The Law Commission’s discussion paper on proposed ‘hate crime’ laws once again underscores the fundamental issue with defining ‘hate’ in law—its inherent subjectivity, says Jonathan Ayling, Chief Executive of the Free Speech Union.

“As we saw with the backlash against ‘hate speech’ laws, determining what qualifies as a ‘hate crime’ is entirely subjective. The questions the Law Commission is asking are in vain and threaten to simply create a bigger stick with which to beat unpopular views.

“Criminal acts motivated by hate are already illegal and should be prosecuted to the fullest extent of the law. However, categorising an existing offense as a ‘hate crime’ means punishing not just the action, but the perceived thoughts or motivations behind it.

“New Zealand law already permits judges to consider motivation as an aggravating factor under the Sentencing Act. This is the right approach—judges daily use their subjective discretion in determining appropriate punishments.

“Throwing red paint on an MPs office in response to the conflict in Gaza? Defacing an installation of the English version of the Treaty in Te Papa? Vandalising a rainbow pedestrian street crossing? All of these are criminal offences- all should be addressed appropriately under the law. But who decides which is a ‘hate crime’?

“No jurisdiction in the world has created an objective standard for ‘hate’. Trying to legislate against something so subjective will lead to confusion and inconsistency in enforcement. There is far too much room for ideological interpretation when deciding if a crime constitutes as ‘hateful’ and to what extent.

“The Free Speech Union successfully opposed ‘hate speech’ laws and will maintain our position against ‘hate crime’ laws, leading a campaign with our supporter base of over 100,000 Kiwis.

“Internationally, ‘hate crime’ laws have proven to be easily weaponised. The rule of law is too important for our democracy to get caught up in subjective and ideological debates that undermine clear legal standards.”

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