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2022 - 2023 - 2024
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CRIMINAL CODE AMENDMENT (HATE CRIMES) BILL 2024
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Attorney-General, the Hon Mark Dreyfus KC MP)
CRIMINAL CODE AMENDMENT (HATE CRIMES) BILL 2024
GENERAL OUTLINE
1. The Criminal Code Amendment (Hate Crimes) Bill 2024 (the Bill) would strengthen
and enhance Australia's legislative framework to combat hate crimes and promote
community respect and understanding. It does this by strengthening existing offences for
urging force or violence, and creating new offences for threatening force or violence against
targeted groups and members of groups.
2. The measures in the Bill would seek to combat the increasing prevalence of hate
speech involving calls to force or violence. Public discourse has increasingly been
weaponised, with hateful rhetoric aimed at attacking groups in the Australian community.
Urging and threatening force or violence against targeted groups, or members of targeted
groups, undermines and erodes Australia's shared values. The harm caused by this conduct
can be profound - it is an attack on the dignity of targeted groups, and members of targeted
groups, which affects the physical and psychological wellbeing not only of those targeted, but
of the whole community. It can also lay the foundation for violence and extremism. The
offences are not intended to capture mere expressions of opinion or belief, however hateful or
reprehensible. This conduct would be criminalised only where it involves threats of force or
violence.
3. The Bill seeks to address this conduct by strengthening existing offences in the
Criminal Code Act 1995 (Criminal Code) and would support law enforcement's ability to
disrupt, investigate, and protect against the activities of those who foster hatred and incite
violence. The Bill would amend the Criminal Code to:
• strengthen the urging violence offences in sections 80.2A and 80.2B to reduce the
fault element to recklessness, protect an expanded list of targeted groups, and
disapply the good faith defence
• amend the public display of prohibited hate symbols offences in sections 80.2H,
80.2HA and 80.2K to protect an expanded list of targeted groups
• insert new criminal offences in Division 80 for threatening force or violence against
targeted groups and members of targeted groups.
4. The reforms would complement existing Commonwealth, State and Territory civil
anti-discrimination and anti-vilification provisions. Section 80.6 of the Criminal Code would
continue to apply to the existing urging force or violence offences (sections 80.2A and
80.2B), meaning the offences would not exclude State or Territory laws to the extent that the
State or Territory law is capable of operating concurrently with the Commonwealth offences.
This would also apply to the new offences threatening force or violence against groups or
members of groups (new sections 80.2BA and 80.2BB).
5. This would ensure that similar State and Territory offences, such as New South
Wales' offence of publicly threatening or inciting violence on grounds of race, religion,
sexual orientation, gender identity or intersex or HIV/AIDS status (section 93Z, Crimes Act
1900 (NSW)), would continue to operate alongside the existing Commonwealth urging force
or violence offences, and the new threatening force or violence offences. This is consistent
with the approach taken in other areas of criminal law, such as prohibited Nazi and terrorist
2
organisation symbols, terrorism, fraud, computer crime, money laundering, drug offences and
sexual servitude.
6. State and territory law enforcement agencies are often the first responders to the
majority of circumstances to which these offences will apply. It is intended that this
legislation is available to all responding law enforcement (Commonwealth, State and
Territory law enforcement agencies) and should be applied in conjunction with existing state
and territory legislation.
Amending the offences of urging violence
7. The Bill would amend existing sections 80.2A and 80.2B in Division 80 of the
Criminal Code which cover urging force or violence against a group or a member of a group.
The effect of these amendments would be that the offences would apply where a person is
reckless as to whether the force or violence urged against a group, or member of a group, will
occur; that is, if the person is aware of a substantial risk that the force or violence will occur
and it is unjustifiable in the circumstances to take the risk.
8. The existing requirement for the prosecution to prove intent for this element of the
offence sets the bar so high that conduct which is reprehensible enough to appropriately
attract criminal liability is not captured by the offences. Amending the requirement to
'recklessness' will align the offence with the standard fault elements in the Criminal Code
and common law. The existing maximum penalties for these offences would remain
unchanged.
9. The Bill would also amend sections 80.2A and 80.2B to expand the scope of protected
attributes to include a group, or member of a group, distinguished by sex, sexual orientation,
gender identity, intersex status and disability. The offences currently protect groups or
members of groups distinguished by race, religion, nationality, national or ethnic origin and
political opinion. Expanding protections to cover groups, or member of groups, distinguished
by sex, sexual orientation, gender identity, intersex status and disability would acknowledge,
and seek to remedy, the harms caused to these communities by the urging of force or
violence. It also accords with Australia's international obligations. This sends a clear message
that such conduct is incompatible with Australia's values of equality and inclusion and will
not be tolerated.
10. Further, the Bill would amend sections 80.2A and 80.2B to disapply the defence for
acts done in good faith in section 80.3 of the Criminal Code. There are no circumstances in
which urging force or violence can truly be done 'in good faith'.
Amending the offences of publicly displaying prohibited hate symbols
11. The Bill would amend existing paragraphs 80.2H(7)(b), 80.2HA(7)(b) and
80.2K(6)(b) in Division 80 of the Criminal Code concerning the display of prohibited hate
symbols. The offences of publicly displaying prohibited hate symbols currently apply in
circumstances where a reasonable person would consider the display of the symbol is likely
to offend, insult, humiliate or intimidate a person who is a reasonable member of a group
distinguished by race, colour, sex, language, religion, political or other opinion or national or
social origin. The Bill would expand the protected attributes to include sexual orientation,
gender identity and intersex status. The offences would therefore apply in circumstances
where a reasonable person would consider the display of the symbol is likely to offend,
insult, humiliate or intimidate a reasonable person who is a member of a group distinguished
3
by race, colour, sex, sexual orientation, gender identity, intersex status, language, religion,
political opinion or other opinion, or national or social origin.
12. The expanded scope of protected attributes accords with Australia's international
human rights obligations. It would also complement existing protections in the Sex
Discrimination Act 1984
Criminalising threatening to use force or violence against groups, or members of groups
13. The Bill would establish new offences in Division 80 of the Criminal Code for
threatening to use force or violence against groups (new section 80.2BA) or members of
groups (new section 80.2BB) distinguished by race, religion, sex, sexual orientation, gender
identity, intersex status, disability, nationality, national or ethnic origin or political opinion,
where a reasonable person who is a member of the targeted group would fear that the threat
will be carried out. This would provide protection to the same groups as those that would be
protected by the urging force and violence offences in sections 80.2A and 80.2B, as amended
by the Bill.
14. The offences are intended to capture persons who are targeted by the conduct because
of their membership of one, or more than one, protected group.
15. The new offences would address a gap in Commonwealth laws by criminalising
conduct that involves a direct threat from one person to another. This supplements the urging
force or violence offences in sections 80.2A and 80.2B, which apply where a person urges
another person to use force or violence.
16. The offences would attract the same penalties as the existing urging force or violence
offences in sections 80.2A and 80.2B, having regard to the serious potential consequences of
the criminalised conduct. The defence for acts done in good faith in section 80.3 of the
Criminal Code would not apply to the offences under new sections 80.2BA and 80.2BB as
there are no circumstances in which threatening force or violence can truly be done 'in good
faith'.
FINANCIAL IMPACT
17. The amendments in this Bill would have no financial impact on Government
expenditure or revenue.
4
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
CRIMINAL CODE AMENDMENT (HATE CRIMES) BILL 2024
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
1. The Criminal Code Amendment (Hate Crimes) Bill 2024 (the Bill) is compatible with
the human rights and freedoms recognised or declared in the international instruments listed
in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
2. The Bill would strengthen and enhance Australia's legislative framework to combat
hate crime and promote community respect and understanding. It does this by strengthening
existing offences for urging force or violence, and creating new offences for threatening force
or violence against targeted groups.
3. The measures in the Bill would combat the increasing prevalence of hate speech
involving calls to force or violence. Public discourse has increasingly been weaponised with
hateful rhetoric aimed at attacking groups in the Australian community. Urging and
threatening force or violence undermines community respect and understanding, and erodes
Australia's shared values. The harm caused by this conduct can be profound - it is an attack
on the dignity of targeted groups and their members, and affects the physical and
psychological wellbeing not only of those targeted, but of the whole community. The
offences are not intended to capture mere expressions of opinion or belief, however hateful or
reprehensible. This conduct would be criminalised only where it involves threats of force or
violence.
4. The Bill seeks to address this conduct by strengthening existing offences in the
Criminal Code Act 1995 (Criminal Code) relating to urging violence against a group or a
member of a group, and creating new offences for threatening force or violence.
5. The Bill would support law enforcement's ability to disrupt, investigate, and protect
against the activities of those who foster hatred and incite violence. The Bill would amend the
Criminal Code to:
• strengthen the urging violence offences in sections 80.2A and 80.2B to reduce the
fault element to recklessness, protect an expanded list of targeted groups and
disapply the good faith defence
• amend the public display of prohibited hate symbols offences in sections 80.2H,
80.2HA and 80.2K to protect an expanded list of targeted groups
• insert new criminal offences in Division 80 for threatening force or violence against
targeted groups.
6. The reforms would complement existing Commonwealth, State and Territory civil
anti-discrimination and anti-vilification provisions. Section 80.6 of the Criminal Code would
continue to apply to the existing urging force or violence offences (sections 80.2A and
80.2B), meaning the offences would not exclude State or Territory laws to the extent that the
State or Territory law is capable of operating concurrently with the Commonwealth offences.
5
This would also apply to the new offences for threatening force or violence against groups or
members of groups (new sections 80.2BA and 80.2BB).
7. This would ensure that similar State and Territory offences, such as New South
Wales' offence of publicly threatening or inciting violence on grounds of race, religion,
sexual orientation, gender identity or intersex or HIV/AIDS status (section 93Z, Crimes Act
1900 (NSW)), would continue to operate alongside the existing Commonwealth urging force
or violence offences, and the new threatening force or violence offences. This is consistent
with the approach taken in other areas of criminal law, such as prohibited Nazi and terrorist
organisation symbols, terrorism, fraud, computer crime, money laundering, drug offences and
sexual servitude.
8. State and territory law enforcement agencies are often the first responders to the
majority of circumstances to which these offences will apply. It is intended that this
legislation is available to all responding law enforcement (i.e. Commonwealth, State and
Territory law enforcement agencies) and should be applied in conjunction with existing state
and territory legislation.
Amending the offences of urging violence
9. The Bill would amend existing sections 80.2A and 80.2B in Division 80 of the
Criminal Code which cover urging force or violence against a group or a member of a group.
The effect of these amendments would be that the offences would apply where a person is
reckless as to whether the force or violence urged against a group, or member of a group, will
occur; that is, if the person is aware of a substantial risk that the force or violence will occur
and it is unjustifiable in the circumstances to take the risk.
10. The existing requirement for the prosecution to prove intent for this element of the
offence sets the bar so high that conduct which is reprehensible enough to appropriately
attract criminal liability is not captured by the offences. Amending the requirement to
'recklessness' will align the offence with the standard fault elements in the Criminal Code
and common law. The existing maximum penalties for these offences would remain
unchanged.
11. The Bill would also amend sections 80.2A and 80.2B to expand the scope of protected
attributes to include a group, or member of a group, distinguished by sex, sexual orientation,
gender identity, intersex status and disability. The offences currently protect groups or
members of groups distinguished by race, religion, nationality, national or ethnic origin and
political opinion.
12. Expanding protections to cover groups, or member of groups, distinguished by sex,
sexual orientation, gender identity, intersex status and disability would acknowledge, and
seek to remedy, the harms caused to these communities by the urging of force or violence. It
also accords with Australia's international obligations. This sends a clear message that such
conduct is incompatible with Australia's values of equality and inclusion and will not be
tolerated.
13. Further, the Bill would amend sections 80.2A and 80.2B to disapply the defence for
acts done in good faith in section 80.3 of the Criminal Code. There are no circumstances in
which urging force or violence can truly be done 'in good faith'.
