Is Aotearoa New Zealand Spending Enough Time Regulating White Supremacist Hate Crime?
By Olivia Bing
CONTENT WARNING — *Discusses Christchurch Terror Attack, Hate Crime and Extremism*
Introduction
"It was brutal and beyond callous — your actions were inhuman."[1] These are the words that Justice Mander said in his sentencing of the Christchurch mosque terrorist. On the 15th of March 2019, the terrorist killed 51 people and injured 40 at the Al Noor Mosque and the Linwood Islamic Centre. The terrorist targeted Muslims and non-European immigrants in what was a culmination of his racist, white supremacist views. His hateful ideology is indicative of a larger issue in Aotearoa New Zealand and white supremacy and other hateful ideologies in New Zealand need to be more closely examined. This article focuses on racial bigotry, but the identified issues apply to hateful ideologies in general. Current legislation is largely insufficient, with many proposing alternatives to properly address the pervasive nature of hate.
Racism’s Enduring History
White supremacy has existed in many forms across the centuries. In recent decades, many have exploited such anti-white sentiment for personal gain. White supremacists in the twenty-first century continue to promulgate the “great replacement” theory, which states that the white race is going extinct due to migration and the increased proliferation of non-whites in society.[2] This fringe conspiracy theory has increasingly reached the mainstream Republican base in the United States, with former President Donald Trump stating Mexican immigrants were “rapists” during his 2016 election campaign.[3] Such rhetoric has a global reach, with the Christchurch mosque terrorist using it in his manifesto. Though the explicit terminology is imported, New Zealand’s racist history is long and enduring. Politicians in the 1900s proliferated anti-Māori, Chinese and Indian sentiments, with the nineteenth Prime Minister William Massey stating he was “not a lover or admirer of the Chinese race”.[4] Racism is embedded in our institutions, with one such example being Māori often experiencing discrimination in health treatment.[5]
Harbouring hateful ideologies is not a new phenomenon. However, the internet enables hateful sentiment to grow and proliferate. The Christchurch terrorist regularly used 8Chan, an anonymous social media site which has no guidelines or content regulation. 8Chan users utilise disguised language to spread hatred. They repackage hate into the “visual vernacular of the Web,” employing GIFs, memes and references to normalise racism and other bigotry.[6] Hate speech and hate crimes are closely linked. Online rhetoric has a radicalising effect, caricaturing minorities to incite deep feelings of outrage and hatred against them. Users gain validation from sharing hate, creating a cycle of hatred and engagement. They create a collective identity, “othering” and dehumanising their victims.[7]
White Supremacy in Contemporary New Zealand
Contrary to expectations, Islamophobia increased after the Christchurch terror attacks. Extremists viewed it as validating their own bigotry, and soon formed their own groups. Action Zealandia is the most prominent, formed in 2019 after the Christchurch terrorist attacks.[8] Mostly existing in the online space, Action Zealandia is a far-right white supremacist group that hatefully opposes non-whites, members of the LGBTQ+ community and other minority groups. They promulgate the creation of a whites-only commune in rural New Zealand.[9] James Halpin and Chris Wilson found that Action Zealandia’s online presence had a significantly more radicalising effect than their offline interactions.[10] However, scholars found Action Zealandia never explicitly advocated for violence or threatening, offline behaviour. Members who had done so in the past were expelled from the group for fear of police and media repercussions.[11] Police arrested one member for posting a photograph of himself wearing a skull balaclava outside Christchurch’s Al-Noor Mosque.[12]
Though the group is small, comprising approximately 50 members, it works to spread its ideology by using mainstream social media. Further, the group seeks to increase membership by pasting propaganda on the University of Auckland campus and other locations in Auckland and throughout the country.[13] Wilson and Halpin note that, unlike isolated individuals who commit acts of violence, Action Zealandia posit a different threat to society. They contend that it is its “impact on democracy, their intimidation of minorities and effect on intergroup relations where their greatest impact lies.”[14] The current measures New Zealand has to regulate these groups are untenable. Both legal and non-legal measures are necessary to combat this growing hatred.
