Hate Crimes?

Imagining to Reality

As an example of inaccurate reporting, an article in the New Zealand Herald for 29 October 2024 tells us that Police have charged an Auckland woman over an alleged hate crime on Queen St.

The background to the matter is that on 13 September the Herald carried a story about investigations by Police into a daylight “hate motivated” attack on a street in the heart of Auckland city.

The Herald reports the background in this way

Auckland City central response manager Senior Sergeant Dave Plunkett said police are investigating a report of a hate-motivated assault in Queen St earlier this month that left a pedestrian injured.

Plunkett said a young woman was approached by an unknown female on the corner of Queen St and Scotia Pl about 2.50pm on September 2.

“The offender has assaulted the victim, before yelling verbal threats and took a number of items before leaving on foot.

“We are providing support to the victim and want to reassure the community we are working hard to locate the person responsible,” Plunkett said.

“Police have no tolerance for this type of crime or intimidation in our communities.”

The victim described in a social media post having her headscarf snatched from behind by her attacker, who shouted at her to “go back to your own country”.

She also claimed her neck was left with marks from the force of the scarf being yanked from her head.

I won’t comment on the interesting use of tense for the verb “to assault”. Those of us who have had to endure which I call “police speak” are well familiar with the way that Police officers mangle tense and often number.

The September article goes on to report increasing concerns about hate related crimes in Auckland.

So far, so good. The October article states

“Of the 9351 hate incidents reported between January 2022 and January 2024, more than a third targeted people of Asian descent, followed by 8.9% aimed at people of colour and 7.2% targeting Māori.”

Concerns about offending that has a basis in or is motivated by hate must be of concern.

But that is quite a distance from an “alleged hate crime”. Let me explain why.

The woman referred to in the 29 October article has been charged with three counts of common assault, two counts of assault with intent to injure, and one of theft. How is it that these alleged offences become “alleged hate crime”. Is “hate” an element of the offences with which she has been charged?

The answer to that question is no.

Assault is the intentional application of force to the person of another without that person’s consent. The force need only be minor. An unintentional contact in a queue or in the street will not suffice. Nowhere in the definition of the offence is hate or hatred for the complainant an element. Nor is hate as a motivator an element of the offence.

Assault with intent to injure contains the elements of the crime of assault with the added element that the assault must carry with it an intention to injure. Injury may be no more than an abrasion or a bruise. Once again hate or hatred is not an element of the offence. Nor is hate as a motivator an element of the offence.

Theft is a little more complicated. It is defined in section 219(1) in two ways.

The first definition contains the following elements:

1.   dishonestly and without claim of right,

2.   taking any property

3.   with intent to deprive any owner permanently of that property or of any interest in that property

The second definition is slightly different and contains the following elements:

1.   dishonestly and without claim of right,

2.   using or dealing with any property

3.   with intent to deprive any owner permanently of that property or of any interest in that property

4.   after obtaining possession of, or control over, the property in whatever manner.

The crime of theft is a complex one and is a part of the staple diet of any course in criminal law and I don’t intend to go into any further detail other than to observe that in neither of those definitions is hate or hatred an element. Indeed the element of intention is very clear and involves an interference with property rights.

However, despite these clear statements of law the article reports the incidents as alleged hate crimes.

“Inspector Grant Tetzlaff said police identified the woman yesterday.

It came after beat police responded to a report of a woman allegedly abusing and assaulting staff at a store downtown.

When the police officers relayed a description of the offender at the store over police radio, the investigators of the alleged hate crime realised it matched the description of the woman they were looking for, Tetzlaff said.

She was arrested at the store on Sunday and police then identified her as the suspect for the prior hate crime.”

So when does “hate” come into play in the criminal justice system. Simply, it does not. The word “hate” or “hatred” does not appear in the Sentencing Act 2002 although hostility as a motivator for offending is an aggravating circumstance to be considered when fixing a sentence.

Section 9(1)(h) uses the following wording:

that 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:

What seems to have happened is that a factor that is relevant to sentencing has been imported as an element of the offence.

The idea of hostility based on a characteristic of an individual or group is not unknown. In many cases it can give us an idea of what motivates an offender. That hostility may then become manifest in the commission of the offence. But it is not necessary to prove that hostility as a particular element of the offence. In some respects it could be said that as far as a large number of offences are concerned they are content neutral when it comes to underlying motivations.

The focus upon so-called hate crime followed the 15 March 2019 massacre in Christchurch. The new Zealand Police have an interesting web-page entitled Te Raranga (The Weave) which contains some of the detail.

The starting point for a consideration of the Police policy lies in the recommendations of the Royal Commission into the attack.

