The NZ Law Commission is to review the law in Aotearoa New Zealand relating to hate crime, with a focus on whether the law should be changed to create new hate-motivated offences.
For the purpose of this review, “hate crime” means conduct that is already a criminal offence under New Zealand law and, additionally, is carried out because of hatred or hostility toward a group of people who share a common characteristic (such as race, colour, nationality, religion, gender or sex, gender identity, sexual orientation, age or disability).
Currently, the law in Aotearoa New Zealand responds to hate crimes at sentencing. If a person commits a crime because of hostility toward a group of people who share an “enduring common characteristic”, the court must consider this as an aggravating factor at sentencing (see section 9(1)(h) of the Sentencing Act 2002).
The Report of the Royal Commission of Inquiry into the terrorist attack on Christchurch masjidain on 15 March 2019 recommended the creation of new hate-motivated offences. In particular, recommendation 39 proposed that new hate-motivated offences be created in: the Summary Offences Act 1981 (corresponding with the existing offences of offensive behaviour or language, assault, wilful damage and intimidation); and the Crimes Act 1961 (corresponding with the existing offences of assaults, arson and intentional damage).
The review will include, but not be limited to, consideration of:
- Whether the current law in Aotearoa New Zealand adequately responds to hate crime (in particular section 9(1)(h) of the Sentencing Act 2002, which requires hostile motivation to be taken into account when sentencing an offender).
- Whether any concerns about the operation of the current law should be addressed through legislative (or operational) measures, for example, the creation of hate-motivated offences.
- If hate-motivated offences should be created: which existing offences they should correspond to; which common characteristics they should cover; how the hatred or hostility element of the offences should be established; what maximum penalties are appropriate; and whether any amendments to the Sentencing Act are desirable to take account of the new offences and to ensure hate crime offenders are sentenced appropriately.
The Commission will take into account te ao Māori and give consideration to the multicultural character of New Zealand society.
The review will not consider criminalising conduct that does not currently amount to an offence under New Zealand law. For the avoidance of doubt, the review will not consider recommendations 40 and 41 of the Report of the Royal Commission of Inquiry into the terrorist attack on Christchurch masjidain on 15 March 2019, which concern: the law relating to hate speech, including sections 61 and 131 of the Human Rights Act 1993; and the definition of when a publication is “objectionable” in section 3 of the Films, Videos, and Publications Classification Act 1993.
