Chapter 2Key issues
2.1Most submitters and witnesses supported strengthening Australia’s legislative framework to combat hate crimes, with many agreeing with the proposals contained in the Criminal Code Amendment (Hate Crimes) Bill 2024 (the Bill).
2.2The Legal and Constitutional Affairs Legislation Committee (the committee) received significant evidence about a reported rise in discrimination, hate speech and vilification in the Australian community. This evidence was confirmed by operational agencies.
2.3The Australian Security Intelligence Organisation (ASIO) commented that politically motivated violence—a term that includes terrorism and any violent act, violent threat, or unlawful harm intended or likely to achieve a political objective—is one of its principal security concerns:
ASIO is seeing political polarisation and intolerance, uncivil debate and unpeaceful protest. Anti-authority beliefs are growing; trust in institutions is eroding; provocative and inflammatory behaviours are being normalised. We are seeing direct connections between inflamed language and inflamed community tensions across all ideological spectrums. These dynamics are raising the temperature of the security environment, which increases the risk of violent extremism...[T]he intent of the Bill is to combat the increasing prevalence of hate speech involving calls to force or violence…[and] aims to address the threat of terrorism by deterring inflammatory and harmful behaviours while supporting law enforcement to address and disrupt behaviours, such as threats of violence, that can be a precursor to more serious offending.
2.4Similarly, the Australian Federal Police (AFP) submitted that it is witnessing an increase in speech and other conduct that may urge violence against marginalised groups and individuals, particularly in the online environment:
The internet provides a permissive environment for like-minded individuals to connect, communicate and spread their messages widely. Itcan be used to incite hate and violence and weaponise public discourse, with hateful rhetoric aimed at attacking groups in the Australian community. This can be seen in the rise of anti-Semitic and Islamophobic rhetoric in relation to ongoing conflict in the Middle East. The AFP is also aware of continuing protests and physical demonstrations that can be used to amplify the messaging of extremist groups.
2.5The Attorney-General’s Department (AGD) described the Bill as ‘an important step to protect the community from harms caused by those who foster hatred and incite violence’. The department advised that it began to consider the effectiveness of existing hate speech and racial vilification offences in late October 2023, culminating in the development of the Bill from February 2024:
In developing these measures, the department conducted extensive consultation across the Australian Government and engaged with states, territories and community stakeholders…The department acknowledges the important feedback provided by religious groups, women’s safety groups, disability advocates, representatives of ethnic communities, LGBTIQA+ advocates, and First Nations representatives. These consultations significantly contributed to the development of the Bill.
2.6Chapter 2 examines some of the key issues raised in submissions and evidence, including:
in relation to urging force or violence:
the expanded list of protected attributes;
the reduced fault element;
the defence for acts done in good faith;
in relation to public displays of prohibited hate symbols, the omission of ‘disability’ as a protected attribute;
in relation to threatening force or violence, the threshold for the second fault element; and
human rights concerns, hate speech and anti-vilification laws.
Urging force or violence (expanded list of protected attributes)
2.7The Bill would make three key changes to the existing offences in sections 80.2A and 80.2B of the Criminal Code: a reduced fault element, an expanded list of protected attributes, and a disapplication of the defence for acts done in good faith. The second of these changes is discussed in this section.
2.8Items 4, 7, 12 and 15 in Schedule 1 of the Bill would insert ‘sex, sexual orientation, gender identity, intersex status, disability’ into sections 80.2A and 80.2B, to expand the scope of the offences to groups distinguished by these attributes.
2.9The AGD explained that the proposed extension is ‘consistent with Australia’s obligations under international law and addresses a gap in the groups to which these offences apply’. The EM further explains:
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.
2.10Some submitters—such as the Justice and Equity Centre—agreed with the proposal presented in the Bill, primarily for the above reasons stated in the EM. The Castan Centre for Human Rights (Castan Centre) questioned, however, whether ‘gender identity’ would protect gender expression. It cited the case of drag performers:
There have been a number of incidents across Australia, including threats of violence from individuals and groups targeted against drag performers, and it is essential that these performers be protected. Recently proposed amendments to Victoria’s anti-vilification laws do seek to protect drag performers. While it might be argued that the protection of gender identity protects drag performers, drag performers are entertainers who temporarily express a different gender, in contrast to trans and gender diverse individuals who have an authentic, lasting and personal gender identity, different to that assumed and recorded at birth. Thus, it is incorrect and confusing to assume that drag performers can be covered by the term ‘gender identity’. We strongly recommend the insertion of an additional attribute to protect ‘gender expression (including drag performers)’.
2.11Similarly, several submitters queried the use of the term ‘intersex status’ rather than ‘sex characteristics’ in the Bill in relation to sections 80.2A and 80.2B, as well as sections 80.2H, 80.2HA and 80.2K. Equality Australia, for example, submitted:
…the term ‘intersex status’ should be changed to ‘sex characteristics’ in line with the recommended wording of intersex advocates. This terminology is already used in similar legislative contexts, including the anti-discrimination and equal opportunity legislation in Victoria, Queensland, Tasmania, the ACT and the Northern Territory.
