Criminal Code Amendment (Hate Crimes) Bill 2024
Mr BURKE (Watson—Minister for the Arts, Minister for Home Affairs, Minister for Cyber Security, Minister for Immigration and Multicultural Affairs and Leader of the House) (19:53): For context, I should refer to my earlier comment thanking the officials who've been working hard to move amendments back and forth through the complexity of the two houses. I just want to acknowledge that and give my thanks to the clerks for everything they're doing.
I present two supplementary explanatory memoranda to the bill. I ask leave of the Federation Chamber to move government amendments (1) to (19) on sheet EZ100 and amendment (1) on sheet AA101, as circulated, together. Leave granted.
Mr BURKE: I move government amendments (1) to (19) on sheet EZ100 and amendment (1) on sheet AA101, as circulated, together: SHEET EZ100 (1) Schedule 1, item 1, page 3 (line 6), after "urging or threatening violence,", insert "offences against groups or members of groups,". (2) Schedule 1, item 2, page 3 (before line 11), before the definition of disability, insert: carer or assistant has the same meaning as in the Disability Discrimination Act 1992. close associate of a person means: (a) in any case—a close family member of the person; or (b) if the person is a person with a disability—a carer or assistant in relation to the person. close family member has the same meaning as in Division 102. damage does not include minor damage.
(3) Schedule 1, page 3 (after line 12), after item 2, insert: 2A Subdivision C of Division 80 of Part 5.1 of the Criminal Code (heading) Omit "Urging violence", substitute "Urging or threatening violence, offences against groups or members of groups". 2B Section 80.2A of the Criminal Code (heading) Repeal the heading, substitute: 80.2A Advocating force or violence against groups 2C Paragraph 80.2A(1)(a) of the Criminal Code Repeal the paragraph, substitute: (a) the first person advocates the use of force or violence against a group (the targeted group); and (4) Schedule 1, page 3 (after line 20), after item 5, insert: 5A Paragraph 80.2A(2)(a) of the Criminal Code Repeal the paragraph, substitute: (a) the first person advocates the use of force or violence against a group (the targeted group); and (5) Schedule 1, page 4 (after line 10), after item 10, insert: 10A At the end of section 80.2A of the Criminal Code Add: Definitions (6) In this section: advocate means counsel, promote, encourage or urge.
(6) Schedule 1, page 4 (before line 11), before item 11, insert: 10B Section 80.2B of the Criminal Code (heading) Repeal the heading, substitute: 80.2B Advocating force or violence against members of groups or close associates 10C Paragraph 80.2B(1)(a) of the Criminal Code Repeal the paragraph, substitute: (a) the first person advocates the use of force or violence against a person (the targeted person); and (7) Schedule 1, page 4 (after line 12), after item 11, insert: 11A Paragraph 80.2B(1)(c) of the Criminal Code Repeal the paragraph, substitute: (c) the first person does so because of the first person's belief that the targeted person is: (i) a member of a group (the targeted group); or (ii) a close associate of a member of a group (the targeted group); and (8) Schedule 1, page 4 (after line 18), after item 13, insert: 13A Paragraph 80.2B(2)(a) of the Criminal Code Repeal the paragraph, substitute: (a) the first person advocates the use of force or violence against a person (the targeted person); and (9) Schedule 1, page 4 (after line 20), after item 14, insert: 14A Paragraph 80.2B(2)(c) of the Criminal Code Repeal the paragraph, substitute: (c) the first person does so because of the first person's belief that the targeted person is: (i) a member of a group (the targeted group); or (ii) a close associate of a member of a group (the targeted group); and (10) Schedule 1, page 4 (after line 26), after item 16, insert: 16A Subsection 80.2B(3) of the Criminal Code Repeal the subsection, substitute: (3) For the purposes of paragraphs (1)(c) and (2)(c), it is immaterial whether the targeted person: (a) actually is a member of the targeted group; or (b) actually is a close associate of a member of the targeted group.
