The organisation recommended that Sentencing Act 2002 be modified for clarity
The Law Commission | Te Aka Matua o te Ture flagged issues with communication and recordkeeping in its Hara ngākau kino | Review of hate crime law report.
The commission noted that judges do not have to clearly communicate to the public in sentencing decisions if offences were classified as hate crimes, leading to the inconsistent denouncement of such crimes. Moreover, should a court find that an offence was motivated by hostility, this is not formally recorded in a systematic and accessible manner. As a result, courts, the police and the corrections department struggle to handle offenders appropriately; moreover, it complicates the evaluation of the justice system’s response to hate crime.
The report also noted that a clear process has not been established to clarify courts’ awareness that offences may have been motivated by hostility and therefore considered in rulings. Thus, offenders are not necessarily held fully responsible for hate crimes; moreover, courts may miss opportunities to limit further offending.
The Law Commission recommended that the court records system include a hate crime flag which will enable police to note at the charging stage that hostility was an aggravating factor in an offence. It also suggested that judges be compelled to formally include such a finding into court records at sentencing. The organisation also recommended that sentencing judges be required to explicitly indicate in sentencing decisions that they considered hostility to be a motivating factor in an offence.
The Law Commission suggested that Sentencing Act 2002 be modified to confirm that the hostility aggravating factor can apply to victims targeted due to links to an affected group, even if they are not part of that group or were simply bystanders. It recommended including “sex” in the list of characteristics protected by the Act to confirm that offences motivated by hostility based on sex are to be considered hate crimes.
The organisation also suggested that the police, prosecutors and judges be trained and guided on legislative amendments in this regard. It recommended that the justice ministry and police release hate crime data every year.
The Law Commission presented the report to parliament this week for review. The report is partially a response to the recommendations of the Royal Commission of Inquiry conducted after two Muslim places of worship in Christchurch were attacked in 2019.
At present, New Zealand law applies the sentence aggravation model to hate crimes; under this model, a court determines at sentencing whether offences were motivated by hostility as an aggravating factor. Aggravating factors can extend offenders’ sentences.
“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”, said commissioner Dr Mark Hickford in a media release. “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 explained that the commission’s suggestions sought to ensure that the justice system “consistently identifies, records and properly denounces this offending, and holds those who commit hate crimes properly accountable”.
“The Law Commission found that there are problems with how the law is working in practice. 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”, Hickford said.
