‘Not fully held to account’: How to stop hate crimes falling through cracks

Some hate crime offenders are not being held fully accountable because there is no process to ensure judges are aware such a crime has been committed.

Fixing this would help ensure their sentences match the seriousness of their crimes, according to a new report by the Law Commission, though the extent of the issue is hard to gauge because of incomplete data.

The report follows the Royal Commission of Inquiry into the Christchurch terror attack, which recommended creating specific hate crime offences.

The Law Commission rejected this because it would likely lead to hate crimes being processed inconsistently. Instead the current system should be improved, in particular filling the gap of any clear process that a hate crime might have occurred.

“This may mean that some offenders are not held to account fully or that opportunities to prevent further offending are missed,” the report said.

This can be remedied if police could raise a “flag” in the court system at the charging stage to indicate a potential hate crime, which would improve how such offences are identified, recorded and denounced.

If a hate crime is subsequently established, the judge in question would be obliged to outline why this qualified as a hate crime and how it made the offence – and sentence – more serious.

The flag would remain on the offender’s record so police, Corrections and the courts will be aware of it in future proceedings, such as in bail or parole hearings or in tailoring rehabilitation.

The Government will now consider the commission’s report and respond in due course, though with the House rising in September, any changes will likely fall to the next Government.

Most hate crimes target race

A hate crime is not a specific offence in New Zealand but an aggravating factor at sentencing.

To qualify, a crime such as assault or vandalism has to be motivated by hostility towards a group of people with a common characteristic.

The Sentencing Act lists several characteristics including “race, colour, nationality, religion, gender identity, sexual orientation, age, or disability”. This is not exhaustive, though the commission said that “sex” should be added as one of the characteristics specified in the law. This would ensure that misogynistic violence towards women, for example, could qualify.

Incomplete data means there is no complete picture of the number of hate crimes reported to police, how many lead to charges and convictions, how often the judges apply the hostility aggravating factor, and whether the system as a whole is responding consistently.

This also makes it’s hard to know whether hate crimes are on the rise, but there have been many high-profile cases in recent years both domestically (the Christchurch terror attack, or Destiny Church members painting over a rainbow crossing) and internationally (last year’s shooting at Bondi Beach).

Police data on perceived hate crime since 2021, based on the group characteristic in question.

Police started recording reported hate crimes in 2019, based on a perception – by the victim, police or a witness, for example – of hostility or prejudice:

• Perceived hate crimes make up 0.8% of all reported crime;
• There were 3452 incidents in 2021, rising to 5918 in 2025, though this may reflect improved reporting processes rather than more crime;
• The most common types are harassment and threatening behaviour, public disorder, assaults, and property damage. From 2021 to 2025, these accounted for more than 90% of perceived hate crimes;
• About four in five reported incidents are based on race or ethnicity, followed by sexual orientation (about one in 10) and religion/faith (about 6%).

The NZ Crime and Victims survey, which includes unreported crime, notes when a victim thinks an alleged offence happened because of the offender’s attitudes towards a particular characteristic, such as race or sexuality. This accounts for between 11% and 20% of all alleged offences.

Most hate crimes are likely to be sentenced in the District Court, but these decisions are not published online so such cases are difficult to trace.

“We do not know how many times the courts have applied the hostility aggravating factor. Neither Police nor Ministry of Justice data systems record the factors taken into account at sentencing, including hostile motivation,” the commission’s report said.

The commission identified 29 cases where the hostility aggravating factor “appears to have been applied at sentencing, but this is likely to be only a small proportion of the actual number”.

These involved a variety of offences including murder, assault, intimidation, carrying out a terrorist act, kidnapping, burglary, possession of explosives, and sexual violation.

Race, colour or nationality were “by far the most common grounds” for hate crimes in these cases, while sexual orientation, religion, gender identity, sex and gang membership also featured.

Philip Arps was jailed for distributing a video of the Christchurch terror attack. His lawyer argued he was being unjustifiably punished for freedom of expression, but the court disagreed.

Free speech and equality tension

The commission looked at the tension between hate crimes and the Bill of Rights Act protection of freedom of expression.

Should an offender expressing a belief about a group of people with a common characteristic be given a harsher sentence because of that belief?

In the case of white supremacist Philip Arps, jailed for distributing a video of the Christchurch mosque attack, his lawyer argued that the hostility aggravating factor (towards Muslims, in this case) limited freedom of expression.

The Court of Appeal agreed but said this was a justified limit “to protect the wider interests of society and the rights of victims of crime that are motivated by hate”. The commission agreed with the court.

The expression of the hostile opinion is not necessarily criminalised, the commission said, but a crime motivated by the opinion is treated as more serious because of the additional harm it causes.

Hate speech might capture the expression of the opinion, but the Government specifically told the commission to halt its work into hate speech.

The commission also disagreed with submissions that hate crime laws breached the right to equality before the law by treating some groups as more deserving of protection than others.

“Denouncing hate crime reinforces Aotearoa New Zealand’s commitment to values such as equality and tolerance. We consider the current law supports rather than violates equality,” the commission’s report said.

Law Commissioner Dr Mark Hickford.

Why hate crimes are more serious

The report noted commentary that hate crimes caused “additional psychological harm” potentially because the victims are targeted for “who they are”.

Such crimes are also likely to cause greater harm to the community and wider society, Law Commissioner Dr Mark Hickford said.

“It harms the immediate victims, harms entire communities that are made to feel they are not safe or welcome in Aotearoa New Zealand, and hurts social cohesion,” he said.

The commission considered creating specific hate crime offences, which are used in England and Wales, but this would complicate and lengthen court processes because proof of hostile motivation beyond reasonable doubt would be needed.

It would also essentially create a dual system of offences (assault versus hostility-motivated assault); a prosecutor might push for the former because the burden of proof is lower, but this could leave the “hate” aspect of the crime unaddressed.

“It is unlikely that hate crime offenders would be consistently charged with or convicted of hate crime offences,” the report said.

The commission’s recommendations to improve the current system include:

• A hate crime flag in the court records system, allowing police to indicate at the charging stage that the hostility aggravating factor may apply, and requiring judges to formally record its application on the court record at sentencing.
• Requiring sentencing judges to expressly state in sentencing decisions when they find hostility was a motivating factor.
• Clarifying the aggravating factor so it includes victims associated with the affected group, even if they are not a member of that group (such as a family member, or the owner of vandalised property).
• Training and guidance for police, prosecutors and judges on any changes to the law, and annual publication of hate crime data by the Ministry of Justice and police.

“Our recommendations are designed to ensure the justice system consistently identifies, records and properly denounces this offending, and holds those who commit hate crimes properly accountable,” Hickford said.

“The law should send a clear message to offenders and the public that hate crimes are unacceptable, ensure offenders are held accountable and reassure affected communities that hostility towards them will be treated seriously.”

Derek Cheng is a senior journalist who started at the Herald in 2004. He has worked several stints in the press gallery team and is a former deputy political editor.