6
Amending the offences of publicly displaying prohibited hate symbols
14. The Bill would amend existing paragraphs 80.2H(7)(b), 80.2HA(7)(b) and
80.2K(6)(b) in Division 80 of the Criminal Code concerning the display of prohibited hate
symbols. The offences of publicly displaying prohibited hate symbols currently apply in
circumstances where a reasonable person would consider the display of the symbol is likely
to offend, insult, humiliate or intimidate a person who is a reasonable member of a group
distinguished by race, colour, sex, language, religion, political or other opinion or national or
social origin. The Bill would expand the protected attributes to include sexual orientation,
gender identity and intersex status. The offences would therefore apply in circumstances
where a reasonable person would consider the display of the symbol is likely to offend,
insult, humiliate or intimidate a reasonable person who is a member of a group distinguished
by race, colour, sex, sexual orientation, gender identity, intersex status, language, religion,
political opinion or other opinion, or national or social origin.
15. The expanded scope of protected attributes accords with Australia's international
human rights obligations. It would also complement existing protections in the Sex
Discrimination Act 1984.
Criminalising threatening to use force or violence against groups, or members of groups
16. The Bill would establish new offences in Division 80 of the Criminal Code for
threatening to use force or violence against groups (new section 80.2BA) or members of
groups (new section 80.2BB) distinguished by race, religion, sex, sexual orientation, gender
identity, intersex status, disability, nationality, national or ethnic origin or political opinion,
where a reasonable person who is a member of the targeted group would fear that the threat
will be carried out. This would provide protection to the same groups as those that would be
protected by the urging force and violence offences in sections 80.2A and 80.2B, as amended
by the Bill.
17. The offences are intended to capture persons who are targeted by the conduct because
of their membership of one, or more than one, protected group.
18. The new offences would address a gap in Commonwealth laws by criminalising
conduct that involves a direct threat from one person to another. This supplements the urging
force or violence offences in sections 80.2A and 80.2B, which apply where a person urges
another person to use force or violence.
19. The offences would attract the same penalties as the existing urging force or violence
offences in sections 80.2A and 80.2B, having regard to the serious potential consequences of
the criminalised conduct. The defence for acts done in good faith in section 80.3 of the
Criminal Code would not apply to the offences under new sections 80.2BA and 80.2BB.
There are no circumstances in which threatening force or violence can truly be done 'in good
faith'.
20. The offences would give further effect to Australia's international human rights
obligations.
Human rights implications
21. The Bill engages the following human rights:
7
• right to life and security of the person in Articles 6 and 9 of the International
Covenant on Civil and Political Rights (ICCPR)
• right to freedom of thought, conscience and religion in Article 18 of the ICCPR
• right to freedom of opinion and expression in Article 19 of the ICCPR
• right for minorities to enjoy culture in Article 27 of the ICCPR
• right to take part in cultural life in Article 15 of the International Covenant on
Economic, Social and Cultural Rights (ICESCR)
• right to protection from exploitation, violence and abuse in Article 20 of the
ICCPR
• right to equality and non-discrimination in Article 4 of the CERD
• rights of people with disability to equality and non-discrimination in Article 5 of
the Convention on the Rights of Persons with Disabilities (CRPD)
• right to the presumption of innocence in Article 14 of the ICCPR
• right to non-discrimination as set out in Articles 2 and 13(c) of the Convention on
the Elimination of All Forms of Discrimination Against Women (CEDAW)
• right to legality in Article 15 of the ICCPR
• right to be equal before the law and without discrimination to the equal protection
of the law in Articles 2 and 26 of the ICCPR
• right to peaceful assembly in Article 21 of the ICCPR
• right to freedom of association with others in Article 22 of the ICCPR
• right and opportunity to take part in the conduct of public affairs, to vote and to be
elected, and to have access to public service in Article 25 of the ICCPR
Right to life and security of the person in Articles 6 and 9 of the ICCPR
22. The right to life in Article 6 of the ICCPR requires States to take preventative
measures to protect individuals from unwarranted actions by private persons, such as acts of
violence. The right to security of the person in Article 9 of the ICCPR places a positive
obligation on States to provide reasonable and appropriate measures to protect a person's
physical security. This includes where the Government knows, or ought to know of, the
existence of a real or imminent risk to the physical security of an identified individual or
group of individuals from the criminal acts of another party.
23. The Bill promotes the right to life and right to security by establishing new criminal
offences, and broadening the scope of existing criminal offences, to deter and prevent:
8
• the urging or threatening of force or violence against groups or members of
groups, distinguished by race, religion, sex, sexual orientation, gender identity,
intersex status, disability, nationality, national or ethnic origin, or political
opinion; and
• public display of prohibited hate symbols where a reasonable person would
consider the display is likely to offend, insult, humiliate or intimidate a reasonable
person who is a member of a group distinguished by race, colour, sex, sexual
orientation, gender identity, intersex status, language, religion, political or other
opinion or national or social origin.
24. The Bill would send a clear message to the public that conduct which urges or
threatens force or violence against a protected group, and thereby imperils their physical
security, is prohibited. The Bill would also provide consistent national coverage by making
tools available to law enforcement to intervene early to prevent conduct of this kind leading
to violence, physical assaults and physical abuse which could threaten the lives and safety of
members of the community.
Strengthening the existing offences for urging force or violence against groups or members of
groups
25. Articles 6 and 9 of the ICCPR are positively engaged by the amendments in the Bill to
expand the scope of the offences in sections 80.2A and 80.2B of the Criminal Code, which
criminalise conduct which urges others to use force or violence against targeted groups or
their members - and may thereby endanger their lives and physical security.
26. Broadening the application of the offences to circumstances in which a person is
reckless as to whether the force or violence urged would occur (lowered from the existing
requirement that the person intends the force or violence to occur) would criminalise a wider
range of conduct that may put the lives and physical security of targeted groups and their
members at risk. It would ensure that the offences apply to persons who are aware there is a
substantial risk that the force or violence being urged will occur, where it is unjustifiable in
the circumstances to take that risk. This would enhance the protections provided by these
offences for the physical security of groups distinguished by a protected attribute and their
members.
27. Disapplying the good faith defence in section 80.3 of the Criminal Code would also
enhance the protections provided by these offences. This would make clear that urging force
or violence against people on the basis of their protected attributes can never be done in
'good faith', and would remove an avenue for a defendant to avoid criminal responsibility if
they engage in conduct of this kind.
28. Expanding the list of groups protected by these offences, to include those
distinguished by sex, sexual orientation, gender identity, intersex status or disability, would
extend the protections provided by these offences to greater numbers of people.
29. The amended offences would send a strong message that groups distinguished by the
expanded list of protected attributes and the members of these groups have a right to safety
and physical security. The amended urging violence offences would by punishable by a
maximum of 7 years in aggravated circumstances (where the force or violence urged, if
9
carried out, would threaten the peace, order and good government of the Commonwealth) or
otherwise imprisonment for a maximum of 5 years.
30. Having regard to the above, the amendments to the urging violence offences advance
the rights protected by Articles 6 and 9.
New offences - threatening force or violence against groups or members of groups
31. Articles 6 and 9 of the ICCPR are positively engaged by the amendments in the Bill
that would establish the offences for threatening force or violence in new sections 80.2BA
and 80.2BB of the Criminal Code.
32. Threatening to use force or violence against a targeted group, or members of a group,
distinguished by race, religion, sex, sexual orientation, gender identity, intersex status,
disability, nationality, national or ethnic origin or political opinion, in circumstances in which
a reasonable member of the targeted group would fear that the threat would be carried out, is
conduct that may cause community members to fear for their life or physical security. By
criminalising this conduct, the new offences would ensure that law enforcement has the
ability to intervene before threats are actualised and individuals are physically harmed.
33. The offences would send a message that groups distinguished by the list of protected
attributes, and members of those groups, have a right to physical security, and to live their
lives in safety, by ensuring that those who threaten to use force or violence against them can
face serious criminal consequences. These consequences would include imprisonment for a
maximum of 7 years in aggravated circumstances, where the threat, if carried out, would
threaten the peace, order and good government of the Commonwealth, otherwise
imprisonment for a maximum of 5 years.
34. Having regard to the above, the new offences advance the rights protected by
Articles 6 and 9.
Strengthening the existing offences for publicly displaying prohibited symbols
35. Articles 6 and 9 of the ICCPR are positively engaged by the amendments in this Bill
to expand the list of protected attributes at paragraphs 80.2H(7)(b), 80.2HA(7)(b) and
80.2K(6)(b) to include sexual orientation, gender identity and intersex status. The offences
for the public display of prohibited symbols criminalise conduct that promotes and
disseminates ideologies that have led to genocide and mass violence. Nazi symbols are
widely recognised as symbols of hate, violence and intolerance. These symbols have been
used to recruit and radicalise individuals into violent extremism.
36. Expanding the list of groups protected by these offences, to include those
distinguished by sexual orientation, gender identity or intersex status, would extend the
protections provided by these offences to greater numbers of people.
Right to freedom of thought, conscience and religion in Article 18 of the ICCPR
37. The right to freedom of thought, conscience and religion in Article 18 of the ICCPR
includes the right to adopt a religion or belief. It also includes the freedom to manifest
religion or belief, including to worship, observe, practice and teach that religion in public or
private, individually or with others. This right may be limited where such limitations are
10
prescribed by law, and are necessary to protect public safety, order, health, or morals or the
fundamental rights and freedoms of others.
Strengthening the existing offences for urging force or violence against groups or members of
groups
38. The amended urging violence offences would promote Article 18 of the ICCPR by
supporting faith communities to be able to practice their religion without fear of force or
violence.
39. Broadening the application of the offences to circumstances where a person is
reckless as to whether force or violence would occur (lowered from the existing threshold
that the person intends the force or violence occur) would criminalise a wider range of
conduct that may impede groups or members of groups distinguished by religion from being
able to exercise their rights under Article 18 freely and safely. It would ensure that the
offences apply to persons who are aware there is a substantial risk that their conduct will
result in force or violence, where it is unjustifiable in the circumstances to take that risk. This
would enhance the protections provided by these offences for groups distinguished by
religion and members of such groups to worship, observe, practice and teach their religion
without being subject to this harmful conduct.
40. The amended offences would also place a necessary, reasonable and proportionate
limitation on this right by preventing the manifestation or expression of religious belief from
extending to conduct that urges force or violence against targeted groups or members of
groups.
41. Disapplying the good faith defence in section 80.3 of the Criminal Code would
additionally enhance these protections by making it clear that urging force or violence against
targeted groups, or members of groups on the basis of their religious beliefs can never be
done in 'good faith', and would remove an avenue for a defendant to avoid criminal
responsibility if they engage in conduct of this kind. These amendments therefore advance
the rights afforded by Article 18. The limitations posed to these rights by the amended
offences are necessary and proportionate for the purpose of protecting the fundamental rights
and freedoms of others.
New offences - threatening force or violence against groups or members of groups
42. The new offences for threatening force or violence against targeted groups, or
members of targeted groups, would promote Article 18 of the ICCPR by supporting faith
communities to be able to practice their religion without fear of force or violence. The new
offences would also place a necessary, reasonable and proportionate limitation on this right
by preventing the manifestation or expression of religious belief from extending to conduct
that threatens force or violence against targeted groups or members of groups.
43. The new offences would promote the rights afforded by Article 18 by preventing
groups, or members of groups, distinguished by religion from being subject to threats of force
or violence on the basis of that attribute. By criminalising this behaviour, the new offences
would prevent threats of force or violence from interfering with the rights of Australians to
worship, observe, practice and teach religion.
