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Mason on Australian Hate Crime Laws

By Lawrence Solum

Gail Mason (University of Sydney) has posted Hate Crime Laws in Australia: Are They Achieving Their Goals? (Criminal Law Journal, Vol. 33, No. 6, pp. 326-340, 2009) on SSRN. Here is the abstract:

A number of common law countries have introduced legislation designed to respond to the problem of prejudice-related crime, commonly referred to as ?hate crime? law. This article examines recent developments in hate crime law in Australia. It outlines the general purpose of these laws and provides an overview of three different models: the penalty enhancement model; the sentence aggravation model; and the substantive offence model. Against this background, the article analyses several reported decisions under the sentence aggravation provisions that have operated in New South Wales since 2003 (s21A(2)(h) Crimes (Sentencing Procedure) Act 1999). Four issues of significance emerge: whether the provisions apply to individual forms of hatred; whether intra-group conflict is covered; whether criminal conduct influenced by racial stereotypes comes within the ambit of the applicable motive test; and the question of which groups should be protected under the legislation. In terms of the last issue, the article argues that the recent decision of the NSWCCA in Dunn v R to include paedophiles as a protected group under s21A(2)(h) does little to further the social justice goals of hate crime laws.

Full post as published by Legal Theory Blog on May 12, 2010 (boomark / email).