Criminal Code Act 1995

Schedule - The Criminal Code  

Section 3

CHAPTER 5 - THE SECURITY OF THE COMMONWEALTH  

Part 5.3B - Prohibited hate groups  

Division 114A - Preliminary  

SECTION 114A.3   Definition of hate crime  

(1)    
A hate crime is conduct (whether engaged in before or after this section commences):

(a)    that would constitute any of the following offences:

(i) an offence under Subdivision C of Division 80 (urging or threatening violence and offences against groups or members of groups), other than section 80.2 , 80.2C or 80.2D , to the extent that the targeted group (within the meaning of the offence) is distinguished by race or national or ethnic origin;

(ii) an offence under section 80.2H or 80.2HA (publicly displaying prohibited symbols and giving Nazi salute); or

(b)    that was engaged in before a provision referred to in paragraph (a) commenced and would have constituted an offence against the provision had the provision been in force at the time the conduct was engaged in.

(2)    
A hate crime is also conduct (whether engaged in before or after this section commences):

(a)    that involves publicly inciting hatred of another person (the target ) or a group of persons (the target group ) because of the race or national or ethnic origin of the target or target group and that:

(i) would constitute an offence against a provision of a law of the Commonwealth; or

(ii) would constitute an offence against a provision of a law of a State or a Territory as is in force at the commencement of this section, being a provision specified in subsection (3) , to the extent that the offence relates to race or national or ethnic origin; or

(iii) if engaged in before a provision referred to in subparagraph (i) or (ii) commenced - would have constituted an offence against the provision had the provision been in force at the time the conduct was engaged in; and

(b)    that would, in all the circumstances, cause a reasonable person who is the target, or a member of the target group, to be intimidated, to fear harassment or violence, or to fear for their safety.

(3)    
For the purposes of subparagraph (2)(a)(ii) , the provisions are the following:

(a)    section 93ZAA of the Crimes Act 1900 (NSW);

(b)    subsection 195N(1) of the Crimes Act 1958 (Vic.);

(c)    section 52A of Schedule 1 to the Criminal Code Act 1899 (Qld);

(d)    section 77 or 78 of the Schedule to the Criminal Code Act Compilation Act 1913 (WA);

(e)    section 4 of the Racial Vilification Act 1996 (SA);

(f)    section 750 of the Criminal Code 2002 (ACT).

(4)    
For the purposes of subsection (1) and subparagraphs (2)(a)(i) , (ii) and (iii) , if a defence applies in relation to conduct, that conduct is not conduct that would constitute an offence.

(5)    
A hate crime is also conduct, or threat of conduct, (whether engaged in or threatened before or after this section commences):

(a)    that involves, or would involve, any one or more of the following:

(i) causing serious harm to a person (the targeted person );

(ii) causing serious damage to property (the targeted property );

(iii) causing a person ' s (the targeted person ) death;

(iv) endangering a person ' s (the targeted person ) life, other than the life of the person taking the action;

(v) creating a serious risk to the health or safety of a section of the public (the targeted persons ); and

(b)    that a person engaged in or threatened to engage in because of the person ' s belief that:

(i) the targeted person or persons are distinguished by race or national or ethnic origin; or

(ii) the targeted property is associated with a person or persons distinguished by race or national or ethnic origin.

Note:

Consistent with the implied freedom of political communication, subsection (5) is directed at serious conduct or the threat of serious conduct of a criminal nature.

(6)    
For the purposes of paragraph (5)(b) , it is immaterial whether:

(a)    the targeted person or persons actually were distinguished by race or national or ethnic origin; or

(b)    the targeted property actually was associated with a person or persons distinguished by race or national or ethnic origin.