11
44. An individual's freedom to manifest, believe in, observe, practice and teach their
religion would be limited by the new offences because those freedoms would not extend to
conduct which amounts to threatening force or violence against a group or members of
groups distinguished by race, religion, sex, sexual orientation, gender identity, intersex status,
disability, nationality, national or ethnic origin or political opinion. This limitation is
reasonable and proportionate because threatening the use of force or violence against a group
or members of groups distinguished by a protected attribute is a serious, intentional act
motivated by extreme hatred and prejudice. Criminalising this conduct will assist in
protecting members of the Australian community from threats, intimidation and the fear of
imminent harm. Criminalising this conduct will also assist in ensuring that law enforcement
can intervene early to prevent threats from being carried out and to prevent the lives and
physical security of targeted individuals being compromised.
45. Accordingly, by criminalising the threat of force or violence against targeted groups
or members of groups, the new offences advance the rights protected by Article 18. The
limitations posed to these rights by the new offences are necessary and proportionate for the
purpose of protecting the fundamental rights and freedoms of others.
Right to freedom of expression in Article 19 of the ICCPR; Right to enjoy and benefit
from culture in Article 27 of the ICCPR; Right to take part in cultural life in Article 15
of the ICESCR
46. Article 19(1) of the ICCPR establishes the 'right to hold opinions without
interference'. This right cannot be subject to any exception or restriction, except as specified
under Article 4, 'in time of public emergency which threatens the life of the nation and the
existence of which is officially proclaimed'. Such exceptions or restrictions are subject to
limitations specified in Article 4.
47. Article 19(2) of the ICCPR provides that 'everyone shall have the right to freedom of
expression'. This right includes the freedom to seek, receive and impart information and
ideas of all kinds, through any media of a person's choice.
48. Article 19(3) provides that the right to freedom of expression may be subject to
limitation for specified purposes, including respect for the rights or reputations of others; and
for the protection of national security or public order where such limitation is provided by
law and is reasonable, necessary and proportionate to a legitimate objective. The requirement
of necessity implies that any restriction must be proportionate in severity and intensity to the
purpose sought to be achieved.
49. Article 27 of the ICCPR protects the rights of individuals belonging to ethnic,
religious and linguistic minorities within a country to enjoy their own culture, practice their
own religion and use their own language.
50. Articles 15(1)(a) and 15(1)(b) of the ICESCR protect the right of all persons to take
part in cultural life and enjoy the benefits of scientific process and its applications.
Article 15(1)(c) protects the moral and material interests of the authors of scientific, literary
or artistic productions.
12
Strengthening the offences for urging force or violence against groups or members of groups
51. The amended urging violence offences would promote the right in Article 19(1) of the
ICCPR to hold opinions without interference. The amendments would extend the application
of the offences to a broader range of conduct involving the urging of force or violence against
targeted groups or members of groups, including because of certain kinds of opinions held by
those groups (such as religious beliefs or political opinions).
52. The amended urging violence offences would limit the right to freedom of expression
in Article 19(2) by limiting a person's ability to communicate or impart certain information
and ideas publicly, where their communication amounts to urging force or violence against a
targeted group or its members, the person is reckless as to whether or not the communication
would result in force or violence occurring, and the targeted group is distinguished by a listed
protected attribute or the person believes the targeted person is member of a group
distinguished by a listed protected attribute. This limitation is necessary to protect the
Australian community from conduct that causes significant harm to its members in the form
of force or violence. It is also necessary to prevent the compromise of national security and
public order, as conduct of this sort can increase the likelihood that force or violence will be
perpetrated.
53. The amendments further limit this right by disapplying the defence for acts done in
good faith at section 80.3 of the Criminal Code to the urging violence offences. However, the
urging of force or violence against targeted groups can never legitimately be performed in
good faith. The rights of individuals to communicate ideas in a manner that falls short of
urging force or violence would not be affected by these expanded offences. The expanded
offences represent a proportionate limitation on these rights that is necessary to protect other
rights and freedoms, as set out above.
54. The amendments to the urging violence offences to cover groups and members of
groups distinguished by sex, sexual orientation, gender identity, intersex status and disability
support the rights of women to participate in all aspects of cultural life as set out in Article 2
and Article 13(c) of the CEDAW, and the right of persons with disabilities to participate in
cultural life as set out in Article 30 of the CRPD. Accordingly, by expanding the list of
groups and their members that are protected by the urging violence offences to include those
distinguished by these attributes, the amendments to sections 80.2A and 80.2B would
promote these rights.
New offences - threatening force or violence against groups or members of groups
55. The new threatening force or violence offences would promote the right in
Article 19(1) of the ICCPR to hold opinions without interference. They would do this by
criminalising conduct which threatens force or violence against targeted groups or members
of groups, including because of opinions held by those groups by reason of their protected
attributes (such as religious beliefs or political opinions).
56. These offences would limit the right to freedom of expression in Article 19(2) by
limiting a person's ability to communicate or impart certain information and ideas publicly,
where their communication amounts to threatening force or violence against a targeted group
or its members. This limitation is necessary to protect the Australian community from
conduct that causes significant harm to its members in the form of threats, and the actual
conduct, of force or violence. It is also necessary to prevent the compromise of national
13
security and public order, as conduct of this sort can increase the likelihood that force or
violence will be perpetrated.
57. The amendments further limit this right by providing that the defence at section 80.3
of the Criminal Code for acts done in good faith would not apply to the new threatening force
or violence offences. This is appropriate because threats of force or violence against targeted
groups can never legitimately be performed in good faith. The rights of individuals to
communicate ideas in a manner that falls short of threatening force or violence would not be
affected by these offences. This represents a proportionate limitation on these rights that is
necessary to protect other rights and freedoms, as set out above.
58. The new offences promote the rights in Articles 15 of the ICESCR and 27 of the
ICCPR by protecting groups, or members of groups, distinguished by race, religion, sex,
sexual orientation, gender identity, intersex status, disability, nationality, national or ethnic
origin or political opinion from threats of force or violence. In doing so, the offences provide
greater protections to these groups and individuals, supporting them to enjoy and take benefit
from their culture, and participate in cultural life.
Strengthening existing offences for publicly displaying prohibited symbols
59. The amended prohibited symbols offences would limit the right to freedom of
expression in Article 19(2) by limiting a person's ability to communicate or impart certain
information and ideas publicly through the display of prohibited symbols, where the display
is likely to offend, insult, humiliate or intimidate a person who is a reasonable person and is a
member of a group of persons distinguished by sexual orientation, gender identity and
intersex status, because of the reasonable person's membership of that group. This limitation
is necessary to protect the Australian community from conduct that causes significant harm to
its members and can compromise national security and public order.
60. The amended offences would promote the right in Article 19(1) of the ICCPR to hold
opinions without interference by extending the list of protected attributes at paragraphs
80.2H(7)(b), 80.2HA(7)(b) and 80.2K(6)(b) to include sexual orientation, gender identity and
intersex status. This would ensure that a person holding an opinion arising from their
membership of a group distinguished by one or more of these attributes would be protected
from being subjected to symbols of hate.
Protection against exploitation, violence and abuse in Article 20 of the ICCPR; Right to
equality and non-discrimination in Article 4 of the CERD
61. Article 20 of the ICCPR requires States Parties to outlaw any propaganda for war, as
well as advocacy of national, racial or religious hatred that constitutes incitement to
discrimination, hostility or violence. At the time of ratification Australia entered a reservation
to Article 20, stating that the Commonwealth and the States had legislated with respect to the
subject matter of Article 20, in matters of practical concern in the interest of public order, and
that it therefore wished to reserve the right not to introduce further legislation on these
matters. The United Nations Human Rights Committee (UNHRC) has affirmed (and
Australia has agreed) that the prohibitions required by Article 20 of the ICCPR are
compatible with the right to freedom of expression, enshrined in Article 19 of the ICCPR.
The proposed legislation would further support Australia's compliance with Article 20 of the
14
ICCPR by prohibiting in law particular forms of advocacy of national, racial or religious
hatred.
62. Article 4 of the CERD requires States to adopt positive measures designed to
eradicate all incitement to, or acts of, racial hatred and discrimination. Article 4(a) requires
the criminalisation of all dissemination of ideas based on racial superiority or hatred and
incitement to racial discrimination, as well as all acts of violence or incitement to such acts
against any racial or ethnic groups, and also the provision of any assistance to racist
activities, including the financing thereof. Australia's reservation to Article 4(a) was made on
the basis that it was not in a position to specifically treat all the matters covered by Article
4(a) as offences at the time of ratification. By seeking to eliminate incitement to violent
discrimination, the measures in the Bill promote the intent of the CERD, as reflected in
Article 4, to eliminate all forms of racial discrimination and incitement to discrimination.
Strengthening the offences for urging force or violence against groups or members of groups
63. The rights in Article 20 of the ICCPR, and Article 4 of the CERD are positively
engaged by the amendments in the Bill to expand the scope of the offences in sections 80.2A
and 80.2B of the Criminal Code, which criminalise conduct that urges others to use force or
violence against targeted groups or members of groups. This would include the advocation of
national, racial or religious hatred and the incitement of discrimination, hostility or violence
on the basis of these attributes.
64. Broadening the application of the offences to circumstances where a person is
reckless as to whether the violence urged would occur (lowered from the existing
requirement that the person intends the violence occur) would criminalise a wider range of
conduct that infringes the rights of groups and their members under Article 20 of the ICCPR
and Article 4 of the CERD. It would ensure that the offences apply to persons who are aware
of a substantial risk that the force or violence being urged will occur, where it is unjustifiable
in the circumstances to take that risk. This would enhance the protections from serious
hateful and discriminatory conduct that these offences provide to groups, and members of
groups, distinguished by a protected attribute (including race, religion, nationality and
national and ethnic origin).
65. Disapplying the good faith defence in section 80.3 of the Criminal Code would
enhance these protections by making it clear that urging force or violence against people on
the basis of race, religion, nationality or national or ethnic origin or any of the other protected
attributes listed in the provisions can never be done in 'good faith'. This would remove an
avenue for a defendant to avoid criminal responsibility if they engage in conduct of this kind.
66. The amended offences would send a strong message that groups distinguished by
race, religion, nationality or national or ethnic origin and members of such groups have a
right to live their lives free from hatred and discrimination. It would ensure that those who
urge force or violence, reckless as to whether that force or violence will occur, can face
serious criminal consequences. These consequences would include imprisonment for a
maximum of 5 years or imprisonment for a maximum of 7 years in aggravated circumstances
(where the violence or force urged, if carried out, would threaten the peace, order and good
government of the Commonwealth). These amendments to the urging violence offences
therefore advance the rights protected by Article 20 of the ICCPR and Article 4 of the CERD.
15
New offences - threatening force violence against groups or members of groups
67. The rights in Article 20 of the ICCPR, and Article 4 of the CERD are positively
engaged by the amendments in the Bill that would establish the offences in new
sections 80.2BA and 80.2BB of the Criminal Code for threatening the use of force or
violence against targeted groups or members of groups. Such conduct would include
advocating national, racial or religious hatred and incite discrimination, hostility or violence
on the basis of these attributes.
68. Threatening to use force or violence against targeted groups, or members of groups,
distinguished by race, religion, nationality or national or ethnic origin, in circumstances
where a reasonable member of the targeted group would fear that the threat would be carried
out, is serious hateful and discriminatory conduct that is incompatible with the rights in
Article 20 of the ICCPR and Article 4 of the CERD. By criminalising this conduct, the new
offences would enhance protections for groups distinguished by these attributes (as well as
the other protected attributes listed in the provisions) from these harms, and ensure that law
enforcement has an ability to intervene before threats are carried out and people are subjected
to violence.
69. The offences would send a message that groups distinguished by race, religion,
nationality or national or ethnic origin and members of groups have a right to live their lives
free from hatred and discrimination by ensuring that those who threaten to use force or
violence against them can face serious criminal consequences. These consequences would
include imprisonment for a maximum of 5 years or imprisonment for a maximum of 7 years
in aggravated circumstances (where the threat, if carried out, would threaten the peace, order
and good government of the Commonwealth). Accordingly, the new offences advance the
rights protected by Article 20 of the ICCPR and Article 4 of the CERD.
