With the previous government's hate speech law reforms halted, should New Zealand instead look at new legislation around hate crimes?
The question is in focus after an Auckland police inspector described the vandalism of Karangahape Road’s rainbow crossing as being “treated as a hate crime”, despite no specific hate crime legislation being on the books.
Many countries have specific laws against hate crimes or statutes that enhance penalties against crimes committed with ethnic or religious motives.
In New Zealand, the motivation of hate can be considered by judges at sentencing as an aggravating factor.
Justice Minister Paul Goldsmith told Q+A that he wants the Law Commission to continue its work canvassing potential hate crime legislation for now.
It is expected to be at least a year before the commission reports back to Cabinet.
The Government's dropping of hate speech law reforms has astonished some advocates, given changes were a recommendation of the Royal Commission into the Christchurch terrorist attack.
Federation of Islamic Associations of New Zealand spokesperson Abdur Razzaq said hate speech and hate crimes are "clearly interlinked".
"It’s clearly stated in the Royal Commission report that hate speech should be included as part of hate crime legislation."
Part of the legal issue to be grappled with is that – by definition – hate crimes are already illegal, said Wellington lawyer Graeme Edgeler.
“You are talking about things like assaulting someone, burglary or vandalism,” he said.
“So in what ways is one worse than the other, because of the nature of the victim or intention of the offender? It’s about motivation.”
“Certain things would be easier to prosecute as hate crimes - the difference between the vandalism of throwing a brick through a window, which could have a hate element to it, versus painting a swastika on the side of a Jewish person’s house.”
Controversy accompanied the recent introduction of new hate crimes and hate speech in Scotland.
Abdur Razzaq argued that the wording of any such legislation would be crucial, and said Scotland’s example had left too much room for opinions to be criminalised.
“Now you have a situation where a very prominent person like [author] J.K Rowling saying ‘I can be accused of a hate crime if I believe in the two-gender approach’."
But he maintained that religion should be a protected category, and noted that more than half of hate incidents reported to police, last year, were targeted at Muslims.
Free Speech Union chief executive Jonathan Ayling said his group's efforts to defeat hate speech laws would be reflected in their concerns about any hate crime legislation.
“What I consider is a hate crime is different to what you consider is a hate crime, is different to what someone else considers a hate crime. Hate is a subjective term.
“What we’ve seen in the UK generally, and specifically Scotland, is this as an ideological rod to beat the backs of opinions that are out of favour at the moment," he said.
Edgeler said the local example of the Karangahape Road rainbow crossing vandalism arguably wouldn’t even constitute a hate crime under potential legislation.
“The person doing the offence must have done it because they perceived the victim was a particular protected class - so a sexual minority, a race, or whatever".
But in legal terms, “the victim in this case as far as I can tell is the Auckland City Council. The Auckland City Council is not a protected minority.”
Q+A with Jack Tame is made with the support of New Zealand On Air
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