“Recommendation 42 of the report directs New Zealand Police to revise how we train frontline staff to recognise and record hate-motivated offending, in a way which facilitates the later use of section 9(1)(h) of the Sentencing Act 2002. In response to Recommendation 42, Cabinet mandated and funded a four-year programme of work – Te Raranga. Funding for this work commenced in July 2021, and totals $10.4 million over four years.”

So what is Te Raranga?

“Te Raranga is a partnering programme that weaves people, whānau, agencies, and communities together to reduce the harm caused by hate in Aotearoa.

Led by Deputy Chief Executive, Pieri Munro, Te Raranga is focused on the development of resources to:

support victims, witnesses, and communities to recognise and report hate-motivated offences

align partner agencies to work towards reducing the harm caused by hate

train police staff to recognise, and record hate-motivated offences if it occurs.

Te Raranga developed new training and a toolkit of resources to better enable staff to recognise, record, respond to and resolve hate-motivated crime. The training has been delivered to all new recruits at the Royal New Zealand Police College since November 2022.”

Importantly the Police recognise and state clearly (in bold) that there is no specific offence called “hate crime” in New Zealand law. Yet as the reports of the Auckland incident make clear the concept of “hate crime” is used as a grab bag to describe not the offending itself but the underlying motivation for it.”

The Te Raranga webpage then goes on to identify pieces of legislation that may be relevant to hate motivated offending. My comments are in italics.

s 9(1)(h) of the Sentencing Act 2002 makes hate-motivation an aggravating feature of any offence if it is partly or wholly committed 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.

It is of course incorrect to use the term “hate-motivation”. The Sentencing Act uses the word “hostility” which in fact has a wider sense than the emotion of “hate”.

s 4 of the Summary Offences Act 1981 makes it an offence to use, in a public place, any words intended to threaten, alarm, insult or offend (acknowledging high threshold Courts have applied)

The word “hate” or “hatred” is not an element of this offence. Indeed the scope of language caught by the section is very wide.

s 131 of the Human Rights Act 1993 makes it an offence to publish or use words in any public place which are threatening, abusive or insulting, with intent to excite hostility or ill-will against, or bring into contempt or ridicule, any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons (requires Attorney General consent to prosecute);

This commentary deals with the offence under s. 131 of inciting racial disharmony. It should be read together with s. 61 which deals specifically with racial disharmony. Neither in s. 131 nor in s. 61 do the words “hate” or “hatred” appear and are not elements. The likely to excite hostility or ill-will against, or bring into contempt or ridicule, any such group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons. words used must be threatening, abusive, or insulting and which must be

s 8 of the Harassment Act 1997 makes it an offence to harass another person with intent to cause that person to fear for their safety;

Hate or hatred are not elements of this offence.

s 22 of the Harmful Digital Communications Act 2015 makes it an offence to post a digital communication with intent to cause harm to the victim (in certain circumstances).

Hate or hatred are not elements of this offence.

The Police have developed their own classification of “hate-motivated crime” which goes beyond the law. The working definition of hate-motivated crime is any offence which is motivated wholly, or in part, by hostility or prejudice based on a person’s particular characteristic, such as race, religion, sexual orientation, gender identity, disability, or age. This is guided not by the definition of any offence but by the criteria of s9(1)(h) of the Sentencing Act.

Although the Police acknowledge that “hatred” (hostility) is a factor for sentencing they go on to observe that for a hate-motivated crime to have occurred two things must happen:

·         a crime has been committed (for example assault, damage to property, or threatening behaviour)

·         a reason the crime was committed is because of hate/hostility (bias or prejudice) towards the victim’s race, religion, gender, sexuality, disability, age or any other part of their identity.

The Police go on to say that hate-motivation (hostility) is not an offence on its own and would not be a reason for an arrest. A crime has to be committed. The following example is offered:

Expressing an opinion against migrant communities is not an offence and would not justify arrest, but expressing that opinion while vandalising a migrant-owned supermarket would necessitate arrest for the crime (vandalism), which would then be flagged for potential hate-motivation.

The crime in fact would be intentional damage. Hate or hostility are not elements of that offence but the Police indicate that the circumstances of the offence would qualify it for hate motivation.

The situation becomes a little concerning when we look at the section of the Te Raranga website that deals withy Police recording of hate-motivated crime. I reproduce that section again with my comments in italics.

“All reports made to New Zealand Police are recorded as an ‘occurrence’ in the National Intelligence Application (NIA). An occurrence within NIA is Police’s core measure and describes a report to Police, or by Police, that has occurred in the same place, at the same time.

