|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Parliamentary Joint Committee on Human Rights |
|
Purpose
|
The bill seeks to amend offences in the Criminal Code Act 1995
relating to urging violence, and introduce new offences for threatening force or
violence against groups or members of a group, and
expand the attributes of
targeted groups to include sex, sexual orientation, gender identity, intersex
status and disability. The
bill further seeks to replace the fault element of
'intent' with 'recklessness' and remove the good faith defence for urging or
threatening
violence in relation to these offences
|
|
Portfolio
|
Attorney-General
|
|
Introduced
|
House of Representatives, 12 September 2024
|
|
Rights
|
Children’s rights; equality and non-discrimination; freedom of
expression; freedom of religion
|
1.199 The Criminal Code Act 1995 (Criminal Code) currently contains offences for intentionally urging another person or a group to use force or violence against a person or a group, with the intention that force or violence will occur, where the targeted group or a member of a group is distinguished by race, religion, nationality, national or ethnic origin or political opinion (sections 80.2A and 80.2B).[296] The bill would amend these offences to provide that a person may be guilty of an offence where they are reckless as to whether the force or violence will occur.[297] (Currently, for a person to be guilty of an offence, they must intend for the force or violence to occur.) The bill would also amend these offences to expand the list of protected attributes to include ‘sex, sexual orientation, gender identity, intersex status and disability’.[298]
1.200 The bill would also make it an offence, punishable by up to five years imprisonment, to threaten to use force or violence against a group or a member of a group on the basis of the expanded protected attributes, where a reasonable member of the group would fear the threat would be carried out.[299] Where such a threat, if carried out, would threaten the peace, order and good government of the Commonwealth, the offence would be punishable by seven years imprisonment.[300]
1.201 Currently, the bill provides a defence to the existing urging force or violence offences, if the person who took the action, in good faith:
• tries to show that the Sovereign, Governor-General, State Governors, their advisers or a person responsible for the government of another country are mistaken;
• points out, with a view to reforming, errors or defects in the government, the Constitution, legislation or administration of justice;
• urges a person to attempt to lawfully procure a change in law, policy or practice in Australia or internationally;
• points out matters that are producing, or have a tendency to produce, feelings of ill-will or hostility between different groups, in order to remove that;
• does anything in connection with an industrial dispute or matter; or
• publishes a report or commentary about a matter of public interest.[301]
1.202 The bill seeks to disapply this defence in relation to the offences of urging or threatening violence.[302]
1.203 The Criminal Code also criminalises the public display of prohibited symbols.[303] A person commits an offence if they cause a prohibited symbol to be displayed in a public place in certain circumstances (including that the conduct is likely to offend, insult, humiliate or intimidate a reasonable person who is a member of a group of persons distinguished by race, colour, sex, language, religion, political or other opinion or national or social origin because of their membership of that group).[304] The bill seeks to amend those offences to expand the relevant groups of persons to include those distinguished by ‘sexual orientation, gender identity, [and] intersex status’.[305]
1.204 To the extent that expanding offences and introducing new offences for displaying prohibited hate symbols and urging or threatening violence against groups or members of groups with protected attributes would deter and prevent the commission of violent offences, the measures could promote several human rights, including the rights to life and security of person, the right to equality and non-discrimination, and the prohibition against inciting national, racial or religious hatred.[306] The right to life imposes an obligation on the state to protect people from being killed by others or identified risks.[307] The United Nations (UN) Human Rights Committee has stated that the duty to protect life requires States parties to 'enact a protective legal framework that includes effective criminal prohibitions on all manifestations of violence or incitement to violence that are likely to result in the deprivation of life'.[308] The right to security of person requires the state to take steps to protect people against interference with personal integrity by others. This includes protecting people who are subject to death threats, assassination attempts, harassment and intimidation.[309] The right to equality and non-discrimination provides that everyone is entitled to enjoy their rights without discrimination of any kind and that all people are equal before the law and entitled without discrimination to equal and non‑discriminatory protection of the law.[310] Article 20 of the International Covenant on Civil and Political Rights obliges states to prohibit by law any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.
