In this chapter we look at New Zealand’s laws addressing hate crime and hate speech and how New Zealand Police deal with reports of hate-motivated offending. We consider that aspects of New Zealand’s legal framework and New Zealand Police practice need to be improved. Our guiding principles are the protection of all sections of the New Zealand community and the promotion of social cohesion consistently with the values of a free and democratic society.
Developing appropriate legal responses to hate-motivated offending involves reasonably difficult legal issues. These include the impact of the New Zealand Bill of Rights Act 1990 on statutory interpretation, New Zealand’s international obligations, certain practicalities associated with how criminal trials are conducted and technical questions of legal drafting. These and other issues are discussed in our companion paper Hate speech and hate crime related legislation. In this chapter we identify what we consider to be the key issues on which we base our recommendations (see Part 10: Recommendations).
In everyday language, a hate crime means an offence that is motivated by the offender’s hostility to the victim as a member of a group that has a common characteristic, such as race, religion or sexual orientation. An example is an assault against a person wearing religious attire that was motivated by the offender’s hostility towards that particular religion. In legal language, hate crime has practically the same meaning except that the law creating a hate crime will define the relevant characteristics covered by the offence (these are usually called “protected characteristics”).75 Since the conduct amounting to hate crime (for example an assault) is already illegal, it is easy to treat a hate motivation either as a factor that can be taken into account for sentencing purposes (which is New Zealand’s current approach) or as an element of a separately created hate-motivated offence.
Hate speech is a less precise term. In this report we will generally use the expression hate speech to mean speech that expresses hostility towards, or contempt for, people who share a characteristic. Legislation that creates hate speech liability (which can be civil or criminal) specifies what types of speech are captured and characteristics that are protected. In this chapter we are mainly concerned with the circumstances in which hate speech can, and should be, criminalised.
Unlike a hate crime, conduct criminalised by a hate speech offence – in this case, what has been said – is not independently illegal. The difference between legally criminalised hate speech and the vigorous exercise of the right to express opinions is not easy to capture in legislative language. As well, the more far reaching a law creating hate speech offences, the greater the potential for inconsistency with the right to freedom of expression under section 14 of the New Zealand Bill of Rights Act. Under section 5 of the New Zealand Bill of Rights Act, the right to freedom of expression may be:
… subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
There is considerable scope for argument and controversy as to what are “reasonable limits” to the right to freedom of expression.
Similar considerations apply, although not quite so intensely, to imposing civil liability for hate speech.
A decision to create hate speech offences has to balance a number of overlapping and conflicting considerations, including:
- the promotion of social cohesion;
- the desirability of limiting speech that encourages hostility that may result in harms such as discrimination and abuse, fears of physical harm and actual violence;
- the importance of freedom of expression; and
- ensuring that the law can practically be enforced.
Language that detracts from social cohesion (such as jokes at the expense of marginalised communities), which was once not subject to much, if any, social sanction, is increasingly unacceptable in a democratic society. But it is highly debateable whether language that has a negative impact on social cohesion should, for this reason alone, be subject to criminal, as well as social, sanctions.
In New Zealand, there are five statutes that impose liability or provide remedies for hate speech. They are:
- the Human Rights Act 1993;
- the Summary Offences Act 1981;
- the Harmful Digital Communications Act 2015;
- the Broadcasting Act 1984; and
- the Films, Videos, and Publications Classification Act 1993.
We discuss all of them later in this chapter.
Although hate crime and hate speech are, at least for legal purposes, different concepts, they are linked by underlying commonalities and, in terms of their consequences, sit on the same spectrum of behaviours (see Part 2: Context).
Research shows that there is a link between hate speech and hate crime.76 A recent study investigated whether there is a link between hate speech online and hate crime offline.77 Researchers collected Twitter and Police-recorded hate crime data over an eight-month period in London and built a series of statistical models to identify whether there is a significant association.78 The results of the study indicated “a consistent positive association between Twitter hate speech targeting race and religion and offline racially and religiously aggravated offences in London”.79 What this demonstrates is that “online hate victimisation is part of a wider process of harm that can begin on social media and then migrate to the physical world”.80 The study notes that if “we are to explain hate crime as a process and not a discrete act, with victimisation ranging from hate speech through to violent victimisation, social media must form part of that understanding”.81 There is value therefore in seeking to reduce hate speech online and offline, not only to prevent the direct harm it causes but also to limit escalation of hate speech to hate crime.