Rights of people with disability to equality and non-discrimination in Article 5 of the
CRPD
70. The CRPD recognises the barriers that people with a disability may face in realising
their rights. Although the CRPD does not contain a comprehensive definition of disability, it
provides that persons with disabilities include those who have long-term physical, mental,
intellectual or sensory impairments which, in interaction with various barriers, may hinder
their full and effective participation in society on an equal basis with others.
71. Article 5(2) of the CRPD provides that States Parties should prohibit all
discrimination on the basis of disability and guarantee to persons with disabilities equal and
effective legal protections against discrimination on all grounds.
72. Article 5(3) and 5(4) provide that, in order to promote equality and eliminate
discrimination, States Parties shall take all appropriate steps to ensure that reasonable
accommodation is provided. Specific measures which are necessary to accelerate or achieve
de facto equality of a person with disabilities shall not be considered discrimination.
Strengthening the offences for urging force or violence against groups or members of groups
73. Article 5 of the CRPD would be positively engaged by the amendments in the Bill to
expand the scope of the offences in sections 80.2A and 80.2B of the Criminal Code, which
16
criminalise conduct which urges others to use force or violence against targeted groups or
members of such groups.
74. The amendments would expand the list of groups, and members of such groups,
protected by these offences, to include those distinguished by disability. This would provide
criminal protections to groups, or members of groups, distinguished by disability from
conduct that urges force or violence against them, and thereby subjects them to a serious and
physically threatening form of discriminatory and unequal treatment that is contrary to the
rights in Article 5.
New offences - threatening force or violence against groups or members of groups
75. The new offences for threatening force or violence would promote Article 5 of the
CRPD by ensuring that groups, or members of groups, distinguished by disability are
protected from conduct that threatens force or violence against them, and thereby subjects
them to a serious and physically threatening form of discriminatory and unequal treatment
that is contrary to the rights in this article.
Right to the presumption of innocence in Article 14 of the ICCPR
76. Article 14(2) of the ICCPR provides that those charged with criminal offences have
the right to be presumed innocent until proven guilty according to law. This is a fundamental
principle of the common law. The presumption of innocence imposes on the prosecution the
burden of proving the charge and guarantees that no guilt can be presumed until the charge
has been proven beyond reasonable doubt.
Strengthening the offences for urging force or violence against groups or members of groups
77. The Bill would disapply the good faith defence at section 80.3 of the Criminal Code
to the offences for urging force or violence against targeted groups or members of groups.
This would remove an avenue for the defendant to persuade the court that their conduct
should not attract criminal responsibility. This amendment is appropriate because urging
force or violence against targeted groups can never legitimately be performed in good faith.
78. Notwithstanding this amendment, the offence provisions would continue to positively
engage Article 14(2) as they require the prosecution to bear the burden of proof in relation to
all of the elements of the offences. As these offences do not (and would not as a result of any
of the amendments in the Bill) contain a 'reverse burden' requiring the defendant to disprove
the elements of the offences, they would not limit the right to the presumption of innocence.
New offences - threatening force or violence against groups or members of groups
79. The provisions establishing new offences for threatening the use of force or violence
against groups or members of groups distinguished by race, religion, sex, sexual orientation,
gender identity, intersex status, disability, nationality, national or ethnic origin or political
opinion positively engage Article 14(2) by requiring the prosecution to bear the burden of
proof in relation to all of the elements of the offences. As these offences would not contain a
'reverse burden' requiring the defendant to disprove the elements of the offences, they would
not limit the right to the presumption of innocence.
17
Right to non-discrimination in Article 2 of the ICCPR; Right to legality in Article 15 of
the ICCPR; Right to equality before the law in Article 26 of the ICCPR
80. The right to non-discrimination in Article 2 of the ICCPR requires States Parties to
respect and ensure all individuals are afforded the rights set out in the ICCPR. Article 2(3) of
the ICCPR requires that each State Party shall ensure there is an effective remedy for
violation of rights (by State officials), determined by a competent judicial, administrative or
legislative authority, and enforced by competent authorities.
81. The right to equality before the law in Article 26 of the ICCPR provides that the law
shall prohibit any discrimination, and guarantee to all persons equal and effective protection
against discrimination on any ground such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status.
82. Discrimination is impermissible differential treatment between persons or groups that
leads to a person or a group being treated less favourably than others, based on one of the
prohibited grounds of discrimination as set out in Article 26 of the ICCPR. The ICCPR has
indicated that 'racial discrimination' should be understood to include 'a distinction,
exclusion, restriction or preference' (ICCPR General Comment No. 18 at [6]).
83. The ICCPR has indicated that discrimination should be understood to apply to any
distinction based on any ground which has the purpose or effect of nullifying or impairing the
recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and
freedoms. However, under international human rights law, differential treatment is
permissible where the distinction is based on 'reasonable or objective' grounds and is aimed
at 'achiev[ing] a purpose which is legitimate under the Covenant' (ICCPR General Comment
No. 18 at [13]).
84. This differential treatment must be prescribed by law, aimed at achieving a legitimate
objective, be rationally connected to its objective and be proportionate to the objective to be
achieved.
85. Article 15 of the ICCPR provides that laws must not impose criminal liability for acts
that were not criminal offences at the time they were committed. This flows from the
principle that the criminal law should be sufficiently precise to enable persons to know in
advance whether their conduct would be criminal. The prohibition on retrospective criminal
laws is considered to be an absolute right, and as such cannot be limited for any reason, nor
can it be suspended or restricted.
Strengthening the offences for urging force or violence against groups or members of groups
86. The rights in Article 2 and Article 26 of the ICCPR and Article 4 of the CERD are
positively engaged by the amendments in the Bill to expand the scope of the offences in
sections 80.2A and 80.2B of the Criminal Code, which criminalise conduct which urges
others to use force or violence against targeted groups or their members. This is a highly
serious form of discrimination against relevant targeted groups.
87. The offences already protect groups distinguished by race, religion, nationality,
national or ethnic origin or political opinion, their right to be protected from discrimination is
enshrined in Article 26. Broadening the application of the offences to circumstances where a
person is reckless as to whether the violence being urged would occur (lowered from the
18
existing requirement that the person intends the violence occur) would criminalise a wider
range of conduct that infringes on the rights of the groups and members of groups
distinguished by the protected attributes. It would ensure that the offences apply to persons
who are aware there is a substantial risk that the force or violence being urged will occur,
where it is unjustifiable in the circumstances to take that risk. This would enhance the
protections from serious discriminatory conduct that these offences provide to protected
groups and members of those groups. Disapplying the good faith defence in section 80.3 of
the Criminal Code would enhance these protections by making it clear that urging force or
violence against people on the basis of a protected attribute can never be done in 'good faith'.
This would remove an avenue for a defendant to avoid criminal responsibility if they engage
in conduct of this kind.
88. Expanding the list of groups, and members of groups, protected by these offences to
include those distinguished by sex, sexual orientation, gender identity, intersex status or
disability would extend the protections available under these provisions to additional groups
whose right to protection from discrimination are provided for in Article 26. While the
ICCPR does not specifically refer to sexual orientation or gender identity, the UNHRC has
found that the treaty includes an obligation to prevent discrimination on the basis of sexual
orientation.1 The UNHRC has also placed emphasis on the need to protect transgender
communities from violence, torture and harassment.2 By expanding the list of protected
groups for the purposes of these offences, the Bill would additionally promote Article 2 of the
ICCPR by ensuring that an effective remedy is available to a greater number of people whose
rights are infringed by conduct that amounts to the urging of force or violence against
targeted groups or members of such groups.
89. In accordance with Article 26, the amended offences would send a strong message
that groups distinguished by race, religion, sex, sexual orientation, gender identity,
nationality, national or ethnic origin or political opinion, and their members, have a right to
live their lives free from discrimination, by ensuring that those who urge force or violence
against targeted groups, and who are reckless as to whether that force or violence will occur,
can face serious criminal consequences. These consequences would include imprisonment for
a maximum of 5 years or imprisonment for a maximum of 7 years in aggravated
circumstances (where the violence or force urged, if carried out, would threaten the peace,
order and good government of the Commonwealth). These amendments to the urging
violence offences therefore advance the rights protected by Articles 2 and 26 of the ICCPR.
90. The amendments to these offences would not apply retrospectively and so would not
be inconsistent with the right to legality in Article 15 of the ICCPR.
New offences - threatening force or violence against groups or members of groups
91. Article 26 of the ICCPR is positively engaged by the amendments in the Bill that
would establish the offences in new sections 80.2BA and 80.2BB of the Criminal Code,
1
For example, Human Rights Committee, Toonen v Australia, Communication No. 488/1992, UN Doc
CCPR/C/50/D/488/92.
2
For example: Human Rights Committee, Consideration of Reports Submitted by States Parties Under Article
40 of the Covenant: Concluding Observations of the Human Rights Committee, Russian Federation, 24
November 2009, UN Doc CCPR/C/RUS/CO/6; Human Rights Committee, Consideration of Reports Submitted
by Parties Under Article 40 of the Covenant: Concluding Observations of the Human Rights Committee,
Colombia, 4 August 2010, UN Doc CCPR/C/CO/6.
19
which would criminalise conduct which threatens the use of force or violence against targeted
groups or members of groups.
92. Threatening to use force or violence against targeted groups, or members of groups,
distinguished by race, religion, sex, sexual orientation, gender identity, intersex status,
disability, nationality, national or ethnic origin or political opinion, in circumstances where a
reasonable person who is a member of the targeted group would fear that the threat would be
carried out, is serious discriminatory conduct that is incompatible with the rights of these
groups under Article 26 of the ICCPR. By criminalising this conduct, the new offences would
enhance protections for groups distinguished by these attributes, and ensure that law
enforcement has an ability to intervene before threats are carried out and people are subjected
to violence.
93. The offences would send a message that groups distinguished by the protected
attributes and members of such groups have a right to live their lives free from
discrimination, by ensuring that those who threaten to use force or violence against them can
face serious criminal consequences. These consequences would include imprisonment for a
maximum of 5 years or imprisonment for a maximum of 7 years in aggravated circumstances
(where the threat, if carried out, would threaten the peace, order and good government of the
Commonwealth).
94. The measures would additionally promote Article 2 by ensuring that an effective
remedy is available to individuals whose rights are infringed by conduct that amounts to the
threatening of force or violence against targeted groups or members of groups.
95. These offences would not apply retrospectively and so would not be inconsistent with
the right to legality in Article 15 of the ICCPR.
Strengthening existing offences for publicly displaying prohibited symbols
96. The amendments in this Bill to expand the list of protected attributes at
paragraphs 80.2H(7)(b), 80.2HA(7)(b) and 80.2K(6)(b) to include 'sexual orientation, gender
identity and intersex status' would promote the rights in Article the rights in Article 2 and
Article 26 of the ICCPR.
97. The offences already protect groups distinguished by race, colour, sex, language,
religion, political or other opinion or national or social origin, their right to be protected from
discrimination is enshrined in Article 26. Expanding the list of groups, and members of
groups, protected by these offences to include those distinguished by sexual orientation,
gender identity and intersex status would extend the protections available under these
provisions to additional groups whose rights to protection from discrimination are provided
for in Article 26. While the ICCPR does not specifically refer to sexual orientation or gender
identity, the UNHRC has found that the treaty includes an obligation to prevent
discrimination on the basis of sexual orientation.3 The UNHRC has also placed emphasis on
the need to protect transgender communities from violence, torture and harassment.4 By
3
For example, Human Rights Committee, Toonen v Australia, Communication No. 488/1992, UN Doc
CCPR/C/50/D/488/92.
4
For example: Human Rights Committee, Consideration of Reports Submitted by States Parties Under Article
40 of the Covenant: Concluding Observations of the Human Rights Committee, Russian Federation, 24
20
expanding the list of protected groups for the purposes of these offences, the Bill would also
promote Article 2 of the ICCPR. This would provide an effective remedy to a greater number
of people whose rights are infringed by the public display of prohibited symbols.
98. The amendments to these offences would not apply retrospectively and so would not
be inconsistent with the right to legality in Article 15 of the ICCPR.
