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) (19:59): Just to assist the House, because I do not want to play a wedge game where people want to vote different ways on them—the sheet had been prepared for them to happen together. I seek leave to withdraw the motion.
Leave granted. Mr BURKE: Now I'll just move them separately. I don't want anyone to feel that they're trapped when they want to vote a different way, so let me just do that.
I ask leave of the Federation Chamber to move government amendments (1) to (19) on sheet EZ100, together. Leave granted. Mr BURKE: I move government amendments (1) to (19) on sheet EZ100 together and make clear to the House these are the ones that are a direct response to the Senate committee: (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