It is also plausible to see a link between hate crime and terrorism. Another recent study concluded:
Through the use of multiple data sources, this study uncovers the positive associations between hate crime and terrorism. In the context of intergroup conflict, there appears to be a continuum between the bias-motivated actions of non-extremists to the hate crimes and terrorist acts committed by far-rightists, with the presence of one type of activity seeing an escalation in the next type. As a result, it appears that hate crime and terrorism may be more akin to close cousins than distant relatives.82
The rest of this chapter will cover:
- hate crime;
- sections 61 and 131 of the Human Rights Act;
- other laws addressing hate speech; and
- reporting and recording of hate-motivated offending.
4.2 Hate crime
The current law
Leaving aside for the moment the offence created by section 131 of the Human Rights Act (which we discuss later in this chapter), there are no specific hate crime offences in New Zealand. This means that 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 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:
... an enduring … characteristic such as race, colour, nationality, religion, gender identity, sexual orientation, age, or disability … .
The acts of criminal harassment that were reported to us by Muslim communities predominantly involved assaults, offensive and threatening behaviour and intimidation. Assault can be prosecuted under either the Crimes Act or the Summary Offences Act. Offensive and threatening behaviour and intimidation can be prosecuted under the Summary Offences Act. A hate motivation for such harassment can be considered during sentencing as an aggravating factor (providing that the offender is prosecuted and convicted).
The Summary Offences Act has limitations. Apart from assaults, it applies only to conduct that occurs in a public place. As well, penalties for offences under the Summary Offences Act are low (for example, the maximum penalty for a conviction of offensive behaviour or language is a fine of $1000). Where the maximum penalty is a fine, taking a hate motivation into account during sentencing would not have much practical effect.
A hate motivation for offences is not recorded in charges and convictions, even if it is taken into account during sentencing. This means that recorded convictions 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.
The creation of hate crime offences would provide a signal that hate-motivated offences are taken seriously and, for this reason, would be likely to result in increased reporting to New Zealand Police of such offences.
A model for change
New Zealand’s approach to hate crime – that a hate motivation can be taken into account at sentencing – is not unusual. Some overseas jurisdictions including Canada and some Australian states deal with hate-motivated offending in this way.83
In England and Wales a different approach is taken. There, the significance of a hate motivation is also recognised by making that motivation an element of some offences. Where a hate motivation is an element of the offence, the maximum penalties are higher than for the underlying offence itself.
For example, under the Crime and Disorder Act 1998 (United Kingdom), the hate motivation element of the offences results in much higher penalties than for the underlying offences. The higher penalties reflect the culpability of hate-motivated offending. The hate-motivated element of offences ensures that the criminal records of offenders (which will record that element) reflect the seriousness of their offending. This is likely to have at least some deterrent effect and, perhaps more significantly, an effect on societal norms.84
This model could be substantially replicated in New Zealand by creating new hate-motivated offences in the Summary Offences Act and the Crimes Act, 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 assault, arson and intentional damage that correspond with existing offences in the Crimes Act.
4.3 Sections 61 and 131 of the Human Rights Act
The relevant international instruments
Article 4(a) of the International Convention on the Elimination of All Forms of Racial Discrimination requires states to:
[D]eclare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origins.85
The introduction to article 4 provides further explanation as to its purpose:
States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights … .
Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination was implemented in New Zealand by the Race Relations Act 1971, section 25 of which introduced an offence of inciting racial hatred (corresponding to what is now section 131 of the Human Rights Act). And civil liability (broadly along the lines of what is now section 61 of the Human Rights Act) was introduced in section 9A of the Human Rights Commission Act 1977. Section 9A was repealed in 1989 but was in substance re-enacted as section 61 of the Human Rights Act.
Article 20 of the International Covenant on Civil and Political Rights provides:86
1. Any propaganda for war shall be prohibited by law.
2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.
