Karun Lakshman
Wellington, October 26, 2023
Long Read
Leaflets which purported to contain the English translation of verses from the Quran about the falsehood of worshipping statues were sent anonymously to certain Hindu temples during August 2023.
The leaflets stated that the intention behind them was “To Enlighten and Educate.”
Some members of the Hindu community expressed concern about the leaflets; some felt threatened and intimidated by the message. The matter was referred to the Police, who carried out an investigation but decided that there was insufficient evidence to take the matter further.
As part of the ensuing discussion about the matter, some members of the Hindu community said that the person who was responsible for the leaflets had committed a hate crime and that the Police should treat the matter, and investigate it, as such.
This view was expressed in reliance upon information about hate crimes that has been published by the Police. This view is understandable because of the contents of the Police’s publication, which suggests that New Zealand has hate crime laws along the lines that are set out in the Police’s publication.
Perception and confusion
However, New Zealand does not have such laws, and to the extent that the Police’s publication suggests otherwise, it is misleading.
The issue of hate crimes has been in the public domain in recent years, and some of the public discussion about it has been controversial. There is some public confusion about the exact legal position in relation to hate crimes. The view that has been expressed by some of the members of the Hindu community in relation to the leaflets reflects that confusion.
The public is familiar with the concept of hate crime. Many people may not be equally familiar with the concept of hate speech, which in legal and academic forums in particular is treated as a separate, albeit related, issue to that of hate crime.
Hate crime and hate speech may be generically referred to as hate-motivated conduct, encompassing conduct which may give rise to criminal liability, conduct which may give rise to civil liability, and conduct which may give rise to both criminal and civil liability.
A background hate crime and hate speech
Hate-motivated conduct became the subject of acute national attention following the Christchurch Mosque attack in 2019.
In the aftermath of that tragedy, the government established a Royal Commission of Inquiry. The Royal Commission presented its report in 2020.
The common understanding of the meaning of hate crime and hate speech originates from the report of the Royal Commission. That understanding has been influenced by two other matters. The first matter is the attempt, now postponed, by the government to introduce legislation in relation to hate-motivated conduct, on the basis of the recommendations that were made by the Royal Commission. The second matter is the work that the Police have undertaken in relation to hate-motivated conduct, in part before the Royal Commission presented its report, but principally as a result of the recommendations that were made by the Royal Commission.
The Royal Commission of Inquiry Report
The Royal Commission was not, under its terms of reference, specifically directed to inquire into the legal issues relating to hate-motivated conduct in New Zealand.
However, the Royal Commission deemed it necessary to do so on the basis of the responses that it received during its extensive consultation with the public in the context of social cohesion in New Zealand, which the Royal Commission considered relevant to its mandate to make recommendations about how public sector systems or operational practices should be improved to ensure the prevention of terrorist attacks in the future.
Specifically, the Royal Commission examined New Zealand’s laws addressing hate crime and hate speech and how the Police dealt with reports of hate-motivated offending.
It considered that aspects of New Zealand’s legal framework and Police practice needed to be improved. The Commission said that its guiding principles were the protection of all Sections of the New Zealand community and the promotion of social cohesion consistently with the values of a free and democratic society.
The Current understanding
The Royal Commission defined hate crimes in this manner:
In everyday language, a hate crime means an offence that is motivated by the offender’s hostility to the victim as a member of a group that has a common characteristic, such as race, religion or sexual orientation. An example is an assault against a person wearing religious attire that was motivated by the offender’s hostility towards that particular religion.
The Royal Commission said of hate speech: “Hate speech is a less precise term. In this report we will generally use the expression hate speech to mean speech that expresses hostility towards, or contempt for, people who share a characteristic.”
The Royal Commission took this approach because there was no specific hate crime or hate speech law in New Zealand (unlike, for example, as there is in the United Kingdom). The closest such law in New Zealand is to be found in Sections 61 and 131 of the Human Rights Act 1993, which the Royal Commission considered.
The Royal Commission’s definition of hate crime and hate speech is the basis for the common understanding of those expressions today.
The current Laws
The Human Rights Act does not use the expressions hate crimes or hate speech. Instead, Section 61 is headed “Racial disharmony” and Section 131 “Inciting racial disharmony.”
Sections 61 and 131 originate from the repealed Race Relations Act 1971, which gave effect to the International Convention on the Elimination of All Forms of Racial Discrimination, which was adopted by the United Nations in 1965 and entered into force in 1969.
Section 61 does not create a criminal offence. It provides a civil law remedy, which includes the award of compensation, where, in certain situations and circumstances as defined in the Section, a person publishes or distributes written matter which is, or broadcasts or uses words which are, threatening, abusive or insulting, being matter or words likely to excite hostility against or bring into contempt any group of persons on the ground of the colour, race, or ethnic or national origins of that group of persons.
Section 131 creates a criminal offence. It provides that a person may be sent to prison for a term not exceeding three months or be fined a sum not exceeding $7,000.00 who, in certain situations and circumstances as defined in the Section, with intent to excite hostility or ill-will against or bring into contempt or ridicule, any group of persons on the ground of the colour, race, or ethnic or national origins of that group of persons, publishes or distributes written matter which is, or broadcasts or uses words which are, threatening, abusive, or insulting, being matter or words likely to excite hostility or ill-will against or bring into contempt or ridicule, any such group of persons on the ground of the colour, race, or ethnic or national origins of that group of persons.
