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2022 - 2023 - 2024 -2025
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
CRIMINAL CODE AMENDMENT (HATE CRIMES) BILL 2024
REVISED 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, and expand protections for members of the
Australian community who have been affected by the significant and sustained increase in
hate-motivated violence in Australia. They would also protect the community from the
dangers of terrorism and related offences and address inadequacies in the criminal justice
system that result in outcomes that insufficiently punish or deter offenders.
3. Public discourse has increasingly been weaponised, with hateful rhetoric aimed at
attacking groups in the Australian community. Advocating 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.
4. 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 substitute
'urging' with 'advocating', 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.
• create new criminal offences in Division 80 for advocating force or violence through
causing damage to property.
• create new criminal offences in Division 80 for threatening damage to or destruction
of real property or motor vehicles.
• create mandatory minimum penalties of 6 years imprisonment for offences against
Division 101 and 102 of the Criminal Code , except subsections 102.8(1) or (2), for
which the minimum penalty will be 12 months imprisonment.
2
• create mandatory minimum penalties of 3 years imprisonment for offences against
Division 103 of the Criminal Code.
• create mandatory minimum penalties of 12 months imprisonment for offences for
publicly displaying prohibited Nazi or terrorist organisation symbols, or performing
the Nazi salute.
• create mandatory minimum penalties of 12 months imprisonment for offences for
advocating force or violence through causing damage to property.
• increase the maximum penalty for publicly displaying a prohibited Nazi or terrorist
organisation symbol, or performing the Nazi salute, to 5 years imprisonment.
5. 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 for threatening force or violence against groups or
members of groups (new sections 80.2BA and 80.2BB).
6. 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.
7. There is no uniform, nationwide approach to criminalising advocating or threatening
violence against a person or property damage that is motivated by extreme hatred or prejudice
towards a person because of their race, religion, sex, sexual orientation, gender identity,
intersex status, disability, nationality, national or ethnic origin or political opinion. While
some State and Territory jurisdictions have sentencing guidelines or aggravating factors that
direct a court to consider whether a crime was motivated by hatred or prejudice against some
targeted groups, there is no consistent approach. These measures would create a nationally
consistent suite of offences that recognise and address the harms caused by this hate-motived
conduct, not only to the person or group targeted, but to the Australian community as a
whole.
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 (Commonwealth, State and
Territory law enforcement agencies) and should be applied in conjunction with existing state
and territory legislation.
FINANCIAL IMPACT
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9. The amendments in this Bill would have no financial impact on Government
expenditure or revenue.
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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 and their close associates and new offences for
advocating and threatening damage to property.
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, and advocating
and threatening damage to property.
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 substitute
'urging' with 'advocating', 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.
• create new criminal offences in Division 80 for advocating force or violence through
causing damage to property.
5
• create new criminal offences in Division 80 for threatening damage to or destruction
of real property or motor vehicles.
• create mandatory minimum penalties of 6 years imprisonment for offences against
Division 101 and 102 of the Criminal Code , except subsections 102.8(1) or (2), for
which the minimum penalty will be 12 months imprisonment.
• create mandatory minimum penalties of 3 years imprisonment for offences against
Division 103 of the Criminal Code.
• create mandatory minimum penalties of 12 months imprisonment for offences for
publicly displaying prohibited Nazi or terrorist organisation symbols, or performing
the Nazi salute.
• create mandatory minimum penalties of 12 months imprisonment for offences for
advocating force or violence through causing damage to property.
• increase the maximum penalty for publicly displaying a prohibited Nazi or terrorist
organisation symbol, or performing the Nazi salute, to 5 years imprisonment.
10. 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 for threatening force or violence against groups or
members of groups (new sections 80.2BA and 80.2BB).
11. 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.
12. There is no uniform, nationwide approach to criminalising advocating or threatening
violence against a person or property damage that is motivated by extreme hatred or prejudice
towards a person because of their race, religion, sex, sexual orientation, gender identity,
intersex status, disability, nationality, national or ethnic origin or political opinion. While
some State and Territory jurisdictions have sentencing guidelines or aggravating factors that
direct a court to consider whether a crime was motivated by hatred or prejudice against some
targeted groups, there is no consistent approach. These measures would create a nationally
consistent suite of offences that recognise and address the harms caused by this hate-motived
conduct, not only to the person or group targeted, but to the Australian community as a
whole.
6
13. 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.
6. The offences would give further effect to Australia's international human rights
obligations.
Human rights implications
7. The Bill engages the following human rights:
• 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
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• commitment to promote the establishment of measures for dealing with such
children without resorting to judicial proceedings in Article 40(3)(b) of the
Convention on the Rights of the Child (CRC)
Right to life and security of the person in Articles 6 and 9 of the ICCPR
8. 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.
9. 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:
• the advocating 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, or their close associates; 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.
10. 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 and expanding the existing offences for urging force or violence against groups
or members of groups
11. 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 currently 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.
12. Expanding the offence to cover advocating violence, as opposed to urging violence,
broadens the application of the offences to additionally cover advocating, counselling
and promoting force or violence.
8
13. 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.
14. 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
advocating 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.
15. 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.
16. 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 advocating violence offences would by
punishable by a maximum of 7 years in aggravated circumstances (where the force or
violence urged, if carried out, would threaten the peace, order and good government of
the Commonwealth) or otherwise imprisonment for a maximum of 5 years.
17. The amendments would promote the rights protected by Articles 6 and 9 by extending
the amended offences for advocating the use of force or violence against targeted groups
and their members, and the proposed new offences for threatening the use of force or
violence against targeted groups and their members, to also apply to 'close associates'
of members of targeted groups. The targeted groups who would be protected by the
offences are those distinguished by race, religion, sex, sexual orientation, gender
identity, intersex status, disability, nationality, national or ethnic origin or political
opinion.
18. 'Close associates would include 'close family members' as defined in section 102.1 of
the Criminal Code, and 'carers and assistants' of people with disability as defined in
subsection 9(1) of the Disability Discrimination Act 1992.
19. In its inquiry into the Bill, the Legal and Constitutional Affairs Committee (LCAC)
noted evidence of instances where associates of targeted groups have been targeted by
threats of violence. The amendments recognise that advocating or threatening violence
represent a threat to the life and security of close associates of targeted groups, as it can
escalate into actual violence, including where others are emboldened to carry out violent
acts. Adding close associates into these offences would ensure that those closest to
members of targeted groups are afforded the same protections as are afforded to
members of targeted groups.
9
20. The new offences protect the right to life and security of the person by making it clear
that this conduct is unacceptable in Australia. The amendments provide law
enforcement with the ability to investigate this conduct, and the courts with the authority
to consider evidence and hand down a judgement, including to punish offenders.
21. Adding close associates to the offences would make it clear that advocating or
threatening violence against close associates may result in a loss of liberty, arrest and
detention. In investigating and prosecuting this conduct, law enforcement and the courts
would follow the same procedures and maintain the same standards as for other criminal
offences, including informing the accused of the reason for their arrest and the charges,
and the accused's ability to challenge the lawfulness of any detention.
22. The amendments would send a strong message that the close associates of members of
targeted groups have a right to safety and physical security.
23. Having regard to the above, the amendments to the existing urging violence offences
advance the rights protected by Articles 6 and 9.
Introduction of mandatory minimums and increased penalties
24. The following measures in the Bill may also engage a offenders' right to liberty:
• The introduction of mandatory minimum sentence of imprisonment for the offences of
displaying a prohibited Nazi symbol or a prohibited terrorist organisation symbol, or
performing the Nazi salute
• The introduction of mandatory minimum sentence of imprisonment for the offences
against a provision of Divisions 101 (Terrorism), 102 (Terrorist organisations) or 103
(Financing terrorism) of the Criminal Code
• The introduction of mandatory minimum sentence of imprisonment for offences against
section 80.2BE
• Increasing the penalty for displaying a prohibited hate symbol or performing the Nazi
salute (subsection 80.2H(1) and subsection 80.2HA(1) of the Criminal Code).
25. These amendments do not represent an infringement of the prohibition on arbitrary
arrest and detention. While they may have the effect of increasing the length of time that
offenders spend in custody, the grounds for this are prescribed by law, and only take
effect following valid and lawful arrest and/or conviction for criminal offences.
26. Limitations on the right to liberty are permissible if in accordance with procedure
established by law, and if the limitation is reasonable, necessary and proportionate. All
the above-mentioned amendments provide for an individual to be detained according to
procedures established by this Bill.
27. The following is an explanation of why these amendments are reasonable, necessary and
proportionate.
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28. The mandatory minimum sentences are necessary to achieve the legitimate objective of
ensuring that the courts are handing down sentences for Commonwealth terrorist or
related offenders that reflect the gravity of these offences and ensure that the community
is protected from terrorist or related offenders. Current sentences do not sufficiently
recognise the harm suffered by victims of terrorist offences.
29. These sentencing amendments are reasonable given that the penalties will only be
applied by a court if a person is convicted of an offence as a result of a fair trial in
accordance with the procedures established by law. The amendments are proportionate
as they are tailored to the seriousness of various offences. Furthermore, the mandatory
minimums will not apply if the person convicted of the relevant offence was aged under
18 years when the offence was committed.
30. Further, the court is required to impose a sentence that is of a severity appropriate in all
the circumstances of the offence, ensuring that the sentence is proportionate.
31. These amendments do not represent an infringement of the prohibition on arbitrary
arrest and detention.
