Milton Dick (Speaker) Share this | Link to this | Hansard source

The question before the House is that government amendment (1) on sheet AA101 be agreed to.

Milton Dick (Speaker) Share this | Link to this | Hansard source

I'll now deal with the amendments moved by the member for Wentworth.

Unresolved question—

That amendments (1), (11), (13) and (14) moved by the honourable member for Wentworth be agreed to:

(1) Schedule 1, item 1, page 3 (line 7), after "genocide,", insert "promoting hatred,".

(11) Schedule 1, page 8 (after line 10), after item 19, insert:

19A After Subdivision C of Division 80 of the Criminal Code

Insert:

Subdivision CAA — Promoting hatred

80.2DA Promoting hatred

Offence

(1) A person commits an offence if:

(a) the person does an act; and

(b) the person does the act publicly; and

(c) the person does the act with the intention to promote hatred towards, harassment, threats, intimidation or abuse of, another person (the targeted person) or group (the targeted group); and

(d) the targeted person or the targeted group is distinguished by race, religion, sex, sexual orientation, gender identity, sex characteristics, disability, nationality, national or ethnic origin or personal association (whether as a relative or otherwise) with a person who is distinguished by any of those attributes; and

(e) the act promotes, or is reasonably likely to promote, such hatred, or to harass, threaten, intimidate or abuse that targeted person or some or all of the members of the targeted group.

Penalty: 250 penalty units or imprisonment for 2 years, or both.

(2) For the purposes of paragraph (1)(d), it is immaterial whether the targeted person actually is so distinguished by the attribute or attributes mentioned in that paragraph or actually is a member of the targeted group.

(3) For the purposes of paragraph (1)(d), the person may have in mind a combination of attributes mentioned in that paragraph.

(4) The fault element for paragraph (1)(d) is recklessness.

Note: For recklessness, see section 5.4.

(5) Strict liability applies to paragraph (1)(e).

Interim orders

(6) A court may make an interim order on application by the prosecutor or on its own initiative if the court is satisfied that:

(a) both of the following apply:

(i) there is sufficient evidence that the person committed the offence;

(ii) the making of the interim order is reasonably necessary to prevent the person from continuing to commit the offence or committing further offences; or

(b) the making of the interim order is reasonably necessary to preserve or secure any matter or thing that may be or become evidence in any proceedings relating to the charge.

Definitions

(7) In this section:

association with another person includes:

(a) being a near relative of the person; or

(b) living with the person on a genuine domestic basis; or

(c) having a formal business or employment relationship with the person.

hatred includes detestation, enmity, ill-will, revulsion, serious contempt and malevolence.

promoting includes:

(a) publicising, advocating or glorifying; and

(b) eliciting or stirring up (whether effectively or ineffectively) a feeling or feelings in another person, or in or among other persons.

publicly includes:

(a) speaking, writing, displaying notices, playing of recorded material, broadcasting and communicating through social media and other electronic methods, to the public or a section of the public (whether or not the public have access to the communication as of right or by invitation, whether express or implied and whether or not a charge is made); and

(b) any conduct, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, observable by the public; and

(c) the distribution or dissemination of any matter to the public or a section of the public; and

(d) acts done in a public place; or

(e) acts done in the sight or hearing of people who are in a public place.

Note: For public place, see the definition in the Dictionary.

(8) For the purposes of the definition of publicly in subsection (8), an act may be done publicly even if the act occurs on private land or in a place that is not ordinarily accessed by the public.

(13) Schedule 1, item 21, page 8 (lines 16 and 17), omit "and 80.2BB", substitute ", 80.2BB and 80.2DA".

(14) Schedule 1, page 8 (after line 21), at the end of the Schedule, add:

23 After paragraph 80.4(2)(c) of the Criminal Code

Insert:

(da) subsection 80.2DA(1); or

Question negatived.

