Senate

Revised Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Hon Mark Dreyfus KC MP)

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

CRIMINAL CODE AMENDMENT (HATE CRIMES) BILL 2024

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:

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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

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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

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insert new criminal offences in Division 80 for threatening force or violence against targeted groups and members of targeted groups.

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create new criminal offences in Division 80 for advocating force or violence through causing damage to property.

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create new criminal offences in Division 80 for threatening damage to or destruction of real property or motor vehicles.

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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.

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create mandatory minimum penalties of 3 years imprisonment for offences against Division 103 of the Criminal Code.

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create mandatory minimum penalties of 12 months imprisonment for offences for publicly displaying prohibited Nazi or terrorist organisation symbols, or performing the Nazi salute.

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create mandatory minimum penalties of 12 months imprisonment for offences for advocating force or violence through causing damage to property.

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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.

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:

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right to life and security of the person in Articles 6 and 9 of the International Covenant on Civil and Political Rights (ICCPR)

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right to freedom of thought, conscience and religion in Article 18 of the ICCPR

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right to freedom of opinion and expression in Article 19 of the ICCPR

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right for minorities to enjoy culture in Article 27 of the ICCPR

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right to take part in cultural life in Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)

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right to protection from exploitation, violence and abuse in Article 20 of the ICCPR

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right to equality and non-discrimination in Article 4 of the CERD

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rights of people with disability to equality and non-discrimination in Article 5 of the Convention on the Rights of Persons with Disabilities (CRPD)

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right to the presumption of innocence in Article 14 of the ICCPR

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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)

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right to legality in Article 15 of the ICCPR

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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

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right to peaceful assembly in Article 21 of the ICCPR

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right to freedom of association with others in Article 22 of the ICCPR

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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:

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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

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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.

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.

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:

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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

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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

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The introduction of mandatory minimum sentence of imprisonment for offences against section 80.2BE

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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.

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.

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

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.

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.

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.

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

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.

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.

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.

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.

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.

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

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).

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

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.

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.

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.

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

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.

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.

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.