2.12The Justice and Equity Centre described the term ‘intersex status’ as being ‘outdated’:
While the inclusion of intersex status in Commonwealth anti-discrimination law in 2013 was both historic and welcome, this terminology is no longer considered best practice, including because of concerns about the potential for misinterpretation that it relates to identity rather than biological characteristics. For this reason, many states and territories have updated their anti-discrimination laws to instead adopt sex characteristics as the relevant protected attribute.
2.13Anti-Discrimination NSW acknowledged that terminology in this area is contested and the decision to use the term ‘intersex status’ is consistent with the Sex Discrimination Act 1984 (Cth) and various state laws. It qualified its submission by noting that ‘sex characteristics’ may be the preferred term.
2.14Some submitters argued that the list of protected attributes should be even further extended by the Bill to include, for example, health status or people associated with a person having any of the protected attributes.
2.15The Castan Centre, for example, argued:
…in principle, we supported extending the offence to people or groups associated with targeted groups or members of targeted groups. Protecting those associated with targeted groups or members of targeted groups would be consistent with existing antidiscrimination law. Where such conduct meets the threshold for the criminal law to impose sanctions in the case of urging or threatening force or violence, the criminal law should also protect those who are associated with targeted groups or group members. Forexample, the Equal Opportunity Act 2010 (Vic) defines the attributes protected by the law to include ‘personal association (whether as a relative or otherwise) with a person who is identified by reference to any of the above attributes. Including an additional targeted group as those targeted by personal association in-line with Victoria’s wording would be the most straightforward amendment. Alternatively, separate offences could be introduced by the Bill.
Definition of ‘force or violence’
2.16Some submitters called for the Bill to define what would constitute ‘force or violence’. People with Disability Australia (PwDA) highlighted that this phrase can have different meanings for people, depending upon their circumstances:
Threats of force or violence can take nuanced forms in relation to people with disability. For example, an act of force or violence may include taking away a person’s disability support (eg a wheelchair or cane), depriving them of access to food and water or using restrictive practices (such as mechanical, physical or chemical restraint). It is important the [definition] of ‘force’ and/or ‘violence’ captures this conduct.
2.17Christian Schools Australia (CSA) also voiced concerns about interpretation of the phrase ‘force or violence’. It queried whether the phrase would encompass psychological harm, which, in combination with other proposals in the Bill, could risk criminalising traditional religious teachings on gender and sexuality, as it is taught in some Christian schools:
CSA is concerned that “force or violence” are not defined in the sections addressed by this Bill and could lend themselves to a broader interpretation than intended – notably that it could include psychological injury.
Other provisions in the Commonwealth Criminal Code 1995 make a distinction between physical and non-physical forms of harm, protecting only the former…
However, sections 80.2A and 80.2B do not make the same distinction. CSA’s concern is that this failure, in the context of that deliberate exclusion elsewhere in the Criminal Code, can be read to imply that the “force or violence” in this Bill may encompass psychological injury.
The distinction between physical and psychological harm becomes particularly significant because the protected attributes already include religion, and are expanded to include “sex, sexual orientation, gender identity and intersex status”. However, the protected attributes include some of the most controversial topics in modern society, including the ethical debates on the nature of gender or the correct expression of sexuality, and the truth claims of different religious and the eternal consequences of disbelief or disobedience. These are areas with strongly held opposing beliefs, where claims and counterclaims of psychological harm are common.
2.18The Combined Church Leaders commented similarly and added:
If the definition of force or violence is not restricted to physical harm, and is allowed to extend to psychological harm, then the Bill will risk encompassing legitimate debate and disagreement in our pluralist society.
2.19Other submitters—including the Australian Human Rights Commission (AHRC)—specifically recognised that urging or threatening force or violence can result in quite severe psychological harm (also see paragraph 1.3). Forexample, Rainbow Families Australia submitted:
Research makes it clear that poor mental health outcomes are experienced disproportionately in the LGBTQ+ population across all age groups…It is also clear from the research that poor mental health outcomes in LGBTQ+ populations are not caused by sexuality or gender identity themselves. Rather, experiences of discrimination, stigma, isolation, exclusion, harassment, bullying and violence and other forms of victimisation impact directly on mental health leading to stress, psychological distress, suicidality and self-harm. Further, lived experience of trauma is also extremely prevalent among this population which heightens vulnerability to psychological harm.
2.20More broadly, the Human Rights Law Centre (HRLC) highlighted that discrimination, hate speech and vilification can profoundly affect individuals and communities:
[It] can lead to anxiety, isolation, and serious mental and physical harm. Thenegative impacts also reduce the likelihood of reporting this harm. More broadly, such experiences can lead to diminished trust in institutions, reduced participation in civil society, and sense of belonging, ultimately fraying the social fabric of our communities.