(11) Schedule 1, page 5 (after line 5), after item 18, insert: 18A At the end of section 80.2B of the Criminal Code Add: Definitions (7) In this section: advocate means counsel, promote, encourage or urge. (12) Schedule 1, item 19, page 6 (line 21), at the end of the heading to section 80.2BB, add "or close associates". (13) Schedule 1, item 19, page 6 (lines 26 to 28), omit paragraph 80.2BB(1)(b), substitute: (b) the first person does so because of the first person's belief that the targeted person is: (i) a member of a group (the targeted group); or (ii) a close associate of a member of a group (the targeted group); and (14) Schedule 1, item 19, page 7 (lines 10 to 12), omit paragraph 80.2BB(2)(b), substitute: (b) the first person does so because of the first person's belief that the targeted person is: (i) a member of a group (the targeted group); or (ii) a close associate of a member of a group (the targeted group); and (15) Schedule 1, item 19, page 7 (lines 20 to 22), omit subsection 80.2BB(3), substitute: (3) For the purposes of paragraphs (1)(b) and (2)(b), it is immaterial whether the targeted person: (a) actually is a member of the targeted group; or (b) actually is a close associate of a member of the targeted group.
(16) Schedule 1, item 19, page 8 (after line 10), after section 80.2BB, insert: 80.2BC Advocating damage to or destruction of real property or motor vehicle Offences (1) A person (the first person) commits an offence if: (a) the first person advocates the causing of damage to, or the destruction of, real property or a motor vehicle; and (b) the first person does so because of the first person's belief that: (i) the real property is a place of worship of a group (the targeted group); or (ii) the real property is owned, or occupied, in whole or in part, by one or more members of a group (the targeted group); or (iii) the motor vehicle is owned, or occupied, in whole or in part, by one or more members of a group (the targeted group); or (iv) the real property is owned, or occupied, in whole or in part, by a close associate of one or more members of a group (the targeted group); or (v) the motor vehicle is owned, or occupied, in whole or in part, by a close associate of one or more members of a group (the targeted group); and (c) the first person is reckless as to whether the damage or destruction will occur; and (d) the targeted group is distinguished by race, religion, sex, sexual orientation, gender identity, intersex status, disability, nationality, national or ethnic origin or political opinion; and (e) the damage or destruction, if it were to occur, would threaten the peace, order and good government of the Commonwealth.
Note: For intention, see section 5.2. For recklessness, see section 5.4. Penalty: Imprisonment for 7 years.
(2) A person (the first person) commits an offence if: (a) the first person advocates the causing of damage to, or the destruction of, real property or a motor vehicle; and (b) the first person does so because of the first person's belief that: (i) the real property is a place of worship of a group (the targeted group); or (ii) the real property is owned, or occupied, in whole or in part, by one or more members of a group (the targeted group); or (iii) the motor vehicle is owned, or occupied, in whole or in part, by one or more members of a group (the targeted group); or (iv) the real property is owned, or occupied, in whole or in part, by a close associate of one or more members of a group (the targeted group); or (v) the motor vehicle is owned, or occupied, in whole or in part, by a close associate of one or more members of a group (the targeted group); and (c) the first person is reckless as to whether the damage or destruction will occur; and (d) the targeted group is distinguished by race, religion, sex, sexual orientation, gender identity, intersex status, disability, nationality, national or ethnic origin or political opinion.
Note: For intention, see section 5.2. For recklessness, see section 5.4. Penalty: Imprisonment for 5 years.
(3) For the purposes of paragraphs (1)(b) and (2)(b), it is immaterial whether: (a) the real property actually is a place of worship of the targeted group; or (b) the real property actually is owned, or occupied, in whole or in part, by one or more members of the targeted group; or (c) the motor vehicle actually is owned, or occupied, in whole or in part, by one or more members of the targeted group; or (d) the real property actually is owned, or occupied, in whole or in part, by a close associate of one or more members of the targeted group; or (e) the motor vehicle actually is owned, or occupied, in whole or in part, by a close associate of one or more members of the targeted group.
(4) The fault element for paragraphs (1)(d) and (2)(d) is recklessness. Note: For recklessness, see section 5.4. (5) For the purposes of paragraphs (1)(d) and (2)(d), the person may have in mind a combination of attributes mentioned in those paragraphs.
