ACHIEVING unanimity on any issue is not easy, but the vast majority of people would have little argument about the statement that crime is bad. The minority would drop still further if the proposition was that violent crimes are bad. However, the pendulum starts to waver when the subject turns to crimes motivated by hatred of others. In liberal democracies such as New Zealand there is a proud and long-standing tradition of freedom of expression, freedom of movement and freedom of assembly. These traditions are codified as rights, and they are fiercely guarded. However, extending those rights to all brings with it the possibility that people will use that freedom to express unpopular views. Indeed, it was doing just that — calling for equality and fair representation in the face of tyranny — which was the wellspring for many of the protections that we take for granted today. The right to protest is a perfect example. A march calling for greater environmental protections might not have universal support but few would object to it taking place. A gathering of neo-Nazis on the other hand, is much harder to stomach. Some countries have legislated to prevent protests of that sort, creating hate speech legislation. Such law is problematic as it curbs existing freedoms, even if almost everyone would agree that the freedom in question is being used for an utterly despicable purpose. New Zealand has considered going down this path before but not taken any concrete steps toward enacting such law. It is still considering what to do in this sphere however, and the government’s independent legal advisory body, the Law Commission, has just issued a carefully expressed report of hate crime law. Free speech advocates had been nervous as to what the Commission might recommend, being concerned that the expert lawyers’ opinions might be a stalking horse for some form of hate speech law. In the end, the Commission steered clear of the issue, despite many submitters wishing them to explore it further. It restricted its focus to hate crime offences — acts against a targeted group intended to demonstrate that they are not welcome in our society. ‘‘They undermine the values of tolerance and human dignity that underpin a cohesive society in which everyone can participate and live a fulfilling life,’’ the Commission said. It went on to say that hate crimes should be consistently identified, recorded and denounced in the courts and that such offenders should be accountable, so as to demonstrate that New Zealand had no tolerance for such heinous actions. And so they should. New Zealand has been subjected to a hate crime of international dimensions and resonance in the case of the March 15 attacks, and the legal system has to play its part in trying to ensure such an atrocity never happens again. The Sentencing Act already includes it as an aggravating factor when imposing punishment if criminal offending was motivated by hostility towards a group. The Commission has recommended going further and creating a ‘‘hate crime flag’’ for the courts, meaning that charging decisions, bail and sentencing hearings would be made and conducted with that consideration in mind. This does pose some issues for fair trial rights — the accused could well dispute that hate was the motivation for their actions — but is likely to be clearly evident in many cases. Judges would also be required to formally record the application of the hostility aggravating factor on the court record, a stigma which it is hoped would act as a deterrent. Such protections would extend not just to members of the affected community, but also to people such as a family member or support person, or even an innocent bystander. The Commission also recommends that data be published data annually on hostility-motivated offending — something which if adopted might well be sobering reading. Measures such as these, if adopted, would not have prevented March 15: the perpetrator had not traversed the New Zealand justice system. Would they prevent a future would-be terrorist from acting on their reprehensible views? Or would they harden their existing attitude? Those questions are unanswerable but recent history, in Christchurch, in Bondi and further afield, dictates that New Zealand must do its utmost to protect everyone who calls this country home.