Unresolved question—

That amendments (2) to (10) and (12) moved by the honourable member for Wentworth be agreed to:

(2) Schedule 1, page 3 (after line 12), after item 2, insert:

2A Section 80.1A of the Criminal Code

Insert:

sex characteristics, of a person, means the person's physical features and development related to the person's sex, and includes:

(a) genitalia, gonads and other sexual and reproductive parts of the person's anatomy; and

(b) the person's chromosomes, genes and hormones that are related to the person's sex; and

(c) the person's secondary physical features emerging as a result of puberty.

(3) Schedule 1, item 4, page 3 (line 17), omit "intersex status", substitute "sex characteristics".

(4) Schedule 1, item 7, page 3 (line 25), omit "intersex status", substitute "sex characteristics".

(5) Schedule 1, item 12, page 4 (line 15), omit "intersex status", substitute "sex characteristics".

(6) Schedule 1, item 15, page 4 (line 23), omit "intersex status", substitute "sex characteristics".

(7) Schedule 1, item 19, page 5 (line 14), omit "intersex status", substitute "sex characteristics".

(8) Schedule 1, item 19, page 5 (line 26), omit "intersex status", substitute "sex characteristics".

(9) Schedule 1, item 19, page 6 (line 30), omit "intersex status", substitute "sex characteristics".

(10) Schedule 1, item 19, page 7 (line 14), omit "intersex status", substitute "sex characteristics".

(12) Schedule 1, item 20, page 8 (lines 13 and 14), omit "intersex status", substitute "sex characteristics".

Question negatived.

I'll now deal with the amendments moved by the opposition.

Unresolved question—

That opposition amendments (1) to (4) on sheet 3 be agreed to:

(1) Schedule 1, page 3 (before line 3), before item 1, insert:

Crimes Act 1914

1A Section 16AAA (after table item 1)

Insert:

(2) Schedule 1, item 19, page 8 (after line 10), at the end of the item, add:

80.2BE Advocating force or violence through causing damage to property

Offences

(1) A person (the first person) commits an offence if:

(a) the first person intentionally advocates for another person, or a group, to use force or violence against a group (the targeted group); and

(b) the first person does so by causing damage to property; and

(c) the first person does so reckless as to whether the force or violence will occur; and

(d) the targeted group is distinguished by race, religion or ethnic origin; and

(e) the use of force or violence would threaten the peace, order and good government of the Commonwealth.

Penalty: Imprisonment for 7 years.

Note: For intention, see section 5.2. For recklessness, see section 5.4.

(2) A person (the first person) commits an offence if:

(a) the first person intentionally advocates for another person, or a group, to use force or violence against a group (the targeted group); and

(b) the first person does so by causing damage to property; and

(c) the first person does so reckless as to whether the force or violence will occur; and

(d) the targeted group is distinguished by race, religion or ethnic origin.

Penalty: Imprisonment for 5 years.

Note: For intention, see section 5.2. For recklessness, see section 5.4.

(3) The fault element for paragraphs (1)(d) and (2)(d) is recklessness.

Note: For recklessness, see section 5.4.

(4) For the purposes of paragraphs (1)(d) and (2)(d), the person may have in mind a combination of attributes mentioned in those paragraphs.

Alternative verdict

(5) Subsection (6) applies if, in a prosecution for an offence (the prosecuted offence) against subsection (1), the trier of fact:

(a) is not satisfied that the defendant is guilty of the offence; but

(b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence (the alternative offence) against subsection (2).

(6) The trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

Meaning of damage

(7) In this section:

damage includes minor damage.

Example: An offensive slogan painted on a building (advocating the use of force or violence against Jews) is damage for the purposes of this section.

(3) Schedule 1, item 21, page 8 (line 17), omit ")", substitute "and 80.2BE)".

(4) Schedule 1, item 22, page 8 (after line 21), at the end of the item, add:

(ce) subsection 80.2BE(2); or

Question agreed to.

Bill, as amended, agreed to.