Neil Sands
Creating a new standalone offence to specifically cover hate crimes would likely prove counter-productive and the issue is best dealt with by tweaking the existing legislative framework to make it more effective, the Law Commission has concluded.
The commission has spent almost two-and-a-half years examining whether a new offence is needed, prompted by a recommendation from the Royal Commission into the 2019 Christchurch terrorist attacks that hate crime should be added to the statute books.
In a final report released on Wednesday, it found that a specific hate crime offence would make cases more complex and probably result in inconsistent charging decisions and conviction rates, meaning the justice system was not properly addressing the issue.
“Hate crime offences would be more difficult to prove than the equivalent non-hate offence, which is likely to affect charging decisions,” the report said.
“Creating offences would also have significant downsides. For example, it is likely to increase the complexity of criminal proceedings and could lead in some cases to unintended outcomes, such as hostile motivation not being addressed at all.”
Instead, report author commissioner Mark Hickford, recommended changes to ensure hate crimes are consistently identified, recorded and denounced in the courts.
“These changes are needed to hold offenders accountable, recognise the impact of their actions on victims and communities, and reduce the risk of further hate crimes occurring,” he said.
‘Targeted reform’
Hickford said the justice system needed to improve the way it addresses hate crimes.
“Hate crimes send a message to members of the targeted group that they are not welcome in our society and that any one of them may be next,” he said.
“They undermine the values of tolerance and human dignity that underpin a cohesive society in which everyone can participate and live a fulfilling life.”
Hickford considered three models to deal with the challenge:
- The status quo, where hate motivation is considered as an aggravating factor at sentencing;
- Specific hate crime offences. These would be based on a range of existing crimes, such as assault, but have a higher maximum sentence. Any successful prosecution would have to show the offender was motivated by hate; and
- The so-called “Scottish hybrid” model, which contains elements of the first two options. No specific offence is created but any crime can be identified as “hate aggravated” when someone is charged. The maximum penalty does not change but the motivation is taken into account at sentencing and the conviction is recorded as a hate crime.
He found: “[There] are not fundamental problems with the current sentence aggravation model. They can be addressed through targeted reforms to the existing model.”
The recommended reforms include creating a hate crime “flag” in the court records system, so police can indicate at the charging stage that the aggravating factor may apply.
Judges would also be required to record on court records when the flag was applied at sentencing and expressly state in their decision a finding that hostility was a motivating factor.
‘Clear message’ needed
The report also called for an amendment to the Sentencing Act 2002 so the aggravating factor can apply when the victim is targeted because of their association with an affected group, even if they are not a member of the group, or if they are an innocent bystander.
In addition, it said the Act should be amended to add “sex” to the list of protected characteristics, meaning hostility to someone based on their gender – particularly women – would be treated as a hate crime and considered an aggravating factor at sentencing.
“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,” Hickford said.
Free Speech Union (FSU) chief executive Jillaine Heather welcomed the report, saying it mirrored the stance her organisation had adopted.
“This is a win for every New Zealander who took the time to speak up,” she said. “The commission has landed where we and thousands of submitters urged it to.
“We have always accepted that hostility can be a legitimate aggravating factor at sentencing. What we opposed was building new, vaguely defined crimes on top of a concept as slippery as hate, and that is exactly what the commission has declined to do.”
Heather said the FSU would closely monitor the government’s response to the Law Commission report.
The report examined “hate crime” – when there is criminal offence motivated by hatred towards a particular group – rather than “hate speech” – which is offensive discourse against a group and is often not a criminal offence.
Hate speech was out of scope for the report. It was part of a separate workstream undertaken by the commission which was subsequently dropped.
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