There is an important limitation to a prosecution under Section 131. The Police cannot themselves decide whether to charge a person under Section 131, as they can for most other offences. A prosecution under Section 131 can only be commenced with the consent of the Attorney-General. That limitation reflects the importance of the countervailing issue of the right to freedom of expression, which is (now) guaranteed under Section 14 of the New Zealand Bill of Rights Act 1990.
The utility of Sections 61 and 131
Sections 61 and 131 are difficult, restrictive and rarely used legal mechanisms.
The Royal Commission concluded: “New Zealand’s legal system does not adequately deal with hate crime and hate speech. The current laws do not appropriately recognise the culpability of hate-motivated offending, nor do they provide a workable mechanism to deal with hate speech. Change is required to both the law and New Zealand Police practice.
In relation to hate speech, the Royal Commission took into account the right to freedom of expression but noted that it was not an absolute right; Section 5 of the New Zealand Bill of Rights Act provides that the right to freedom of expression is subject (only) to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
The Royal Commission said that the difference between legally criminalised hate speech and the vigorous exercise of the right to express opinions was not easy to capture in legislative language, and the more far-reaching a law creating hate speech offences, the greater the potential for inconsistency with the right to freedom of expression. The Royal Commission recognised that there was considerable scope for argument and controversy as to what are “reasonable limits” to the right to freedom of expression.
Reform of hate-motivated conduct
After weighing and balancing the different interests, the Royal Commission recommended that existing criminal laws that deal with the offences of assault, wilful damage, intimidation, offensive behaviour or language, arson and intentional damage be amended so as to include a hate-motivated element. The Royal Commission also recommended that Section 131 be replaced with a new offence of inciting racial or religious disharmony, based on an intent to stir up, maintain or normalise hatred, through threatening, abusive or insulting communication with protected characteristics that include religious affiliation.
Reform of hate-motivated conduct
The government accepted the Royal Commission’s recommendations and took steps to implement them. The government issued a discussion paper, “Proposals Against Incitement of Hatred and Discrimination”, in which it acknowledged the competing interests which the Royal Commission had identified but said that the changes to the law that the Royal Commission had recommended were necessary.
The government called for public submissions. There was considerable opposition to the government’s proposals, including from opposition parties in Parliament.
Much of the opposition was that the proposed changes went too far and undermined the right to freedom of expression; some of the opposition was that the proposed changes would create uncertainty in the law.
The government then considerably reduced the scope of the proposed changes and asked the Law Commission to review the remaining issues. However, there was opposition to the amended proposals too.
Earlier this year the government decided to postpone the entire exercise.
Reform of hate-motivated conduct
The Royal Commission said that a recurring theme during its public consultation and discussions with communities was the lack of data about hate-motivated offences and harmful harassment.
The Royal Commission considered that a more systematic and complete recording of hate motivations for offending would probably enhance the community’s trust in the Police.
The Police had already made some progress in that area. Well before 2019, the Police had to take cognisance of whether there was an element of hate motivation in the commission of an offence. This was required by Section 9(1)(h) of the Sentencing Act 2002.
The Sentencing Act provides guidance to the courts on how to sentence offenders on criminal charges (sentencing occurs either when a person pleads guilty to the charge, or when a person is found guilty by the court at trial after having pleaded not guilty to the charge).
Under Section 9(1)(h) of the Sentencing Act, the court must take into account whether the offender committed the offence partly or wholly because of hostility towards a group of persons who have an enduring common characteristic such as race, colour, nationality, religion, gender identity, sexual orientation, age, or disability; and (i) the hostility is because of the common characteristic, and (ii) the offender believed that the victim has that characteristic.
If the matters in Section 9(1)(h) are present, they will constitute an aggravating factor, which means that they will make the offending more serious.
The Police have the obligation to provide the court with any evidence that may establish the aggravating factor in Section 9(1)(h).
The Royal Commission noted that in October 2018 the Police had formally introduced a hate crime flag into their Communications and Resource Deployment dispatch system, which is used to record incidents and manage the initial response to them, and that since August 2019 there had been a hate crime contributing flag in the National Intelligence Application.
Nevertheless, the Royal Commission recommended that the government direct the Police to revise the ways in which they recorded complaints of criminal conduct to capture systematically hate motivations for offending and to record such hate motivations in a way that facilitated the later use of Section 9(1)(h) during sentencing.
The Royal Commission’s recommendation, therefore, was limited to the need for Police to keep a proper record of all hate-motivated conduct that was reported to them. This was an end in itself. But it also facilitated the Police’s ability to provide the court with evidence of hate-motivated conduct for sentencing purposes.
The government accepted the Royal Commission’s recommendation.
Te Raranga: The New Programme
In implementing the recommendation, the Police established a new programme called “Te Raranga”. One part of the programme involved the provision of written advice to the public about hate-motivated conduct.
