Chapter 3 - Key reform considerations
We have identified some key considerations that will help us think about whether law reform is needed. These considerations will also help us assess options for reform.
The need to treat hate crime more seriously than other crimes
Hate crime laws treat hate crime more seriously than other offending. The reasons for this are relevant to whether law reform is needed. It may be our law doesn’t treat hate crime seriously enough.
Four reasons are commonly given for why hate crime should be treated more seriously than other offending:
- hate crime causes additional types of harm compared to other crimes;
- hate crime offenders are more blameworthy than other offenders;
- the law should send the message that hate crime is a serious wrong; and
- punishing hate crime more harshly will mean fewer people commit hate crime (although there is evidence harsher punishment doesn’t stop people offending).
When is it appropriate to create new offences?
This review is looking at whether to create new hate crime offences. Government guidance states that criminal offences should only be created if there are good reasons. Behaviour that is already an offence should only be further criminalised if it would serve an additional purpose not achieved by the current law. Criminal conviction can have a serious impact on the individual and significant costs for the state.
Ngā tikanga
The Law Commission must have regard to te ao Māori (the Māori world) when making its recommendations. This includes tikanga, a system of values and principles that govern relationships in te ao Māori. Thinking about tikanga is an established part of good law-making in Aotearoa New Zealand.
Our research suggests tikanga did not have an equivalent concept of hate crime. However, we have considered the similarities between hate crime and the tikanga concepts of hara, kanga and kōruhu.
- Hara has been described as an action that violates justice or law.
- Kanga and kōruhu are both serious hara. Kanga has been described as verbal abuse, including placing a curse on someone. Kōruhu has been described as causing injury or harm without feeling remorse or without a good reason.
These concepts suggest that hate crime would be considered a serious wrong under tikanga.
Te Tiriti o Waitangi | Treaty of Waitangi
The Treaty of Waitangi is a foundation of government in Aotearoa New Zealand and should be considered when thinking about changing the law. A challenge for us is how to give effect to the Crown’s Treaty obligations within the scope of this review, which is only looking at hate crime law. We welcome your views on this.
For example, one of the Crown’s obligations is to protect the exercise of tino rangatiratanga. This requires the Crown to allow Māori to manage their own affairs in ways that work for them. There may be ways to better involve Māori communities in the response to hate crime. The Crown also has an obligation to address disparities between Māori and other New Zealanders. Māori are overrepresented at all levels of the criminal justice system, including as alleged hate crime offenders. The risk of overcriminalisation may point against introducing specific hate crime offences.
Human rights obligations
Law reform should be consistent with Aotearoa New Zealand’s human rights obligations.
Some people think hate crime laws are needed to meet international human rights obligations. It is likely our law already meets these obligations, since it requires courts to consider hate motivation at sentencing.
Others say hate crime laws infringe human rights, including the rights to:
- freedom of thought (because hate crime laws punish the offender’s motives and beliefs);
- freedom of expression and association (because things the offender said or their association with other people may be used to prove hate motivation and increase their sentence); and
- equality (because hate crime victims and offenders are treated differently to victims and offenders of other crimes).
These rights can be limited if there are good reasons. Te Kōti Pīra | Court of Appeal has said the limits placed on the rights to freedom of opinion and expression by Aotearoa New Zealand’s hate crime law are justified, given the important objectives of hate crime law.
What characteristics should be protected by hate crime laws?
We are thinking about what characteristics should be protected by Aotearoa New Zealand’s hate crime laws. This will help us decide whether to make any changes to the law and what any changes should look like.
We will need to think about:
- how seriously a group of people is affected by hate crime;
- what kind of hostility towards the group there is; and
- whether hate crime law is the best way to deal with the offending.
Overseas, there has been argument about whether some characteristics, such as sex, gender and age, should be covered. For example, there are different views on whether hate crime law is the best way to respond to concerns about offending against women and elderly people.
Under current law, any “enduring common characteristic” is protected. If we think a new approach, such as specific hate crime offences, should be introduced in Aotearoa New Zealand, we will need to decide what characteristics should be protected. Hate crime offences only protect specific characteristics.
In the rest of this submission form, we call the characteristics that are covered by hate crime law ‘protected characteristics’.