Criminal Code Amendment (Hate Crimes) Bill 2024

Committee Secretary

Senate Legal and Constitutional Affairs Committee

PO Box 6100

Parliament House

Canberra ACT 2600

legcon.sen@aph.gov.au

Dear Madam/Sir

Criminal Code Amendment (Hate Crimes) Bill 2024

Please accept this submission in relation to the above Bill.

We start with proposed section 80.2 BA which makes it an offence to threaten to use force or violence against a group because the target group is distinguished by their race religion sex etc including political opinion.

We begin by acknowledging that a physical assault or threat of such in relation to an individual does not give rise to any issue of freedom of speech, as we will come back to in relation to proposed section 80.2 BB. Threats are not in any proper sense part of the communication of information or opinion which is protected by freedom of speech.

Here the proposed section is clearly directed at statements made to more than a few people.

The actions to which freedom of speech applies are actions that aim to bring something to the attention of a wide audience. This intended audience must not be the widest possible audience, but it must be more than one or two people. Private conversations are not, in general, a matter for free speech. They are a matter for the right of privacy.

That these laws may involve free speech issues i.e. the communication of attitudes about public affairs is reinforced by the fact that one of the characteristics of a targeted group is their political opinion.

We accept that whether or not something is a threat is to be judged by its objective content, that is, as the proposed section says, a statement will be a threat if a reasonable person in the position of the recipient would consider it to be so.

But as on the face of it the provision is directed at communications to the public the vital interest in protecting free speech requires that the provision is narrowly drawn to ensure it does not infringe on political speech.

In our submission this provision is not so drawn in so far as it provides for strict liability as the fault element in relation to whether the accused person was aware that a reasonable member of the group would fear that the threat will be carried out. In other words, under the section it does not matter what state of mind the accused person had in relation to the potential effect of their words. In our view, this is unacceptable from the principles of freedom of speech but also from 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. Also, this requirement also reduces the extent to which this legitimate law might interfere with legitimate freedom of speech. 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.

We move now to section 80.2BB, which makes it an offence to threaten to use force or violence against a person because the person who makes the threat believes the targeted person is a member of a race sex etc. This proposed section does not raise free speech issues as this is a threat made by one person to another.

Again, the issue here is the fault element. Strict liability is entirely inappropriate. In a normal case of assault by one person on another, an intention is required. We would submit that the best way to approach this issue is to make the fact a threat of assault is made with the offensive motivation a circumstance of aggravation to a charge of assault. This is probably beyond the Constitutional power of this Parliament. However, it is a matter which is appropriately dealt with by the State Parliaments, and we note has already been dealt with in Queensland.

We supported the Queensland law because it is quite common for sentencing judges to consider a wide variety of factors in addition to evidence bearing on guilt in determining what sentence to impose on an offender.

In addition, hate-motivated crimes are more likely to provoke retaliatory crimes and inflict distinct emotional harms on their victims. These features of such crimes provide justification for adding a further penalty in those situations over and above mere disagreement with offenders' beliefs.

We have reviewed the submission of Australia's Right to Know and agree with many aspects of it. In particular, we agree that the defence for journalists, inadequate though it may be, should be applied to proposed section 80.2BA

We trust this is of assistance to you in your deliberations.