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How New Zealand law deals with hate crime

Crikey logo Crikey 20/03/2019 Kishor Napier-Raman

The Christchurch terrorist attack last Friday was clearly animated by a visceral hatred of Muslims. The gunman left excruciating details about his radicalisation and his white supremacist ideology for all to see.

a wooden table: Law Court © Provided by Private Media Operations Pty Ltd. Law Court But while there is a good chance the shooter will become the first person to get a life sentence without parole in New Zealand, he is unlikely to be charged with a “hate crime”, because technically speaking, the country has no such thing. Instead, hate or prejudice is dealt with by a patchwork and diffuse legal framework.

After last Friday’s attack, the question arises whether this is enough.

The current legal framework

Like Australia, New Zealand’s legal framework around hate crimes is fairly ad hoc. There is currently no specific “hate crime” offence. Instead, hostility towards a person on the grounds of race is taken into consideration as an aggravating factor when sentencing an offender, mirroring the approach in most Australian jurisdictions.

Thomas Harré, a New Zealand criminal barrister, told Crikey that while there were occasional calls to introduce separate hate crime laws, they gathered little traction.

“Perhaps that’s just a case that as a country New Zealand doesn’t think there’s that problem,” he said.

New Zealand also has counter-terrorism laws, enacted in the aftermath of the Bali Bombings in 2002, which create severe penalties, and could act as a bulwark against far-right violence. But according to Harré, this would put a prosecution on “untested legal ground”.

“It’s just not something New Zealand has had to really grapple with,” he said.

There are also practical reasons that indicate a terrorism prosecution is unlikely. New Zealand’s Terrorism Suppression Act has only been considered once before, following raids against environmental activists in the Urewera mountain range in 2007. Charges under terror laws were ultimately dropped, because the solicitor-general felt the laws were “incoherent and unworkable”. Legal experts say that because of this complexity, and prosecutors’ lack of familiarity with the legislation, a terror charge may not be laid.

New Zealand also has civil processes for dealing with hate speech, similar to those in Australia’s Racial Discrimination Act. Section 61 of New Zealand’s Human Rights Act makes it unlawful to distribute content that is threatening, abusive or insulting, and is likely to excite hostility against or bring into contempt a person on the grounds of colour, race, or ethnic or national origins. Where the exercising of hostility is done with intent, a person may face fines or jail time, but a prosecution in New Zealand requires the Attorney-General’s approval.

Human Rights litigation is rarely pursued. In a recent prominent case, the New Zealand High Court found that an allegedly racist cartoon in the Marlborough Express targeting New Zealand’s school meals program did not breach the Human Rights Act.

What the numbers say

Speaking to Crikey last year, Gail Mason, who is director of the Australian Hate Crime Network, raised her concerns about a patchwork approach to hate crime, arguing it left law enforcement without robust data, and a limited understanding of the various ways racist hate might manifest.

Both the UK and US have specific hate crime laws, and rigorous reporting obligations imposed on police. This has provided clear evidence that hate crimes have risen in both countries since the mainstreaming of reactionary politics post-2016.

In 2017, New Zealand’s then-race relations commissioner Dame Susan Devoy called on police to start recording data on hate crimes. New Zealand police’s Michael McLean, the national manager for Maori, Pacific and ethnic services, told Crikey that they are beginning to record the impacts of offences on a person’s race, religion, gender or sexual orientation, but admitted doing so was complex.

“Police have consulted with community leaders to consider the pros and cons as to how we should record data based on discriminatory attacks against individuals,” McLean said.

Much of the evidence about hate crime in New Zealand remains anecdotal. Anjum Choudhary, a spokesperson for the Islamic Women’s Council of New Zealand said she repeatedly raised concerns about growing Islamophobia and the rise of the far-right with government and law enforcement, but received little response. Since last Friday, the everyday racism experienced by Muslims in New Zealand is finally getting some much needed attention, with some locals wishfully describing the attack as “the day casual racism died in New Zealand”.

What little data there is suggests New Zealand is not immune from the racist violence that is increasing across the western world. In 2018, complaints of racism made to the Human Rights Commission hit a five year high.

The law reform debate

Previously, efforts to strengthen laws around hate crime and hate speech have struggled to gain momentum. In a 2017 editorial, Stuff argued against the “laudable” calls for separate hate crime laws, because “in many ways, New Zealanders are more tolerant of differences than they used to be. When Devoy announced a review into hate speech law during her term as commissioner, prominent academics and politicians came out strongly against any changes.

Even after Christchurch, domestic legal experts told Crikey they valued the importance New Zealand laws placed on free speech, and were cautious about any legislative changes. Selene Mize, from the University of Otago said a wide latitude for free expression was important, and argued that toughening gun laws were a bigger concern for parliament following the shooting.

Harré said the current sentencing-based approach is sensible, as it allows judges the discretion to consider the idiosyncrasies of every case. He warned against the impulse to make knee-jerk policy changes after such a tragedy.

“I would want to see a robust public consultation process around that, and the involvement of the law commission, in order to make sure that any legislative response is fully considered,” Harré says.


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