The new Hate Crime Bill, introduced by Senators Lisa Chambers, Fiona O’Loughlin, and Robbie Gallagher last week is a remarkably poor piece of legislation. You can read it all here.
The bill creates a new offence of “aggravated hate crime”. What it essentially tries to do is to tack motive onto existing crimes as an aggravating factor for the prosecution. So, for example, if you beat up and rob an elderly woman and steal her purse, that is a crime. But if you beat up and rob the same elderly woman, and she happens to be black, or gay, then that is potentially an aggravated hate crime.
Section 2 of the bill reads:
An offence is aggravated by hate crime against a relevant individual if—
(a) at the time of committing the offence, or immediately before or after doing so, a person displays racism, homophobia, xenophobia, anti-religious prejudice or disability hate crime towards a relevant individual, or
(b) the offence is motivated (wholly or partly) by racist, homophobic, xenophobic,anti-religious prejudice or disability hate crime towards a relevant individual.
Section 2 (a) there is easy enough to understand. Whether you agree with it or not, if witnesses were to hear an attacker shouting racial abuse at someone as they attacked them, then a hate crime (for the purposes of the act) would be easy enough to prove.
But what about Section 2 (b)? Or, as we might like to call it, the mind reading section. That calls for the courts to determine what was in somebody’s mind as they committed an offence. Since mind-reading is usually impossible, what evidence will be used to determine what motivated an attack?
Well, that’s answered in the definitions at the beginning of the bill:
“hate crime” includes any offence that is perceived by a victim or any other person, to be wholly or partially motivated by prejudice against a relevant individual based on said individual’s asylum or refugee status, nationality, religion, colour, race, disability, ethnicity (including members of the Traveller and Roma communities), gender identity and expression, sexual orientation, transgender identity, sex characteristics or actual or perceived age;
Read that first line again.
“Perceived by the victim or any other person”. In other words, the standard of proof for hate crime is that literally any person is willing to stand up in court and say “I perceive that this crime is motivated by hate in relation to sexual orientation or skin colour or age or disability”.
And they don’t even have to be right. They simply have to believe it. And if they do, it’s a hate crime.
That is – not to put too fine a point on it – insanity.
And what are the penalties for these hate crimes? Well, if your offence is aggravated by hate, you are automatically to get the maximum possible sentence for the crime itself, as outlined in Section 4:
“Every person guilty of committing a relevant offence, aggravated by hate crime pursuant to section 3(1) shall be liable, on conviction on indictment, to the maximum penalty that can be imposed for the commission of said offence”
In other words, if you commit a minor offence, but somebody is willing to say in court that they believe that you convicted it out of some kind of bigotry, the proposed law calls on you to get the maximum possible sentence for the underlying offence.
This is a horrendously poor proposal.
The standard of proof for hate crime that it creates is, genuinely, no more than “I think it was a hate crime”. That’s it – as long as someone, anyone, is willing to say that they think a crime was motivated by hate, then that is all the proof a court will need, under this bill, to convict them.
It is a horrendously illiberal proposal, and it should be rejected out of hand.