The current law
Leaving aside for the moment the offence created by section 131 of the Human Rights Act 1993 (which we discuss later in this companion paper), there are no specific hate crime offences in New Zealand. In other words, other than under section 131 of the Human Rights Act, there are no offences in which a hate motivation is an element of the offence.
A hate motivation for an offence is, however, an aggravating factor under section 9(1)(h) of the Sentencing Act 2002 and can be taken into account by the judge who sentences the offender. Under section 9(1)(h), protected characteristics include any:
… enduring … characteristic such as race, colour, nationality, religion, gender identity, sexual orientation, age, or disability … .
We discuss the rationale and application of this provision in more detail below.
Much behaviour which manifests as hatred towards particular groups of people is criminal. Obviously this is so with assaults. So too are verbal abuse or threatening language in, or within view of, public places. Those behaviours can be prosecuted under section 4(1) of the Summary Offences Act 1981 as:
- offensive behaviour (section 4(1)(a));
- addressing words to someone intending to threaten, alarm, insult or offend that person (section 4(1)(b)); or
- using threatening or insulting words recklessly as to whether someone is alarmed or insulted (section 4(1)(c)).
As well, section 21 of the Summary Offences Act creates an offence of intimidation. This encompasses various actions carried out with the intention of frightening or intimidating, including threats to injure, following, watching or loitering near a property or stopping, confronting or accosting someone in a public place.
Most of the acts of face-to-face criminal harassment that we have been told about by members of Muslim communities could have been prosecuted under the Summary Offences Act. It will be noted, however, that a hate motivation (as opposed to, say, an intention to frighten or insult) is not an element of the offences.
The Summary Offences Act has limitations. Apart from assaults, it applies only to conduct that occurs in a public place. As well, penalties are low (for example, the maximum penalty available for offensive behaviour or language is a fine of $1,000). Further, because a hate motivation is not an element of these offences, it is not recorded in charges and convictions. So convictions as recorded do not capture the full blameworthiness (culpability) of the offenders. This limits the signalling effect of prosecution and conviction and means possible needs for rehabilitative interventions are not highlighted.
We can illustrate the point we have just made with an assumed confrontation between an offender and a woman in hijab resulting in a conviction for offensive behaviour. If it is correct, as section 9(1)(h) of the Sentencing Act assumes, that the culpability of such behaviour includes the hate motivation, the conviction for offensive behaviour would not capture the full seriousness of the offender’s conduct. In addition, it would not mark a possible need for tailored interventions following conviction.
Rationale for, and application of, section 9(1)(h) of the Sentencing Act 2002
Section 9(1)(h) of the Sentencing Act provides:
Aggravating and mitigating factors
(1) In sentencing or otherwise dealing with an offender the court must take into account the following aggravating factors to the extent that they are applicable in the case:
(h) that the offender committed the offence partly or wholly because of hostility towards a group of persons who have an enduring common characteristic such as race, colour, nationality, religion, gender identity, sexual orientation, age, or disability; and
(i) the hostility is because of the common characteristic; and
(ii) the offender believed that the victim has that characteristic:
Section 9(1)(h) of the Sentencing Act originated in the report on what was then the Sentencing Bill by the Justice and Electoral Committee,34 which explained its rationale in this way:
Offenders who commit hate crimes need to be punished/dissuaded further, as prejudice presents a long-term threat. A focus on hate crimes has the effect of both denouncing them and encouraging awareness of their existence. It is very important that [New Zealand] Police in particular understand when an offence may have been a hate crime. Most of us recommend that [New Zealand] Police be trained and equipped to monitor, recognise and deal with hate crimes.
Most of us agree that hate crimes represent the point at which we want the law to say “we simply will not tolerate this kind of behaviour”. At this point, it is important for the court to send a real message on fundamental values. There is a different moral quality and a different risk to society which we should be reflecting.35
The operation of section 9(1)(h) of the Sentencing Act was recently considered by the Court of Appeal in Arps v New Zealand Police, in relation to facts that are closely connected with the 15 March 2019 terrorist attack.36 In that case, the appellant, Philip Arps, had distributed footage of the terrorist attack (taken on the individual’s GoPro camera) to around 30 people. He also sent the same footage to another person whom he asked to modify the footage to include images of rifle “crosshairs” and a “kill-count”. Philip Arps was subsequently charged with, and pleaded guilty to, two charges of supplying or distributing objectionable material contrary to section 124(1) of the Films, Videos, and Publications Classification Act 1993 and was sentenced to 21 months’ imprisonment.