New Zealand has entered a reservation to article 20:
The Government of New Zealand, having legislated in the areas of the advocacy of national and racial hatred and the exciting of hostility or ill will against any group of persons, and having regard to the right of freedom of speech, reserves the right not to introduce further legislation with regard to article 20.
The current law
Section 61(1) creates a civil liability for speech that is “likely to excite” hostility (or other consequences):
61 Racial disharmony
(1) It shall be unlawful for any person—
- to publish or distribute written matter which is threatening, abusive, or insulting, or to broadcast by means of radio or television or other electronic communication words which are threatening, abusive, or insulting; or
- to use in any public place as defined in section 2(1) of the Summary Offences Act 1981, or within the hearing of persons in any such public place, or at any meeting to which the public are invited or have access, words which are threatening, abusive, or insulting; or
- to use in any place words which are threatening, abusive, or insulting if the person using the words knew or ought to have known that the words were reasonably likely to be published in a newspaper, magazine, or periodical or broadcast by means of radio or television,—
being matter or words likely to excite hostility against or bring into contempt any group of persons in or who may be coming to New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons.
Section 131(1) creates a criminal offence for speech that is used with “intent to excite” hostility (or other consequences). A prosecution for this offence can be brought only with the consent of the Attorney-General.87
131 Inciting racial disharmony
(1) Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding $7,000 who, with intent to excite hostility or ill-will against, or bring into contempt or ridicule, any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons,—
- publishes or distributes written matter which is threatening, abusive, or insulting, or broadcasts by means of radio or television words which are threatening, abusive, or insulting; or
- uses in any public place (as defined in section 2(1) of the Summary Offences Act 1981), or within the hearing of persons in any such public place, or at any meeting to which the public are invited or have access, words which are threatening, abusive, or insulting,—
being matter or words likely to excite hostility or ill-will against, or bring into contempt or ridicule, any such group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons.
The primary (although not the only) difference between the sections is that liability under section 131 depends on an “intent to excite” hostility whereas liability under section 61 can be established where the speech used is “likely to excite” such hostility.
Section 131 of the Human Rights Act may have some value as a statement of what is and is not acceptable behaviour in New Zealand, but it is not practicable to enforce. The position is similar under section 61. There has only been one prosecution under section 131 and two claims under section 61. These are discussed in detail in our companion paper: Hate speech and hate crime related legislation. Only one warrants particular mention in this chapter – the 2018 decision of the High Court in the Wall case.88
The Wall case concerned newspaper cartoons relating to an announcement that government would fund the expansion of a free breakfast in schools programme. The central characters in the cartoons were Māori or Pasifika people, depicted as negligent parents preoccupied with alcohol, cigarettes and gambling at the expense of their children’s welfare. It was accepted by both parties in the Wall case that the cartoons were insulting. The issue, therefore, was whether the cartoons were likely to bring Māori or Pasifika people into contempt (or excite hostility against them). The High Court found that they were not, and dismissed the case.
In the Wall case, the complainant argued that, under section 61 of the Human Rights Act, it is unlawful to use language about a protected group that is “insulting” and is intended, and likely, to result in the protected group being brought into contempt or ridicule. This is a low threshold for civil liability and can be expected to result in considerable push-back on freedom of expression grounds.
In the Wall case, the High Court found that the language in section 61 (“hostility against or bring into contempt”) should be applied “only to relatively egregious examples of expression which inspire enmity, extreme ill-will or are likely to result in the group being despised”.
The Wall case involved civil liability under section 61 but the same language appears in section 131. The requirement for the Attorney-General’s consent to bring a prosecution under section 131 of the Act should filter out prosecutions that have no merit. However, consent requirements of this kind are not a justification for overly broad offences – that is offences that are defined in a way that captures conduct not worthy of criminal prosecution.
Where prosecutions are brought, judges seeking to allow for freedom of expression will not find much assistance in the language of section 131. This results in the apparently low liability threshold being significantly increased by judicial interpretation but in ways that create considerable uncertainty. “Relatively egregious” (the standard adopted in the Wall case) is not a satisfactory test for the imposition of criminal liability.