Departmental response
2.21AGD officials responded to various concerns raised in relation to protected attributes. In relation to intersex status, MrLuke Muffett, Assistant Secretary, Security Law and Policy Branch, AGD, confirmed that the Bill uses this term for consistency with the Sex Discrimination Act 1984 (Cth):
It's also probably worth noting that it's a term that is used quite extensively across the Commonwealth statute book: the Sex Discrimination Act, the Fair Work Act, the Migration Act and a number of other pieces of legislation. That's the reasoning behind using it here. If amendments were to be considered, it might be worth considering that a bit more holistically, given its use quite extensively.
2.22In relation to associates, Mr Muffett considered that there would be some coverage for these individuals within the Bill:
…there would be some coverage in that it's around the offender's belief that the person is a member of that group. Sometimes we see scenarios where allies or associated people are batched up in the group, though they may not technically be members of the group.
2.23Mr Muffett advised that family members—such as children—would not be covered by the Bill, as it is currently drafted, however: ‘it would almost certainly still be a crime under state provisions’.
2.24In response to concerns regarding the capture of psychological harms, MrJonathon Savery, Director, Counter-Terrorism Legislation Section, AGD, clearly stated:
…the terms are intended to refer to physical force or violence against a person. They aren't intended to encompass psychological or other sorts of mental harm. That's consistent with the ordinary meaning of these terms, which the terms are intended to take, as evidenced by various dictionary definitions that refer to physical coercion, exertion of strength or use of rough force. Another point to make is that, as a matter of statutory interpretation, a court would look to the context in which the terms are used to give a further indication of the intention, which we would say further demonstrates that they would only apply to physical force or violence...The term 'harm' has come up quite a few times. It's worth noting that the bill does not use the term 'harm'. It uses the terms 'force or violence', and these offences do not encompass harm. By way of contrast, harm does, by definition in the Criminal Code, include both physical and mental harm. Force and violence can be differentiated from that. That's the intention, and those provide the supporting context that demonstrates that intention.
Urging force or violence (reduced fault element)
2.25As discussed above, the Bill would make a key change to a fault element in the existing offences in sections 80.2A and 80.2B of the Criminal Code. This change would also be introduced in proposed sections 80.2BA and 80.2BB.
2.26Items 3, 6, 11 and 14 in Schedule 1 of the Bill would reduce the fault element in the second limb of the offences from the person ‘intending that force or violence will occur’ to being ‘reckless as to whether force or violence will occur’. ‘Recklessness’ is defined in section 5.4 of the Act.
2.27The EM states:
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.
2.28Some submitters supported the proposal in the Bill on the basis that the fault element required to establish the offences is not capturing conduct that should attract criminal liability. Anti-Discrimination NSW referenced its experience with an intent threshold, which, it advised, historically resulted in prosecutorial difficulties under serious vilification provisions.
2.29The Executive Council of Australian Jewry (ECAJ) agreed that the fault element of intent sets an unreasonably high bar for prosecutors. However, it argued that reducing the threshold, as proposed by the Bill, would be ineffective, as the Bill does not change other provisions in sections 80.2A and 80.2B that continue to provide for intent:
Proof of intention would still be required to establish the first mental element, and the sections would therefore continue to fail to capture conduct that employs subtle linguistic and symbolic signals that trigger emotions which move people to engage in violence.
2.30The Islamic Council of Victoria (ICV) also voiced concerns about whether the proposed amendments would be effective. It argued that recklessness would still be a subjective test that may be prohibitively difficult for investigators and prosecutors. In its view, there should be an objective test: ‘such as whether a reasonable person in the accused’s position would have considered the conduct or speech to have an unjustifiable risk in urging force or violence’.
2.31Some submitters raised concerns in relation to the impact of the Bill on human rights. The AHRC submitted that lowering the standard of culpability would promote certain human rights but could also impose limitations on other human rights:
While the lowering of this threshold would promote certain human rights, including the right to life and security of the person, the right to equality and non-discrimination, the right to protection from exploitation, violence and abuse, the lower culpability standard and subjective interpretation of and its broader application has the potential to impose limitations on other human rights, including the right to freedom of expression. It may also be possible that the offence could be applied in a way that infringes on the rights to freedom of assembly. The current requirement to prove intent serves as a safeguard to preserve these other human rights and ensure that the offence is only charged and prosecuted in circumstances appropriate to warrant a penalty of up to 7 years imprisonment.
Departmental responses
2.32In response to the ECAJ, the AGD advised that removing the fault element from sections 80.2A and 80.2B would also remove the important nexus to force or violence from the intention when the person urges the force of violence.
2.33Mr Muffett expanded on this point, as follows:
…in terms of general Commonwealth criminal policy, if you look at the extension of criminal responsibility in relation to incitement, where a person commits the offence of incitement if they urge the commission of an offence. For the person to be guilty of that, the person must intend that the offence incited be committed. It's a general criminal law policy piece where we have both the urging and the recklessness around the result and the likelihood of someone acting on that incitement.