32. The committing the offences to which mandatory minimums will apply threatens the life
and security of the person both in the instance of the act, and in the subsequent effects in
the community which may include the normalisation of violent conduct and the
radicalisation of individuals.
33. The introduction of mandatory minimum sentences for these offences promote the right
to life and right to security by ensuring that the courts are handing down sentences for
Commonwealth terrorism and related offences that reflect the gravity of these offences
and ensure that the community is protected from terrorist or related offenders.
34. Having regard to the above, the introduction of mandatory minimums to these offences
advance the rights protected by Articles 6 and 9.
New offences - threatening force or violence against groups or members of groups
35. 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.
36. 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.
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37. 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.
38. The amendments would also promote the rights protected by Articles 6 and 9 by
extending the amended offences for threatening the use of force or violence against
targeted groups and their members, and the proposed new offences for threatening the
use of force or violence against targeted groups and their members, to also apply to
'close associates' of members of targeted groups. The targeted groups who would be
protected by the offences are those distinguished by race, religion, sex, sexual
orientation, gender identity, intersex status, disability, nationality, national or ethnic
origin or political opinion.
39. 'Close associates would include 'close family members' as defined in section 102.1 of
the Criminal Code, and 'carers and assistants' of people with disability as defined in
subsection 9(1) of the Disability Discrimination Act 1992.
40. In its inquiry into the Bill, the LCAC noted evidence of instances where associates of
targeted groups have been targeted by threats of violence. The amendments recognise
that threatening violence represent a threat to the life and security of close associates of
targeted groups, as it can escalate into actual violence, including where others are
emboldened to carry out violent acts. Adding close associates into these offences would
ensure that those closest to members of targeted groups are afforded the same
protections as are afforded to members of targeted groups.
41. The new offences protect the right to life and security of the person by making it clear
that this conduct is unacceptable in Australia. The amendments provide law
enforcement with the ability to investigate this conduct, and the courts with the authority
to consider evidence and hand down a judgement, including to punish offenders.
42. Adding close associates to the offences would make it clear that advocating or
threatening violence against close associates may result in a loss of liberty, arrest and
detention. In investigating and prosecuting this conduct, law enforcement and the courts
would follow the same procedures and maintain the same standards as for other criminal
offences, including informing the accused of the reason for their arrest and the charges,
and the accused's ability to challenge the lawfulness of any detention.
43. The amendments would send a strong message that the close associates of members of
targeted groups have a right to safety and physical security.
44. 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
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45. 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, intersex status and disability.
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.
46. 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
47. 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 prescribed by law, and are necessary to protect public safety, order,
health, or morals or the fundamental rights and freedoms of others.
Strengthening and expanding the existing offences for urging force or violence against groups
or members of groups
48. 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.
49. Expanding the offence to cover advocating violence, as opposed to urging violence,
which broadens the application of the offences to additionally cover advocating,
counselling and promoting force or violence.
50. 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.
51. As outlined above, the new offences would criminalise conduct which would restrict
religious groups, members of groups and their close associates from being able to
exercise their rights under Article 18 to worship, observe, practice and teach their
religion in public or private, freely and safely. The new offences and amendments make
it clear that advocating or threatening violence to close associates, where this is
motivated by hatred against a religious group, group member or close associate, is
unacceptable and provides serious consequences.
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52. Extending this protection to close associates provides individuals with an added level of
surety that their right to freedom of thought, conscience and religion is protected, while
also sending a strong signal that any contravention of this right is unacceptable.
53. 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.
54. 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
55. 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.
56. As outlined above, the new offences would criminalise conduct which would restrict
religious groups, members of groups and their close associates from being able to
exercise their rights under Article 18 to worship, observe, practice and teach their
religion in public or private, freely and safely. The new offences and amendments make
it clear that advocating or threatening violence to close associates, where this is
motivated by hatred against a religious group, group member or close associate, is
unacceptable and provides serious consequences.
57. Extending this protection to close associates provides individuals with an added level of
surety that their right to freedom of thought, conscience and religion is protected, while
also sending a strong signal that any contravention of this right is unacceptable.
58. 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.
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59. 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.
60. 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.
New offences - advocating or threatening damage to or destruction of real property or motor
vehicle
61. The new offences for advocating or threatening damage to or destruction of property
because of a belief that it is owned or occupied by members of a religious group or their
close associates would positively engage the right in Article 18.
62. The offences are appropriately limited to capture damage to property, which is not
minor, and which could have a significantly detrimental impact on the targeted group, a
member of the targeted group, their close associate and the Australian community as a
whole.
63. The terms 'real property', 'owned and occupied', 'places of worship' and 'motor
vehicle' would take their ordinary meaning. It is intended that 'real property' include
land, fixtures or structures upon the land (for example, residential dwellings,
commercial buildings, warehouses or farms). The offences are not intended to capture
personal property, such as clothing, books, flags or posters. The term 'place of worship'
is intended to capture buildings and spaces where individuals or groups gather to
practice their religious or spiritual beliefs. This would include spaces that are considered
sacred or that are designed for rituals, prayers, ceremonies or communal gatherings.
'Damage' would include damage that has a significant impact on the targeted group, but
would not include minor damage. 'Destruction' would take its well-established ordinary
meaning. This reflects the policy intention to protect targeted group from the harms
caused by this hateful conduct.
64. The new offences protect the right to freedom of thought, conscience and belief by
reinforcing that advocating or threatening property damage or destruction because of a
belief that it is owned or occupied by members of a religious group or their close
associates is unacceptable in Australia. The offences respond to the rise in hate crime
against targeted groups in Australia, and are intended to ensure that hate crimes do not
escalate further.
15
65. The new offences would place a necessary, reasonable and proportionate limitation on
the right to freedom of thought, conscience or religion, by preventing the manifestation
or expression of religious belief from extending to conduct that advocates or threatens
damage to or destruction of property. This conduct sows division, fear and hatred and
causes significant harm to targeted groups, members and close associates in the
Australian community. Criminalising this conduct will assist in preventing such harm.
Criminalising this conduct is also necessary to ensure law enforcement can intervene
early to prevent threats from escalating to violence or other serious harms to targeted
groups, members and close associates.
66. Having regard to the above, the new offences for advocating or threatening damage to,
or destruction of, property advance the right protected by Article 18. The limitations
posed to the right 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
67. 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.
68. 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.
69. 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.
70. 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.
71. 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.
Strengthening and expanding the existing offences for urging force or violence against groups
or members of groups
16
72. 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 advocating 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).
73. Expanding the offence to cover advocating violence, as opposed to urging violence,
broadens the application of the offences to additionally cover advocating, counselling
and promoting force or violence.
17
74. 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 advocating 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.
75. 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.
76. 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
77. 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).
78. 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 security and public order, as conduct of this sort can increase
the likelihood that force or violence will be perpetrated.
18
79. 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.
80. 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
81. 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, intersex status or disability, 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.
82. 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.
New offences - advocating or threatening damage to, or destruction of, real property or motor
vehicle
83. The Bill introduces new offences for advocating or threatening damage to, or
destruction of, real property or motor vehicles, where the person engages in conduct
because of their belief that the property is a place of worship of a group, or the property
or motor vehicle is owned or occupied by members of a targeted group or their close
associate. The targeted groups who would be protected by the offences are those
distinguished by race, religion, sex, sexual orientation, gender identity, intersex status,
disability, nationality, national or ethnic origin or political opinion.
19
84. These offences promote the rights in Article 27 of the ICCPR and Article 15 of the
ICESCR because they protect the targeted group's ability to maintain, access, and use
their places of worship, buildings and spaces without fear that someone will advocate or
threaten serious damage or destruction to these places. This supports targeted groups
and members of targeted groups to enjoy their own culture, practice their religion, and
take part in cultural life.
85. These offences respond to the rise in hate speech against targeted groups in Australia,
and are intended to ensure that hate crimes do not escalate any further into actual
damage to, or destruction of, real property and motor vehicles, along with the
corresponding risks this conduct brings to the physical safety of targeted groups,
members of targeted groups, and their close associates.
86. The amended offences would place limitations on the rights set out in Articles 19 and 27
of the ICCPR, and Article 15 of the ICESCR by limiting individuals' right to freedom of
expression, and the right of individuals to enjoy their culture, practice their religion, and
take part in cultural life where this amounts to advocating or threatening damage to, or
destruction of, real property or motor vehicles.
87. The limitations placed on the rights in Article 19 would be permissible as they would be
provided for in law. The limitations are necessary to protect the rights of targeted
groups, members of groups, and close associates from persons advocating or threatening
damage to their property or motor vehicles.
88. Both advocating and threatening conduct have negative impacts on Australia's national
security and public order. Limiting such communications would assist to maintain
national security and public order as advocating and threatening conduct could,
unchecked, escalate and encourage actual damage and violence.
89. The limitation is proportionate as it would only criminalise a narrow category of
communications, namely those that advocate or threaten damage to, or destruction of,
real property or motor vehicles. The offences are appropriately limited to capture
damage, that is not minor, to property which could have a significantly detrimental
impact on the targeted group, a member of the targeted group, their close associate and
the Australian community as a whole.
90. The terms 'real property', 'owned and occupied', 'places of worship' and 'motor
vehicle' would take their ordinary meaning. It is intended that 'real property' include
land, fixtures or structures upon the land (for example, residential dwellings,
commercial buildings, warehouses or farms). The offences are not intended to capture
personal property, such as clothing, books, flags, posters. The term 'place of worship' is
intended to capture buildings and spaces where individuals or groups gather to practice
their religious or spiritual beliefs. This would include spaces that are considered sacred
or that are designed for rituals, prayers, ceremonies or communal gatherings. 'Damage'
would include damage that has a significant impact on the targeted group, it would not
include minor damage. 'Destruction' would take its well-established ordinary meaning.