Sharpening the focus of the statutory language
In the words “intent to excite hostility or ill-will”, the verb “excite” is used in a slightly unusual sense and suggests causation. This means that an “intent to excite” cannot be established without showing an intention to either cause “hostility or ill-will” that did not previously exist, or enhance or increase pre-existing “hostility or ill-will”. It logically follows that preaching hatred to the already converted would not breach section 131. This point too is discussed in the Wall case.
Section 131 of the Human Rights Act would be improved if the word “excite” were removed and replaced with a term like “stir up”, which is used in corresponding legislation in the United Kingdom. The “preaching hatred to the converted” issue could be resolved by adding the verbs, “maintain” and “normalise”.
As the Wall case illustrates, the words “excite hostility against or bring into contempt” set a liability threshold that is lower than the courts are prepared to accept for the purposes of civil liability under section 61 of the Human Rights Act. This is also the case with the corresponding language in section 131, “excite hostility or ill‑will against, or bring into contempt or ridicule”. A modified section 131 would be far more straight-forward to apply if “hostility”, “ill-will”, “contempt” and “ridicule” were replaced by a term like “hatred” as it implies extreme dislike or disgust, including an emotional aversion. If the offence was reframed in this way, it would not be subject to restrictive and imprecise interpretations by the courts (such as “relatively egregious”) and could be more easily relied on in appropriate cases.
This reframing would focus the offence on stirring up or provoking hatred of a group of persons defined by their protected characteristic.
Associated with the point just made, we consider that explicit and implicit calls for, or normalising of, violence should be expressly addressed in the offence. Such calls for, and normalising of, violence are towards the most damaging end of the continuum of harmful behaviour (see Part 2, chapter 5). At this end of the continuum, freedom of expression arguments are at their weakest and criminal sanctions are most obviously warranted.
In a prosecution under section 131, the prosecution is currently required to prove:
- a publication that is “threatening, abusive, or insulting”;
- an intent to “excite hostility or ill-will against, or bring into contempt or ridicule” people sharing a protected characteristic; and
- that the publication was “likely to excite hostility or ill-will against, or bring into contempt or ridicule” people sharing that protected characteristic.
In a situation where the first two elements can be made out (a threatening, abusive or insulting publication and an intent to “excite hostility”), we see the third element as having little or no bearing on whether the conduct is sufficiently culpable to justify in a charge. It is thus unnecessary.
The protected characteristics provided for in sections 61 and 131 of the Human Rights Act do not include religious belief. As we discuss in our companion paper Hate speech and hate crime related legislation, the general drift of court decisions and academic commentary is that Jews and Sikhs can be regarded as ethnic groups (and thus protected by section 131) but that this is not the case with followers of Islam or Christianity. Without seeking to challenge the reasoning of the particular court decisions, we consider that the resulting distinctions are not logical.
We consider that religious belief should be included in the characteristics protected under section 131, given that:
- under section 9(1)(h) of the Sentencing Act, “religion” is a protected characteristic;
- in other jurisdictions, similar legislative provisions have been amended to include religion as a protected characteristic;89
- it would bring New Zealand into compliance with article 20(2) of the International Covenant on Civil and Political Rights which we have set out earlier in this chapter;
- it is not logical that affiliation with Judaism and Sikhism are protected characteristics but affiliation with other religions such as Islam or Christianity are not;
- the very clear overlap between Islamophobia and racism (in that many victims of Islamophobic harassment are people of colour); and
- most significantly, the current realities of Islamophobia and the association between hate speech and terrorism.
That said, we acknowledge that there are distinct freedom of expression issues if sharing a particular religious belief system is treated as a protected characteristic. There is a strong tradition in New Zealand (as in many other countries) that religious belief systems are open to debate and that this can be vigorous. Strongly expressed challenges to a religious belief system may also amount to criticism of those who adhere to it. It is not easy to determine where to draw the line.
Concerns along these lines are reflected in section 29J of the Public Order Act 1986 (United Kingdom), which was enacted when “stirring up” religious hatred was introduced as an offence in England and Wales. This section provides:
Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.
This section has made prosecution for the offence for stirring up religious hatred practically impossible.90 For this reason we do not support the introduction of an equivalent provision to New Zealand law. We consider that concerns about freedom of expression are met with a high threshold for liability, requiring the prosecution to establish an intention to stir up, maintain or normalise hatred towards members of the protected group and specifically criminalising explicit and implicit calls for violence against such a group.