Urging force of violence (defence for acts done in good faith)
2.34Item 21 in Schedule 1 of the Bill would disapply the defence for acts done in good faith, as set out in section 80.3 of the Criminal Code, with respect to sections 80.2A and 80.2B and proposed sections 80.2BA and 80.2BB.
2.35The AGD outlined the types of circumstances in which this defence is intended to apply, which do not include the urging or threatening of force or violence:
Section 80.3 of the Criminal Code creates a defence for various offences where a person engages in conduct in good faith for a set of specified purposes. Among other things, this includes where the person tries to show that certain government entities are mistaken in their policies or actions, seeks to point out defects in relation to legislation or the administration of justice, or publishes a report or commentary about a matter of public interest...The amendments reflect the fact that urging force or violence is not part of good faith discourse…[Also] there are no circumstances in which threatening force or violence can be done in good faith.
2.36Several submitters agreed with the proposed disapplication of the defence on the grounds advanced by the AGD. The Castan Centre submitted, for example:
There is no clear rationale for this [good faith] exception which would, on its face, legitimate odious conduct directly contrary to the provision. While rights to association, assembly and speech are important human rights that require protection, those rights are better protected in the drafting of the offence itself (such as by ensuring that it applies only to the most serious conduct) rather than a broad and vague defence like the one to be repealed.
2.37The ECAJ pointed out that the defence was largely carried over from repealed section 24F of the Crimes Act 1914 (Cth), which was drafted in relation to the offence of sedition and not applicable to the urging or threatening of violence:
Such defences are fundamentally misconceived in relation to offences based on the intentional urging of violence against groups distinguished by race, religion, nationality, national or ethnic origin or other attributes or by political opinion, or supposed members of such groups.Such an intention is intrinsically incompatible with the presence of “good faith”. In the circumstances in which a good faith defence could be established, the mental elements of the offences could not be made out in the first place. Theremoval of the defence in respect of the offences in section 80.2A and 80.2B is something we have long advocated, and the same applies in respect of the proposed new offences in sections 80.2BA and 80.2BB.
2.38In its examination of the Bill, the Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) queried why the Bill proposes to entirely remove the defence without allowing for any judicial discretion to consider the particular circumstances of a case.
2.39This argument strongly resonated with some submitters, such as the AHRC which expressed the following view:
While limited in scope and effect, the disapplication of this defence for [sections 80.2A and 80.2B and proposed sections 80.2BA and 80.2BB] removes an avenue for the court to consider the circumstances and context of the conduct and may result in further limitations on the rights of freedom of expression and freedom of assembly in ways that could inhibit legitimate debate, critique and expression.
2.40Australia’s Right to Know Coalition highlighted journalism as a clear example of circumstances where there should be extra consideration. It argued that the removal of the defence and the failure to provide a single, clear journalism exemption would have ‘a serious chilling effect on reporting of and commentary about [the hateful and violent views of some groups]’.
2.41The AHRC warned:
There is a risk that individuals engaging in expressive or critical speech and certain public gatherings or protests could be viewed as sources of incitement or threats against protected groups, limiting the rights to freedom of expression and freedom of assembly. This may disproportionately impact on particular groups that engage in protest to have their voices heard, such as First Nations people, exposing them to criminal penalties. Limitations on these rights are permissible where provided by law and when necessary to protect the rights or reputations of others, national security, public order, or public health or morals. However, limitations on human rights must be reasonable, necessary and proportionate.
Departmental response
2.42Ms Brooke Hartigan, First Assistant Secretary, Security and Counter-Terrorism Division, AGD, acknowledged that the Bill does not provide for any type of public interest exemption. She stated:
…we would rely on the CDPP Prosecution Policy…the requirement that there must be sufficient evidence to prosecute the case and that it must be evident from the facts of the case and all the surrounding circumstances that it would be in the public interest for the prosecution to proceed.
2.43AGD’s Mr Muffett reiterated that the fault element in the first limb of the offence (intent) remains unchanged: ‘the bar is still maintained quite high by that first hurdle’. Further:
…introducing evidence to the court to prove intention or to prove recklessness is going to require the CDPP to look at the circumstances and the context of the offending. The context is very much taken into account as bringing forth the evidence, in terms of whether specifically articulating that actually starts to limit the court's ability to consider the broad suite of evidence that the prosecution may want to bring.
2.44Mr Muffett also addressed the issue of artistic, academic or journalistic exemption, stating that these circumstances would already be carved out, again, by the fault element in the first element of the offence:
For the offences to apply, you have to be intentionally threatening the use of force or violence or urging others to use force or violence. If you are intentionally doing that and you also have an artistic purpose, it could be captured, but if it was solely for an artistic or other purpose it would not meet that first element of the offences.
2.45Deputy Commissioner Krissy Barrett, Deputy Commissioner, National Security, AFP, noted that the AFP operates under an operational prioritisation model, where artists, academics and journalists ‘would not meet our priorities in terms of where we would apply our investigative resources’.