This reflects the policy intention to protect targeted group from the harms caused by this
hateful conduct.
20
91. In relation to the limitation on the rights set out in Article 27 of the ICCPR, the
Committee on Economic Social and Cultural Rights has stated that limitations on this
right may be necessary in certain circumstances, in particular in the case of practices
attributed to customs and traditions which infringe upon other human rights. Such
limitations must pursue a legitimate aim, be compatible with the nature of the right and
be strictly necessary for the promotion of general welfare in a democratic society.
92. The limitations which the new offences would place on the Article 27 rights are
necessary to protect targeted groups, their members, and close associates from conduct
which advocates or threatens damage or destruction. The offences pursue the legitimate
aim of ensuring that the rights of targeted groups, their members, and close associates
are maintained, including to enjoy their culture and take part in cultural life (Article 27
ICCPR, Article 15 ICESCR). By making it clear that the rights of targeted groups, their
members, and close associates must be respected, the new offences promote general
welfare in Australia's democratic society as they set standards and make clear that it is
unacceptable to target persons with different beliefs, cultures and religions.
93. Having regard to the above, the new offences promote the rights protected by Article 27
of the ICCPR and Article 15 of the ICESCR. 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.
Protection against exploitation, violence and abuse in Article 20 of the ICCPR; Right to
equality and non-discrimination in Article 4 of the CERD
94. 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 ICCPR by prohibiting in law particular
forms of advocacy of national, racial or religious hatred.
95. 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.
21
Strengthening and expanding the offences for urging force or violence against groups or
members of groups
96. 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 currently criminalise conduct that urges
others to use force or violence against targeted groups or members of groups. The
amended offences would include the advocation of national, racial or religious hatred
and the incitement of discrimination, hostility or violence on the basis of these
attributes.
97. Article 5 of the CRPD would be positively engaged by the amendments in the Bill to
expand the amended advocating offences to substitute 'urging' with 'advocating', to
broaden the conduct captured by the offences, and also protect close associates of
members of groups distinguished by disability. This acknowledges that close associates
of persons distinguished by disability may be the targets of advocating violence and
ensures they are protected from this conduct by making it clear it is unacceptable.
98. Broadening the application of the offences to circumstances where a person is reckless
as to whether the violence advocated 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 advocated 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).
99. Disapplying the good faith defence in section 80.3 of the Criminal Code would enhance
these protections by making it clear that advocating 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.
100. 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 advocate 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.
New offences - threatening force violence against groups or members of groups
22
101. 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.
102. 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.
103. The new offences would also criminalise the threatening of force or violence against a
close associate of one or more members of a targeted group. The new offences and
amendments make it clear that threatening violence to close associates, where this is
motivated by hatred against a member of a targeted group, is unacceptable and provides
serious consequences.
104. The offences would send a message that groups distinguished by race, religion, sex,
sexual orientation, gender identity, intersex status, disability, 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.
New offences - advocating or threatening damage to, or destruction of, real property or motor
vehicle
105. The new offences for advocating or threatening damage to, or destruction of, property
that is owned or occupied by a targeted group, member of a group, or their close
associate would positively engage the rights in Article 20 of the ICCPR and Article 4 of
the CERD. Targeted groups would include those distinguished by race, religion,
nationality or national or ethnic origin, which are relevant to these rights.
106. These offences make it clear that the advocacy of hatred, including national, racial or
religious hatred that constitutes incitement to violence, and disseminating ideas based on
racial superiority or hatred and incitement to racial discrimination, and incitement to
acts of violence against any racial or ethnic groups is unacceptable. This would enhance
the protections from incitement to violence and acts of discrimination that these
offences provide to targeted groups, members of groups, or their close associates, who
are distinguished by a protected attribute (including race, religion, nationality and
national and ethnic origin).
23
107. The new 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 advocacy of hatred and incitement to racial
discrimination. It would ensure that those who advocate or threaten damage or
destruction can face serious criminal consequences, which would include imprisonment
for a maximum of 5 years, or 7 years in aggravated circumstances.
108. The offences are appropriately limited to capture damage to property, that is not
minor, and which could have a significantly detrimental impact on the targeted group, a
member of the targeted group, their close associate and the Australian community as a
whole.
109. The terms 'real property', 'owned and occupied', 'places of worship' and 'motor
vehicle' would take their ordinary meaning. It is intended that 'real property' include
land, fixtures or structures upon the land (for example, residential dwellings,
commercial buildings, warehouses or farms). The offences are not intended to capture
personal property, such as clothing, books, flags or posters. The term 'place of worship'
is intended to capture buildings and spaces where individuals or groups gather to
practice their religious or spiritual beliefs. This would include spaces that are considered
sacred or that are designed for rituals, prayers, ceremonies or communal gatherings.
'Damage' would include damage that has a significant impact on the targeted group, it
would not include minor damage. 'Destruction' would take its well-established
meaning. This reflects the policy intention to protect targeted group from the harms
caused by this hateful conduct.
110. The new offences therefore 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
111. 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.
112. 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.
113. 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 and expanding the offences for urging force or violence against groups or
members of groups
24
114. 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 criminalise conduct which advocatesthe use of force or violence against targeted
groups, members of such groups, and close associates of members of targeted groups.
115. Article 5 of the CRPD would be positively engaged by the amendments in the Bill to
expand the amended advocating and threatening violence offences to substitute 'urging'
with 'advocating', to broaden the conduct captured by the offences, and also protect
close associates of members of groups distinguished by disability. This acknowledges
that close associates of persons distinguished by disability may be the targets of
advocating and threatening violence, and ensures they are protected from this conduct
by making it clear it is unacceptable.
116. 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
117. 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.
118. The new offences for advocating or threatening damage to, or destruction of, property
that is owned or occupied by a targeted group, member of a group, or their close
associate would positively engage the right in Article 16 of the CRPD.
119. If advocating or threatening damage to, or destruction of, property that is owned or
occupied by persons distinguished by disability goes unchecked, it could escalate into
conduct that actually damages or destroys property, or into violence. It may embolden
others to carry out such acts, which would result in risks to the life and physical security
of persons with disability and any other persons in the vicinity.
120. The new offences protect persons with disability by reinforcing that advocating or
threatening damage to, or destruction of, property is unacceptable in Australia, and are
intended to ensure that such conduct does not escalate further.
121. The offences are appropriately limited to capture the most severe instances of damage
to, or destruction of, property which could have a significantly detrimental impact on a
group distinguished by disability, a member of the targeted group, their close associate
and the Australian community as a whole.
25
122. The terms 'real property', 'owned and occupied', 'places of worship' and 'motor
vehicle' would take their ordinary meaning. It is intended that 'real property' include
land, fixtures or structures upon the land (for example, residential dwellings,
commercial buildings, warehouses or farms). The offences are not intended to capture
personal property, such as clothing, books, flags or posters. The term 'place of worship'
is intended to capture buildings and spaces where individuals or groups gather to
practice their religious or spiritual beliefs. This would include spaces that are considered
sacred or that are designed for rituals, prayers, ceremonies or communal gatherings.
'Damage' would include damage that has a significant impact on the targeted group, it
would not include minor damage. 'Destruction' would take its well-established ordinary
meaning. This reflects the policy intention to protect targeted group from the harms
caused by this hateful conduct.
123. Having regard to the above, the new offences for damaging property advance the right
protected by Article 16 of the CRPD.
Right to the presumption of innocence in Article 14 of the ICCPR
124. 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
125. 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.
126. 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
127. 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.
26
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
128. 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.
129. 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.
130. 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]).
131. 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]).
132. 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.
133. 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 and expanding the offences for urging force or violence against groups or
members of groups
134. 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.
27
135. 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 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.
136. 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
and 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
137. 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.
138. 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.
139. 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
28
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.
29
140. 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,
which would criminalise conduct which threatens the use of force or violence against
targeted groups or members of groups.
141. 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.
142. 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).
143. 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.
144. 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
145. 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.
146. 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 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.
30
147. 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.
Commitment to promote the establishment of measures for dealing with such children
without resorting to judicial proceedings in Article 40(3)(b) of the CRC
1. The Convention on the Rights of the Child provides that where appropriate and
desirable, and in a manner that respects human rights, States Parties should deal with
children accused of a crime without resorting to judicial proceedings, such as by way of
diversionary programs.
2. It is an unfortunate reality that children have been involved in alleged incidents of hate
crime in Australia. This Bill engages this right by subjecting children who are above the
age of criminal responsibility to judicial proceedings. Any limitation of this right is
however reasonable and proportionate to achieve the legitimate purpose of protecting
Australia's national security interests, and to protect children who are members of a
targeted group, or a close associate of a targeted group.
3. It is appropriate that criminal liability apply to the new and expanded offences in the
Bill if the prosecution establishes that any person has engaged in the relevant conduct.
This is because all of the conduct would result in serious harm. Permitting this conduct
to continue unchecked could also result in an escalation of behaviour with even more
serious results, including acts of terrorism, or threats of violence becoming actual
violence.
4. The new and expanded offences would also protect the rights of the child, as they
promote the survival and wellbeing of children who are members of a targeted group, or
who are a close associate of a member of a targeted group. The offences do this by
criminalising behaviour that may result in the death or serious injury of a child. A
child's wellbeing would also be adversely affected by advocating or threatening
violence or damage to or destruction of real property or motor vehicles. A child would
also be adversely affected, should a significant adult in their life be impacted by the
conduct that would be prohibited by these offences.