It is this publication upon which some members of the Hindu community relied when they said that the person or persons who are responsible for the leaflet have committed a hate crime, and that the Police should treat the matter, and investigate it, as such.
However, a perusal of the Police’s full publication reveals that the Police entered an important caveat in their publication: the Police acknowledged that New Zealand did not have specific hate crime laws or a standard set of definitions.
The Police’s publication further stated that to enable the Police to implement the Royal Commission’s recommendation (i.e. that the Police keep a proper record of all hate-motivated conduct that was reported to them), the Police had themselves created a category called hate crime and a category called hate incidents, and the Police had themselves given each category a definition.
Definition of Hate Crime
The Police defined hate crime in the publication as follows: “A ‘hate crime’ involves an offence which is perceived by the victim or any other person, to be motivated, wholly or in part, by hostility or prejudice based on a person’s (perceived or actual) Race, (includes nationality or ethnicity), Religion (or Faith), Sexual Orientation, Gender Identity, Disability or Age.”
The Police defined hate incident in the publication as “A ‘hate incident’ is any non-crime incident, which is perceived, by the victim or any other person, to be motivated, wholly or in part, by a hostility or prejudice based on a person’s (perceived or actual) Race, (including nationality or ethnicity), Religion (or Faith), Sexual Orientation, Gender Identity, Disability or Age.”
The Police’s publication did not make any reference to hate speech.
The Police’s publication did, however, explain the Police’s role and responsibility under Section 9(1)(h) of the Sentencing Act.
As a matter of law, the Police do not have the power to create new criminal offences. Even the courts do not have such a power. Only Parliament has that power. Parliament exercises that power by enacting legislation.
Therefore, the Police’s decision to create a definition of hate crime (which was merely for the purpose of keeping a proper record of all hate-motivated conduct that was reported to them) does not mean that there is a criminal offence of hate crime in New Zealand law.
Limitations of existing laws
Has the person who is responsible for the leaflets committed an offence under existing laws?
Assuming that the Police find the person who is responsible for the leaflets, any criminal charges against that person can only be laid under existing laws. The only offence with which the person can realistically be charged is an offence under Section 131 of the Human Rights Act.
Section 131 is a complex Section.
One of the principal points of contention, in terms of the ingredients of Section 131 which the Police will have to prove, is whether the person published and distributed the leaflets with the intention of exciting hostility or ill will against, or with the intention of bringing into contempt or ridicule, a group of persons on the ground of their colour, or race, or ethnic origins, or national origins.
If the person does not admit to any such intention, what evidence will the Police have to prove such intention? The leaflets state that their objective is to enlighten and educate, which is contrary to the intentions stipulated in Section 131.
A subsidiary issue that arises under this aspect of Section 131 is whether the Hindu community is a group of persons on the grounds of their colour, race, ethnic origins, or national origins. The answer is arguably in the negative; Hindus can be of different colours, different races, different ethnicities, and different nationalities. Arguably the Hindu community is a group of persons on the grounds of their religion only. However, religion is not a ground in Section 131.
Another principal point of contention, in terms of the ingredients of Section 131 which the Police will have to prove, is whether the leaflets are threatening abusive or insulting. The answer is arguably in the negative; the leaflets assert an aim to enlighten and educate.
A further principal point of contention, in terms of the ingredients of Section 131 which the Police will have to prove, is whether the leaflet is likely to excite hostility or ill-will against, or bring into contempt or ridicule, a group of persons on the ground of their colour, or race, or ethnic origins, or national origins. The answer is arguably in the negative.
Criminal Offence under Section 131
Section 131 creates a criminal offence. A person who is charged under Section 131 faces a criminal proceeding. As is almost invariably the case in all criminal proceedings, two important matters will arise if the person who is charged pleads not guilty to the charge and the case proceeds to a trial:
(i) the Police will have to prove that the person has committed, and therefore is guilty of, an offence under Section 131. The person will not have to prove that he or she is innocent. In legal terms this is called the burden of proof;
(ii) the Police will have to prove the person’s guilt beyond reasonable doubt. It will not be enough for the Police to prove that it is more likely than not that the person committed the offence. The court will not find the person guilty unless the court is satisfied beyond reasonable doubt, in other words, unless the court is sure, that the person has committed an offence under Section 131. In legal terms, this is called the standard of proof.
But even if the Police wish to lay a charge under Section 131, they will not be able to do so without first obtaining the consent of the Attorney-General. The question therefore arises whether the Attorney-General will give his consent. One of the principal factors that the Attorney-General will take into account will be the prospects of a prosecution succeeding. The prospects of success are not encouraging. Therefore it is unlikely that the Attorney-General will give his consent.
Conclusion
The law relating to hate crimes and hate speech has not changed since the Royal Commission presented its report. Other than the limited terms of Section 131 of the Human Rights Act, there is no hate crime or hate speech law in New Zealand.
In the case of the anonymous leaflets with the Quranic verses that were sent to Hindu temples, even if the person responsible is apprehended, it is doubtful whether a prosecution will ensue.
Karun Lakshman is a Barrister based in Wellington.