Public displays of prohibited hate symbols
2.46Sections 80.2H, 80.2HA and 80.2K of the Criminal Code criminalise the public display of prohibited hate symbols or the making of the Nazi salute in public in specified circumstances. The Bill would insert ‘sexual orientation, gender identity, intersex status’ into these provisions, to expand the scope of the offences to groups distinguished by those attributes.
2.47Submitters supported the proposal to expand the list of protected attributes. TheAHRC commented, for example:
These amendments recognise that these targeted groups are also increasingly subjected to behaviours that expose them to risks of force and violence and require additional protections. The amendments also recognise the intersectionality of protected attributes and that individuals may identify with a combination of the attributes protected under these provisions.
2.48The NSW Council for Civil Liberties (NSWCCL) referenced earlier comments and recommendations made by the Parliamentary Joint Committee on Human Rights (Human Rights Committee). It supported the 10 recommendations made by that committee, which the NSW CCL considered would ‘substantially reduce the risks that the prohibited symbol offences would be enforced in ways that cut across an individual's right of free expression and expression of religion’.
2.49Multiple submitters expressed concern, however, with one particular omission from item 20 in Schedule 1 of the Bill:the absence of ‘disability’ as a protected attribute. The Scarlet Alliance, Australian Sex Workers Association submitted: ‘we believe this [omission] is a major oversight, and carries an implication that people with disability cannot be offended in the same way as ‘reasonable people’’.
2.50The AHRC highlighted that people with disability have been specifically targeted in conflict (such as in the Nazi T4 Program). In its view, people with disability are likely to be a group offended, insulted, humiliated or intimidated by the prohibited conduct in sections 80.2H and 80.2HA, and are equally entitled to protection under these provisions:
The proposed amendments, with the addition of ‘disability’ as a protected attribute in ss 80.2H, 80.2HA and 80.2K of the Act, would support and promote equality, inclusion and respect, and would align more closely with Australia’s anti-discrimination laws.
Departmental response
2.51The AGD submitted:
The expanded scope of protected attributes accords with Australia’s international human rights obligations, and complements existing civil protections in the Sex Discrimination Act 1984. This amendment ensures these offences apply to the full range of groups that have been, or are likely to be, subjected to the hateful display of Nazi or terrorist organisation symbols.
2.52In relation to ‘disability’ as a protected attribute, a departmental officer, MrSavery, advised that the Bill was developed with reference to specific treaties only:
…the provisions in sections 80.2H and 80.2HA and the expansion of those attributes are intended to implement specific parts of our international obligations. That's evidenced by the statutory notes in those sections, which specify the particular treaties that those particular provisions are intended to give effect to. That was our focus at the time of developing this bill, informed by recent examples of these symbols being used to target trans people. That was the reasoning behind the particular attributes included in the bill. The only thing that we'd note on including disability as a protected attribute is that we'd need to identify a constitutional basis to support that inclusion.
Threatening force or violence
2.53Item 19 in Schedule 1 of the Bill would create new offences that criminalise threatening to use force or violence against groups (proposed section 80.2BA) or members of groups (proposed section 80.2BB), distinguished by race, religion, sex, sexual orientation, gender identity, intersex status, disability, nationality, national or ethnic origin or political opinion.
2.54The AGD submitted:
The new offences would address a gap in Commonwealth laws by criminalising conduct that involves a direct threat from one person to another, or from one person to a broader group. This supplements the urging force or violence offences, which apply where a person urges another person to use force or violence against a group.
2.55Submitters welcomed the introduction of the proposed criminal offences. The AHRC, for example, submitted:
This amendment recognises that, in addition to urging violence [sections 80.2A and 80.2B], threats of force or violence against protected groups or individuals are not accepted in Australian society and emphasises that everyone has the right to safety and physical security.
2.56The Justice and Equity Centre agreed that the Bill would send an important message about unacceptable behaviours:
…the creation of these offences recognises a particular harm to individuals and our community and carries normative importance, by specifically condemning threatening force or violence against (members of) groups that experience disadvantage, discrimination and marginalisation.
2.57Equality Australia supported the introduction of proposed sections 80.2BA and 80.2BB, as well as the changes to sections 80.2A and 80.2B. However, it argued that ‘the offences could be better formulated to capture LGBTIQ+ hate crimes’. Its submission identified examples of hate-based conduct that would not be captured by the new offences (such as threats based on association).
Fault element (reasonable member of the targeted group)
2.58The Bill would introduce a fault element into proposed sections 80.2BA and 80.2BB of the Criminal Code: ‘a reasonable member of the targeted group would fear that the threat will be carried out’.
2.59The Castan Centre supported the objective standard, which it described as ‘an important safeguard against responses to conduct that are idiosyncratic’. Further:
It is also important that the threat is a threat to use force or violence. This is a significant threshold. It is not aimed at conduct which threatens to offend or other responses. Applying the ordinary and reasonable meaning of these terms, it could not cover conduct such as legitimate religious speech or legitimate political debate.