Current Measures
Section 61(1) of The Human Rights Act 1993 considers racial disharmony. It creates civil liability for speech that is “likely to excite hostility against or bring into contempt” on the grounds of colour, race, ethnic or national origins of a group of persons.[15] Section 131(1) of the Human Rights Act creates a criminal offence for speech that has “intent to excite hostility or ill-will against, or bring into contempt or ridicule” on the same groups.[16] The difference between these provisions is that s 131 requires intent, whereas s 61 does not — the behaviour must objectively be “likely” to excite hostility.[17] These provisions do not include religion as a basis for discrimination.
In the High Court case of Wall v Fairfax, former MP Louisa Wall brought a claim against media company Fairfax for publishing offensive cartoons that depicted Māori and Pasifika as lazy, gluttonous and neglectful.[18] Though it was accepted the cartoons were objectively insulting, the High Court held they were not likely to bring Māori and Pasifika into contempt, nor incite hostility against them.[19] Justice Muir held that liability depended on whether a “reasonable person, aware of the context and circumstances surrounding the expression, would view it as likely to expose the protected group to the identified consequences.”[20] The Court found that the use of “hostility”, “ill-will” and “bring into contempt or ridicule” in s 131 was not serious enough of a standard to impose burdensome liability.[21] The standard was difficult to apply, as this wording conveyed contradicting and unclear meaning.
Hate crime is only specifically recognised by New Zealand law as an aggravating factor in the criminal sentencing process.[22] It is not recognised by separate legislation. If an offender is found to have committed a crime in part or wholly due to hostility towards a group of persons because of their shared common characteristic, such as race, colour, religion or sexual orientation, this is likely to increase the length of their sentence. However, this provision has often been inconsistently applied. For example, Isabelle Becconsall-Ryan[23] notes that in Galloway v R, the defendant inflicted fatal injuries on the transgender victim because of her identitiy.[24] In the High Court, Justice Dobson treated this hostility as a “serious aggravating factor”.[25] However, the Court of Appeal later held that Justice Dobson “overstated the seriousness of the hate crime aspect of the homicide" and reduced the sentence by one year.[26]
Law enforcement has only explicitly accounted for hate crimes in data collection since 2019. Police records of hate crimes have grown annually. There were 1,554 in 2019, 2,749 in 2020, and 3,757 in 2021.[27] However, many have criticised the police’s data collection, noting that it should be more comprehensive. Chris Wilson stated that the police’s use of general characteristics, such as “religion/faith”, was too vague, and should specify targeted communities, such as “Muslims”.[28]
Proposed Alternatives
Many regard New Zealand’s current measures against hate crime as inadequate and have proposed alternatives. First, the Royal Commission proposed changes to s 131, suggesting “incite hostility against or bring into contempt” should be replaced with “to stir up, maintain or normalise hatred”.[29] This would raise the current bar and provide more clarity than the current legislation. It would also work to protect freedom of expression, allowing for language, which may be insulting, that does not meet this raised threshold. The Commission also considered that explicit and implicit calls for violence should be included in the legislation. It also notes that this reframing may not be sufficient, addressing the argument that hate speech should depend on the targeted victims. However, they found that this approach would be too difficult to reconcile with the freedom of expression.[30] It is unclear whether white supremacist groups, such as Action Zealandia would be captured under the proposed framework. As Halpin and Wilson noted, the group prohibited calls to violence. The group’s online discourse may qualify as stirring up and normalising hatred. However, these questions will remain unanswered, as the New Zealand Government has withdrawn these proposed changes. Prime Minister Chris Hipkins stated the Government intended to “refocus” to “bread and butter” economic issues.[31]
Becconsall-Ryan proposed the merits of non-criminal alternatives, to achieve social cohesion and prevention of hateful ideologies. Hate crime legislation is incapable of addressing preventative measures, working only to punish activities that have already occurred, and deter future ones. However, more is needed to dismantle hateful ideologies. Becconsall-Ryan endorsed the Federation of Islamic Associations of New Zealand’s (FIANZ) recommendation of educational programmes. These would be taught to young children in schools to help develop empathy and reduce bias. The Royal Commission agreed, noting that this would “significantly impact” social cohesion.[32] The FIANZ also recommended creating programmes to target institutionalised discrimination within the Police. Te Raranga works to address cultural and religious awareness, to improve police responses to hate crimes and incidents.[33] Becconsall-Ryan asserts that these institutional improvements should be expanded to communities, other governmental organisations, and NGOs. For example, increasing diversity within these agencies may reduce institutional discrimination.[34]
Conclusion
Current measures do not adequately address hate speech or crimes. New Zealand has few preventative frameworks that dismantle hateful ideologies. Further, the implemented legislative punishments are unclear, failing to reflect the reality of hate. Proposed changes work to provide a multi-faceted response to this growing issue, such as suggesting non-criminal alternatives and more effective data collection. Unfortunately, these issues are unlikely to be addressed for the foreseeable future. Until then, hate remains uncontrolled and still largely hidden.