CONCLUSION
99. The Bill promotes a number of human rights. To the extent that the Bill limits other
rights, those limitations are reasonable, necessary and proportionate in achieving a legitimate
aim.
November 2009, UN Doc CCPR/C/RUS/CO/6; Human Rights Committee, Consideration of Reports Submitted
by Parties Under Article 40 of the Covenant: Concluding Observations of the Human Rights Committee,
Colombia, 4 August 2010, UN Doc CCPR/C/CO/6.
21
NOTES ON CLAUSES
Clause 1 - Short title
1. This clause provides for the short title of the Act to be enacted by the Bill to be the
Criminal Code Amendment (Hate Crimes) Act 2024.
Clause 2 - Commencement
2. This clause provides for the commencement of each provision in the Bill as set out in
the table at subclause 2(1). Item 1 in the table provides that the whole of the Bill would
commence on the day after the Bill receives Royal Assent.
Clause 3 - Schedules
3. This clause provides that legislation specified in the Schedule to the Bill would be
amended as set out in the applicable items in the Schedule. Any other item in the Schedule to
the Bill would have effect according to its terms.
22
SCHEDULE 1--AMENDMENTS
Criminal Code Act 1995
Item 1 - Division 80 of the Criminal Code (heading)
4. This item would repeal the heading of Division 80 of the Criminal Code Act 1995
(Criminal Code) and substitute it with 'Treason, urging or threatening violence, advocating
terrorism or genocide, prohibited symbols and Nazi salute.' The inclusion of threatening
violence reflects that this Division contains the new measures set out in this Schedule
regarding threatening to use force or violence against groups, or members of groups.
5. This Division establishes criminal offences aimed at deterring harmful and
inflammatory language, symbols and gestures.
Item 2 - Section 80.1A of the Criminal Code
6. This item would insert a definition of 'disability' in section 80.1A of the Criminal
Code. The term would have the same meaning as in the Disability Discrimination Act 1992
(Disability Discrimination Act).
7. Recommendation 4.30 of the Final Report of the Royal Commission into Violence,
Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission)
recommended that civil anti-vilification protections for people with disabilities be
introduced.5. Aligning the definition of disability for the purposes of criminal offences and
civil protections for persons with a disability will ensure that criminal and civil law
protections extend to the same types of disability.
Item 3 - Paragraph 80.2A(1)(b) of the Criminal Code
8. Section 80.2A of the Criminal Code makes it an offence to urge violence against
groups.
9. Subsection 80.2A(1) currently provides that an offence is committed where:
• a person (the first person) intentionally urges another person, or a group, to use force
or violence against a group (the targeted group) (paragraph 80.2A(1)(a)), and
• the first person does so intending that force or violence will occur (paragraph
80.2A(1)(b)), and
• the targeted group is distinguished by race, religion, nationality, national or ethnic
origin or political opinion (paragraph 80.2A(1)(c)), and
• the use of the force or violence would threaten the peace, order and good government
of the Commonwealth (paragraph 80.2A(1)(d)).
5
Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report,
September 2023) Executive Summary, 206.
23
10. This item would omit the words 'intending that' and substitute them with the words
'reckless as to whether' in paragraph 80.2A(1)(b).
11. The effect of this amendment would be that an offence under subsection 80.2A(1) is
committed where the first person intentionally urges another person or a group to use force or
violence against a targeted group and the first person is reckless as to whether the force or
violence urged will occur.
12. This amendment lowers the current fault element in paragraph 80.2A(1)(b) that the
person intend the force or violence urged will occur. The existing requirement for the
prosecution to prove intent for this element of the offence sets the bar so high that conduct
which is genuinely reprehensible enough to attract criminal liability is not criminalised.
Amending the requirement from 'intention' to 'recklessness' would align the offence with the
standard fault elements in the Criminal Code and common law.
13. 'Recklessness' is defined in section 5.4 of the Criminal Code. A person is reckless
with respect to a circumstance if he or she is aware of a substantial risk that the circumstance
exists or will exist, and, having regard to the circumstance, it is unjustifiable to take that risk.
Item 4 - Paragraph 80.2A(1)(c) of the Criminal Code
14. Paragraph 80.2A(1)(c) of the Criminal Code sets out the targeted groups protected by
the urging violence offence in subsection 80.2A(1), namely groups distinguished by race,
religion, nationality, national or ethnic origin or political opinion.
15. This item would insert the words sex, sexual orientation, gender identity, intersex
status and disability, after the word religion, in paragraph 80.2A(1)(c). The inclusion of sex,
sexual orientation, gender identity, intersex status and disability in paragraph 80.2A(1)(c)
would expand the scope of the offence to protect groups distinguished by those attributes, in
addition to the existing listed groups.
16. This amendment accords with Australia's international human rights obligations. It is
intended to give further effect to Article 26 of the International Covenant on Civil and
Political Rights (ICCPR). It is intended that sex is interpreted by reference to a person's
physical characteristics relating to sex, including genitalia and other reproductive anatomy,
chromosomes and hormones, and secondary physical characteristics emerging from puberty.
17. While the ICCPR does not specifically refer to sexual orientation, gender identity and
intersex status, the United Nations Human Rights Committee (UNHRC) has found that the
ICCPR includes an obligation to prevent discrimination on the basis of sexual orientation and
gender identity.6 It is intended that 'sexual orientation' would refer to a person's physical,
romantic and/or emotional attraction towards other people.
18. The UNHRC has placed emphasis on the need to guarantee equal rights to all
individuals regardless of their gender identity7, and the need to protect transgender
6
For example, Human Rights Committee, Toonen v Australia, Communication No. 488/1992, UN Doc
CCPR/C/50/D/488/92; see also, Human Rights Committee, G v Australia, Communication No. 2172/2012, UN
Doc CCPR/C/119/D/2172/2012
7
For example: Human Rights Committee, Concluding Observations on Ecuador (CCPR/C/ECU/CO/6) 2016
paras. 11-12; Venezuela (CCPR/C/VEN/CO/4) para. 8; Austria (CCPR/C/AUT/CO/5), 2015, paras. 11-12.
24
communities from violence, torture and harassment.8 It is intended that 'gender identity'
would refer to a person's deeply felt and experienced sense of one's own gender, which may
or may not be aligned with the sex assigned to them at birth.
19. The UNHRC has referred to intersex persons alongside persons of lesbian, gay,
bisexual and transgender status, under the heading 'non-discrimination', and specifically with
reference to Article 26 of the ICCPR, in a manner that strongly suggests that the UNHRC
considers 'intersex status' to be a prohibited ground of discrimination for the purposes of
Article 26 of the ICCPR. It is intended that 'intersex status' would refer to a person born with
physical sex characteristics that do not fit the normative definitions for male or female
bodies. Intersex persons may have any sexual orientation and gender identity.
20. The addition of sex, sexual orientation, gender identity and intersex status as protected
attributes would establish criminal protections for groups distinguished by these attributes,
which complement existing civil protections under the Sex Discrimination Act 1984 (Sex
Discrimination Act).
21. The addition of sex as a protected attribute is also intended to give further effect to
Article 2(b) of the Convention on the Elimination of Discrimination Against
Women (CEDAW). It would extend protections against the urging of force or violence
against women to address growing ideologies of concern, such as those of men identifying as
involuntarily celibate (or 'incels'), which promote extreme forms of misogyny and violence
against women.
22. The inclusion of disability as a protected attribute is intended to give further effect to
Article 16 of the Convention on the Protection of the Rights of Persons with Disabilities
(CRPD). The addition of disability as a protected attribute would also align with and expand
upon recommendation 4.30 of the Disability Royal Commission, which calls for civil anti-
vilification protections for people with disabilities.9 Extending protections to people living
with disability acknowledges the need for a stronger and more comprehensive legal
framework to respect, protect and fulfil the human rights of people with disability as
recommended by the Disability Royal Commission. Disability would take the definition used
in the Disability Discrimination Act, by operation of Item 2 of the Bill.
23. Expanding the protections to include sex, sexual orientation, gender identity, intersex
status and disability acknowledges, and seeks to remedy, the harms experienced by members
of groups distinguished by these attributes, who have historically been, and commonly are,
targeted by conduct involving extreme hatred, abuse, vilification and violence.
Item 5 - Subsection 80.2A(1) of the Criminal Code (at the end of the note)
24. Item 5 would add the words 'For recklessness, see section 5.4' at the end of the
statutory note in subsection 80.2A(1) of the Criminal Code. This would reflect that, by
8
For example: Human Rights Committee, Consideration of Reports Submitted by States Parties Under Article
40 of the Covenant: Concluding Observations of the Human Rights Committee, Russian Federation, 24
November 2009, UN Doc CCPR/C/RUS/CO/6; Human Rights Committee, Consideration of Reports Submitted
by Parties Under Article 40 of the Covenant: Concluding Observations of the Human Rights Committee,
Colombia, 4 August 2010, UN Doc CCPR/C/CO/6.
9
Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report,
September 2023) Executive Summary, 206.
25
operation of the amendment in item 3 of the Bill, the fault element attached to
paragraph 80.2A(1)(b) would be recklessness, as defined in section 5.4 of the Criminal Code.
Item 6 - Paragraph 80.2A(2)(b) of the Criminal Code
25. Subsection 80.2A(2) of the Criminal Code currently provides that an offence is
committed where:
• a person (the first person) intentionally urges another person, or a group, to use force
or violence against a group (the targeted group) (paragraph 80.2A(2)(a)), and
• the first person does so intending that force or violence will occur (paragraph
80.2A(2)(b)), and
• the targeted group is distinguished by race, religion, nationality, national or ethnic
origin or political opinion (paragraph 80.2A(2)(c)).
26. The offence in subsection 80.2A(2) differs from the offence in subsection 80.2A(1) in
that it lacks the aggravating factor of the use of force or violence threatening the peace, order
and good government of the Commonwealth.
27. Consistent with the amendments to subsection 80.2A(1) by Item 3, this item would
omit the words 'intending that' and substitute with the words 'reckless as to whether' in
paragraph 80.2A(2)(b) of the Criminal Code. The intention of this amendment is the same as
that outlined under Item 3 above in relation to subsection 80.2A(1).
Item 7 - Paragraph 80.2A(2)(c) of the Criminal Code
28. Paragraph 80.2A(2)(c) of the Criminal Code sets out the targeted groups protected by
the urging violence against groups offence in subsection 80.2A(2), namely groups
distinguished by race, religion, nationality, national or ethnic origin or political opinion.
29. Consistent with the equivalent amendments to paragraph 80.2A(1)(c) by Item 4, this
item would insert the words 'sex, sexual orientation, gender identity, intersex status,
disability,' after the word 'religion,' in paragraph 80.2A(2)(c).
30. The intention of this amendment is the same as that outlined under Item 4 above in
relation to subsection 80.2A(1).
Item 8 - Subsection 80.2A(2) of the Criminal Code (at the end of the note)
31. This item would add the words 'For recklessness, see section 5.4' at the end of the
statutory note in subsection 80.2A(2) of the Criminal Code. This would reflect that, by
operation of the amendment in Item 6 of the Bill, the fault element attached to
paragraph 80.2A(2)(b) would be recklessness, as defined in section 5.4 of the Criminal Code.
Item 9 - After subsection 80.2A(3) of the Criminal Code
32. This item would insert new subsection 80.2A(3A) of the Criminal Code. New
subsection 80.2A(3A) would clarify that for the purposes of paragraphs 80.2A(1)(c) and
80.2A(2)(c), the person may have in mind a combination of attributes mentioned in those
26
paragraphs. This would clarify that a person who commits an offence under subsections
80.2A(1) and 80.2A(2) may have had in mind:
• a group distinguished by more than one subset of the same protected attribute (e.g. a
group of persons with two types of disabilities) or
• more than one group distinguished by different protected attributes (e.g. both a
religious group and a group distinguished by nationality) or
• a group distinguished by more than one protected attribute (e.g. a group distinguished
by both gender identity and ethnic origin).