Philip Arps appealed against his sentence arguing – amongst other things – that section 9(1)(h) of the Sentencing Act was not relevant to his case and that the sentencing judge had failed to take into account his right to freedom of expression under section 14 of the New Zealand Bill of Rights Act. The Court rejected both arguments:
- Section 9(1)(h) of the Sentencing Act clearly applied to Philip Arps. His offending was in response to terrorist attacks on people worshipping in Masjid an-Nur and the Linwood Islamic Centre who had been targeted because of their religion and he had demonstrated “profound hostility towards Muslim people”.37
- Although Philip Arps’ actions in distributing the video engaged the right to freedom of speech under section 14 of the New Zealand Bill of Rights Act, section 9(1)(h) was a justified limitation on his right to freedom of expression.38
An existing model for the creation of hate crime offences
An overseas model for legislating for hate crime is provided for by sections 29 to 32 of the Crime and Disorder Act 1998 (United Kingdom). These sections create offences of racially or religiously aggravated assaults,39 criminal damage,40 public order offences41 and harassment.42 These are fleshed out by section 28 of the Crime and Disorder Act (United Kingdom), which provides:
Meaning of “racially or religiously aggravated”
(1) An offence is racially or religiously aggravated for the purposes of sections 29 to 32 below if—
- at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a [racial or religious group]; or
- the offence is motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group.
(2) In subsection (1)(a) above—
“membership”, in relation to a racial or religious group, includes association with members of that group;
“presumed” means presumed by the offender.
(3) It is immaterial for the purposes of paragraph (a) or (b) of subsection (1) above whether or not the offender’s hostility is also based, to any extent, on any other factor not mentioned in that paragraph.
(4) In this section “racial group” means a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins.
(5) In this section “religious group” means a group of persons defined by reference to religious belief or lack of religious belief.
The maximum penalties for hate-motivated offences under the Crime and Disorder Act (United Kingdom) are as follows:43
- Racially or religiously aggravated assault – seven years’ imprisonment.44
- Racially or religiously aggravated criminal damage – 14 years’ imprisonment.45
- Racially or religiously aggravated public order offences – two years’ imprisonment.46
- Racially or religiously aggravated harassment – two years’ imprisonment.47
By way of comparison, the underlying offences (where hate motivation is not a component of the offence) carry the following maximum penalties:
- Assault – five years’ imprisonment.
- Criminal damage – ten years’ imprisonment.
- Public order offences – six months’ imprisonment.
- Harassment – six months’ imprisonment.
As will be seen, the hate-motivation component of the offences under the Crime and Disorder Act (United Kingdom) results in a substantial increase in the penalties associated with the underlying offences. This increased level of penalties reflects the additional harm caused by hate‑motivated offending and the need to send a strong signal to society that hate-motivated offending is unacceptable.
Proposals for change
We consider there would be real merit in New Zealand following the same approach as applies in England and Wales under the Crime and Disorder Act:
- It ensures that the criminal records of those who are convicted of such behaviour reflect the substance of their offending, a consequence that is likely to have at least some deterrent effects and, perhaps more significantly, effects on societal norms.48
- The increased seriousness of the charge is likely to promote more complaints being made to New Zealand Police and more energetic responses on the part of New Zealand Police to such reporting, including an increase in prosecutions for hate crimes.
- It may assist in encouraging and facilitating the creation of a specifically‑designed rehabilitation programme for hate crime offenders.
This model could be substantially replicated by creating new hate-motivated offences in the Crimes Act 1961 and Summary Offences Act that correspond to those created by sections 28 to 32 of the Crime and Disorder Act (United Kingdom), being:
- hate-motivated offences for offensive behaviour and language, assault, wilful damage and intimidation that correspond with existing offences in the Summary Offences Act; and
- hate-motivated offences for assaults, arson and intentional damage that correspond with existing offences in the Crimes Act.
34. Sentencing and Parole Reform Bill (select committee report) at pages 11–13. Because section 9(1)(h) was added to the Bill at the select committee stage, the section was never the subject of a report by the Attorney‑General under section 7 of the New Zealand Bill of Rights Act.
35. Sentencing and Parole Reform Bill (select committee report) at page 12.
36. Arps v New Zealand Police  NZCA 592,  2 NZLR 94. See also Solicitor-General v Milne  NZCA 134.
37. Arps v New Zealand Police, footnote 36 above at paragraph 32.
38. Arps v New Zealand Police, footnote 36 above at paragraph 52.
39. Crime and Disorder Act 1998 (United Kingdom), section 29.
40. Crime and Disorder Act (United Kingdom), section 30.
41. Crime and Disorder Act (United Kingdom), section 31.
42. Crime and Disorder Act (United Kingdom), section 32.
43. The penalties differ depending on whether the offence in question is tried indictably or summarily. For present purposes, it is sufficient to set out that the figures represent the maximum possible penalty associated with each offence.
44. See Section 29 of the Crime and Disorder Act (United Kingdom). This figure represents a racially or religiously aggravated assault in which the underlying offence is malicious wounding or grievous bodily harm or actual bodily harm and the charge is tried indictably. The penalty will differ when, for example, the assault charged is common assault and it is tried summarily.
45. Crime and Disorder Act (United Kingdom), section 30.
46. Crime and Disorder Act (United Kingdom), section 31.
47. Crime and Disorder Act (United Kingdom), section 32.
48. As noted by John Ip, footnote 4 above at page 595, in the context of section 9(1)(h) of the Sentencing Act, it is plausible to assume that hate crime legislation may deter some offenders and, additionally, the uncertainty as to whether criminals will actually be deterred doesn't affect the “symbolic or denunciatory value of hate crime legislation”.