Types of publication covered
Section 131 of the Human Rights Act applies only to the publication of “written matter” or words that are broadcast “by means of radio or television” or used in or near a public place or public meeting. So, unlike section 61 of the Human Rights Act, it does not apply to “electronic communications”. This is a significant gap in the scope of the offence that should be remedied. Indeed, we see no good reason why there should be restrictions based on how hate speech is communicated.
The location of section 131 and the current maximum penalty
The low maximum penalty (three months' imprisonment) for breaching section 131 of the Human Rights Act serves to diminish the signalling and standard-setting benefits of prosecution and conviction. In contrast, offences in the United Kingdom that are similar to section 131 carry a maximum term of imprisonment of seven years.91 And in Canada, a person convicted of the offence similar to section 131 can receive a prison sentence of two years.92
We note that if the penalty is as high as (or more than) two years’ imprisonment, this would result in those charged with such offences being entitled to choose trial by jury. The current case law results in liability depending on subjective conclusions on the part of the court based on the “relatively egregious” standard. This involves an impressionistic assessment ,which is never an ideal basis for imposing criminal law sanctions (because people should be able to know in advance with reasonable certainty whether something they intend to do is, or is not, against the law). As well, because this standard is not well suited to being applied by juries, an increase in penalty resulting in a right to choose trial by jury makes a reframing of the offence all the more desirable.
Including the offence in the Crimes Act rather than the Human Rights Act would enhance the signalling and standard-setting effects of an increased penalty, as the Crimes Act lists offences most commonly considered as serious crimes by New Zealanders.
What a new offence might look like
A new provision inserted in the Crimes Act 1961, and worded broadly as follows would cover the points we have made:
Inciting racial or religious disharmony
Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding three years who:
- with intent to stir up, maintain or normalise hatred against any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins or religion of that group of persons; and
- says or otherwise publishes or communicates any words or material that explicitly or implicitly calls for violence against or is otherwise, threatening, abusive, or insulting to such group of persons.
4.4 Other laws addressing hate speech
As we have set out above, in addition to the Human Rights Act, there are four other New Zealand laws that address hate speech. They cover a wide range of conduct.
Summary Offences Act 1981
The Summary Offences Act creates offences involving offensive, threatening and insulting language and these apply, although are not limited to, situations where an offender threatens, insults or intimidate another person because of their race, colour, ethnicity or religion.
In recent years, flagrant hate-motivated speech has been prosecuted under the Summary Offences Act. Examples of such prosecutions are discussed in our companion paper: Hate speech and hate crime related legislation.
The Summary Offences Act applies only to conduct in a public place. It cannot, therefore, be used against hate speech online, even where a post is clearly directed at another individual or group and is visible to other people online.
Harmful Digital Communications Act 2015
The Harmful Digital Communications Act makes it an offence to post a digital communication with the intention to cause harm to a victim.93 The penalty for the offence is imprisonment for up to two years or a maximum fine of $50,000. Harm is defined as serious emotional distress.94 For these purposes, the victim is an individual “who is the target of the posted digital communication”.95
The offence applies not only to one-to-one communications, but more broadly to online digital publishing.96 That said, the requirement for a victim – which in turn requires the identification of a target – means the offence does not apply to communications that denigrate groups rather than particular individuals.
The Harmful Digital Communications Act requires “communications principles”97 to be taken into account by those persons and agencies (including the courts) performing functions and exercising powers under the Act.98 Principle 10 states:
A digital communication should not denigrate an individual by reason of his or her colour, race, ethnic or national origins, religion, gender, sexual orientation, or disability. 99
Broadcasting Act 1984
Section 4 of the Broadcasting Act requires broadcasters to maintain programme standards. Under the Act, four broadcasting codes of practice have been issued.100 Each of these codes of practice sets out, or incorporates, a standard entitled “Discrimination and Denigration”. The standard requires broadcasters to protect sections of the community from verbal and other attacks and to foster a community commitment to equality. The standard applies to recognised sections of the community, which include sections identified by reference to religious belief and race.