The public may report something that, although concerning to that individual, does not break the law. It is the role of Police to consider the facts and determine if and what offence has occurred. If it is decided that what has happened is not an offence, it is recorded as such in NIA. Like with all reporting, Police also assesses whether the reporting person’s perception is reasonable – for example, not irrational, trivial, or malicious.

This means that although an offence may not have been committed that fact will be recorded in the NIA

An occurrence within NIA may have one or more offences associated with it. For example, an occurrence where an offender punches a victim (assault) and steals their bag (theft) would be counted as one occurrence with two offences. Each offence within an occurrence can be flagged as ‘perceived hate’ if Police’s definition of a hate-motivated crime applies.

The ‘perceived hate’ flag is applied to occurrences rather than to a person’s NIA profile. When viewing a NIA profile there is no ‘perceived hate’ flag visible. The flag is only found when reviewing a relevant occurrence.

This means that an individual will not be associated with a flag of “perceived hate” within the definition developed by the Police. It relates to the offence only. One wonders why then it becomes necessary to record a “perceived hate” flag if it is not an element of the offence but is relevant to the sentencing of the offender.

It is important to note that the reporting of hate-motivated crimes and incidents are based on a person’s perception – a subjective assessment. This means if anyone, including the call taker, police officer, victim or witness believe that a crime was motivated by bias or prejudice, it will be flagged in the Police system as ‘perceived hate’. If a complainant perceives something to be hateful then it is treated as being the case rather than being subjected to objective analysis.

Any further investigation carried out or subsequent Court proceedings (with consideration of s9(1)(h) of the Sentencing Act 2002) may determine whether hate is confirmed as the motivation for the offence. If investigated and ‘hate’ is determined not a motivating factor, then the flag may be removed.

For each offence flagged as ‘perceived hate’, Police requires the capture of the ‘protected characteristic’ targeted. Where the circumstances of an offence indicate that multiple ‘protected characteristics’ were targeted, Police can record multiple ‘protected characteristics’ against each offence. Police captures groups/identities targeted as ‘Perceived Prejudices’ which are specific sub-categories (sub-Types) to our six ‘Protected Characteristic’ (Type) groupings. Capability to record at this level was added to NIA in July 2022, and the Hate Crime Quality Assurance Team (HCQAT) back-captured the data to 1 January 2022.

Within NIA, there are multiple flags that can be included on an occurrence, including ‘perceived hate’.

Note that:

Police records all reported hate-motivated crimes. This means if the reporting person believes that a crime was motivated by bias or prejudice, it may be flagged in Police’s system as ‘perceived hate’.

The ‘perceived hate’ flag does not mean that hate-motivation has been proven. It means that from someone’s point of view, the event was targeting someone’s identity.

This indicates that the flagging is subjective.

Recording this information recognises the need to look for material which could provide evidence of motivation, as well as material relating to the underlying crime.

Gathering material which may be evidence of motivation will also help to identify appropriate support for victims, and actions needed to prevent community tensions escalating. 

Investigation or subsequent court proceedings (with consideration of s 9(1)(h) of the Sentencing Act 2002) may determine whether hate is confirmed as a motivation for the offence.”

One of the justifications for this level of information gathering develops from the Royal Commission Report into the Christchurch massacre. Should any of the offender’s online comments ought to have been captured and pieced together with other information about his activities.

Given that national security is a function of the Police, the gathering of intelligence is claimed by the Police to be a critical function of the discharge of this function.

Where the Police receive a report of or respond to an incident that does not rise to the level of an offence, but there is perceived hate-motivation, Police may record this in NIA as an incident flagged for ‘perceived hate’. Thus the motivation alone, unassociated with an offence, may warrant inclusion in the NIA system.

The statistics on non-criminal incidents flagged for perceived hate motivation make interesting reading.

For 2020 there were 507 incidents.

For 2021 there were 697 incidents

For 2022 there were 1033 incidents

For 2023 there were 1763 incidents.

There have been 834 incidents from 1 January to 30 June 2024

The Police note that the rise in numbers does not necessarily mean the overall level of hate-motivated crime in New Zealand has grown, but rather could reflect increased awareness, improved reporting, and recording of these crimes. It will be several years until the underlying level of hate-motivated crime in New Zealand becomes clear through the data.

It is perhaps to the credit of the Police that responses to Official Information Act Requests relating to hate motivated offences can be found here.

The Law Commission has been asked to review the law relating to hate crime. The review will focus on whether the law should be changed to create standalone hate crime offences as recommended in recommendation 39 of the Report of the Royal Commission of Inquiry into the Christchurch terrorist attack on 15 March 2019.

