Carlton Tumakoha Nelson told Kammy Makker that when he saw him 'in the Mosque,' he'd shoot him.

"I'll see you in the mosque. When are you going there? I'll shoot you."

That tirade, aimed at Indian Sikh Kammy Makker on a Rotorua street in July, left Carlton Tumakoha Nelson facing the rarely used charge of inciting racial disharmony.

Its rarity was also its undoing, after police were forced to withdraw the charge after forgetting to get approval from the attorney-general.

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SUPPLIED Kammy Makker, an Indian Sikh, was already nervous in the wake of the Christchurch terror attacks, then Carlton Nelson threatened to shoot him.

The comment was made when Makker asked Nelson to leave the bar he was working in for aggravating patrons.

The attack took a heavy toll on Makker, who suffered sleepless nights and a feeling he is "unsafe in the place I live".

Nelson was sentenced to four months and two weeks imprisonment after pleading guilty to related charges of aggravated assault, resisting arrest and disorderly behaviour.

Prosecuting Sergeant Teri Rae told the court the inciting racial disharmony charge was "quite unfamiliar to most police officers. . . there wasn't a lot of scrutiny".

AUT criminal law professor Warren Brookbanks said it is one of more than 100 charges that needs to be signed off by the attorney-general before being put before a court, "in order to prevent frivolous, vengeful or political use of the offence provisions".

The charge has been in the Human Rights Act since 1994.

AUT/SUPPLIED Warren Brookbanks, Professor of criminal law and justice studies at AUT, said he was unsurprised police are unfamiliar with the charge given the high bar set before Attorney General consent would be granted.

The attorney-general's office said it had not received a single request to consent to that charge being laid since March 15 last year, which was no surprise to Brookbanks.

"It's unlikely that it would receive the attorney-general's consent in the vast majority of cases and for that reason such prosecutions are probably seldom sought."

It's a situation that has not gone unnoticed by officials and anti-racism campaigners.

Justice Minister Andrew Little said it had formed part of a review on hate speech laws he commissioned after the Christchurch attacks. One suggestion had been to move the charge to the Crimes Act.

Brookbanks said that made sense.

CHRISTEL YARDLEY/STUFF Justice Minister Andrew Little said he was considering placing the charge under the Crimes Act, rather than the Human Rights Act, given the current high bar that exists for the charge to be placed before a court.

"It better reflects the seriousness of the charge given its quite harsh penalties [three months imprisonment or a fine up to $7000]," he said.

"It also uses the powerful symbolism of the criminal law to send a strong message to the public about the unacceptability of the behaviour involved."

Race Relations Commissioner Meng Foon would back a law change, and said there was a high threshold for a successful prosecution.

"The focus of the offence is on incitement of others, not the feelings of the victim."

A successful prosecution needed to prove the words were threatening, abusive or insulting and likely to influence ill will or hostility in third parties.

SUPPLIED New Zealand Race Relations Commissioner Meng Foon said it was about time New Zealand's hate speech laws were reviewed.

"Unfortunately, even though people might regularly be on the receiving end of racial slurs and even harassment, these acts may not necessarily meet the legal definition of inciting racial disharmony. Regardless of how harmful and hurtful these acts might be.

"(The Commission) has been asking this question for some time - do our laws around hate speech and incitement fit modern New Zealand? ...We think it is time that the New Zealand Government review the existing laws and it is important we listen to a range of voices and views to make sure our legislation strikes the correct balance."

A police spokesperson said because the Sentencing Act took into account aggravating factors for a crime, like hostility toward an ethnicity, religion or gender, police didn't need to file a separate charge based on Nelson's comments.

Anjum Rahman, founder of the Inclusive Aotearoa Collective, was concerned police were unaware of the correct application of the charge, especially when "the police encourage us to report" incidents.

KEVIN STENT/STUFF Anjum Rahman, Inclusive Aotearoa Collective founder, said she was concerned police seemed unaware of the procedure around the charge of inciting racial disharmony.

"We would certainly expect the police would train all staff around some of these issues, they do need to have the skills to deal with it."​

Makker is hopeful for justice for others in the future..

"Racism is everywhere, wherever human beings are," he said. "But we all bleed the same colour."