5. The AFP (including its partner agencies within the Joint Counter Terrorism Teams) and
the CDPP have discretion about whether to progress a matter for investigation and
prosecution respectively. Where children are involved in offending, the AFP with their
partners, will consider diversionary approaches where appropriate. The AFP works
collaboratively with State, Territory and Commonwealth partners in considering the
most appropriate wrap-around support services available for children. Investigative
decisions may also involve engagement with children and their parents or guardians to
deter them from committing further offences or prevent further radicalisation, rather
than progressing charges. This has the potential to curb further offending, and issuing a
caution may induce a more positive outcome for the young person rather than treating
them as an alleged criminal.
6. Having regard to the above, the offences would protect the rights of children who are
members of a targeted group, or a close associate. The safeguards above will minimise
the risk of inappropriate charging and prosecution of minors in relation to the new
offences.
31
CONCLUSION
148. 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.
32
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.
33
SCHEDULE 1--AMENDMENTS
Crimes Act 1914
Item 1A - Section 16AAA (after table item 1)
4. Item 1A would insert an additional item 1F into the table in section 16AAA of the
Crimes Act.
5. The proposed amendment to section 16AAA would require the court to impose a
sentence of imprisonment of at least the period specified in the second column.
6. Item 1F of the table would provide that, where a person commits an offence against
subsection 80.2BE(1) or (2) of the Criminal Code, the person must be sentenced to a
minimum penalty of 12 months' imprisonment.
Criminal Code Act 1995
Item 1 - Division 80 of the Criminal Code (heading)
7. This item would repeal the heading of Division 80 of the Criminal Code Act 1995
(Criminal Code) and substitute it with 'Treason, offences against groups or members of
groups, advocating terrorism or genocide, prohibited symbols and Nazi salute.' The inclusion
of these words in the title of the Division reflects that these amendments would expand the
scope of the Division beyond offences for urging or threatening violence to include offences
for advocating, or threatening, damage to property.
Item 2 - Section 80.1A of the Criminal Code
8. 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).
9. 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.
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.
10. The item would also insert new definitions of 'carer or assistant', 'close associate',
'close family member' and 'damage' into section 80.1A of the Criminal Code. These defined
terms are used in the new offences introduced by these amendments.
11. The term 'carer or assistant' would have the same meaning as in the Disability
Discrimination Act 1992 (Disability Discrimination Act). Aligning the definition of 'carer or
assistant' would ensure that criminal and civil law protections extend to the same kinds of
carers or assistants of people with disability. Section 9 of the Disability Discrimination Act
defines these terms to mean one of the following persons who provides assistance or services
to a person with a disability, because of the disability:
• a carer
34
• an assistant
• an interpreter
• a reader.
12. The term 'close associate' would be defined as:
• in any case - a close family member of the person; or
• if the person is a person with a disability - a carer or assistant in relation to the
person.
13. Hate and prejudice are often not confined to individuals with protected attributes.
Close associates can also become targets of hatred and violence because of their relationship
with a member of a targeted group.
14. The term 'close family member' would align with the meaning in Division 102 of the
Criminal Code. This includes a person's spouse or de facto partner, parent, step-parent or
grandparent, child, step-child or grandchild, brother, sister, step-brother or sister, guardian or
carer.
15. The term 'damage' would be defined so that, in the context of the offences relating to
damaging property, damage does not include minor damage. The definition is intended to
exclude damage to property that is superficial or that would have a trivial impact on the
functionality or appearance on the property. It is not intended, for example, that affixing a
poster to a building that would not be difficult to remove would be captured.
16. Damage to property which would require effort or cost to repair, would affect
functionality, appearance or structural integrity, would make the property unsafe or unfit for
use, or would prevent access or significantly degrade the quality of the property is intended to
be captured.
17. Item 2A - Subdivision C of Division 80 of Part 5.1 of the Criminal Code (heading)
18. Item 2A would omit 'urging violence' and substitute 'urging or threatening violence,
offences against groups or members of groups'.
19. This reflects the amendments explained below.
20. Item 2B - Section 80.2A of the Criminal Code (heading)
21. Item 2B would repeal the heading of section 80.2A and substitute with '80.2A -
Advocating force or violence against groups'. This would give effect to the amendments
explained below.
22. Item 2C - Paragraph 80.2A(1)(a) of the Criminal Code
23. Item 2C would repeal existing paragraph 80.2A(1)(a) and substitute it with:
• The first person advocates the use of force or violence against a group (the
targeted group) (80.2A(1)(a)).
35
24. By operation of new subsection 80.2A(6), advocates would be defined to mean
counsels, promotes, encourages or urges. As a result, the offence would capture a broader
range of conduct than the existing offences. This would protect groups, and members of
groups, from the harm caused by the advocacy of force or violence. It sends a clear message
that such conduct is incompatible with Australia's values of equality and inclusion and will
not be tolerated.
Item 3 - Paragraph 80.2A(1)(b) of the Criminal Code
25. Section 80.2A of the Criminal Code makes it an offence to urge violence against
groups.
26. 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)).
27. This item would omit the words 'intending that' and substitute them with the words
'reckless as to whether' in paragraph 80.2A(1)(b).
28. 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.
29. 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.
30. '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
31. 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.
36
32. 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.
33. 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.
34. 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.5 It is intended that 'sexual orientation' would refer to a person's physical,
romantic and/or emotional attraction towards other people.
35. The UNHRC has placed emphasis on the need to guarantee equal rights to all
individuals regardless of their gender identity6, and the need to protect transgender
communities from violence, torture and harassment.7 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.
36. 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.
37. 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).
38. 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.
5
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
6
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.
7
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.
37
39. 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.8 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.
40. 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)
41. 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
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 5A - Paragraph 80.2A(2)(a) of the Criminal Code
42. Item 5A would repeal existing paragraph 80.2A(2)(a) and substitute it with:
• The first person advocates the use of force or violence against a group (the
targeted group) (paragraph 80.2A(1)(a)).
43. The purpose of this amendment to the offence in section 80.2A of the Criminal Code
is to expand the conduct covered by the offences to include advocating, promoting,
encouraging and counselling force or violence against a targeted group as explained above.
Item 6 - Paragraph 80.2A(2)(b) of the Criminal Code
44. 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)).
8
Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report,
September 2023) Executive Summary, 206.
38
45. 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. 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
46. 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.
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 80.2A(2)(c).
48. 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)
49. 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
50. 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
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).
51. 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)
39
52. 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 10A - At the end of section 80.2A of the Criminal Code
53. Item 10A would insert subsection 80.2A(6) into the Criminal Code.
54. New subsection 80.2A(6) would provide that, in section 80.2A, advocate means counsel,
promote, encourage or urge.
55. Those expressions will have their ordinary meaning. The ordinary meaning of each of the
relevant expressions varies, but it is important that they be interpreted broadly to ensure a
person who advocates force or violence does not escape punishment by relying on a
narrow construction of the terms or one of the terms. However, some examples of the
ordinary meaning of each of the expressions follow: to 'counsel' the doing of an act
(when used as a verb) is to urge the doing or adoption of the action or to recommend
doing the action; to 'encourage' means to inspire or stimulate by assistance of approval;
to 'promote' means to advance, further or launch; and 'urge' covers pressing by
persuasion or recommendation, insisting on, pushing along and exerting a driving or
impelling force.
56. While there may be some overlap between the expressions, it is clear that they do not
cover merely commenting on or drawing attention to a factual scenario. This amendment
is designed to capture communications that create an unacceptable risk of violent or
forceful activities against targeted groups. Accordingly, a successful prosecution will
require evidence that the person intentionally communicated something in circumstances
where there is a substantial risk that somebody would take that conduct as advocating the
doing of force or violence against a targeted group.
Item 10B - Section 80.2B of the Criminal Code (heading)
1. Item 10B would repeal the heading of section 80.2B and substitute it with '80.2B -
Advocating force or violence against members of groups or close associates.' This would
reflect the amendments in items 10C and 11A, explained below.
Item 10C - Paragraph 80.2B(1)(a) of the Criminal Code
2. Item 10C would repeal existing paragraph 80.2B(1)(a) and substitute it with:
• The first person advocates the use of force or violence against a group (the
targeted person) (paragraph 80.2A(1)(a)).
3. By operation of new subsection 80.2A(6), advocates means counsels, promotes,
encourages or urges. As a result, the offence would capture a broader range of conduct
than the existing offences. This would protect groups, and members of groups, from the
harm caused by the advocacy of force or violence. It sends a clear message that such
conduct is incompatible with Australia's values of equality and inclusion and will not be
tolerated.
40
Item 11 - Paragraph 80.2B(1)(b) of the Criminal Code
57. Section 80.2B of the Criminal Code establishes the offences for urging violence
against members of groups.
58. 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)).
59. 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.
60. 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 80.2B(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).
61. Item 11A - Paragraph 80.2B(1)(c) of the Criminal Code
62. Item 11A would repeal paragraph 80.2B(1)(c) of the Criminal Code and substitute:
• 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) (subparagraph 80.2B(1)(c)(i)); or
• a close associate of a member of a group (the targeted group) (subparagraph
80.2B(1)(c)(ii)).
