The Law Commission is recommending targeted changes to strengthen how hate crimes are identified, recorded and addressed across Aotearoa New Zealand’s justice system.
Its newly released report, Hara ngākau kino | Review of hate crime law, concludes that the country does not need new, stand-alone hate crime offences. Instead, it says the existing legal framework should be improved so hate-motivated offending is more consistently recognised and treated as a serious aggravating factor.
“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 crimes are offences that are already illegal — such as assault, threatening behaviour or vandalism — but are motivated by hostility towards a person or group because of a shared characteristic.
Those characteristics may include nationality, race, religion, sexual orientation, gender identity, disability or age.
“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.
How the current system works
Aotearoa New Zealand currently uses what is known as the sentence aggravation model.
Under this approach, a person is charged and convicted of an existing offence. When deciding the sentence, the court may then consider whether hostility towards a particular group was part of the offender’s motivation.
When that hostility is established, the court can treat the offending as more serious and impose a heavier sentence. Depending on the circumstances, that could mean a longer prison term or another increased penalty.
The aggravating factor can apply to any criminal offence.
However, the Law Commission found that the model is not operating as clearly or consistently as it should.
Gaps in the justice system
One concern is that judges are not required to publicly state that an offence was a hate crime or explain that the offender’s hostile motivation made the offending more serious.
The Commission says this can result in hate crimes not being consistently denounced through sentencing decisions.
There is also no systematic and easily accessible way of recording a court finding that an offence was motivated by hostility.
That can make it more difficult for the courts, New Zealand Police and the Department of Corrections to respond appropriately to offenders. It also limits the Government’s ability to assess whether the justice system is dealing with hate crime effectively.
The review also found there is no clear process to ensure courts are alerted when an offence may have involved hostility towards a protected group.
As a result, some offenders may not be held fully accountable, while opportunities to manage risks or prevent further offending may be missed.
Proposed hate crime flag
One of the Commission’s main recommendations is the introduction of a hate crime flag within the court records system.
Police would be able to apply the flag at the charging stage when there is evidence that the hostility aggravating factor may be relevant.
If a judge later finds that hostility was a motivating factor, they would be required to formally record that finding at sentencing.
The Commission is also recommending that sentencing judges be required to expressly state in their decisions when an offence has been motivated by hostility.
This would create a clearer public record and help ensure the seriousness of hate-motivated offending is acknowledged.
Protections for associated people and bystanders
The report recommends amending the Sentencing Act 2002 to clarify that the aggravating factor can apply even when the victim is not personally a member of the group targeted by the offender.
This could include someone attacked because they are associated with a particular community, as well as an innocent bystander harmed during hate-motivated offending.
The Commission also wants “sex” added to the Sentencing Act’s list of protected characteristics.
It says this would make it clear that offending motivated by hostility towards someone because of their sex — particularly offending directed at women — can be treated as a hate crime.
Training and better data
Alongside legislative changes, the Commission is recommending updated training and guidance for Police, prosecutors and judges.
It also wants the Ministry of Justice and Police to publish hate crime data every year.
More consistent information would make it easier to understand the scale and nature of hate crime in Aotearoa New Zealand and evaluate how effectively the justice system is responding.
“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 excluded from review
Hate speech was outside the formal scope of the Law Commission’s review.
Hate speech generally refers to speech or communications that express hatred towards a group, rather than a criminal act motivated by hostility.
The Commission said a significant number of people and organisations raised concerns about hate speech during consultation. While those views were acknowledged in the report, no recommendations were made on the issue.
The Law Commission is an independent Crown entity responsible for reviewing New Zealand law and recommending reforms to the Government.
The Government will now consider the report and decide whether to adopt its recommendations.
