][email address] at your convenience.

 

For your information, Police relies on the following guidance provided by
the Ombudsman:

 

With requests submitted by post, the origin of the request will usually be
clear from the post mark, and the requester will normally provide a return
address, which should together provide sufficient assurance that the
requester is in New Zealand, and therefore eligible.

With requests submitted by email, twitter or Facebook, it may not be
apparent that the requester satisfies the eligibility requirements under
the OIA. Agencies are entitled to make reasonable enquiries to satisfy
themselves that a requester is eligible to make an OIA request. Often
provision of a New Zealand postal address will suffice. This information
can be conveyed, if requested, via personal message. The working day count
won’t start until it is clear that the request is made by a person who is
eligible to do so.

Agencies must be mindful of their obligation to provide reasonable
assistance to a person who wants to make an official information request,
but hasn’t made one in compliance with the legislation.

 

Yours sincerely

 

 

Marcia Murray

Detective Senior Sergeant

Manager : Investigations

Central Western Area

 

 

===============================================================

WARNING

The information contained in this email message is intended for the
addressee only and may contain privileged information. It may also be
subject to the provisions of section 50 of the Policing Act 2008, which
creates an offence to have unlawful possession of Police property. If you
are not the intended recipient of this message or have received this
message in error, you must not peruse, use, distribute or copy this
message or any of its contents.

Also note, the views expressed in this message may not necessarily reflect
those of the New Zealand Police. If you have received this message in
error, please email or telephone the sender immediately

References

Visible links
1. http://www.requests.fyi.org.nz/
2. mailto:[email address]

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Mark Hanna left an annotation ()

It's disappointing to see New Zealand Police employing this delaying tactic again. They're very inconsistent with when they choose to require proof of eligibility.

If this was an important part of their process then surely they should require it of every request made to them via FYI, at least if it's the first time they've received a request from that person. But they don't. I have certainly never been asked by them to provide this sort of information.

In fact, their own guidelines (released earlier this year here: https://fyi.org.nz/request/5237/response...) note that this is not necessary for them to apply this barrier, and that they should only request this information from you if they have concerns about whether or not a requester meets the requirements of section 12 of the OIA:

"It is not necessary to verify the identity of an OIA requester (unless they are a NZ body corporate requesting personal information about the requester (s25)) and they do not have to provide personal details. However, if you have concerns about the nature of the information sought and whether they meet the section 12 requirements of a person entitled to make a request (i.e. NZ citizen/permanent resident/in NZ), you may ask for a reasonable level of evidence, e.g. a NZ address or phone number, but you cannot demand proof of identity.

The purpose of checking eligibility is to ensure the Official Information Act applies to your response, including the ‘good faith’ protection from court proceedings provided by section 48."

Their guidelines also note that requests can be granted even if a person is not eligible:

"Where a requester is not entitled under the OIA to make a request, Police may still release information, especially where it is non-personal, non-sensitive official information, it will not impact too heavily on Police resources to do so, and there is a public interest in disclosure (e.g. an Australian researcher asks for NZ Police’s policy on the Adult Diversion scheme)."

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From: Gareth Watkins

Dear Marcia,

Given that my request is about a recent event where (1) the killing of homosexuals was [and still is] advocated and (2) the police say no criminal offence has taken place, I don't feel safe giving out my personal details in this correspondence because it could potentially be published online.

If you can supply me with an email address to reply to and a commitment that my personal details won't be published I will happily comply.

Yours sincerely,

Gareth Watkins

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From: MURRAY, Marcia
New Zealand Police

Hello Mr Watkins,

This email address is my personal work email.

I can reassure that once you have provided me your personal email address, communication will be directly to your email.

Police do not respond to OIA requests in a public forum and your personal details will not be disclosed.

Yours sincerely

Marcia Murray | Detective Senior Sergeant |  Manager : Investigations | Central Western Area
 
Avondale Police Station| 1832 Great North Road,  Avondale 1026 |021 1912693

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Mark Hanna left an annotation ()

This sounds like NZ Police might be trying to move discussion of this request away from FYI. I'd recommend that you explicitly ask them to send their eventual response to your request (which should not contain your personal information) to the FYI email address rather than to your personal email address.

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From: Gareth Watkins

Kia ora Marcia,

I've just sent you a private email containing my postal address to confirm I reside in NZ.

Please do not reply to that private email, but send all replies to my OIA request via the FYI email address (removing of course my address details). I ask you to reply to the FYI email address because there is wider public interest in this investigation and the NZ Police have publicly responded to hundreds of other requests via the FYI website.

I look forward to hearing from you,

Yours sincerely,

Gareth Watkins

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From: MURRAY, Marcia
New Zealand Police

I am out of the office on Thursday the 24th of August 2017.

 

If your matter is urgent please contact Inspector WHITTAKER
([email address])

 

 

 

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From: MURRAY, Marcia
New Zealand Police

 

Dear Mr Watkins,

 

Your request for the legal advice received has been declined pursuant to
Section S9(2)(h) – Legal Professional Privilege.

 

In response to your second question “at what point will the NZ Police
consider hate speech a criminal offence and whether the threshold differs
depending on which community the speech is directed at”.

 

In assessing criminal offending Police assess the evidence available, the
elements of the alleged offending and the Solicitor General’s prosecution
guidelines. Police do not differentiate between communities and consider
all alleged offences equally.

 

Yours sincerely

 

 

 

Marcia Murray

Detective Senior Sergeant

Manager : Investigations

Central Western Area

 

 

===============================================================

WARNING

The information contained in this email message is intended for the
addressee only and may contain privileged information. It may also be
subject to the provisions of section 50 of the Policing Act 2008, which
creates an offence to have unlawful possession of Police property. If you
are not the intended recipient of this message or have received this
message in error, you must not peruse, use, distribute or copy this
message or any of its contents.

Also note, the views expressed in this message may not necessarily reflect
those of the New Zealand Police. If you have received this message in
error, please email or telephone the sender immediately

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