2.60The Law Council’s National Criminal Law Committee, which did not support what it considered unnecessary new offences, expressed reservations regarding the fault element in proposed paragraphs 80.2BA(1)(c), 80.2BA(2)(c), 80.2BB(1)(d) and 80.2BB(2)(d):
While it would be expected for an inchoate offence pertaining to threats to require, as an element of the offence, that a reasonable person would fear that the threat would be carried out—it is unnecessary to require that a reasonable person of the targeted group hold that fear. In our assessment this may needlessly overcomplicate the offence…We note that in contentious circumstances there is not always agreement on what words or acts amount to a threat that a reasonable member of the targeted group would fear would be carried out. There may be a wide range of views held by members of the targeted group and limited objective markers to assist in identifying what a reasonable member of the targeted group believes. As a result, establishing a reasonable person’s view, as a member of a targeted group, may be difficult to assess and apply to the particular circumstances of the offence. This confusion may be avoided by simply requiring a reasonable person would fear that the threat will be carried out.
2.61Similarly, Rainbow Families Australia argued:
This element places a subjective layer of assessment on an already complex legal analysis, and unduly places focus on the way an act is perceived, taking away the focus from the act itself. Serious psychological harm is likely to be caused by threats, whether or not people involved believe the threat will be carried out...This standard introduces significant uncertainty, as the court must assess a hypothetical reaction for a diverse group, which could vary widely based on individual experiences or vulnerabilities…The element is totally unnecessary…The law should shift to an approach that focuses on the nature of the threat itself, rather than the hypothetical reaction of a group member. This can be achieved by entirely removing this element. If there are concerns that trivial behaviour may be captured by the provision, it would be preferable to remove this element and instead refer to ‘serious’ threats.
2.62The Queensland Council for Civil Liberties (QCCL) argued that, under the proposed element, the accused person’s state of mind in relation to the potential effect of their words is not relevant, which is contrary to the general principles of criminal liability.
As a matter of principle, generally, criminal liability should only be imposed where it is proved the person had a guilty mind…As to what intent is needed, it is that a person intends certain consequences, and they desire that their acts cause those consequences or know that those consequences are substantially certain to result from their acts.
2.63The Law Council queried why strict liability should apply to the fault element in proposed new sections 80.2BA and 80.2BB, as did the QCCL.
Departmental response
2.64Departmental officers acknowledged that the fault element would not be directed toward the accused’s state of mind but attempts to distinguish between serious and non-serious conduct where the former would attract significant criminal penalties:
Not only is the person intentionally threatening violence [a fault element for another element of the offence]—the seriousness of the sentences of these offences, of five and seven years, bring in an element of it being more than simply rhetoric. It is something where a reasonable member would fear that this threat is going to be followed through. For us, that is really around balancing the seriousness to warrant such a penalty.
Human rights
2.65The Scrutiny of Bills Committee and the Human Rights Committee articulated human rights concerns in their examination of the Bill, including in relation to freedom of expression.
2.66The Law Council concurred with the Human Rights Committee that the Bill would enhance certain human rights (rights to life and security of person). However, in criminalising certain forms of expression, the proposed measures also engage and limit the right to freedom of expression and freedom of religion, as well as equality and non-discrimination, and the rights of the child.
2.67The Law Council generally agreed that ‘the measures in the Bill broadly seek to realise legitimate objectives and are rationally connected with those objectives’. It expressed concern, however, that there is a risk that the proposed limitations would be disproportionate, and the Law Council voiced concerns about the proportionality assessment being conducted in ‘a legislative vacuum’:
…the Statement of Compatibility with Human Rights contained in the Explanatory Memorandum is deficient in providing a rigorous proportionality analysis in a number of ways.
2.68With particular reference to freedom of expression, the Law Council argued that ‘the central challenge is ensuring that there is a bright line between freedom of expression—even when exercised in a challenging or unpopular manner—and the reach of the criminal law’. It strongly cautioned against using the criminal law as an instrument of social policy:
Criminalisation should not be conceived as the primary tool through which to prevent radicalisation and extremism from propagating, or to facilitate behavioural change by disaffected individuals. The imposition of serious criminal sanctions for a person’s expression of views—even those which are deeply divisive—can readily entrench division and conflict.
2.69The NSW Council for Civil Liberties (NSWCCL) expressed its unequivocal view that ‘the law should not criminalise legitimate free speech and protest’:
The application of the criminal law to any act of expression involves a substantial limitation on the freedom of expression and religion. Despite the heightened recent focus on potentially inflammatory conduct and the growing prevalence of hateful rhetoric targeting vulnerable communities in Australia, NSWCCL submits that the use of the criminal law should always be a last resort and reserved for the most serious instances of vilification in our community.
2.70In answer to questions on notice, the NSWCCL clarified that ‘urging violence and threatening violence is never a legitimate exercise of free speech…In principle, we do not see how the proposed laws infringe on freedom of expression’.