This project will not consider the law relating to hate speech. A review of hate speech was on the Law Commission’s work programme but has been withdrawn.

The scope of the review will include:

(a) Whether the current law in adequately responds to hate crime (in particular section 9(1)(h) of the Sentencing Act 2002, which requires hostile motivation to be taken into account when sentencing an offender).

(b) Whether any concerns about the operation of the current law should be addressed through legislative (or operational) measures, for example, the creation of hate-motivated offences.

(c) If hate-motivated offences should be created:

(i) which existing offences they should correspond to

(ii) which common characteristics they should cover

(iii)  how the hatred or hostility element of the offences should be established;

(iv)    what maximum penalties are appropriate; and

(v)     whether any amendments to the Sentencing Act are desirable to take account of the new offences and to ensure hate crime offenders are sentenced appropriately.

Public consultation is expected to take place early in 2025.

Comment

What seems to have developed is a suggestion that there is such a thing as a hate crime. This incorrect conclusion arises from media reporting as exemplified above together with slanted messaging which seems to originate from the Police.

It is interesting to note that as far as the alleged offending in the October report is concerned, Police comment to the media and media reporting links the alleged motivation of hate with a particular offender who has been charged. As the Te Raranga website makes clear the association of perceived hate is applied to occurrences rather than to an NIA profile. The perceived hate flag would not appear if the individual’s NIA profile was accessed.

Thus it would seem that the Police in their commentary to the media have jumped the gun. The comments should not have been made until liability and the circumstances were established and the issue became alive for sentencing.

Why then is it necessary for incidents like those reported in October to be classified as hate crime.

Part of the reasoning goes back to the Christchurch massacre and what has followed on from that. The Royal Commission report expressed concern at perceived failings in Police and intelligence systems that did not warn of the potential for the terrorist – ignoring for the moment that he was a “lone wolf”.

To justify increased levels of surveillance and the establishment of recording systems that might overcome these perceived shortcomings it is necessary to establish a need for them.

The Christchurch terrorist provided a significant element of that need and the requirement expressed by the Royal Commission and picked up on by a number of “progressive” agencies of the importance of “social cohesion” adds to the mix.

Thus it comes as no surprise that in 2021 as a response to the Royal Commission report $10.4 million in funding was provided to the Police for the Te Raranga project. Much of the data gathered will feed into developing the perception that there is a problem with “hate crime”, reinforce that perception to the point that it requires action and which will inform the Law Commission search for a solution.

The problem with developing a template for dealing with hate crime is that it involves opening, as Elizabeth I put it, “a window into men’s souls”. Orwell described the phenomenon surrounding hate crime and indeed any other manifestation of outré thinking as thought crime.

But do we need to develop this approach when the answer already lies in the law. Sections 61 and 131 of the Human Rights Act should cover the problem, as the Police, rather clumsily, observed. The problem with the Human Rights Act is with the threshold.

This is exemplified by the case of Wall v Fairfax which considered whether or not two cartoons by Grant Nisbet and which appeared in the Marlborough Express and The Press were not likely to, "excite hostility against or to bring into contempt Maori and Pasifika on the ground of their colour, race, or ethnic or national origins".

Louisa Wall brought proceedings which were heard by the Human Rights Tribunal. The Tribunal held that the cartoons were insulting but did not cross the threshold of exciting hostility. Ms Wall appealed. The High Court upheld the earlier finding.

The reasoning is complex. The drift of the decision is that liability under section 61 of the Human Rights Act is hard to establish especially once significant weight is given to the freedom of expression.

The precursor to section 131 has resulted in only one prosecution in the case of King-Ansell v Police which involved the distribution of an anti-Semitic pamphlet by the leader of the National Socialist Party of New Zealand.

Thus there is something of a dearth of authority which can assist in interpreting the law and of course that pesky freedom of expression provision in the New Zealand Bill of Rights Act does not help those who would try and introduce a hate element into the criminal law as an ingredient of an offence.

The Royal Commission made recommendations to tighten up the language of the Human Rights Act suggesting that the term “exciting hostility” could be replaced with terms such as intent to stir up, maintain or normalise hatred against any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins or religion of that group of persons”

Fortunately the current government has abandoned the “hate speech” investigation that was to be undertaken yet the “hate crime” investigation by the Law Commission continues. One wonders whether or not the Government wants a dollar each way.

The problem is that the inaccurate and emotive reporting by media who are lazy, complaisant, compliant with the wishes of the authorities and forever in search of a headline will continue to cast certain offences as hate crime. And if they do it enough an uncritical populace will believe that the law actually has hate crime on the books.

And apart from the sections of the Human Rights Act, it doesn’t.