Federal Hate Crimes Amendments
The Criminal Code Amendment (Hate Crimes) Bill 2024 was introduced into Parliament on 12 September 2024, and then sent to Committee.
The Bill is the result of an extended confidential consultation process between the Government and a limited number of faith leaders. It is a great improvement on previous broad-reaching proposals which would have had a serious impact on religious freedom.
The Bill does two main things:
Firstly, the Bill modifies existing crimes of urging violence or force against an individual or a group (Criminal Code 80.2A, 80.2B) in two ways:
- the threshold is dropped from a person “intending” force or violence to them being “reckless as to whether” will occur.
- The current list of protected attributes expanded from “race, religion, nationality, national or ethnic origin or political opinion”, adding “sex, sexual orientation, gender identity, intersex status, disability”.
Secondly, the Bill introduce new offences in s 80.2BA “Threatening force or violence against groups”, and s 80.2BB “Threatening force or violence against members of groups”.
These offenses make it illegal if person threatens to use force or violence against an individual or a group (with the expanded list of protected categories), and “a reasonable member of the targeted group would fear that the threat will be carried out.”
While these changes are relatively modest, there are some concerns:
Firstly, the word “violence” is not clearly defined. The definition should be confined to infliction of personal bodily injury. We are concerned, however, that the notion of “force or violence” could be interpreted to include psychological injury.
Other provisions in the Commonwealth Criminal Code 1995 make a distinction between physical and non-physical forms of harm, protecting only the former (see for example subsections 100.1(2)(a), (3) and section 146.1). These new sections do not clearly make the same distinction. Our concern is that the failure to define violence or force in these sections as excluding psychological injury, in the context of that deliberate exclusion elsewhere in the Code, means the drafters could be seen to have intended to include psychological injury. To remedy this the provisions should clarify that harm inflicted by violence or force includes only physical harm.
Secondly, the wording of s 80.2BB is unnecessary. Under s 80.2BB(1)(a) the offence applies where “the first person threatens to use force or violence against a person (the targeted person)”, but then in s 80.2BB(1)(d) the question arises as to whether “a reasonable member of the targeted group would fear that the threat will be carried out”. It is not clear why the relevant criterion is not that the person threatened would themselves “reasonably fear” the carrying out of the threat, rather than shifting the focus to a generic “reasonable member” of a target group.
