“Hate crimes” are criminal offences that occur because the perpetrator is motivated, in whole or part, by a person or group’s actual or perceived personal characteristics.71 When a hate-motivated crime occurs, the perpetrator is charged under standard criminal law provisions relating to the offence. However, the motivation for the offence can be considered an aggravating factor for sentencing purposes if an individual is convicted.72 At least in part due to this legal situation, very limited data is collected by New Zealand Police and the Ministry of Justice pertaining to crimes related to sexual orientation and gender identity or how frequently hate-motivated factors are taken into account during the sentencing process. The Commission’s Transgender Inquiry found great limitations on enforcing the Sentencing Act’s provisions; the aggravated motivation of a crime must be recorded at each stage of the justice process, from reporting through to sentencing. This requires a person’s sexual orientation or gender identity to be accurately noted throughout.73 Like hate crime, hateful or harmful speech has become an issue of considerable public concern in New Zealand. Hate speech is not defined in New Zealand legislation, and New Zealand legislation does not protect generally against words that attack a person or group based on real or perceived personal characteristics. “Hate speech” legislation generally targets only words which incite violence or prejudicial action against members of particular groups.74 The main laws covering hate speech in New Zealand are the Human Rights Act and the Harmful Digital Communications Act.75 There are considerable anomalies in the existing legislation. Section 61 of the Human Rights Act prohibits the 71 72 73 74 75 76 77 78 “incitement of disharmony” on the basis of race, ethnicity, colour or national origins. These criteria do not extend to the incitement of disharmony on the basis of religion, gender identity, disability, sexual orientation, or other status. The 2015 Harmful Digital Communications Act seeks to deter, prevent, and mitigate harm caused by digital communications and to provide victims of harmful digital communications with a quick and efficient means of redress. Principle 10 of this Act states that a digital communication should not denigrate an individual by reason of colour, race, ethnic or national origins, religion, gender, sexual orientation, or disability. Both laws have to be interpreted in the context of the New Zealand Bill of Rights Act, which affirms the right to freedom of expression.76 SOGIESC-diverse community leaders have told the Commission that they are concerned about the nature, volume, and harm of hateful speech. They have observed that hate speech against SOGIESC-diverse communities tends to be sexually explicit or violence-oriented, and its ubiquity online and in the media causes harm. During the Commission’s work, these leaders have described hate speech as denying the existence of trans and non-binary identities,77 noting an increase in use of coded language which attempts to deny the rights of trans people while appearing reasonable to the average person. These concerns mirror an international rise in hate speech and hate crimes against SOGIESC diverse communities.78 In the wake of the terrorist attacks at two Christchurch mosques on March 15, 2019, the Minister of Justice fast-tracked a review of New Zealand’s hate speech laws. The review by the Ministry of Justice will inform any government decisions which could, for example, include deciding whether hate speech provisions should be expanded to cover other grounds of discrimination. New Zealand Human Rights Commission Kōrero Whakamauāhara - Hate Speech: An overview of the current legal framework (Wellington, 2019) at 7. Sentencing Act 2002 s 9(1)(h). Section 9(1)(h) of the Act says the court must take into account the offender’s hostility towards the victim’s gender identity or sexual orientation as an aggravating factor in sentencing. An aggravating factor can make a sentence higher. New Zealand Human Rights Commission To Be Who I Am: Report of the Inquiry into Discrimination Experienced by Transgender People (Wellington, 2008) at [4.56], [4.57], and [4.73]. New Zealand Human Rights Commission Kōrero Whakamauāhara - Hate Speech: An overview of the current legal framework (Wellington, 2019) at 4. See Human Rights Act 1993, ss 61 and 131. See also Harmful Digital Communications Act 2015. New Zealand Bill of Rights Act 1990, s 14. The negation of identities – suggesting that they are made up and do not exist – provides an environment for violence and discrimination to flourish. See Victor Madrigal-Borloz Report to the Human Rights Council by the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity UN Doc A/HRC/38/43 (11 May 2018) at [62]. Office of the United Nations High Commissioner for Human Rights Joint open letter on concerns about the global increase in hate speech (23 September 2019). 17