Criminal Code Amendment (Hate Crimes) Bill 2024

The majority voted in favour of a motion that schedule 1, items 10, 18 and 21 stand as printed. In other words, they wanted to keep these items unchanged. This vote took place after Victorian Senator Lidia Thorpe (Independent) introduced an amendment to oppose them.

Item text

10 Subsection 80.2A(5) of the Criminal Code (note)

Repeal the note.

18 Subsection 80.2B(6) of the Criminal Code (note)

Repeal the note.

21 Subsection 80.3(1) of the Criminal Code

After “and C”, insert “(other than sections 80.2A, 80.2B, 80.2BA, 80.2BB, 80.2BC and 80.2BD and 80.2BE)”.

What do items 10, 18 and 21 in Schedule 1 do?

These items are all related to removing the good faith defence to certain offences. According to the bills digest (a document prepared by the parliamentary library):

Exclusion from good faith defence

Item 21 would amend subsection 80.3(1) of the Criminal Code to exclude the existing urging force or violence offences (sections 80.2A and 80.2B) and the proposed threatening force or violence offences (proposed sections 80.2BA and 80.2BB) from the existing good faith defences provided in section 80.3.

At present, section 80.3 provides that the offences in ‘Subdivision C—Urging violence and advocating terrorism or genocide’ do not apply to a person who has done so in certain listed ways or for certain listed aims, where those are considered to be done ‘in good faith’.

The Explanatory Memorandum (at page 39) notes that the good faith defence had carried over from an earlier sedition offence, and claims that, in a 2006 Report the Australian Law Reform Commission (ALRC):

recommended that section 80.3 of the Criminal Code be amended so that the good faith defences do not apply to the offences of urging violence and that instead, the focus should be on ‘proving that a person intentionally urges the use of force or violence, with the intention that the force or violence urged will occur’.

The Senate Standing Committee for the Scrutiny of Bills, in its Digest 12 of 2024, requested further information to fully assess the appropriateness of removing existing good faith defences for the existing urging force or violence offences and the proposed threatening force or violence offences (at paragraph 1.40). The Committee noted that the effect may be ‘the overly broad criminalisation of certain speech.’ The Committee also disagreed with the interpretation of the 2006 ALRC recommendation in the Explanatory Memorandum, stating:

Instead of adopting the ALRC recommendations, this bill removes the requirement for intention, together with removing the availability of the defence, without making any other amendments to allow for any consideration of the circumstances in which the conduct occurred. (page 14)