Films, Videos, and Publications Classification Act 1993
The Films, Videos, and Publications Classification Act censors forms of expression that are “objectionable”. It is an offence, punishable by a maximum fine of $2,000, to be in possession of an objectionable publication and it is an offence, punishable by imprisonment of up to 10 years, to be in possession of a publication that the person knows (or has reasonable cause to believe) is objectionable. New Zealand Police have relied on this offence to prosecute people who, in other jurisdictions, might have been prosecuted for precursor terrorism offences of the kind discussed in Part 8, chapter 13.
Under section 3 of the Films, Videos, and Publications Classification Act, the primary test for whether a publication is objectionable is whether it:
… deals with matters such as sex, horror, crime, cruelty, or violence in such a manner that the availability of the publication is likely to be injurious to the public good.
Publications that promote terrorism can, in some circumstances, be “objectionable”. The individual’s video of his terrorist attack and his manifesto were both deemed to be objectionable, and there have been subsequent prosecutions of people in New Zealand who have shared the video or excerpts from it.101 That said, the way in which the definition deals with publications that promote terrorism is complex. As well, material that promotes terrorism was not, before 15 March 2019, a primary focus of those administrating the Films, Videos, and Publications Classification Act.102
As we have mentioned, section 131 of the Human Rights Act represents an attempt to comply with article 4(a) of the International Convention on the Elimination of All Forms of Racial Discrimination. If the focus of the section 131 offence is sharpened, it will not address all of the ideas and themes in article 4(a). For example, a stirring up racial hatred offence does not cover all incitement to racial discrimination.
The reality is that it would not be easy to create offences that both give full effect to the article 4 obligation and are consistent with the right to freedom of expression. Expanding the definition of “objectionable” to encompass propaganda of the kind envisaged by article 4 would be an alternative method of complying with article 4. This could be achieved by adding “racial superiority, racial hatred and racial discrimination” to “sex, horror, crime, cruelty, or violence” in section 3 of the Films, Videos, and Publications Classification Act. Such a change would invite freedom of expression arguments. However, the additional requirement under section 3 that the “publication is likely to be injurious to the public good” and other safeguards in the definition (discussed in our companion paper: Hate speech and hate crime related legislation) would provide a reasonable basis for response to such arguments.
4.5 Reporting and recording of hate-motivated offending
A recurring theme in our discussions with communities, including Muslim communities, was the lack of data about hate-motivated offences and harmful harassment.
For some types of crime – and we think that this is the case with hate-motivated offending involving criminal harassment – the best assessments of the incidence of offending come from victimisation surveys. This is because, for such offending, many, perhaps most, victims do not make complaints. That means there is much offending that is not captured in recorded crime figures.
In the 2019 New Zealand Crime and Victims Survey, respondents were asked if they thought that incidents they had experienced were motivated by discrimination – that is, motivated by the offender’s attitude towards the victim’s race, sex, gender identity, sexual orientation, age, religion or disability. The survey found that:
- a quarter (25 percent) of all incidents and about one third (32 percent) of all personal offences were seen by the victim as motivated by discriminatory attitudes;
- sexual assault (82 percent), threats and damages (34 percent) and physical offences (assault and robbery) (34 percent) were the most common offence types to be considered by the victim as having been driven by discrimination; and
- almost a quarter (23 percent) of victims of Asian ethnicity felt that the incidents that happened to them were driven by discrimination towards their race, ethnicity or nationality, compared to 7 percent of victims overall.103
Accurate recording of complaints of hate-motivated offences would provide some, but only limited, assistance in assessing the actual level of offending, as many such offences are not reported. It is nonetheless desirable. Unless hate motivations are recorded, they are unlikely to be brought to the attention of the sentencing judge to take into account during sentencing. Accurate recording enables linkages to be made between different events involving the same offender, the same victim or both. And recording, alongside data on how complaints are resolved, would provide a starting point for assessing the policing response. In turn, this would provide a basis for New Zealand Police to provide assurance to targeted communities that their complaints are being taken seriously.