2.71Professor Melissa Castan, Director of the Castan Centre, concurred that the Bill appropriately balances the criminal law and freedom of expression:
…the bill finds the balance because it is not constraining the thing we describe as freedom of expression. It's constraining violent, hateful or extremist conduct or the incitement of that. The idea of freedom of expression is not an absolute one. In the criminal law, criminalising certain extreme behaviour is not a question of expression of free speech; it's actually a question of the protection of the people who are being attacked by these threats or this extreme speech. I think the balance is met there.
Departmental responses
2.72The AGD stated:
The offences are not intended to capture mere expressions of opinion or belief, however hateful or reprehensible. This bill is intended to target the most serious forms of hate speech—namely, the urging or threatening of force or violence against groups.
2.73The Department of Home Affairs commented:
Democracy allows for a rich diversity of views, experiences and interests within a unifying system of politics and governance. Societal divisions on different issues are natural, and are even required for democracy to truly flourish. That said, freedom of expression is not unfettered and must be appropriately balanced with measures like those contained in this Bill to prevent the incitement of violence or hatred.
Hate speech and anti-vilification laws
2.74Across Australia, there are a range of criminal offences and civil provisions in Commonwealth, state and territory law that aim to protect against harms caused by hate speech and vilification. The AGD noted that these laws differ in scope and application between jurisdictions.[71] The department submitted:
The measures in the Bill are intended to complement these existing provisions as well as provide state and territory police with relevant offences where there are no equivalent offences in their jurisdiction.
2.75Anti-Discrimination NSW considered that the Bill and New South Wales law can ‘co-exist’, noting that the NSW Law Reform Commission is currently reviewing the Anti-Discrimination Act 1977 (NSW) and the operation of section 93Z of the Crimes Act 1900 (NSW).
2.76Several submitters referenced the Attorney-General’s second reading speech (paragraph 1.4) and argued that the Bill would still leave people vulnerable to discrimination and vilification. The Scarlet Alliance, Australian Sex Workers Association, submitted, for example:
The Criminal Code Amendment (Hate Crimes) Bill 2024 provides some extension to Commonwealth criminal vilification laws, which are intended to target the most serious hate crime offending. However, this does not address gaps in Commonwealth or state/territory civil anti-discrimination and anti-vilification law.
2.77The HRLC agreed that, nationally, Commonwealth, state and territory legal protections do not sufficiently protect against discrimination, hate speech and vilification:
The federal anti-discrimination framework is comprised of a patchwork of inconsistent, issue-specific laws, covering distinct grounds of discrimination such as race, sex, age, and disability.The complexity is compounded by overlapping and inconsistent state and territory regimes.
2.78The HRLC noted that Australia has voluntarily accepted multiple international obligations to protect individuals from discrimination, hate speech and vilification. However, in its view, the proposed legislative changes are too narrow and fall significantly short of providing solutions. The HRLC argued that much broader reform is required:
In order to properly address the prevalence of discrimination, hate speech and vilification in our society, the Human Rights Law Centre recommends that as a starting point, section 18C of the Racial Discrimination Act 1975 (Cth) should be amended to prohibit offending, insulting or humiliating on the basis of race, religious belief, sexual orientation, gender identity, and disability. More broadly, we recommend that our patchwork, inconsistent anti-discrimination law framework is consolidated so that it is simple, consistent, cohesive and deals with the intersecting nature of discrimination, hate speech and vilification. The balance between the fundamental human rights to freedom of expression, the right to equality before the law, and other relevant rights including to be free from racial and other forms of discrimination and harm, would be best guided by a comprehensive Human Rights Act.
2.79The Justice and Equity Centre shared the view that the Bill addresses too narrow a range of behaviours, which would prevent it from achieving its stated policy objective of tackling hate speech and hateful conduct:
…the Bill does not adequately tackle the problem of widespread hate speech against members of minority communities, because it only prohibits a much narrower range of behaviours (urging violence against groups or members of groups, threatening force or violence against groups or members of groups, or publicly displaying prohibited symbols where it is likely to offend, humiliate or intimidate a member of a group). Broader hate speech – or vilification – is left largely unregulated. This is a significant shortcoming that should be rectified.
We therefore submit that the Hate Crimes Bill should be amended to ensure Commonwealth civil vilification provisions, currently limited to those in s 18C of the Racial Discrimination Act, are expanded to also explicitly cover religious belief, disability, sex, sexual orientation, gender identity and expression and sex characteristics.
2.80The ANU Law Reform and Social Justice Research Hub (LRSJRH) agreed with the proposition put forward by the Justice and Equity Centre, and noted that, historically, criminalisation has resulted in few prosecutions and convictions, and that, nationally, an expanded section 18C would be more beneficial to the victims of hate speech and vilification:
…the law reform efforts in this area should be directed towards amending the existing civil statute of the Racial Discrimination Act 1975 (Cth) and extending it to the same protected groups identified in the amendments, including religious groups and groups distinguished by sexual identity. The civil remedy by the Act…allows for conciliation and meaningful apology…is more amenable to victims by making it easier and less intimidating to seek redress, and is generally more flexible in achieving a positive outcome addressing the victim’s needs.
