Te Aka Matua o te Ture | the Law Commission has published its Report, Hara ngākau kino | Review of hate crime law, which recommends a series of reforms to strengthen the existing framework for addressing hate crime through the justice system.

“The Law Commission found that there are problems with how the law is working in practice,” Commissioner Dr Mark Hickford said. “It concluded the best way to address these problems is targeted reform of the existing legal framework, rather than creating new specific offences for hate crimes.”

“Our recommendations are designed to ensure the justice system consistently identifies, records and properly denounces this offending, and holds those who commit hate crimes properly accountable.”

“Hate crime targets people because of their identity: their nationality, race, religion, sexual orientation, gender identity, disability or age.”

“It harms the immediate victims, harms entire communities that are made to feel they are not safe or welcome in Aotearoa New Zealand, and hurts social cohesion,” he said.

A hate crime is an act that would already be an offence (such as assault or vandalism) when it is also motivated by hostility towards a group of people with a shared characteristic — for example, nationality, race, religion, or sexual orientation.

Currently, the law in Aotearoa New Zealand addresses hate crime through the ‘sentence aggravation’ model. This means that the court considers whether an offender was motivated by hostility as an aggravating factor at sentencing after they have been convicted of a crime. This can lead to a more serious sentence. For example, it might mean the offender has to spend longer in prison. The aggravating factor can apply to any offence.

The Law Commission identified several problems with how the current law is working:

•        Judges are not required to communicate clearly to the public (such as through their sentencing decisions) that an offence was a hate crime and that this makes it more serious. This means hate crimes may not be consistently denounced.

•        When a court finds that an offence was motivated by hostility, that finding is not currently recorded in a systematic and accessible way. This limits the ability of the courts, New Zealand Police and Department of Corrections to deal appropriately with the offender. It also makes it harder to assess whether the justice system is responding to hate crime as it should.

•        There is no clear process to ensure the courts are aware that an offence may have been motivated by hostility and take that into account in their decisions. This may mean that some offenders are not held to account fully or that opportunities to prevent further offending are missed.

The Law Commission’s recommendations to improve the current model include:

•        A hate crime flag in the court records system, allowing Police to indicate at the charging stage that the hostility aggravating factor may apply, and requiring judges to formally record its application on the court record at sentencing.

•        A requirement for sentencing judges to expressly state in their sentencing decisions when they find hostility was a motivating factor.

•        Amendments to the Sentencing Act 2002 to clarify that the aggravating factor can apply if a victim is targeted because of their association with an affected group, even if they are not a member of that group, or if they are an innocent bystander.

•        Adding ‘sex’ to the list of protected characteristics in the Sentencing Act, to clarify that offending motivated by hostility towards someone based on their sex — particularly women — should be treated as a hate crime.

•        Training and guidance for Police, prosecutors and judges on any changes to the law, and annual publication of hate crime data by the Ministry of Justice and Police.

“The law should send a clear message to offenders and the public that hate crimes are unacceptable, ensure offenders are held accountable and reassure affected communities that hostility towards them will be treated seriously,” Dr Hickford said.

Hate speech (speech or communication expressing hatred for a group) was outside the scope of the review. However, a significant number of individuals and groups raised the issue during consultation. The Law Commission acknowledges their views but makes no recommendations about hate speech in the Report.

The Law Commission is a Crown entity with a statutory role to review the law and make recommendations to the Government.

The Government will now consider the Report and decide whether to implement the recommendations.