63. The purpose of this amendment to the offence in section 80.2B of the Criminal Code
is to extend protections to close associates of members of groups distinguished by a protected
attribute. Expanding protections to close associates acknowledges, and seeks to remedy, the
harms caused to close family members of individuals distinguished by a protected attribute,
and carers or assistants of persons with disability, who may also be targeted by the
advocating of violence because of their association. It would also recognise the harm caused
to members of groups when their close associates are targeted by conduct involving hate
motivated violence, and implement Recommendation 2 of the LCAC Report.
41
64. New paragraph 80.2B(1)(c) would establish a circumstance element of the offence,
namely that the person advocated the use of force or violence against another person because
of their belief that the other person is a member of a targeted group, or a close associate of a
member of a targeted group. The amendments in item 2 of the Bill define 'close associate' for
the purposes of this offence.
65. 'Intention' is defined in section 5.2 of the Criminal Code. By operation of this fault
element, a person would need to mean to advocate the use of force or violence against
another person distinguished by a protected attribute, or a close associate of another person
distinguished by a protected attribute.
Item 12 - Paragraph 80.2B(1)(d) of the Criminal Code
66. 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.
67. 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).
68. The intention of this amendment is the same as that outlined under Item 4 above in
relation to subsection 80.2A(1).
Item 13A - Paragraph 80.2B(2)(a) of the Criminal Code
69. Item 13A would repeal existing paragraph 80.2B(2)(a) and substitute it with:
• The first person advocates the use of force or violence against a person (the
targeted person) (paragraph 80.2B(1)(a)).
70. The purpose of this amendment is to expand the conduct covered by the offences to
include counselling, encouraging, promoting or urging the use of force or violence against a
targeted person, as explained above.
Item 13 - Subsection 80.2B(1) of the Criminal Code (at the end of the note)
71. 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
72. 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
42
• 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)).
73. 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.
74. 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 80.2B(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).
75. Item 14A - Paragraph 80.2B(2)(c) of the Criminal Code
76. Item 14A would repeal paragraph 80.2B(2)(c) of the Criminal Code and substitute:
• the first person does so because of the first person's belief that the targeted person is:
o a member of a group (the targeted group) (subparagraph 80.2B(2)(c)(i)); or
o a close associate of a member of a group (the targeted group) (subparagraph
80.2B(2)(c)(ii)).
77. The purpose of this amendment is to extend protections to close associates of
members of groups distinguished by a protected attribute for the same reasons outlined
above.
Item 15 - Paragraph 80.2B(2)(d) of the Criminal Code
78. 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.
79. 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).
80. 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)
81. 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.
43
Item 16A - Subsection 80.2B(3) of the Criminal Code
82. Item 16A would repeal subsection 80.2B(3) of the Criminal Code and substitute:
• For the purpose of paragraphs (1)(c) and (2)(c), it is immaterial whether the targeted
person:
o actually is a member of the targeted group (paragraph 80.2B(3)(a)); or
o actually is a close associate of a member of a targeted group (paragraph
80.2B(3)(b)).
83. This reflects the broadening of the offence to capture advocating violence against
close associates. This is intended to reflect that the relevant factor is that the person
advocating the force or violence against a targeted person or close associate of a targeted
person engaged in that conduct because they believed that the targeted person was a member
of a group or a close associate of a member of a group.
Item 17 - After subsection 80.2B(4) of the Criminal Code
84. 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.
85. 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)
86. 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 18A - At the end of section 80.2B of the Criminal Code
87. Item 18A would insert new subsection 80.2B(7) into the Criminal Code.
88. New section 80.2B(7) would provide that, in section 80.2B, advocate means counsel,
promote, encourage or urge.
89. The intended meaning of this definition is the same as explained in item 10A above.
Item 19 - After section 80.2B of the Criminal Code
90. 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.
44
91. 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
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
92. 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)).
93. 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.
94. 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
95. 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.
45
96. 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
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.
97. 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.
98. 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.
99. 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.
100. 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.
101. 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.
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102. 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
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.
103. 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.
104. 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.
105. 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)).
106. 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.
107. 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.
47
108. 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
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).
109. 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).
110. 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
111. Item 19 would also insert a new offence to criminalise threatening the use of force or
violence against members of groups or their close associates. 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:
o a member of a group (the targeted group) (subparagraph 80.2BB(1)(a)(i)); or
o a close associate of a member of a group (the targeted group) (subparagraph
80.2BB(1)(a)(ii)).
• 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
48
• 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)).
112. 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.
113. 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 or a close associate 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 or a close associate is important because it
draws a distinct connection between the threat and the motive behind the conduct that
amounted to the threat.
114. 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.
115. 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 or actually is a close associate of a member of a targeted group distinguished by the
attributes listed in paragraphs 80.2BB(1)(b) and (2)(b). 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.
116. 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.
49
117. 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.
118. 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
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.
119. 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.
120. 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.
121. 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.
122. 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.
50
123. 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
80.2B(1)(e), and is intended to capture the same kinds of potential impacts as those
provisions.
124. 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.
125. 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.
126. 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.
127. 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.
128. 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:
o a member of a group (the targeted group) (subparagraph 80.2BB(2)(a)(i)); or
51
o a close associate of a member of a group (the targeted group) (subparagraph
80.2BB(2)(a)(ii).
• 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)).
129. 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
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.
130. 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.
131. 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).
132. 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).
52
133. 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.
134. would insert new sections 80.2BC and 80.2BD into the Criminal Code, after new
section 80.2BB. These sections would create new offences for advocating damage to real
property or a motor vehicle (new section 80.2BC) and threatening damage to real property or
a motor vehicle (new section 80.2BD), where the property is a place of worship of a targeted
group or the real property or the motor vehicle is owned or occupied by a member of a
targeted group or a close associate of a member of a targeted group. For the purpose of the
offences, a targeted group would be distinguished by race, religion, sex, sexual orientation,
gender identity, intersex status, disability, nationality, national or ethnic origin or political
opinion.
80.2BC - Advocating damage to or destruction of real property or motor vehicle
135. Section 80.2BC would establish a new offence for the advocating of damage to, a
place of worship of a targeted group, or real property or a motor vehicle, that is owned or
occupied by a member of a group or a close associate of a member of a targeted group.
136. The new offences are intended to protect members of groups and close associates of
members of groups, distinguished by protected attributes, from harmful conduct and the fear
of damage to their real property, places of worship or motor vehicles. This is intended to
support group members' rights to safety and security, and the ability to fully participate in
society without fear of harm. The offences would also provide law enforcement with a tool to
intervene at an early stage before the damage advocated or threatened escalates to actual
damage or violence.
137. New subsection 80.2BC(1) would provide that an offence is committed if:
• a person (the first person) advocates the causing of damage to, or the
destruction of, real property or a motor vehicle (paragraph 80.2BC(1)(a)); and
• the first person does so because of the first person's belief that:
o the real property is a place of worship of a group (the targeted group)
(subparagraph 80.2BC(1)(b)(i)); or
o the real property is owned, or occupied, in whole or in part, by one or more
members of a group (the targeted group) (subparagraph 80.2BC(1)(b)(ii)); or
o the motor vehicle is owned, or occupied, in whole or in part, by one or more
members of a group (the targeted group) (subparagraph 80.2BC(1)(b)(iii));
or
o the real property is owned, or occupied, in whole or in part, by a close
associate of one or more members of a group (subparagraph
80.2BC(1)(b)(iv)); or
o the motor vehicle is owned, or occupied, in whole or in part, by a close
associate of one of more members of a group (subparagraph
80.2BC(1)(b)(v)).
53
• the first person is reckless as to whether the damage will occur (paragraph
80.2BC(1)(c)); 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 80.2BC(1)(d)); and
• the damage or destruction, if it were to occur, would threaten the peace, order
and good government of the Commonwealth (paragraph 80.2BC(1)(e)).
138. New paragraph 80.2BC(1)(a) would establish the conduct element of the offence,
namely that the person advocates the causing of damage to, of destruction of, real property or
a motor vehicle. The fault element of intention would apply to the conduct in paragraph
80.2BC(1)(a). The note at the end of subsection 80.2BC(1) directs readers to the definition of
'intention' in section 5.2 of the Criminal Code. This fault element would require that the
person meant to advocate the damage to real property or a motor vehicle.
139. New paragraph 80.2BC(1)(b) would establish the first circumstance element of the
offence, namely that the person advocated the damage to real property or motor vehicle
because of their belief that either:
• the real property is a place of worship of a group (subparagraph
80.2BC(1)(b)(i)),
• the real property is owned, or occupied, in whole or in part, by one or more
members of a targeted group (subparagraph 80.2BC(1)(b)(ii)),
• the motor vehicle is owned, or occupied, in whole or in part, by one or more
members of a targeted group (subparagraph 80.2BC(1)(b)(iii)),
• the real property is owned, or occupied, in whole or in part, by a close
associate of one or more members of a group (subparagraph
80.2BC(1)(b)(iv)), or
• the motor vehicle is owned, or occupied, in whole or in part, by a close
associate of one or more members of a group (subparagraph 80.2BC(1)(b)(v)).
140. The requirement that the person believed the real property or motor vehicle is a place
of worship of a targeted group, or wholly or partly owned or occupied by a member of a
targeted group, or a close associate of one or more members of a targeted group, is important
because it draws a distinct connection between the conduct and the motive behind the
conduct.
54
141. The word belief is not defined and would take its ordinary meaning. The prosecution
is not required to prove the member of the group's, or close associate of a member of the
group's, actual connection to the kinds of property listed in paragraph 80.2BC(1)(b). Rather,
the focus is on the first person's belief. The first person's belief that the real property is a
place of worship of a group, or the real property or motor vehicle is owned or occupied by
one or more members of the group, or a close associate of a member of a group, could be
demonstrated in a number of ways having regard to the circumstances of the offence. This
includes through language used that relates to the group or individual, or if the damage
advocated formed 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,
advocating their followers to set fire to a specific house they believe to be owned by a faith
leader.