33. This amendment is intended to clarify that the offence applies to a person who urges
violence against a group that comprises, for example, women with disabilities.
Item 10 - Subsection 80.2A(5) of the Criminal Code (note)
34. This item would repeal the note at the end of subsection 80.2A(5) of the Criminal
Code, which states that there is a defence in section 80.3 for acts done in good faith. This
amendment would reflect the amendments at item 22 of the Bill, which would disapply the
defence of good faith in section 80.3 to the offences for urging violence against groups in
section 80.2A.
Item 11 - Paragraph 80.2B(1)(b) of the Criminal Code
35. Section 80.2B of the Criminal Code establishes the offences for urging violence
against members of groups.
36. Subsection 80.2B(1) currently provides that an offence is committed where:
• a person (the first person) intentionally urges another person, or a group, to use force
or violence against a person (the targeted person) (paragraph 80.2B(1)(a)), and
• the first person does so intending that force or violence will occur (paragraph
80.2B(1)(b)), and
• the first person does so because of his or her belief that the targeted person is a
member of a group (paragraph 80.2B(1)(c)), and
• the targeted group is distinguished by race, religion, nationality, national or ethnic
origin or political opinion (paragraph 80.2B(1)(d)), and
• the use of the force or violence would threaten the peace, order and good government
of the Commonwealth (paragraph 80.2B(1)(e)).
37. The offence in subsection 80.2B(1) differs from the offence in subsection 80.2A(1) in
that it applies to urging force or violence against a person who is a member of a group, rather
than urging force or violence against a group.
38. Consistent with the amendments to subsection 80.2A(1) by Item 3, this item would
omit the words 'intending that' and substitute with the words 'reckless as to whether' in
27
paragraph 80.2B(1)(b) of the Criminal Code. The intention of this amendment is the same as
that outlined under Item 3 above in relation to subsection 80.2A(1).
Item 12 - Paragraph 80.2B(1)(d) of the Criminal Code
39. Paragraph 80.2B(1)(d) of the Criminal Code sets out the existing targeted groups
protected by the urging violence offence in subsection 80.2B(1), namely groups distinguished
by race, religion, nationality, national or ethnic origin or political opinion.
40. Consistent with the equivalent amendments to paragraph 80.2A(1)(c) by Item 4, this
item would insert the words 'sex, sexual orientation, gender identity, intersex status,
disability,' after the word 'religion,' in paragraph 80.2B(1)(d).
41. The intention of this amendment is the same as that outlined under Item 4 above in
relation to subsection 80.2A(1).
Item 13 - Subsection 80.2B(1) of the Criminal Code (at the end of the note)
42. This item would add the words 'For recklessness, see section 5.4.' at the end of the
statutory note in subsection 80.2B(1) of the Criminal Code. This would reflect that, by
operation of item 11 of the Bill, the fault element attached to paragraph 80.2B(1)(b) would be
recklessness, as defined in section 5.4 of the Criminal Code.
Item 14 - Paragraph 80.2B(2)(b) of the Criminal Code
43. Subsection 80.2B(2) of the Criminal Code currently provides that the offence is
committed where:
• a person (the first person) intentionally urges another person, or a group, to use force
or violence against a person (the targeted person) (paragraph 80.2B(2)(a)), and
• the first person does so intending that force or violence will occur (paragraph
80.2B(2)(b)), and
• the first person does so because of his or her belief that the targeted person is a
member of a group (the targeted group) (paragraph 80.2B(2)(c)), and
• the targeted group is distinguished by race, religion, nationality, national or ethnic
origin or political opinion (paragraph 80.2B(2)(d)).
44. The offence in subsection 80.2B(2) differs from the offence in subsection 80.2A(1) in
that it applies to urging force or violence against a person who is a member of a group, rather
than urging force or violence against a group. Subsection 80.2B also lacks the aggravating
factor of the use of force or violence threatening the peace, order and good government of the
Commonwealth.
45. Consistent with the amendments to subsection 80.2A(1) by Item 3, this item would
omit the words 'intending that' and substitute with the words 'reckless as to whether' in
28
paragraph 80.2B(2)(b) of the Criminal Code. The intention of this amendment is the same as
that outlined under Item 3 above in relation to subsection 80.2A(1).
Item 15 - Paragraph 80.2B(2)(d) of the Criminal Code
46. Paragraph 80.2B(2)(d) of the Criminal Code sets out the targeted groups protected by
the urging violence against members of groups offence in subsection 80.2B(2), namely
groups distinguished by race, religion, nationality, national or ethnic origin or political
opinion.
47. Consistent with the equivalent amendments to paragraph 80.2A(1)(c) by Item 4, this
item would insert the words 'sex, sexual orientation, gender identity, intersex status,
disability,' after the word 'religion,' in paragraph 80.2B(2)(d).
48. The intention of this amendment is the same as that outlined under Item 4 above in
relation to subsection 80.2A(1).
Item 16 - Subsection 80.2B(2) of the Criminal Code (at the end of the note)
49. This item would add the words 'For recklessness, see section 5.4' at the end of the
statutory note in subsection 80.2B(2) of the Criminal Code. This would reflect that, by
operation of item 14 of the Bill, the fault element attached to paragraph 80.2B(2)(b) is
recklessness, as defined in section 5.4 of the Criminal Code.
Item 17 - After subsection 80.2B(4) of the Criminal Code
50. This item would insert new subsection 80.2B(4A) after subsection 80.2B(4) of the
Criminal Code. New subsection 80.2B(4A) would clarify that for the purposes of paragraphs
80.2B(1)(d) and 80.2B(2)(d), the person may have in mind a combination of attributes
mentioned in those paragraphs.
51. The intention of this amendment is the same as that outlined under Item 9 above in
relation to new subsection 80.2A(3A).
Item 18 - Subsection 80.2B(6) of the Criminal Code (note)
52. This item would repeal the note at the end of subsection 80.2B(6) of the Criminal
Code which states that there is a defence in section 80.3 for acts done in good faith. This
would reflect the amendments at item 22 of the Bill, which would disapply the defence of
good faith in section 80.3 to the offences for urging violence against members of groups in
section 80.2B.
Item 19 - After section 80.2B of the Criminal Code
53. This item would insert new sections 80.2BA and 80.2BB into the Criminal Code after
section 80.2B. These sections would create new offences for threatening to use force or
violence against groups (section 80.2BA), and members of groups (section 80.2BB),
distinguished by race, religion, sex, sexual orientation, gender identity, intersex status,
disability, nationality, national or ethnic origin or political opinion.
54. The new offences are intended to protect individuals and groups distinguished by
these protected attributes from violence or the fear of violence. This is intended to support
29
group members' rights to safety and security and ability to fully participate in, and contribute
to society without fear of harm. The offences would recognise that directly threatening to use
force or violence against groups and members of groups distinguished by a protected attribute
is a serious and intentional act motivated by extreme hatred and prejudice. The offences
would also provide law enforcement with a tool to intervene at an early stage before threats
escalate to acts of force or violence.
Section 80.2BA Threatening force or violence against groups
55. Item 19 would establish a new offence for threatening to use force or violence against
a group. New subsection 80.2BA(1) would provide that a person commits an offence if:
• the person intentionally threatens to use force or violence against a group (the
targeted group) (paragraph 80.2BA(1)(a)); and
• the targeted group is distinguished by race, religion, sex, sexual orientation, gender
identity, intersex status, disability, nationality, national or ethnic origin or political
opinion (paragraph 80.2BA(1)(b)); and
• a reasonable member of the targeted group would fear that the threat will be carried
out (paragraph 80.2BA(1)(c)); and
• the threat, if carried out, would threaten the peace, order and good government of the
Commonwealth (paragraph 80.2BA(1)(d)).
56. New paragraph 80.2BA(1)(a) would establish the conduct element of the offence,
namely that the person threatens to use force or violence against a targeted group. The fault
element of intention would apply to the conduct in paragraph 80.2BA(1)(a) by application of
section 5.6 of the Criminal Code. The note in new subsection 80.2BA(1) would direct readers
to section 5.2 of the Criminal Code which contains a definition of 'intention'. This fault
element would require that the person meant to threaten to use force or violence against the
targeted group.
57. New paragraph 80.2BA(1)(b) would establish the first circumstance element of the
offence, namely that the person made the threat to use force or violence against a targeted
group distinguished by race, religion, sex, sexual orientation, gender identity, intersex status,
disability, nationality, national or ethnic origin or political opinion
58. The fault element of recklessness would apply to the circumstance in paragraph
80.2BA(1)(b) by operation of new paragraph 80.2BA(3). This is consistent with the default
fault element for a circumstance as outlined in subsection 5.6(2) of the Criminal Code. The
note in new subsection 80.2BA(3) directs readers to the definition of recklessness in section
5.4 of the Criminal Code. A person is reckless if they are aware of a substantial risk with
respect to a particular circumstance (in this case, that 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 having regard to the circumstances known
to them, it is unjustifiable to take that risk.
59. New paragraph 80.2BA(1)(c) would establish a second circumstance element of the
offence, namely that a reasonable member of the targeted group would fear that the threat
will be carried out. The reasonable person test in paragraph 80.2BA(1)(c) means that it would
30
not be necessary for the prosecution to prove that the threat actually had the effect of causing
a specific member of the targeted group to fear that the threatened force or violence will be
carried out. The fact that the threat would have this effect on a reasonable member of a
targeted group would be sufficient.
60. The reference to a reasonable member of a targeted group is designed to direct the
court to consider the experiences, perspectives and characteristics of a person with the lived
experience of a person with the relevant protected attribute (or attributes) in determining
whether it would be reasonable to fear that the threat would be carried out. This is intended to
acknowledge the unique experiences, which may include historical oppression and the
experience of being a marginalised community, of members of relevant groups.
61. New subsection 80.2BA(4) would provide that strict liability, as outlined in
section 6.1 of the Criminal Code, would apply to the circumstance in new
paragraph 80.2BA(1)(c). The effect of strict liability is that the prosecution is not required to
prove intention, knowledge, recklessness, negligence or any other kind of fault element in
relation to the circumstance in new paragraph 80.2BA(1)(c). Without subsection 80.2BA(4),
the fault element for paragraph 80.2BA(1)(c) would have been recklessness by application of
section 5.6 of the Criminal Code. The effect of this would have been that the prosecution
would have to prove that the defendant was aware of a substantial risk that the circumstance
in paragraph 80.2BA(1)(c) existed, and having regard to the circumstances known to the
defendant, it was unjustifiable for them to take that risk.
62. It would not be appropriate for recklessness to apply to paragraph 80.2BA(1)(c)
because the state of mind of the defendant is irrelevant to the matter in this paragraph, which
relates to whether a reasonable person who is a member of the targeted group would fear that
the threat will be carried out.
63. It would still be open to the defendant to raise a defence of mistake of fact under
section 9.2 of the Criminal Code. Section 9.2 provides that a person will not be criminally
responsible if the person was under a mistaken but reasonable belief about those facts and if
those facts had existed, the conduct would not have constituted an offence. The mistake must
be one which is reasonable for the defendant to make in the circumstances. The defence of
mistake of fact will not apply in circumstances where the mistake results from a lack of
awareness of relevant facts.
64. New paragraph 80.2BA(1)(d) would set out the final circumstance element of the
offence, being that the threat, if carried out, would threaten the peace, order and good
government of the Commonwealth. This is intended to capture the making of threats that are
so serious or severe that, if carried out, they would directly threaten Australia's democracy or
national security. For example, if a threat was made to a group of persons based on their
political opinion that, if they vote at an upcoming Federal election, violent acts would be
perpetrated against them, the carrying out of the threat would impinge upon Australia's
representative democracy, and thereby threaten the peace, order and good government of the
Commonwealth. This element has been modelled on paragraphs 80.2A(1)(d) and 80.2B(1)(e),
and is intended to capture the same kinds of potential impacts as those provisions.
