Mattie McGrath (Tipperary, Independent) | Oireachtas source

I am sorry for distracting you earlier, a Leas-Cheann Comhairle. I was just inquiring about speaking times.

The Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022 proposes to legislate for hate crimes by creating new, aggravated forms of certain existing criminal offences where such offences are motivated by prejudice against a protected characteristic. The Bill also proposes to amend the Prohibition of Incitement to Hatred Act 1989, including by making provision in respect of online hateful content. While I appreciate we must deal with issues of online content, I do not know if this Bill is the right way to go about it. The Bill, as expected, includes provisions on the burden of proof by adding a "demonstration test" in addition to the "motivation test" as set out in the general scheme of the Bill. The demonstration test would require only that the person committing the offence demonstrates hatred at the time the offence was committed, while the motivation test requires proof of a person's subjective motivation for committing a hate crime. The Bill also seeks to create clearer and simpler offences, in the Department's words, of incitement to hatred than those contained in the existing legislation, setting the threshold for criminal incitement to hatred as intent or recklessness, while also providing for safeguards for freedom of expression, which is what I am concerned about.

The ten protected characteristics listed in the Bill are race, colour, nationality, religion, national or ethnic origin, descent, sex characteristics, sexual orientation, gender, including gender expression and identity, and disability. Subsection 3(2)(d) of the Bill reads:

"gender" means the gender of a person or the gender which a person expresses as the person's preferred gender or with which the person identifies and includes transgender and a gender other than those of male and female.

Confusing? I think so. Clear? Certainly not. If this subsection is meant to give a definition of "gender", it falls far short. There is no coherent attempt to define a term X as possibly including X in the proposed definition. If, however, this subsection is not meant to define gender, that leaves us with another problem since gender appears to be defined nowhere else in the Bill. There are worrying and unclear sections of the Bill. For example, section 3(2)(d) appears to pick out three items to give a determination to gender. They include, uimhir a haon, a person's gender; uimhir a dó, a person's expressed or preferred gender; agus, uimhir a trí, a person's identified gender. In all three cases, we appear to be told gender can include transgender or a gender other than male or female. Nonetheless, the Bill does not provide a definitive explanation as to what gender is, what transgender is, or what a gender other than male or female might be or how many such genders there might be. I heard a colleague of the Minister's who used to represent her constituency recently express the view that there might be up to nine genders. The Bill does not provide a definitive explanation as to how many of the three listed gender items differ from or relate to one another. For example, could a person have three gender types simultaneously? That is a legitimate question. The Minister should provide clarity before the Bill proceeds. Clarity is needed on many aspects of this but it is definitely needed here because it is not clear in any way.

An offence under section 10 shall be committed where a person:

(b) prepares or possesses such material with intent to incite violence or hatred against such a person or group of persons on account of those characteristics or any of those characteristics or being reckless as to whether such violence or hatred is thereby incited.

Subsection 10(4) goes on to state:

A person guilty of an offence under this section shall be liable— (a) on summary conviction, to a class C fine or imprisonment for a term not exceeding 6 months or both, or

(b) on conviction on indictment, to a class A fine or imprisonment for a term not exceeding 2 years or both.

I am very concerned about that because there are so many areas in the Minister's Department, one or two of which I raised yesterday. We had so much pressure for years with the lack of gardaí and everything else that we brought in an electronic tagging system for prisoners on release. In reply to a parliamentary question from me, the Minister told me that the practice had been discontinued due to the high cost associated with it. The response further revealed that only 151 persons had been electronically tagged during a certain period - it may have been from 2007 to 2017 or 2018, when the practice stopped. Deputy McEntee has been the Minister for Justice for some time, and I wish her well. That is only one area. She went on to refer to the Garda budget. She did not answer the question at all yesterday. I say this just by way of illustration, a Leas-Cheann Comhairle, in case you think I am straying.

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