The Law Commission has recommended significant reforms to strengthen the way Aotearoa New Zealand responds to hate crime, concluding that the existing legal framework can be made more effective without introducing new standalone hate crime offences.
In its report, Hara ngākau kino | Review of Hate Crime Law, the Commission found that while New Zealand’s current sentencing laws already recognise crimes motivated by hostility towards a person’s identity, the justice system is not consistently identifying, recording or publicly acknowledging those offences.
The review found that targeted reforms would better ensure hate-motivated offending is recognised, offenders are held accountable, and affected communities have greater confidence in the justice system.
Under New Zealand law, hate crimes are not separate criminal offences. Instead, offences such as assault, wilful damage or intimidation can attract more severe penalties if they are found to have been motivated by hostility towards a person’s nationality, race, religion, sexual orientation, gender identity, disability or age.
This is known as the “sentence aggravation” model, where judges consider prejudice or hostility as an aggravating factor during sentencing after a conviction has been secured.
However, the Law Commission found the current system has several shortcomings.
One of the most significant concerns is that judges are not required to clearly identify an offence as a hate crime in their sentencing decisions. As a result, the public may not understand that hostility based on identity made the offending more serious, limiting the law’s ability to publicly denounce such behaviour.
The Commission also found there is currently no consistent way of recording when an offence has been determined to be hate-motivated. That lack of data makes it more difficult for Police, the courts and the Department of Corrections to monitor repeat offending, identify trends and ensure appropriate interventions are put in place.
Another issue identified is that there is no formal process to ensure courts are alerted early in proceedings that hostility may have been a motivating factor. Without that information being consistently raised, some offenders may not receive sentences that fully reflect the seriousness of their offending.
To address these issues, the Commission has recommended introducing a dedicated hate crime flag within the court records system. Police would be able to indicate when charges may involve hostility towards a protected group, with judges required to formally record whether the aggravating factor applies when sentencing.
The report also recommends requiring judges to explicitly state in their sentencing decisions whenever they determine that hostility motivated an offence, improving transparency and reinforcing public confidence in the justice system.
Further proposed amendments to the Sentencing Act 2002 would clarify that hate crime provisions also apply when someone is targeted because of their association with a protected group, even if they are not themselves a member of that group, or where an innocent bystander becomes the victim.
The Commission is also recommending that sex be added to the list of protected characteristics under the Sentencing Act. The change would make it clear that crimes motivated by hostility towards someone because of their sex, particularly women, should also be recognised as hate crimes.
Alongside legislative reforms, the report recommends comprehensive training for Police, prosecutors and judges to improve the consistent identification and prosecution of hate crimes. It also calls for the Ministry of Justice and New Zealand Police to publish annual hate crime statistics, providing greater transparency and helping policymakers better understand trends across the country.
The Commission emphasises that hate crimes have impacts extending well beyond the immediate victim. Crimes motivated by prejudice can create fear across entire communities, undermine people’s sense of safety and belonging, and weaken social cohesion.
Importantly, the review did not examine hate speech laws. While many submitters raised concerns about hate speech during the consultation process, the issue was outside the terms of reference for the review, and no recommendations have been made in that area.
The report has now been presented to the Government, which will consider the recommendations before deciding whether legislative changes will proceed.
If adopted, the reforms would represent the most significant changes to New Zealand’s hate crime framework in more than two decades, focusing on improving accountability, consistency and confidence in how the justice system responds to crimes motivated by prejudice and hostility.
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