65. The maximum penalty for the offence in new subsection 80.2BA(1) would be
imprisonment for 7 years. This penalty is appropriate noting that conduct involving the threat
to use force or violence which threatens the peace, order and good government of the
Commonwealth is a serious, intentional act that causes significant harm to the threatened
31
group and the Australian community more broadly. This penalty would account for the
severity of offending, noting the deterrent and early intervention objectives of the offence.
This penalty would also align with the penalty for the offence of urging force or violence
against groups where the use of the force or violence would threaten the peace, order and
good government of the Commonwealth, in subsection 80.2A(1) of the Criminal Code.
66. The offence in new subsection 80.2BA(1) is designed to protect the community from
the serious harms caused by directly threatening force or violence against a group
distinguished by a protected attribute. The offence is additionally intended to prevent conduct
of this nature threatening the peace, order and good government of the Commonwealth. The
requirement that the conduct threaten the 'peace, order and good government of the
Commonwealth' is intended to focus the offence on public order issues related to the
Commonwealth and to target more serious conduct that has an impact on the broader society.
67. It is intended that the offence would capture any conduct, not just speech, that could
be taken to threaten force or violence (such as a gesture) and that would cause a reasonable
member of the targeted group to fear that the threatened force or violence will be carried out.
68. Item 19 would also create a new offence for threatening to use force or violence
against groups, without a requirement that the threat, if carried out, would threaten the peace,
order and good government of the Commonwealth. New subsection 80.2BA(2) would
provide that a person commits an offence if:
• the person intentionally threatens to use force or violence against a group (the
targeted group) (paragraph 80.2BA(2)(a)); and
• the targeted group is distinguished by race, religion, sex, sexual orientation, gender
identity, intersex status, disability, nationality, national or ethnic origin or political
opinion (paragraph 80.2BA(2)(b)); and
• a reasonable member of the targeted group would fear that the threat will be carried
out (paragraph 80.2BA(2)(c)).
69. The maximum penalty for the new offence in subsection 80.2BA(2) would be
imprisonment for 5 years. This penalty is lower than the penalty of 7 years' imprisonment for
the new offence in subsection 80.2BA(1) because the offence in subsection 80.2BA(1) has
the additional element that the threat, if carried out, would threaten the peace, order and good
government of the Commonwealth, and is accordingly more serious. The maximum penalty
of 5 years' imprisonment for the offence in new subsection 80.2BA(2) is appropriate to
account for the severity of offending, noting the deterrent and early intervention objectives of
the offence. This penalty would also align with the penalty for the offence of urging force or
violence against groups in subsection 80.2A(2) of the Criminal Code.
70. The elements and intention of the offence in new subsection 80.2BA(2) are identical
to those outlined above in relation to the offence in new subsection 80.2BA(1), with the
exception that there is no requirement that the threatened force or violence would threaten the
peace, order and good government of the Commonwealth.
71. New subsection 80.2BA(5) would clarify that for the purposes of paragraphs
80.2BA(1)(b) and 80.2BA(2)(b), the person may have in mind a combination of attributes
32
mentioned in those paragraphs. This would clarify that a person who commits an offence
under subsections 80.2BA(1) and 80.2BA(2) may have had in mind:
• a group distinguished by more than one subset of the same protected attribute (e.g. a
group of persons with two types of disabilities); or
• more than one group distinguished by different protected attributes (e.g. both a
religious group and nationality); or
• a group distinguished by more than one protected attribute (e.g. a group distinguished
by both gender identity and ethnic origin).
72. The effect of new subsections 80.2BA(6) and (7) would be that, if in a prosecution for
an offence under subsection 80.2BA(1), the trier of fact is not satisfied that the defendant is
guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of
an offence under subsection 80.2BA(2), then the trier of fact may find the defendant not
guilty of the prosecuted offence under subsection 80.2BA(1), but guilty of the alternative
offence under subsection 80.2BA(2), so long as the defendant has been accorded procedural
fairness in relation to that finding of guilt. This means that if the prosecution is unable to
prove the circumstance in paragraph 80.2BA(1)(d) (that the threat of force or violence, if
carried out, would threaten the peace, order and good government of the Commonwealth), the
defendant may still be found guilty of an offence under subsection 80.2BA(2).
73. Subsection 80.2BA(8) would clarify that 'fear' includes apprehension. This is
intended to recognise that fear can manifest in various forms, including the anticipation of
harm. This subsection is intended to ensure that the new offences not only capture immediate
and tangible 'fear', but also anticipatory or psychological apprehension.
Section 80.2BB Threatening force or violence against members of groups
74. Item 19 would also insert a new offence to criminalise threatening the use of force or
violence against members of groups. New subsection 80.2BB(1) would provide that an
offence is committed if:
• the first person intentionally threatens to use force or violence against a person (the
targeted person) (paragraph 80.2BB(1)(a)); and
• the first person does so because of the first person's belief that the targeted person is
a member of a group (the targeted group) (paragraph 80.2BB(1)(b)); and
• the targeted group is distinguished by race, religion, sex, sexual orientation, gender
identity, intersex status, disability, nationality, national or ethnic origin or political
opinion (paragraph 80.2BB(1)(c)); and
• a reasonable member of the targeted group would fear that the threat will be carried
out (paragraph 80.2BB(1)(d)); and
• the threat, if carried out, would threaten the peace, order and good government of the
Commonwealth (paragraph 80.2BB(1)(e)).
33
75. New paragraph 80.2BB(1)(a) would establish the conduct element of the offence,
namely that the person threatens to use force or violence against a targeted person. The fault
element of intention would apply to the conduct in paragraph 80.2BB(1)(a) by application of
section 5.6 of the Criminal Code. The note at the end of subsection 80.2BB(1) directs readers
to the definition of 'intention' in section 5.2 of the Criminal Code. This fault element requires
that the person meant to threaten to use force or violence against the targeted person.
76. New paragraph 80.2BB(1)(b) would establish the first circumstance element of the
offence, namely that the person made the threat to use force or violence because of their
belief that the targeted person is a member of the targeted group. The requirement that the
person believe the targeted person is a member of a targeted group distinguished by a listed
attribute is important because it draws a distinct connection between the threat and the motive
behind the conduct that amounted to the threat.
77. The word belief is not defined and would take its ordinary meaning. Consistent with
this, it would not require the prosecution to prove that the first person had knowledge of the
person's membership of a group. The first person's belief that the targeted person is a
member of the targeted group could be demonstrated in a number of ways, having regard to
the circumstances of the offence, including through language used that relates to the group or
individual, or if the threat forms part of a pattern of conduct that targets the group or its
members. For example, this could include circumstances where a person published their
manifesto online, urging their followers to perpetrate violence on those leaving a specific
Catholic church after a service.
78. New subsection 80.2BB(3) would provide that, for the purposes of
subsection 80.2BB(1)(b), it is immaterial whether the targeted person actually is a member of
a group distinguished by the attributes listed in paragraph 80.2BB(1)(c). This is intended to
reflect that the relevant factor is that the person threatening force or violence believed the
targeted person was a member of a group distinguished by race, religion, sex, sexual
orientation, gender identity, intersex status, disability, nationality, national or ethnic origin, or
political opinion, regardless of whether the targeted person was in fact a member of that
group.
79. New paragraph 80.2BB(1)(c) would establish a second circumstance element of the
offence, requiring that the targeted group is distinguished by race, religion, sex, sexual
orientation, gender identity, intersex status, disability, nationality, national or ethnic origin or
political opinion.
80. The fault element of recklessness would apply to the circumstance in new paragraph
80.2BB(1)(c) by operation of new subsection 80.2BB(4). This is consistent with the default
fault element for a circumstance as outlined in subsection 5.6(2) of the Criminal Code.
Recklessness is defined in section 5.4 of the Criminal Code. A person is reckless if they are
aware of a substantial risk with respect to a particular circumstance (in this case that the
person is a member of a targeted group that is distinguished by one of the protected
attributes), and having regard to the circumstances known to them, it is unjustifiable to take
that risk.
81. New paragraph 80.2BB(1)(d) would establish a third circumstance element of the
offence, namely that a reasonable member of the targeted group would fear that the threat
will be carried out. The reasonable person test in paragraph 80.2BB(1)(d) means that it would
not be necessary for the prosecution to prove that the threat actually had the effect of causing
34
a member of the targeted group to fear the force or violence will be carried out. The fact that
the threat would have this effect on a reasonable member of a targeted group would be
sufficient.
82. The reference to a reasonable member of a targeted group is designed to direct the
court to consider the experiences, perspectives and characteristics of a person with the lived
experience of a person with the relevant protected attribute in determining whether it would
be reasonable to fear that the threat would be carried out. This is intended to acknowledge the
experiences, which may include historical oppression and the experience of being a
marginalised community, of members of relevant groups.
83. New subsection 80.2BB(5) would provide that strict liability. as outlined in
section 6.1 of the Criminal Code, would apply to the circumstance in new paragraph
80.2BB(1)(d). The effect of strict liability is that the prosecution is not required to prove
intention, knowledge, recklessness, negligence or any other kind of fault element in relation
to the circumstance in paragraph 80.2BB(1)(d). Without subsection 80.2BB(5), the fault
element for paragraph 80.2BB(1)(d) would have been recklessness by application of section
5.6 of the Criminal Code. The effect of this would have been that the prosecution would have
to prove that the defendant was aware of a substantial risk that the circumstance in paragraph
80.2BB(1)(d) existed, and having regard to the circumstances known to the defendant, it was
unjustifiable to take that risk.
84. It would not be appropriate for recklessness to apply to paragraph 80.2BB(1)(d),
because the state of mind of the defendant is irrelevant to the matter in this paragraph, which
relates to whether a reasonable person who is a member of a targeted group would fear that
the threat will be carried out.
85. It would still be open to the defendant to raise a defence of mistake of fact under
section 9.2 of the Criminal Code. Section 9.2 provides that a person will not be criminally
responsible if the person was under a mistaken but reasonable belief about those facts and if
those facts had existed, the conduct would not have constituted an offence. The mistake must
be one which is reasonable for the defendant to make in the circumstances. The defence of
mistake of fact will not apply in circumstances where the mistake results from a lack of
awareness of relevant facts.
86. New paragraph 80.2BB(1)(e) would set out the final circumstance element of the
offence, being that the threat, if carried out, would threaten the peace, order and good
government of the Commonwealth. This is intended to capture the making of threats that are
so serious or severe that, if carried out, they would directly threaten Australia's democracy or
national security. For example, if a threat of violence was made against an elected member of
Parliament based on a belief that they were a member of a group distinguished by a listed
attribute (for example, a group distinguished by political opinion), and the threat prevented
the Parliamentarian from engaging in their work, the carrying out of the threat would impinge
upon Australia's democracy, and thereby threaten the good government of the
Commonwealth. This element has been modelled on paragraphs 80.2A(1)(d) and
35
80.2B(1)(e), and is intended to capture the same kinds of potential impacts as those
provisions.
87. The fault element of recklessness would apply to the circumstance in new paragraph
80.2BB(1)(e) by application of subsection 5.6(2) of the Criminal Code.
88. The maximum penalty for the offence in new subsection 80.2BB(1) would be
imprisonment for 7 years. This penalty is appropriate noting that conduct involving the threat
to use force or violence which threatens the peace, order and good government of the
Commonwealth is a serious, intentional act that causes significant harm to the threatened
individual and the Australian community more broadly. This penalty would also account for
the severity of offending, noting the deterrent and early intervention objectives of the offence.
This penalty would also align with the penalty for the offence of urging force or violence
against members of groups where the force or violence would threaten the peace, order and
good government of the Commonwealth, in subsection 80.2B(1) of the Criminal Code.
89. The offence in new subsection 80.2BB(1) is designed to protect the community from
the serious harms caused by directly threatening force or violence against a member of a
group distinguished by a protected attribute. The offence is additionally intended to prevent
conduct of this nature threatening the peace, order and good government of the
Commonwealth. The requirement that the conduct threaten the 'peace, order and good
government of the Commonwealth' is intended to focus the offence on public order issues
related to the Commonwealth.
