George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Hansard source

Let me deal briefly with the different categories of amendments which Senator Ludlam has foreshadowed. First of all, the amendments that would omit the word ‘would’ and substitute the words ‘is intended to’ in clauses 80.2A(d), 80.2A(1)(d) and 80.2B(1)(d) would, with respect to Senator Ludlam, disregard the distinction which the common law draws between the intention for which conduct is engaged in and the consequences of the conduct which are foreseeable. The intention element in each of those two sections is supplied in subclauses 1A and 1B so that there must be an intentional urging of the use of force or violence against a group and there must be an intention that the force or violence will occur. That being the relevant state of mind, it seems to the opposition sufficient to satisfy the mens rea for that offence and, if the consequence of urging force or violence is that it would threaten the peace, order and good government of the Commonwealth, we do not see that it is necessary to require an additional mental element to intend to threaten the peace, order and good government of the Commonwealth. That is a natural consequence of the urging of force or violence with the prohibited state of mind.

In relation to the provisions of clause 80.2A and 80.2B, particularly in relation to the latter, I think, Senator Ludlam, that your criticism, as I understand it, was that provisions of this kind would more naturally be seen in anti-vilification laws. But then you go on to say that we should omit religion and political opinion from the categories which distinguish the protected group, because it is not appropriate that they be included in anti-vilification statutes. That seems—if I may say, with respect, Senator Ludlam—something of a circular argument. The whole point of these prohibitions is to prohibit the urging of force or violence against targeted groups which include groups identified or distinguished by, among other things, their religion and political opinion. That is what sedition-like provisions do. They are provisions designed to protect members or elements of the body politic from force or violence for the prosecution of political ends under the bogus claim of merely being the expression of opinion.

In any event, with regard to even those distinguishing characteristics that you would leave unamended—that is, race, nationality and national or ethnic origin—those three categories are not necessarily descriptors of marginalised or vulnerable groups. I believe that it is entirely proper that a law which is the successor to sedition laws should protect groups within society distinguished by race, nationality and national or ethnic origin whether they be a marginalised minority—for example, a race or a nationality which might have very few members in the Australian community and might be thought to be marginalised and vulnerable—or whether it may be a race which has many, many members, millions of members, within the Australian community which could, on no view, be regarded as a marginalised or vulnerable group within society but nevertheless is entitled to be protected from those urging force or violence against it.

I remember that in the 1970s, in particular, in Australia there was within the Yugoslavian population a great deal of activity of this kind between Croatian people and people from elsewhere in Yugoslavia who on the European continent had historically been their enemies, and that was transported to Australia. I think that the Yugoslavian people on one side of that dispute were such a large body of good citizens of Australia that it would be stretching meaning to say that they were a marginalised or vulnerable group. Nevertheless, they were a group which was entitled to have the benefit of the protection of the criminal law against politically motivated force or violence against them. I think we could think of many other examples of that as well.

So with respect, Senator Ludlam, I think you make what is sometimes described as a ‘category error’ when you say that this should apply only to vulnerable and marginalised groups. I think it should apply to precisely the kinds of defined groups to which subsection (d) and each of the relevant sections are directed, and that includes religion and political opinion. I am a proud member of the Liberal Party, as you are a proud member of the Australian Greens. I do not think either of us belongs to vulnerable or marginalised groups in terms of political opinion, but in the expression of our political opinions we are entitled to be protected from people urging force or violence against us by reason of that identifying characteristic. That is the purpose of these laws, and I think the way they are drafted is completely fit for that purpose.

I turn lastly to what I think was your third main point, the proposed inclusion of a defence in proposed section 4A and each of these relevant subsections if:

… the conduct that constituted the offence occurred:

(a)

in the development, performance, exhibition or distribution of an artistic work; or

(b)

in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

(c)

in the dissemination of news or current affairs.

A defence covering all of those spheres of activity might be a perfectly appropriate defence if these offence-creating provisions were concerned with the expression of opinion. That, I think was your premise. But these provisions are not concerned with the expression of opinion. They all operate upon a person urging force or violence against a targeted person, intending that that force or violence occur. I must say with all due respect that it passes my understanding how the urging of force or violence against a targeted group with the intention that that force or violence should take place could ever be excused on the basis that it, for example, involved the development of an artistic work or was in the course of the publication of an academic opinion or the dissemination of news or current affairs. The offence-creating provisions criminalise acts of violence against targeted groups, and it is, with respect, a bogus freedom of speech argument to suggest that the urging of violence against groups could ever be exculpated by any of the activities in the various spheres identified by your proposed amendment. So, for that reason, with all due respect we think it is an absurd amendment and we oppose it as well.