142. New subsection 80.2BC(3) would provide that, for the purposes of paragraph
80.2BC(1)(b), it is immaterial whether the real property is actually a place of worship of the
targeted group; or the real property is actually owned or occupied, in whole or in part, by one
or more members of the targeted group or a close associate of one or more members of a
targeted group; or the motor vehicle is actually owned or occupied, in whole or in part, by
one or more members of the targeted group or a close associate of one or more members of a
targeted group. This is intended to reflect that the relevant factor is that the person advocating
the damage did so because they believed the real property was a place of worship of the
targeted group, or real property or a motor vehicle owned or occupied, wholly or partly, by
one or more members of a targeted group or a close associate of a member of a targeted
group, regardless of whether or not that belief was correct.
143. The terms 'real property', 'owned or occupied', 'places of worship' and 'motor
vehicle' are not defined and would take their ordinary meaning. It is intended that 'real
property' include land, fixtures or structures upon the land (for example, residential
dwellings, commercial buildings, warehouses or farms). The offence would apply if the real
property is owned, or occupied, wholly or in part, by one or more members of a targeted
group in recognition that the harm caused is the same regardless of whether or not it is
exclusively owned or occupied by one or more members of the targeted group, or close
associate.
144. The term 'place of worship' is intended to capture buildings and spaces where
individuals or groups gather to practice their religious or spiritual beliefs. This would include
spaces that are considered sacred or that are designed for rituals, prayers, ceremonies or
communal gatherings. Its inclusion is intended to recognise the significant and multifaceted
role that places of worship hold in the Australian community, including as a sanctuary, a
connection to faith and as a space for religious and spiritual education and participation. It
would also recognise that attacks on places of worship cause considerable impacts on
targeted groups beyond their ability to freely practice their faith, including the erosion of
feelings of acceptance, safety and belonging within the Australian community.
145. New paragraph 80.2BC(1)(c) would provide a circumstance element of the offence,
namely that the person who advocate the damage to, or destruction of, real property or motor
vehicle was reckless as to whether the damage or destruction would occur.
55
146. The fault element of recklessness would apply to the circumstance in paragraph
80.2BC(1)(c). The note in new subsection 80.2BC(1)(c) directs readers to the definition of
recklessness 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.
147. New paragraph 80.2BC(1)(d) would establish another circumstance element of the
offence, namely 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.
148. The fault element of recklessness would apply to the circumstance in paragraph
80.2BC(1)(d) by operation of new paragraph 80.2BC(4). 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 80.2BC(4) 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.
149. New paragraph 80.2BC(1)(e) would set out the final circumstance element of the
offence, being that the damage or destruction, if it were to occur, would threaten 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 broader society. This is intended to capture the advocating of
conduct that is so serious or severe that, if carried out, would directly threaten Australia's
democracy or national security. This element has been modelled on paragraphs 80.2A(1)(d)
and 80.2B(1)(e) of the Criminal Code, and is intended to capture the same kinds of potential
impacts as those provisions.
150. The maximum penalty for the offence in new subsection 80.2BC(1) would be
imprisonment for 7 years. This penalty is appropriate noting that conduct involving the
advocating of damage to, or destruction of, real property or motor vehicle which threatens the
peace, order and good government of the Commonwealth is a serious, intentional act that
causes significant harm to the targeted 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
amended offence of advocating 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.
151. This amendment would also create a new offence for advocating damage to, or
destruction of, real property or motor vehicle, that is a place of worship, or owned or
occupied by a member of a group or close associate, without the requirement that the damage
or destruction, if carried out, would threaten the peace, order and good government of the
Commonwealth. New subsection 80.2BC(2) would provide that a person commits an offence
if:
56
• a person (the first person) intentionally advocates damage to, or the
destruction of, real property or a motor vehicle (paragraph 80.2BC(2)(a)); and
• the first person does so because of the first person's belief that:
o the real property is a place of worship of a group (the targeted group)
(subparagraph 80.2BC(2)(b)(i));
o the real property is owned, or occupied, in whole or in part, by one or more
members of a group (the targeted group) (subparagraph 80.2BC(2)(b)(ii));
o the motor vehicle is owned, or occupied, in whole or in part, by one or more
members of a group (the targeted group) (subparagraph 80.2BC(2)(b)(iii));
o the real property is owned, or occupied, in whole or in part, by a close
associate of one or more members of a group (the targeted group)
(subparagraph 80.2BC(2)(b)(iv));
o the motor vehicle is owned, or occupied, in whole or in part, by a close
associate of one or more members of a group (the targeted group)
(subparagraph 80.2BC(2)(b)(v)).
• the first person is reckless as to whether the damage will occur (paragraph
80.2BC(2)(c)); 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 80.2BC(2)(d)).
152. The elements and intention of the offence in new subsection 80.2BC(2) are identical
to those outlined above in relation to the offence in new subsection 80.2BC(1), with the
exception that there is no requirement that the damage or destruction advocated would
threaten the peace, order and good government of the Commonwealth.
153. The maximum penalty for the new offence in subsection 80.2BC(2) would be
imprisonment for 5 years. This penalty is lower than the penalty of imprisonment for 7 years
for the new offence in subsection 80.2BC(1) because the offence in subsection 80.2BA(1) has
the additional element that the damage or destruction, if carried out, would threaten the
peace, order and good government of the Commonwealth, and is accordingly more serious.
The maximum penalty of imprisonment for 5 years for the offence in new subsection
80.2BC(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 advocating force or violence against groups in subsection 80.2A(2) of the
Criminal Code.
154. New subsection 80.2BC(5) would clarify that for the purposes of paragraphs
80.2BA(1)(d) and 80.2BA(2)(d), 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 80.2BC(1) and 80.2BC(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
57
• 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).
155. The effect of new subsections 80.2BC(6) and (7) would be that, if in a prosecution for
an offence under subsection 80.2BC(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 80.2BC(2), then the trier of fact may find the defendant not
guilty of the prosecuted offence under subsection 80.2BC(1), but guilty of the alternative
offence under subsection 80.2BC(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 80.2BC(1)(e) (that the advocating 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 80.2BC(2).
156. New subsection 80.2BC(8) would insert a definition of advocate for the purpose of
the offence at new section 80.2BC. Advocates would be defined as counsel, promote,
encourage or urge.
157. Those expressions will have their ordinary meaning. The ordinary meaning of each of
the relevant expressions varies, but it is important that they be interpreted broadly to ensure a
person who advocates damage or destruction does not escape punishment by relying on a
narrow construction of the terms or one of the terms. However, some examples of the
ordinary meaning of each of the expressions follow: to 'counsel' the doing of an act (when
used as a verb) is to urge the doing or adoption of the action or to recommend doing the
action; to 'encourage' means to inspire or stimulate by assistance of approval; to 'promote'
means to advance, further or launch; and 'urge' covers pressing by persuasion or
recommendation, insisting on, pushing along and exerting a driving or impelling force.
158. While there may be some overlap between the expressions, it is clear that they do not
cover merely commenting on or drawing attention to a factual scenario. This amendment is
designed to capture communications that create an unacceptable risk of damage or
destruction of the real property or a motor vehicle of a targeted groups. Accordingly, a
successful prosecution will require evidence that the person intentionally communicated
something in circumstances where there is a substantial risk that somebody would take that
speech as advocating the doing of force or violence against a targeted group.
80.2BD - Threatening damage to or destruction of real property or motor vehicle
58
159. New section 80.2BD would create a new offence for threatening damage to real
property or motor vehicle, that is a place of worship, or is owned or occupied by a member of
a group or close associate of a member of a group. The new offences are intended to protect
members of groups and close associates of members of groups, distinguished by protected
attributes, from harmful conduct and the fear of damage to their real property, place of
worship or motor vehicles. This is intended to support group members' and close associates'
rights to safety and security, and the ability to fully participate in society without fear of
harm. The offences would recognise that threatening damage to a place of worship of a group
or to real property or motor vehicles owned or occupied by members of groups or associates
of members of groups, 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 the advocating and threats escalate to damaging acts.
160. New subsection 80.2BD(1) would provide that an offence is committed if:
• a person (the first person) threatens to cause damage to, or destruction of, real
property or a motor vehicle (paragraph 80.2BD(1)(a)); and
• the first person does so because of the first person's belief that:
o the real property is a place of worship of a group (the targeted group)
(subparagraph 80.2BD(1)(b)(i));
o the real property is owned, or occupied, in whole or in part, by one or more
members of a group (the targeted group) (subparagraph 80.2BD(1)(b)(ii));
o the motor vehicle is owned, or occupied, in whole or in part, by one or more
members of a group (the targeted group) (subparagraph 80.2BD(1)(b)(iii));
o the real property is owned, or occupied, in whole or in part, by a close
associate of one or more members of a group (the targeted group)
(subparagraph 80.2BD(1)(b)(iv)); or
o the motor vehicle is owned, or occupied, in whole or in part, by a close
associate of one or more members of a group (the targeted group)
(subparagraph 80.2BD(1)(b)(v)).
• 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 80.2BD(1)(c)); and
• a reasonable member of the targeted group would fear that the threat would be
carried out (paragraph 80.2BD(1)(d)); and
• the threat, if it were to occur, would threaten the peace, order and good
government of the Commonwealth (paragraph 80.2BC(1)(e)).
