Addressing Hate Crime in New Zealand: A Separate Offence?

Abstract

In light of the Christchurch terror attack, a review of New Zealand’s hate crime laws is needed. This paper considers one potential reform option - the adoption of a separate hate crime offence. Firstly, I reconsider the question of whether hate crimes are the type of conduct that should be additionally criminalised. Additional criminalisation of hate crimes is necessary for a number of reasons. Hate crimes are a violation of the victim’s human rights and cause additional harm, to the victim and wider society. The increased moral reprehensibility of hate crimes makes deterring these crimes particularly important. I then critique the sentence enhancement approach, arguing that New Zealand’s current hate crime provision is inadequate. There is uncertainty in the weight that should be attributed to hate crime, the balancing exercise undertaken in sentencing gives insufficient recognition to the hate crime element and sentencing fails to deter hate crime offending. I also consider some issues with a separate hate crime offence: the limited nature of the provisions and the potential difficulties in prosecuting. I then consider the fair labelling principle. A separate offence is important for fair labelling of hate crime. The offence would more accurately communicate the nature of the wrongdoing to the offender, the public and other criminal justice agencies. It would also give more recognition to the victim. There are a number of issues that would need to be addressed if a separate offence were enacted. In particular, which underlying offences should be covered by the separate offence, which characteristics or grounds of hostility should be protected and the requisite motive or causation that should be required. This paper considers how these issues might be addressed. I conclude that New Zealand’s current approach to hate crimes is inadequate and change is needed. More consideration of the exact scope of any changes is required, particularly to determine whether to adopt a separate hate crime offence or a hybrid system.