Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Hansard source

I will go first of all to the question of religious and political grounds in the ‘urging violence’ offences. The ‘urging violence’ offences are complementary to existing antivilification laws. Further, they extend those laws by outlawing the targeting of groups and members of groups distinguished by race, religion, nationality, national or ethnic origin, and political opinion. The ALRC noted concerns about the inclusion of those elements—political opinion and religion. While these would normally fall within protected free speech, the Law Reform Commission were not convinced that the concerns were persuasive in relation to an offence that seeks to protect a religious or political group from being subjected to force or violence, and the government agrees with the conclusion from the Law Reform Commission.

I go to the question of substituting the phrase ‘is intended’ in the definition of urging violence, as proposed by the Greens amendments. This would make the offence very difficult to prosecute. Its effect would be to make it easier for an individual to urge others to engage in violence and escape prosecution. Replacing the formulation ‘would threaten the peace’ with ‘is intended to threaten the peace’ would significantly increase the evidentiary burden for the prosecution. The government believes that the current formulation in the bill strikes the right balance.

I then go to amendments (10) and (14), which go to the ‘artistic endeavours’ question. It is the government’s view that this is not a necessary set of amendments. The question is already covered by the good faith defence in section 80.3 of the Criminal Code, which the government proposes to expand to explicitly recognise the matters identified in the amendment. The ‘urging violence’ offences in the bill are subject to the good faith defence at section 80.3 of the Criminal Code. Some have suggested that the good faith defence does not apply to situations such as a positive portrayal of a suicide bomber in a painting or a play. This proposition ignores the fact that a positive portrayal could be for many reasons, and the prosecution must prove beyond reasonable doubt that the painter or playwright intended to urge the use of force or violence or intended to assist an enemy of Australia. It is only when proof of intent is possible that the defence becomes relevant.

The good faith defence would be available to those making a political point to do so within the government’s policies. The amendments suggested by the Australian Greens suggest adding new defences relating to artistic works, statements and public affairs. Adding special defences for artistic, educational and journalistic works is unnecessary as legitimate artistic, educational and journalistic works are already covered by the existing section 80.3 of the Criminal Code.

The danger with using special defences is that terrorists will attempt to use education of the arts and journalism to justify their conduct. It is also important to remember that the offences only cover conduct that intentionally urges violence. I hope that I have addressed the questions that you raised.