59
161. New paragraph 80.2BD(1)(a) would establish the conduct element of the offence,
namely that the person threatened to cause damage to, or destruction of, real property or a
motor vehicle. The fault element of intention would apply to the conduct in paragraph
80.2BD(1)(a). The note in subsection 80.2BD(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 intended to threaten to cause damage to, or destruction of, real property or a
motor vehicle.
162. New paragraph 80.2BD(1)(b) would establish the first circumstance element of the
offence, namely that the person threatened to cause the damage to real property or motor
vehicle because of their belief that either:
• the real property is a place of worship of a group (subparagraph
80.2BD(1)(b)(i)),
• the real property is owned, or occupied, in whole or in part, by one or more
members of a targeted group (subparagraph 80.2BD(1)(b)(ii)),
• the motor vehicle is owned, or occupied, in whole or in part, by one or more
members of a targeted group (subparagraph 80.2BD(1)(b)(iii)),
• the real property is owned, or occupied, in whole or in part, by a close
associate of one or more members of a targeted group (subparagraph
80.2BD(1)(b)(iv)), or
• the motor vehicle is owned, or occupied, in whole or in part, by a close
associate of one or more members of a targeted group (subparagraph
80.2BD(1)(b)(v)).
163. The requirement that the person believed the real property or motor vehicle is a place
of worship or wholly or partly owned, or occupied by, a member of a targeted group or a
close associate of one or more members of a targeted group is important as it draws a distinct
connection between the threat and the motive behind the conduct that amounted to the threat.
164. The word belief is not defined and would take its ordinary meaning. The prosecution
is not required to prove the person's connection to the kinds of property listed in paragraph
80.2BD(1)(b). Rather, the focus is on the first person's belief. The first person's belief that
the real property is a place of worship of a group, or the real property or motor vehicle is
owned or occupied by one or more members of the group or close associates, could be
demonstrated in a number of ways having regard to the circumstances of the offence. This
includes 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 threatens to destroy a building they believe to be leased
by a LGBTQI+ group.
60
165. New subsection 80.2BD(3) would provide that, for the purposes of paragraph
80.2BD(1)(b), it is immaterial whether the real property is actually a place of worship of the
targeted group; or is actually owned or occupied, in whole or in part, by one or more
members of the targeted group or a close associate of one or more members of a targeted
group; or the motor vehicle is actually owned or occupied, in whole or in part, by one or more
members of the targeted group or a close associate of one or more members of a targeted
group. This is intended to reflect that the relevant factor is that the person threatening the
damage did so because they believed the property to be of a kind listed in paragraph
80.2BD(1)(b) regardless of whether or not that belief was correct.
166. The terms 'real property', 'owned or occupied', 'places of worship' and 'motor
vehicle' are not defined and would take their ordinary meaning. It is intended that 'real
property' include land, fixtures or structures upon the land (for example, residential
dwellings, commercial buildings, warehouses or farms). The offence would apply if the real
property is owned, or occupied, wholly or in part, by one or more members of a targeted
group in recognition that the harm caused is the same regardless of whether or not it is
exclusively owned or occupied by one or more members of the targeted group or close
associate.
167. The term 'place of worship' is intended to capture buildings and spaces where
individuals or groups gather to practice their religious or spiritual beliefs. This would include
spaces that are considered sacred or that are designed for rituals, prayers, ceremonies or
communal gatherings. Its inclusion is intended to recognise the significant and multifaceted
role that places of worship hold in the Australian community, including as a sanctuary, a
connection to faith and as a space for religious and spiritual education and participation. It
would also recognise that attacks on places of worship cause considerable impacts on
targeted groups beyond their ability to freely practice their faith, including the erosion of
feelings of acceptance, safety and belonging within the Australian community.
168. New paragraph 80.2BD(1)(c) would provide a circumstance element of the offence,
namely 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.
169. The fault element of recklessness would apply to the circumstance in paragraph
80.2BD(1)(c) by operation of new paragraph 80.2BD(4). 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 80.2BD(4) 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.
170. New paragraph 80.2BD(1)(d) would establish another 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 80.2BD(1)(d) means that it would
not be necessary for the prosecution to prove that the threat actually had the effect of causing
a member of the targeted group to fear the damage to real property or motor vehicle will be
carried out. The fact that the threat would have this effect on a reasonable member of a
targeted group would be sufficient.
61
171. 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.
172. New subsection 80.2BD(5) would provide that strict liability, as outlined in section
6.1 of the Criminal Code, would apply to the circumstance in new paragraph 80.2BD(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 80.2BD(1)(d). Without subsection 80.2BD(5), the fault element
for paragraph 80.2BD(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
80.2BD(1)(d) existed, and having regard to the circumstances known to the defendant, it was
unjustifiable to take that risk.
173. It would not be appropriate for recklessness to apply to paragraph 80.2BD(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.
174. 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.
175. New paragraph 80.2BD(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. 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. This is intended to capture the threatening of conduct that is so
serious or severe that, if carried out, they would directly threaten Australia's democracy or
national security. This element has been modelled on paragraphs 80.2A(1)(d) and 80.2B(1)(e)
of the Criminal Code, and is intended to capture the same kinds of potential impacts as those
provisions.
176. The fault element of recklessness would apply to the circumstance in new paragraph
80.2BD(1)(e) by application of subsection 5.6(2) of the Criminal Code.
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177. The maximum penalty for the offence in new subsection 80.2BD(1) would be
imprisonment for 7 years. This penalty is appropriate noting that conduct involving the
threatening of damage to real property or motor vehicle which threatens the peace, order and
good government of the Commonwealth is a serious, intentional act that causes significant
harm to the threatened 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
advocating 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 80.2B(1)
of the Criminal Code.
178. The offence in new subsection 80.2BD(1) is designed to protect the community from
the serious harms caused by threatening damage to real property or motor vehicles that are
places of worship or owned or occupied by members of groups, or close associates of
members of groups, 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
broader society.
179. Item 19 would also create a new offence for threatening damage against real property
or a motor vehicle that is a place of worship or owned or occupied by a member of a group,
without the requirement that the threat, if carried out, would threaten the peace, order and
good government of the Commonwealth. New subsection 80.2BD(2) would provide that a
person commits an offence if:
• a person (the first person) threatens to cause damage to, or destruction of, real
property or a motor vehicle (paragraph 80.2BD(2)(a)); and
• the first person does so because of the first person's belief that:
o the real property is a place of worship of a group (the targeted group)
(subparagraph 80.2BD(2)(b)(i));
o the real property is owned, or occupied, in whole or in part, by one or more
members of a group (the targeted group) (subparagraph 80.2BD(2)(b)(ii));
o the motor vehicle is owned, or occupied, in whole or in part, by one or more
members of a group (the targeted group) (subparagraph 80.2BD(2)(b)(iii));
o the real property is owned, or occupied, in whole or in part, by a close
associate of one or more members of a group (the targeted group)
(subparagraph 80.2BD(2)(b)(iv)); or
o the motor vehicle is owned, or occupied, in whole or in part, by a close
associate of one or more members of a group the targeted group)
(subparagraph 80.2BD(2)(b)(v)).
• 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 80.2BD(2)(c)); and
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• a reasonable member of the targeted group would fear that the threat will be
carried out (paragraph 80.2BD(2)(d)).
180. The elements and intention of the offence in new subsection 80.2BD(2) are identical
to those outlined above in relation to the offence in new subsection 80.2BD(1), with the
exception that there is no requirement that the threatened damage would threaten the peace,
order and good government of the Commonwealth.
181. The maximum penalty for the new offence in subsection 80.2BD(2) would be
imprisonment for 5 years. This penalty is lower than the penalty of imprisonment for 7 years
for the new offence in subsection 80.2BD(1) because the offence in subsection 80.2BD(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 imprisonment for 5 years for the offence in new subsection 80.2BD(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 advocating force or violence against groups in subsection 80.2A(2) of the Criminal
Code.
182. New subsection 80.2BD(6) would clarify that for the purposes of paragraphs
80.2BD(1)(c) and 80.2BD(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 80.2BD(1) and 80.2BD(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).
183. New subsections 80.2BD(7) and (8) would contain a provision for an alternative
verdict. Subsections 80.2BD(7) and (8) provide that, if in a prosecution for an offence under
subsection 80.2BD(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 80.2BD(2), then the trier of fact may find the defendant not guilty of the
prosecuted offence under subsection 80.2BD(1), but guilty of the alternative offence under
subsection 80.2BD(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 80.2BD(1)(e), that the threat of damage, 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 80.2BD(2).
New subsection 80.2BD(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
New section 80.2BE would insert new offences for advocating force or violence through
causing damage to property. Under proposed section 80.2E, a person will commit an offence
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if the person intentionally advocates for another person or a group to use force or violence
against a targeted group by causing damage to property, is reckless that force or violence will
occur and is reckless as to whether the targeted group is distinguished by race, religion, or
ethnic origin. In addition, under proposed subsection 80.2E(1), the use of force or violence
must threaten the peace, order and good government of the Commonwealth. Proposed
subsection 80.2E(2) replicates the offence in subsection 80.2E(1), but does not require that
the force or violence would threaten the peace, order and good government of the
Commonwealth. Accordingly, it carries a lower penalty of 5 years' imprisonment, compared
to the penalty of 7 years for subsection 80.2E(1).
These offences will complement the offences in sections 80.2A and 80.2B of the Criminal
Code, as amended by items 3 to 18 of this Bill.