Most Muslim individuals we spoke to who had been subjected to harmful harassment told us that they had not reported the incidents to New Zealand Police. Such incidents are very unpleasant but may be brief and may not necessarily reach a threshold where reporting the incident is a priority for the victim. In addition, reporting may be inhibited by difficulties in identifying the offender. This will be the case where the offender is not known to the victim and there is no straight-forward way of identifying them. Importantly, many of those we spoke to believed there was little point in reporting harassment to New Zealand Police. This was because they had experiences where such reporting had not produced tangible outcomes or knew of others who had reported harassment to New Zealand Police without result.
More systematic and complete recording of hate motivations for offending would likely enhance community trust in New Zealand Police and, in this way, increase reporting rates.
There have been calls for better records to be kept of hate-motivated offending complaints and official acknowledgements that such records are desirable. We note that recently the Foundation Against Islamophobia and Racism has established an online mechanism for recording hate-motivated offending in New Zealand based on the United Kingdom’s Tell MAMA (Measuring Anti-Muslim Attacks) model.104
In recent years, New Zealand Police have made progress in this area. In October 2018, a supplementary hate crime flag was introduced into their Communications and Resource Deployment dispatch system, which is used to record incidents and manage initial response and resource deployment. Incident records are copied to the National Intelligence Application.
Additionally, frontline officers were instructed to record hate crime when recording incidents in the National Intelligence Application. And since August 2019, there has been a hate crime contributing flag in the National Intelligence Application. But reporting of hate motivations remains incomplete and somewhat inconsistent. In part at least, this is a result of limited training.
The creation of hate crime offences would facilitate the recording of complaints of hate-motivated offending. But the absence of such offences does not make the recording of such data impossible. It is possible for New Zealand Police to refine their recording systems to capture hate motivations more accurately and in readily searchable form. The effectiveness of such systems would be enhanced by training that assists New Zealand Police officers in:
- identifying bias indicators so that they can identify potential hate crimes when they perceive that an offence is hate-motivated;
- exploring perceptions of victims and witnesses so that they are in a position to record offences that are perceived by the victim (or any witnesses) to be hate-motivated; and
- recording such hate motivations in a way that facilitates the later use of section 9(1)(h) of the Sentencing Act.
These are issues that are recognised by New Zealand Police and work on them is continuing.
4.6 Concluding comments
We were told that New Zealand has become tolerant of harmful discriminatory expression in which ethnic and religious communities, including Muslim communities, are regularly subject to hate speech and hate crime online and offline.
In December 2019, the Human Rights Commission published a report Kōrero Whakamauāhara: Hate Speech that provided an overview of the legal framework on hate speech.105 The report includes definitions of hate speech and considers different legal approaches in New Zealand and around the world. It is intended as a resource to help New Zealanders have an informed, inclusive and respectful discussion about the complex and contentious issue of hate speech, as well as provide an accessible introduction to the subject in national and international law.
There has been a tendency to see hate crime and hate speech as different phenomena and the recording of hate-motivated offending as a separate issue that can be left to be dealt with by New Zealand Police practice. As we have explained, we see them as related, sitting on a spectrum of harmful behaviours and as warranting systematic review and reform.
In this chapter we have explored the legal framework that protects freedom of expression and the circumstances in which that freedom may be restricted in order to prevent violence, abuse or discrimination. It explores the boundaries between freedom of expression, unlawful discrimination and harassment and hate speech.
We have explained why we consider that the current laws in relation to hate crime and hate speech neither appropriately capture the culpability of hate-motivated offending, nor provide a workable mechanism to deal with hate speech. We have also explained why current New Zealand Police practice in relation to recording hate-motivated offending requires further improvement. We make recommendations in Part 10: Recommendations that aim to effect change to our laws and practice.
75. See United Kingdom Law Commission Hate Crime: Background to our Review (March 2019) at page 5.
76. InternetNZ Online Hate and Offline Harm (8 May 2019); Matthew L Williams and others “Hate in the Machine: Anti-Black and Anti-Muslim Social Media Posts as Predictors of Offline Racially and Religiously Aggravated Crime” (2020) 60(1) British Journal of Criminology.
77. Matthew L Williams and others, footnote 76 above.
78. Matthew L Williams and others, footnote 76 above at page 94.
79. Matthew L Williams and others, footnote 76 above at page 111.
80. Matthew L Williams and others, footnote 76 above at page 114.
81. Matthew L Williams and others, footnote 76 above at page 112.
82. Colleen E Mills, Joshua D Freilich and Steven M Chermak “Extreme Hatred: Revisiting the Hate Crime and Terrorism Relationship to Determine Whether They Are ‘Close Cousins’ or ‘Distant Relatives’" (2017) 63(10) Crime & Delinquency.