2.81The ECAJ expressed disappointment that the Bill would not create a new federal offence to proscribe serious vilification of individuals or groups based on race, religion or other protected attributes. It identified recent examples of serious vilification (in the form of antisemitism) that, it argued, cannot be prosecuted under existing law or would not be prosecutable under the Bill.
2.82In ECAJ’s view, the Bill has ‘an unusually high level of significance for Australia and for our current times’, with broad community concern for the impunity of extremists whose behaviour undermines Australia’s peace, harmony and social cohesion:
Whilst criminal proscription can provide only one component of the answer to the destructive impacts of extremist hate speech, it is a critical component. The Bill has the potential to set a community standard against criminal hate speech that will command the respect of the vast majority of Australians, and send a resolute message that the coercive power of the State will be deployed as a last resort against anyone who acts by word or deed to destroy Australia’s democracy, freedoms and rights.
2.83The ICV also supported the introduction of a serious vilification offence at the Commonwealth level. Ms Bridget McKenzie, Policy and Advocacy Officer, ICV, commented:
I think that a serious vilification offence is probably a good provision to add. It's clear that these sorts of hate crimes are harmful and obviously not acceptable, even where it is not an active threat of violence or it is not explicitly seen that violence should be done against a protected group or against a protected community.
2.84PwDA shared the concern that ‘serious vilification must be criminalised to symbolically acknowledge and practically address its gravity’. Its submission highlighted that ‘vilification is a real and constant experience for many people with disability’, with serious vilification affecting their dignity and mental health, and preventing people with disability from enjoying their fundamental human rights. PwDA referenced evidence given to the Disability Royal Commission to illustrate its arguments.
Departmental response
2.85The AGD acknowledged that the Victorian Government intends to introduce a serious vilification offence. For the purposes of this inquiry:
The bill doesn't include a vilification offence that you're talking about. That's primarily because it's intended to criminalise the most serious kinds of hateful communication, where it involves force or violence or threats thereof.
Committee view
2.86The Criminal Code Amendment (Hate Crimes) Bill 2024 aims to strengthen and enhance Australia’s legislative framework to combat hate crimes, and promote community respect and understanding.
2.87According to submitters and witnesses, the objectives of the Bill and its provisions are generally well supported. The majority of submitters supported the introduction of new criminal offences and the amendments to existing criminal offences, to respond to the increase in discrimination and hate speech. The committee agrees that the amendments made by the Bill are sadly necessary.
2.88The committee acknowledges evidence from a small number of stakeholders that expressed concern that the Bill would limit freedom of speech. However, the committee is satisfied by evidence from the AGD, as well as the Castan Centre for Human Rights Law, that the Bill does not suppress freedom of speech that is not violent or forceful.
2.89While the committee supports the Bill, the committee makes some minor recommendations to address matters raised in evidence. The committee agrees that disability should be a protected attribute for the purpose of the existing hate symbols offences, subject to the identification of a constitutional head of power.
2.90The committee recommends that the Australian government amends item 20 in Schedule 1 of the Bill, to include ‘disability’ as a protected attribute, subject to the identification of a constitutional head of power.
2.91The committee also notes evidence that the Bill would not extend to conduct targeting the associates of protected groups, for example, children. Thecommittee further notes evidence from Equality Australia that there have already been instances where these associates have been targeted, including by threats of violence. Such conduct is also unacceptable, and the committee therefore recommends that the Australian government progresses amendments to extend protections in the Bill to associates of protected groups.
2.92The committee recommends that the Australian government progresses amendments to extend the criminal offences in sections 80.2A and 80.2B and proposed sections 80.2BA and 80.2BB of the Criminal Code Act 1995, to include urging violence or threats of violence being directed at associates of protected groups.
2.93The committee also notes evidence to this inquiry, consistent with evidence to the Senate Legal and Constitutional Affairs References Committee inquiry into right wing extremist groups in Australia, that a national database to track hate crimes would assist in informing responses to hate crimes. The committee endorses the recommendation that the Australian government considers establishing a hate crimes database (Recommendation 6).
2.94The committee recommends that the Australian government considers establishing a national hate crimes database.
2.95The committee acknowledges the view expressed by a large number of stakeholders that the Bill should include a serious vilification offence. Thecommittee notes evidence from the AGD that the Bill is intended to address the most serious forms of hate speech and that states and territories have, in varying degrees, legislated or are in the process of legislating, serious vilification offences. The committee considers that the Bill achieves its intended objectives—addressing the most serious forms of hate speech.
2.96While current laws criminalise acts of violence against targeted groups, and in its most extreme form, acts of terrorism, this Bill would criminalise threats of such violence. This is an important and timely step.
2.97The committee recommends that the Senate passes the Bill when Parliament returns in 2025.
Senator Nita Green
Chair