Alternative verdict (6) Subsection (7) applies if, in a prosecution for an offence (the prosecuted offence) against subsection (1), the trier of fact: (a) is not satisfied that the defendant is guilty of the offence; but (b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence (the alternative offence) against subsection (2). (7) The trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
Definitions (8) In this section: advocate means counsel, promote, encourage or urge. 80.2BD Threatening damage to or destruction of real property or motor vehicle Offences (1) A person (the first person) commits an offence if: (a) the first person threatens to cause damage to, or the destruction of, real property or a motor vehicle; and (b) the first person does so because of the first person's belief that: (i) the real property is a place of worship of a group (the targeted group); or (ii) the real property is owned, or occupied, in whole or in part, by one or more members of a group (the targeted group); or (iii) the motor vehicle is owned, or occupied, in whole or in part, by one or more members of a group (the targeted group); or (iv) the real property is owned, or occupied, in whole or in part, by a close associate of one or more members of a group (the targeted group); or (v) the motor vehicle is owned, or occupied, in whole or in part, by a close associate of one or more members of a group (the targeted group); and (c) the targeted group is distinguished by race, religion, sex, sexual orientation, gender identity, intersex status, disability, nationality, national or ethnic origin or political opinion; and (d) a reasonable member of the targeted group would fear that the threat will be carried out; and (e) the threat, if carried out, would threaten the peace, order and good government of the Commonwealth.
Note: For intention, see section 5.2. Penalty: Imprisonment for 7 years. (2) A person (the first person) commits an offence if: (a) the first person threatens to cause damage to, or the destruction of, real property or a motor vehicle; and (b) the first person does so because of the first person's belief that: (i) the real property is a place of worship of a group (the targeted group); or (ii) the real property is owned, or occupied, in whole or in part, by one or more members of a group (the targeted group); or (iii) the motor vehicle is owned, or occupied, in whole or in part, by one or more members of a group (the targeted group); or (iv) the real property is owned, or occupied, in whole or in part, by a close associate of one or more members of a group (the targeted group); or (v) the motor vehicle is owned, or occupied, in whole or in part, by a close associate of one or more members of a group (the targeted group); and (c) the targeted group is distinguished by race, religion, sex, sexual orientation, gender identity, intersex status, disability, nationality, national or ethnic origin or political opinion; and (d) a reasonable member of the targeted group would fear that the threat will be carried out.
Note: For intention, see section 5.2. Penalty: Imprisonment for 5 years. (3) For the purposes of paragraphs (1)(b) and (2)(b), it is immaterial whether: (a) the real property actually is a place of worship of the targeted group; or (b) the real property actually is owned, or occupied, in whole or in part, by one or more members of the targeted group; or (c) the motor vehicle actually is owned, or occupied, in whole or in part, by one or more members of the targeted group; or (d) the real property actually is owned, or occupied, in whole or in part, by a close associate of one or more members of the targeted group; or (e) the motor vehicle actually is owned, or occupied, in whole or in part, by a close associate of one or more members of the targeted group.
(4) The fault element for paragraphs (1)(c) and (2)(c) is recklessness. Note: For recklessness, see section 5.4. (5) Strict liability applies to paragraphs (1)(d) and (2)(d).
(6) For the purposes of paragraphs (1)(c) and (2)(c), the person may have in mind a combination of attributes mentioned in those paragraphs. Alternative verdict (7) Subsection (8) applies if, in a prosecution for an offence (the prosecuted offence) against subsection (1), the trier of fact: (a) is not satisfied that the defendant is guilty of the offence; but (b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence (the alternative offence) against subsection (2).
(8) The trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt. Definitions (9) In this section: fear includes apprehension. (17) Schedule 1, item 20, page 8 (line 14), after "status,", insert "disability,".