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Item 20 - Paragraphs 80.2H(7)(b), 80.2HA(7)(b) and 80.2K(6)(b) of the Criminal Code
184. This item would insert the words 'sexual orientation, gender identity, intersex status,
disability' after the word 'sex' in paragraphs 80.2H(7)(b), 80.2HA(7)(b) and 80.2K(6)(b) of
the Criminal Code.
185. 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
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.
186. 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.
187. The inclusion of sexual orientation, gender identity, intersex status and disability 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.
188. 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. 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,and the need to
protect transgender communities from violence, torture and harassment.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.
189. 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.
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190. 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.
191. The addition of sexual orientation, gender identity, intersex status and disability as
protected attributes would establish criminal protections for groups distinguished by these
attributes, which complement existing civil protections available under the Sex
Discrimination Act and the Disability Discrimination Act.
Item 21 - Subsection 80.3(1) of the Criminal Code
192. This item would insert the words '(other than sections 80.2A, 80.2B, 80.2BA and
80.2BB, 80.2BC and 80.2BC and 80.2BE)' 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, the new offences for advocating force or violence
through causing damage to property in section 80.2BE and the new offences for
advocating or threatening damage to, or destruction of, real property or motor
vehicles in new sections 80.2BC and 80.2BD.
193. 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'.
194. 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.
195. 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, the new offences for advocating force or violence through causing damage to
property in section 80.2BE and advocating or threatening damage to, or destruction of,
property in sections 80.2BC and 80.2BD. Intentionally threatening to use force or violence
against groups or members of groups, or advocate damage, or destruction of, property owned
or occupied by 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
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196. 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) and subsections 80.2BC(2) and 80.2BD(2), and subsection 80.2BE(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
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).
197. 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.
198. 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) and 80.2BC(1) and 80.2BD(1)
and 80.2BE(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.
199. Section 15.2 provides a range of additional specified defences to offences with
category B extended geographical jurisdiction.
Schedule 2 - Mandatory minimum sentences and maximum penalties
Crimes Act 1914
Item 1 - Paragraph 15AAA(1)(a)
200. Item 1 excludes items 1A to 1E of the table in section 16AAC of the Crimes Act,
inserted below, from the operation of section 15AAA. This is a consequential change which
ensures that the presumption against bail outlined in section 15AAA remains properly
focused on individuals charged with serious Commonwealth child sex offences. Note section
15AA deals with the granting of bail in relation to a person charged with a terrorism offence.
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Item 2 - Section 16AAA (before table item 1)
201. Item 2 of Schedule 2 would insert additional items, 1A to 1E, into the table in section
16AAA of the Crimes Act.
202. The proposed amendments to section 16AAA would require the court to impose a
sentence of imprisonment of at least the period specified in the second column.
203. Item 1A of the table would provide that, where a person commits an offence against
subsection 80.2H(1) of the Criminal Code, where the thing concerned is a prohibited Nazi
symbol or the gesture is a Nazi salute, the person must be sentenced to a minimum penalty of
12 months' imprisonment.
204. Item 1B of the table would provide that, where a person commits an offence against
subsection 80.2HA(1) (public display of prohibited terrorist organisation symbol), the person
must be sentenced to a minimum penalty of 12 months' imprisonment.
205. Item 1C of the table would provide that the court must impose a sentence of
imprisonment of at least 6 years for offences against Division 101 or 102 of the Criminal
Code (other than an offence against subsection 102.8(1) or (2) of the Criminal Code). For
example, where a person commits an offence against section 101.2 of the Criminal Code
(providing or receiving training connected with terrorist acts), the person must be sentenced
to a minimum penalty of 6 years' imprisonment, subject to the reduction principles in section
16AAC.
206. Item 1D of the table would provide that, where a person commits an offence against
subsection 102.8(1) or (2) of the Criminal Code (associating with a terrorist organisation), the
person must be sentenced to a minimum penalty of 12 months' imprisonment.
207. Item 1E of the table would provide that, where a person commits an offence against
Division 103 of the Criminal Code (financing terrorism), the person must be sentenced to a
minimum penalty of 3 years imprisonment.
208. This Schedule does not impact the current requirement for the courts to consider all
the circumstances, including the matters listed in section 16A of the Crimes Act, when fixing
a non-parole period. This allows the courts to take into account individual circumstances and
any mitigating factors in considering the most suitable non-parole period. These matters
include the nature of the offending, the person circumstances of the victim, and any injury,
loss or damage resulting from the offence.
209. The safeguards in section 16AAC would also apply. The safeguards provide that:
• the mandatory minimum sentence requirement does not apply to a person who was
aged under 18 years when the offence was committed, and
• the court has discretion to discount the sentence if the person plead guilty or
cooperated with law enforcement in the investigation of the offence or a related
offence.
Item 3 - Paragraph 16AA(2)(b)
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210. Item 3 would repeal paragraph 16AAC(2)(b) of the Crimes Act and substitute with:
(b) the court is taking into account, under paragraph 16A(2)(h), the person having
cooperated with law enforcement agencies in the investigation of:
(i) in relation to any of items 1A to 1E of the table in section 16AAA - the
offence or an offence against subsection 80.2H(1) or 80.2HA(1) or a provision
of Part 5.3 or Part 5.5 of the Criminal Code; or
(ii) in relation to any of items 1 to 15 of the table in section 16AAA or any of
the items in the table in subsection 16AAB(2) - the offence or a
Commonwealth child sex offence.
211. The result of this amendment is that the Court may impose a sentence of less than the
period specified in column 2 of the table in section 16AAA if the court considers it
appropriate to reduce the sentence because the court is taking into account the person having
cooperated with law enforcement agencies in the investigation of the offence for which they
have been convicted or a related offence. A related offence is an offence against subsection
80.2H(1) or 80.2HA(1) or a provision of Part 5.3 or Part 5.5 of the Criminal Code.
212. This amendment would recognise the value of cooperation with law enforcement. As
such, the courts are able to exercise a degree of discretion when imposing the minimum
penalties. In these circumstances the court is permitted to reduce the sentence by up to 25%,
or if the person has also plead guilty, 50%.
Item 4 - Paragraph 16AAC(3)(b)
213. Item 4 would repeal paragraph 16AAC(3)(b) and substitute with:
(b) if the court is taking into account, under paragraph 16A(2)(h), the person having
cooperated with law enforcement agencies in the investigation of:
(i) in relation to any of items 1A to 1E of the table in section 16AAA--the
offence or an offence against subsection 80.2H(1) or 80.2HA(1) or Part 5.3 or
5.5 of the Criminal Code; or
(ii) in relation to any of items 1 to 15 of the table in section 16AAA or any of
the items in the table in subsection 16AAB(2)--the offence or a
Commonwealth child sex offence;
by an amount that is up to 25% of the period specified in column 2 of the applicable
item in the relevant table;
214. The amendments to proposed paragraph 16AAC(3)(b) would allow for a reduction of
up to 25% of the period specified in column 2 of the applicable item in the relevant table
should the court take into account the persons cooperation with law enforcement.
Criminal Code Act 1995
Item 5 - Subsection 80.2H(1) of the Criminal Code (penalty)
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215. Item 5 would repeal the current penalty for the public display of prohibited Nazi
symbols or performing a Nazi salute at subsection 80.2H(1) of the Criminal Code and
substitute it with:
Penalty: Imprisonment for 5 years.
216. The increased penalty to the prohibited Nazi symbol and salute offence, from 12
months to 5 years, would recognise that the public display of a prohibited Nazi symbol or
performance of a Nazi salute in a public place is a serious, intentional act that causes
significant harm to many Australians and can radicalise others to violence. Accordingly, a
significant penalty is necessary to protect the community, reflect the harm done to victims
and deter others from offending.
Item 6 - Subsection 80.2HA(1) of the Criminal Code (penalty)
217. Item 6 would repeal the currently penalty for the public display of prohibited terrorist
organisation symbols at subsection 80.2H(1) of the Criminal Code and substitute it with:
Penalty: Imprisonment for 5 years.
218. This amendment would increase the maximum penalty for publicly displaying a
prohibited terrorist organisation symbol from 12 months to 5 years.
219. The increased penalty to the prohibited terrorist organisation symbol offences would
recognise that the public display of a prohibited terrorist organisation symbol in a public
place is a serious, intentional act that causes significant harm to many Australians and can
radicalises others to violence. Accordingly, a significant penalty is necessary to protect the
community, reflect the harm done to victims and deter others from offending.
Item 7 - Application provision
149. Item 7 would provide an application provision, namely that the amendments made by
this Schedule apply in relation to the conviction of a person for an offence on or after the
commencement of this item if the conduct constituting the offence occurs wholly on or after
that commencement.
150. The purpose of this item is to ensure that the mandatory minimum penalties and
increased maximum penalties contained in this Schedule would only apply to conduct engage
in on or after the commencement of Schedule 2, and would not apply retrospectively.
Item 8 - Review of amendments
151. Item 8 would include a mandatory review requirement for the amendments in
Schedule 2 of the Bill. This item would provide that the Parliamentary Joint Committee on
Intelligence and Security must review the operation and effectiveness of the amendments
made by this Schedule.
152. Item 8 would require that the Committee must:
a. begin the review before the end of the period of 2 years beginning on the day on
which this Schedule commences; and
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b. report the Committee's comments and recommendations to each House of the
Parliament as soon as practicable after completing the review.
153. This would ensure that the mandatory minimum penalties and increased maximum
penalties contained in this Schedule have the opportunity to be considered after a period of
operation to assess their appropriateness and effectiveness.
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