83. See the Canadian Criminal Code RSC 1985 c C-46, section 718.2; Crimes (Sentencing Procedure) Act 1999 (New South Wales), section 21A(2)(h); Sentencing Act 1995 (Northern Territory), section 6A(e); and Sentencing Act 1991 (Victoria), section 5(2)(daaa).
84. As noted by John Ip “Debating New Zealand’s Hate Crime Legislation: Theory and Practice” (2005) 21 NZULR 575 at page 595 in the context of section 9(1)(h) of the Sentencing Act.
85. International Convention on the Elimination of All Forms of Racial Discrimination 660 UNTS 195 (opened for signature 21 December 1965, entered into force 4 January 1969).
86. United Nations International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976).
87. Human Rights Act 1993, section 132.
88. Wall v Fairfax New Zealand Ltd  NZHC 104,  2 NZLR 47.
89. See, for example, New South Wales (Crimes Act 1900 (New South Wales), section 93Z); Victoria (Racial and Religious Tolerance Act 2001 (Victoria), sections 7–8 and 24–5; Queensland (Anti-Discrimination Act 1991 (Queensland) sections 124A and 131A; Northern Ireland (Public Order (Northern Ireland) Act 1987, section 8); and Ireland (Prohibition of Incitement to Racial Hatred Act 1989, section 1). In England and Wales there is an offence of stirring up racial hatred under section 29B of the Public Order Act (United Kingdom) but, the way in which it is defined renders resort to the offence largely impracticable, see above.
90. Section 29J, along with the offence of stirring up religious hatred being confined to language that is “threatening” rather than “threatening, abusive or insulting” (as is the case with section 131 of the Human Rights Act and its English equivalent in respect of racial hatred), has resulted in the offence of stirring up religious hatred becoming practically a dead letter.
91. See sections 18–23 and sections 29B–29G of the Public Order Act 1986 (United Kingdom).
92. See section 319.1 of the Canadian Criminal Code RSC 1985 c C-46.
93. Harmful Digital Communications Act 2015, section 22.
94. Harmful Digital Communications Act 2015, section 4.
95. Harmful Digital Communications Act 2015, section 22(4).
96. Harmful Digital Communications Act 2015, section 4; R v Partha Iyer  NZDC 23957; Law Commission Harmful Digital Communications: The adequacy of the current sanctions and remedies (NZLC MB3, 2012) at page 7.
97. These communication principles are set out in the Harmful Digital Communications Act 2015, section 6(1).
98. Harmful Digital Communications Act 2015, section 6(2).
99. Harmful Digital Communications Act 2015, section 6(1).
100. The codes of practice are for radio, free-to-air television, paid television and election programmes in an election period.
101. Office of Film and Literature Classification Christchurch shooting video officially objectionable (20 March 2019); and Decision of Film and Literature Board of Review In the matter of an application under section 47(2)(e) by the Kiwi Party (Incorporated) for a review of the publication titled: The Great Replacement (12 August 2019).
102. This reflects evidence we received from the Department of Internal Affairs – whose Censorship Team in the Digital Safety Group is responsible for enforcing the provisions of the Films, Videos, and Publications Classification Act – that, before 15 March 2019, the overwhelming focus of their work was on child sexual exploitation.
103. Ministry of Justice The New Zealand Crime and Victims Survey: Key Findings, Cycle 2, October 2019-September 2019 (2020) https://www.justice.govt.nz/assets/Documents/Publications/NZCVS-Y2-A5-KeyFindings-v2.0-.pdf. Personal offences include theft and property damage, robbery and assault, fraud and deception, cybercrime, sexual assault and harassment and threatening behaviour.
105. Human Rights Commission Kōrero Whakamauāhara: Hate Speech – An overview of the current legal framework (December 2019) https://www.hrc.co.nz/files/2915/7653/6167/Korero_Whakamauahara-_Hate_Speech_FINAL_13.12.2019.pdf.