90. It is intended that the offence would capture any conduct, not just speech, which can
be express or implied (such as a gesture) but would cause a reasonable member of the
targeted group to fear that the threat will be carried out.
91. Item 19 would also insert a new offence for threatening to use force or violence
against members of groups, without a requirement that the threat, if carried out, would also
threaten the peace, order and good government of the Commonwealth. New
subsection 80.2BB(2) would provide that an offence is committed if:
• the first person intentionally threatens to use force or violence against a person (the
targeted person) (paragraph 80.2BB(2)(a)); and
• the first person does so because of the first person's belief that the targeted person is
a member of a group (the targeted group) (paragraph 80.2BB(2)(b)); and
• the targeted group is distinguished by race, religion, sex, sexual orientation, gender
identity, intersex status, disability, nationality, national or ethnic origin or political
opinion (paragraph 80.2BB(2)(c)); and
• a reasonable member of the targeted group would fear that the threat will be carried
out (paragraph 80.2BB(2)(d)).
92. The maximum penalty for the new offence in subsection 80.2BB(2) would be
imprisonment for 5 years. This penalty is lower than the penalty of 7 years' imprisonment for
the offence in new subsection 80.2BB(1), because that offence has the additional element that
the threat, if carried out, would threaten the peace, order and good government of the
Commonwealth, and is accordingly more serious. The maximum penalty of 5 years'
imprisonment for the offence in new subsection 80.2BB(2) is appropriate to reflect the
36
severity of offending, noting the deterrent and early intervention objectives of the offence.
The penalty would also align with the penalty for the offence of urging force or violence
against members of groups in subsection 80.2B(2) of the Criminal Code.
93. The elements and intention of the offence in new subsection 80.2BB(2) are identical
to those outlined above in relation to the offence in new subsection 80.2BB(1), with the
exception that there is no requirement that the threatened force or violence would threaten the
peace, order and good government of the Commonwealth.
94. New subsection 80.2BB(6) would clarify that for the purposes of paragraphs
80.2BB(1)(c) and 80.2BB(2)(c), the person may have in mind a combination of attributes
mentioned in those paragraphs. This would clarify that a person who commits an offence
under subsections 80.2BB(1) and 80.2BB(2) may have had in mind:
• a group distinguished by more than one subset of the same protected attribute (e.g. a
group of persons with two types of disabilities); or
• more than one group distinguished by different protected attributes (e.g. both a
religious group and nationality); or
• a group distinguished by more than one protected attribute (e.g. a group distinguished
by both gender identity and ethnic origin).
95. New subsections 80.2BB(7) and (8) would contain a provision for an alternative
verdict. Subsections 80.2BB(7) and (8) provide that, if in a prosecution for an offence under
subsection 80.2BB(1), the trier of fact is not satisfied that the defendant is guilty of the
offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence
under subsection 80.2BB(2), then the trier of fact may find the defendant not guilty of the
prosecuted offence under subsection 80.2BB(1), but guilty of the alternative offence under
subsection 80.2BB(2), so long as the defendant has been accorded procedural fairness in
relation to that finding of guilt. This means that if the prosecution is unable to prove the final
element in paragraph 80.2BB(1)(e), that the threat to use force or violence, if carried out,
would threaten the peace, order and good government of the Commonwealth, the defendant
may still be found guilty of an offence against subsection 80.2BB(2).
96. New subsection 80.2BB(9) would clarify that 'fear' includes apprehension. This is
intended to recognise that fear can manifest in various forms, including the anticipation of
harm. This subsection is intended to ensure that the new offences not only capture immediate
and tangible 'fear', but also anticipatory or psychological apprehension.
Item 20 - Paragraphs 80.2H(7)(b), 80.2HA(7)(b) and 80.2K(6)(b) of the Criminal Code
97. This item would insert the words 'sexual orientation, gender identity, intersex status,'
after the word 'sex' in paragraphs 80.2H(7)(b), 80.2HA(7)(b) and 80.2K(6)(b) of the
Criminal Code.
98. Section 80.2H criminalises the public display of prohibited Nazi symbols and the
giving of a gesture that is a Nazi salute in a public place in relevant circumstances. Section
80.2HA criminalises the public display of prohibited terrorist organisation symbols in
relevant circumstances. Subsections 80.2H(7) and 80.2HA(7) set out one of those relevant
circumstances. Subsections 80.2H(7) and 80.2HA(7) apply if the public display of the
37
prohibited symbol or the making of a Nazi salute in public is likely to offend, insult,
humiliate or intimidate a reasonable person (paragraphs 80.2H(7)(a) and 80.2HA(7)(a)), who
is a member of a group of persons distinguished by race, colour, sex, language, religion,
political opinion or other opinion, or national or social origin (paragraph 80.2H(7)(b) and
80.2HA(7)(b)), because of the reasonable person's membership of that group.
99. Section 80.2K provides police officers with the power to direct a person, in
accordance with section 80.2L, to cause a prohibited symbol to cease being displayed in a
public place if, relevantly, subsection 80.2K(6) applies. Subsection 80.2K(6) applies if a
police officer reasonably suspects that the public display is likely to offend, insult, humiliate
or intimidate a person who is a reasonable person and a member of a group of persons
distinguished by race, colour, sex, language, religion, political or other opinion, or national or
social origin because of the reasonable person's membership of that group.
100. The inclusion of sexual orientation, gender identity and intersex status in paragraphs
80.2H(7)(b), 80.2HA(7)(b) and 80.2K(6)(b) would expand the scope of the offences to
protect groups distinguished by those attributes, in addition to the existing listed attributes.
101. This accords with Australia's human rights obligations, and is intended to give further
effect to Article 26 of the ICCPR. While the ICCPR does not specifically refer to sexual
orientation, gender identity and intersex status, the UNHRC has found that the ICCPR
includes an obligation to prevent discrimination on the basis of sexual orientation.10 It is
intended that 'sexual orientation' would refer to a person's physical, romantic and/or
emotional attraction towards other people. The UNHRC has also placed emphasis on the need
to guarantee equal rights to all individuals regardless of their gender identity, 11 and the need
to protect transgender communities from violence, torture and harassment.12 It is intended
that gender identity would refer to a person's deeply felt and experienced sense of one's own
gender, which may or may not be aligned with the sex assigned to them at birth.
102. Further, on many occasions, the UNHRC has referred to 'intersex persons' alongside
persons of lesbian, gay, bisexual and transgender status, under the heading
'non-discrimination', and specifically with reference to Article 26 of the ICCPR, in a manner
that strongly suggests that the UNHRC considers intersex status to be a prohibited ground of
discrimination for the purposes of Article 26 of the ICCPR. It is intended that 'intersex status'
would refer to a person born with physical sex characteristics that do not fit the normative
definitions for male or female bodies. Intersex persons may have any sexual orientation and
gender identity.
103. The inclusion of these attributes in paragraphs 80.2H(7)(b), 80.2HA(7)(b) and
80.2K(6)(b) acknowledges, and seeks to remedy, the harms experienced by members of
groups distinguished by these attributes, who have historically been, and commonly are,
targeted by conduct of the kind prohibited by these sections.
10
For example, Human Rights Committee, Toonen v Australia, Communication No. 488/1992, UN Doc
CCPR/C/50/D/488/92.
11
For example: Human Rights Committee, Concluding Observations on Ecuador (CCPR/C/ECU/CO/6) 2016
paras. 11-12; Venezuela (CCPR/C/VEN/CO/4) para. 8; Austria (CCPR/C/AUT/CO/5), 2015, paras. 11-12.
12
For example: Human Rights Committee, Consideration of Reports Submitted by States Parties Under Article
40 of the Covenant: Concluding Observations of the Human Rights Committee, Russian Federation, 24
November 2009, UN Doc CCPR/C/RUS/CO/6; Human Rights Committee, Consideration of Reports Submitted
by Parties Under Article 40 of the Covenant: Concluding Observations of the Human Rights Committee,
Colombia, 4 August 2010, UN Doc CCPR/C/CO/6.
38
104. The addition of sexual orientation, gender identity and intersex status as protected
attributes would establish criminal protections for groups distinguished by these attributes,
which complement existing civil protections available under the Sex Discrimination Act.
Item 21 - Subsection 80.3(1) of the Criminal Code
105. This item would insert the words '(other than sections 80.2A, 80.2B, 80.2BA and
80.2BB)' after the words 'and C' in subsection 80.3(1) of the Criminal Code. The effect of
this item would be to:
• Disapply the defence for acts done in good faith in section 80.3 of the Criminal Code
to the urging violence offences in sections 80.2A and 80.2B
• Exclude the defence for acts done in good faith in section 80.3 of the Criminal Code
from applying to the new offences for threatening the use of force or violence in
sections 80.2AB and 80.2BB
106. The defence for acts in good faith in section 80.3 was carried over from the repealed
section 24F of the Crimes Act and drafted specifically to apply to the offence of sedition. In
2006, the Australian Law Reform Commission recommended that section 80.3 of the
Criminal Code be amended so that the good faith defences do not apply to the offences of
urging violence and that instead, the focus should be on 'proving that a person intentionally
urges the use of force or violence, with the intention that the force or violence urged will
occur'.13
107. The disapplication of this defence reflects that a person cannot legitimately act in
good faith for the purposes set out in section 80.3 while intentionally urging force or violence
of a group distinguished by a protected attribute. This is consistent with the approach taken in
New South Wales, for example, where the equivalent good faith defence does not apply to
offences involving intentionally inciting or threatening physical harm to persons or property.
108. For the same reason, the defence for acts done in good faith would similarly not apply
to the new offences of threatening to use force or violence in new sections 80.2BA and
80.2BB. Intentionally threatening to use force or violence against groups or members of
groups distinguished by a protected attribute cannot be done in 'good faith'.
Item 22 - After paragraph 80.4(2)(c) of the Criminal Code
109. Item 22 would amend section 80.4 to apply Category B geographical jurisdiction, as
outlined in section 15.2 of the Criminal Code, to the new offences in subsections 80.2BA(2)
and 80.2BB(2). Category B geographical jurisdiction enables an offence to operate:
• when the conduct constituting the alleged offence occurs wholly or partly either in
Australia, or wholly or partly on board an Australian aircraft or ship (paragraph
15.2(1)(a) of the Criminal Code), or
• when the conduct constituting the alleged offence occurs wholly outside Australia
and a result of that conduct occurs either wholly or partly in Australia, or wholly or
13
Fighting Words: A Review of Sedition Laws in Australia (ALRC Report 104, 2006).
39
partly on board an Australian aircraft or Australian ship (paragraph 15.2(1)(b) of the
Criminal Code), or
• when the conduct constituting the alleged offence occurs wholly outside Australia
and at the time of the alleged offence, the defendant is an Australian citizen, an
Australian resident or a body corporate incorporated under an Australian law
(paragraph 15.2(1)(c) of the Criminal Code), or
• the alleged offence is an ancillary offence, and the conduct constituting the alleged
offence occurs wholly outside Australia, and the conduct constituting the primary
offence to which the ancillary offence relates, or a result of that conduct, occurs, or is
intended by the person to occur, wholly or partly in Australia or wholly or partly on
board an Australian aircraft or ship (paragraph 15.2(1)(d) of the Criminal Code).
110. The application of category B geographical jurisdiction to subsections 80.2BA(2) and
80.2BB(2) is appropriate as these offences target conduct occurring primarily in Australia.
111. Category D geographical jurisdiction, as outlined by section 15.4 of the Criminal
Code, would apply to subsections 80.2BA(1) and 80.2BB(1), consistent with
subsection 80.4(1). Category D geographical jurisdiction enables an offence to operate
whether or not the offence is committed in Australia and wherever the result of the conduct
occurs. This is appropriate because these offences include a requirement that the threat must
also threaten the peace, order, and good government of the Commonwealth.
112. Section 15.2 provides a range of additional specified defences to offences with
category B extended geographical jurisdiction.
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