[1] R v Tarrant [2020] NZHC 2192, [2020] 3 NZLR 15 at [151].
[2] Milan Obaidi, Jonas Kunst, Simon Ozer, and Sasha Y. Kimel “The “Great Replacement” conspiracy: How the perceived ousting of Whites can evoke violent extremism and Islamophobia” (2021) 25 GPIR 1675 at 1676.
[3] Amber Phillips “‘They’re rapists.’ President Trump’s campaign launch speech two years later, annotated” The Washington Post (Washington D.C., 16 June 2017).
[4] Steve Elers “A 'white New Zealand': Anti-Chinese Racist Political Discourse from 1880 to 1920” (2018) 14 CMR 88 at 92.
[5] Papaarangi Reid, Donna Cormack, Sarah-Jane Paine “K-3 Colonial histories, racism and inequity – the experience of Māori in Aotearoa New Zealand” (2018) 28 EJPH 3 at 3.
[6] Luke Munn Red Pilled - The Allure of Digital Hate (1st ed, Bielefeld University Press, Bielefeld, 2023) at 39.
[7] Tiana Gaudette, Ryan Scrivens, Garth Davies, and Richard Frank “Upvoting extremism: Collective identity formation and the extreme right on Reddit” (2021) 23 NMS 3491 at 3493.
[8] James Halpin and Chris Wilson “How online interaction radicalises while group involvement restrains: a case study of Action Zealandia from 2019 to 2021” 74 PS 18 at 19.
[9] At 29.
[10] At 30.
[11] At 30.
[12] At 27.
[13] At 26.
[14] At 31.
[15] Human Rights Act 1993, s 61(1).
[16] S 131(1).
[17] Wall v Fairfax, [2018] NZHC 104, [2018] 2 NZLR 471 at [51].
[18] At [13].
[19] At [94].
[20] At [51].
[21] At [58].
[22] Sentencing Act 2002, s 9(1)(h).
[23] Isabelle Becconsall-Ryan, “Combatting Hate in New Zealand: The Problems with Hate Crime Legislation and the Importance of Non-Criminal Alternatives” 2022 53 VUWLR 129 at 132.
[24] Galloway v R [2011] NZCA 309 at [3].
[25] At [27].
[26] At [44].
[27] Tess McClure “New Zealand government under fire after shelving Christchurch hate speech reforms” The Guardian (Auckland, 9 February 2023).
[28] James Halpin “Race Relations Commissioner says police need to do better as reported hate crime numbers rise” Stuff (New Zealand, 22 May 2022).
[29] Hon William Young and Jacqui Caine Hate speech and hate crime related legislation (Royal Commissiom, November 2020) at 20.
[30] At 24.
[31] Chris Hipkins “New Cabinet focused on bread and butter issues” (press release, 31 January 2023).
[32] Isabelle Becconsall-Ryan, “Combatting Hate in New Zealand: The Problems with Hate Crime Legislation and the Importance of Non-Criminal Alternatives” 2022 53 VUWLR 129 at 153.
[33] New Zealand Police “Te Raranga (The Weave)” (August 2021) New Zealand Police <https://www.police.govt.nz/advice-services/advice-victims/hate-crime/te-raranga-weave>.
[34] Isabelle Becconsall-Ryan, “Combatting Hate in New Zealand: The Problems with Hate Crime Legislation and the Importance of Non-Criminal Alternatives” 2022 53 VUWLR 129 at 156.
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