(18) Schedule 1, item 21, page 8 (lines 16 and 17), omit "and 80.2BB", substitute ", 80.2BB, 80.2BC and 80.2BD". (19) Schedule 1, item 22, page 8 (after line 21), after paragraph 80.4(2)(cb), insert: (cc) subsection 80.2BC(2); or (cd) subsection 80.2BD(2); or _____ SHEET AA101 (1) Page 8 (after line 21), at the end of the Bill, add: Schedule 2 — Mandatory minimum sentences and maximum penalties Crimes Act 1914 1 Paragraph 15AAA(1)(a) After "section 16AAA", insert "(except items 1A to 1E of that table)". 2 Section 16AAA (before table item 1) Insert: 1A offence against subsection 80.2H(1) of the Criminal Code 12 months 1B offence against subsection 80.2HA(1) of the Criminal Code 12 months 1C offence against a provision of Division 101 or 102 of the Criminal Code (other than an offence against subsection 102.8(1) or (2) of the Criminal Code) 6 years 1D offence against subsection 102.8(1) or (2) of the Criminal Code 12 months 1E offence against a provision of Division 103 of the Criminal Code 3 years 3 Paragraph 16AAC(2)(b) Repeal the paragraph, substitute: (b) the court is taking into account, under paragraph 16A(2)(h), the person having cooperated with law enforcement agencies in the investigation of: (i) in relation to any of items 1A to 1E of the table in section 16AAA—the offence or an offence against subsection 80.2H(1) or 80.2HA(1) or Part 5.3 or 5.5 of the Criminal Code; or (ii) in relation to any of items 1 to 15 of the table in section 16AAA or any of the items in the table in subsection 16AAB(2)—the offence or a Commonwealth child sex offence. 4 Paragraph 16AAC(3)(b) Repeal the paragraph, substitute: (b) if the court is taking into account, under paragraph 16A(2)(h), the person having cooperated with law enforcement agencies in the investigation of: (i) in relation to any of items 1A to 1E of the table in section 16AAA—the offence or an offence against subsection 80.2H(1) or 80.2HA(1) or Part 5.3 or 5.5 of the Criminal Code; or (ii) in relation to any of items 1 to 15 of the table in section 16AAA or any of the items in the table in subsection 16AAB(2)—the offence or a Commonwealth child sex offence; by an amount that is up to 25% of the period specified in column 2 of the applicable item in the relevant table; Criminal Code Act 1995 5 Subsection 80.2H(1) of the Criminal Code (penalty) Repeal the penalty, substitute: Penalty: Imprisonment for 5 years. 6 Subsection 80.2HA(1) of the Criminal Code (penalty) Repeal the penalty, substitute: Penalty: Imprisonment for 5 years. 7 Application provision The amendments made by this Schedule apply in relation to a conviction that occurs on or after the commencement of this item if the conduct constituting the offence occurs wholly on or after that commencement. 8 Review of amendments (1) The Parliamentary Joint Committee on Intelligence and Security must review the operation and effectiveness of the amendments made by this Schedule.
(2) The Committee must: (a) begin the review before the end of the period of 2 years beginning on the day on which this Schedule commences; and (b) report the Committee's comments and recommendations to each House of the Parliament as soon as practicable after completing the review. For the benefit of members, I suspect that the government amendments (1) to (19) are pretty much noncontroversial.
We had the Senate committee report recommending a number of amendments to the bill, and they are reflected in government amendments (1) to (19). Amendment (1) on sheet AA101 is something that, looking around the room, I know will not have the agreement of everybody in here at the moment. This amendment does a number of things—two in particular.
Firstly, it puts in place some mandatory minima for sentences contained within the bill itself, Secondly, it puts in a two-year review period for those changes. I want to make clear that this amendment is part of the principle that I explained a few moments ago, where I said that the government is determined to be able to see this legislation passed with the largest majority possible to be able to send the strongest message possible to the Australian people.
This does not change the fact that the government—myself included—previously, for a long time, has expressed concern about the efficacy of mandatory sentencing. The concern is that it can in some situations potentially result in people not being found guilty when they should be, can potentially take away an incentive for people to cooperate by pleading guilty, and can take away an incentive for some people to inform on their co-accused.
It's for that reason that we have put in place the two-year review period. I want to make the priority from the government clear here, because sometimes the mandatory sentencing debate goes back and forth as to who's more tough and who's not tough. That's not the argument here.
The argument here is about making sure we have a process that will work. The last thing I think any member of this parliament wants is to end up in a situation where fewer people who should go to jail go to jail or where some people don't end up informing on their co-accused. That's not something we want.
For that reason, the review period will, after two years, give the parliament the opportunity to say: 'Did this work?' or, 'What difference did this make?' It gives us the opportunity to be able proceed with this legislation now. Let's be in no doubt: delay on this legislation does come at a cost. This legislation deals with crimes that are happening in real time.
We're seeing them on our TV screens. We want this bill to go through quickly; we want to maximise cooperation across the parliament; we want the most significant majority that we can have; and ultimately, as well as sending the positive message to the community, we want to make sure that people who commit these hate crimes are caught, charged, convicted and imprisoned.