1.205 However, by criminalising certain forms of expression, including communicating information or ideas publicly where it amounts to urging or threatening violence and the display of prohibited symbols, the measures also engage and limit the right to freedom of expression. The right to freedom of expression includes the freedom to seek, receive and impart information and ideas of all kinds, either orally, in writing or print, in the form of art, or through any other media of an individual's choice.[311] The UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression has stated that 'the right to freedom of expression includes expression of views and opinions that offend, shock or disturb'.[312] The UN Human Rights Committee has also stated that the right to freedom of expression encompasses expression that may be regarded as deeply offensive and insulting, although such expression may be restricted in accordance with articles 19(3) and 20 of the International Covenant on Civil and Political Rights (which obliges States parties to prohibit by law any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence).[313]
1.206 The right to freedom of expression may be subject to limitations that are necessary to protect the rights or reputations of others, national security, public order, or public health or morals. Additionally, such limitations must be prescribed by law, be rationally connected to the objective of the measures and be proportionate.[314] Noting the important status of this right under international human rights law, restrictions on the right to freedom of expression must be construed strictly and any restrictions must be justified in strict conformity with the limitation clause in article 19(3), including restrictions justified on the basis of article 20.[315]
1.207 Additionally, as the offences would apply to children (from the age of 10),[316] the measures would engage and limit the rights of the child. Children have special rights under human rights law taking into account their particular vulnerabilities.[317] All children under the age of 18 years are guaranteed these rights, without discrimination on any grounds, including the right to freedom of expression.[318] Australia is required to ensure that, in all actions concerning children, the best interests of the child are a primary consideration.[319] This requires legislative, administrative and judicial bodies and institutions to systematically consider how children's rights and interests are or will be affected directly or indirectly by their decisions and actions.[320]
1.208 Further, if the offences for urging and threatening violence, and the prohibition on publicly displaying certain prohibited symbols, had the effect of restricting the ability of people of certain religious groups to worship, practise or observe their religion, these measures may engage and limit the right to freedom of religion, particularly the right to demonstrate or manifest religious or other beliefs.[321] This may also engage and limit the right to equality and non-discrimination (which is described above). The freedom to manifest religion or belief in worship, observance, practice and teaching encompasses a broad range of acts, including ritual and ceremonial acts, the building of places of worship, the wearing of religious dress, and preparing and distributing religious texts or publications.[322]
Legitimate objective and rational connection
1.209 The statement of compatibility briefly identifies that the bill would limit the rights to freedom of expression and freedom of religion, but does not identify that the bill engages the rights of the child. It states that the measures would combat the increasing prevalence of hate speech involving calls to force and violence and would promote community respect and understanding.[323] It states that the limitations are necessary to protect the community from force or violence that can cause significant harm, prevent the compromise of national security and public order, and assist law enforcement in intervening early to prevent threats from being carried out and to prevent the lives and physical security of targeted individuals being compromised.[324] These would broadly appear to constitute clear legitimate objectives under international human rights law, and expanding the scope of the offences would appear to be rationally connected to (that is, effective to achieve) those objectives.
Proportionality
1.210 In assessing whether the limitations on these rights are proportionate to the objectives being sought, it is necessary to consider whether the limitations are sufficiently circumscribed and whether the measures are accompanied by sufficient safeguards.
1.211 The breadth of the measures is relevant in considering whether the limitations are sufficiently circumscribed. In relation to the offences for urging or threatening violence, reducing the fault element regarding whether the violence or force the person is urging will actually occur to recklessness, and expanding the offences to cover more groups with protected attributes, expands the scope of conduct which may be criminalised. The statement of compatibility states that the existing fault element of intent sets the bar so high that conduct which should attract criminal liability is not captured, and that amending it to recklessness will align the offence with the standard fault elements in the Criminal Code and common law.[325] Capturing a greater range of conduct directed at groups with protected attributes may provide protection to a greater range of persons. However, it may be that the requirement of ‘intention’ provides an important protection for the right to freedom of expression in practice, and enables consideration of the context in which the communication is given.[326] As such, there may be a risk that the amended offence could capture a broader range of conduct in a manner which impermissibly limits the rights to freedom of expression and religion.
1.212 As to the proposed removal of the defence of acting in good faith, the statement of compatibility states that this would make clear that urging force or violence against people on the basis of their protected attributes can never be done in ‘good faith’, and would remove an avenue for a defendant to avoid criminal responsibility if they engage in conduct of this kind.[327] It states that the rights of individuals to communicate ideas in a manner that falls short of urging force or violence would not be affected by these expanded offences.[328] However, if the urging of force or violence can never be performed in good faith, it is not clear why it is therefore necessary to remove the defence. Despite these offences having been in operation since 2010,[329] no information is provided as to whether this defence has been relied on in practice in circumstances which have been regarded as inappropriate or too broad. The explanatory memorandum indicates that this proposal reflects recommendations made by the Australian Law Reform Commission (ALRC) in 2006.[330] However, the ALRC stated that rather than attempt to protect freedom of expression through a ‘defence’ that arises after a person has been found to satisfy all the elements of the offence, it would be better in principle and in practice to reframe the criminal offences in such a way that they do not extend to legitimate activities or unduly impinge on freedom of expression in the first place.[331] As the bill proposes lessening the fault element attaching to one aspect of the offences, it does not appear that the proposed amendments are consistent with the ALRC’s recommendation.
1.213 In relation to the public display of prohibited symbols, the statement of compatibility provides very limited analysis of whether these measures constitute a permissible limit on human rights. The committee previously considered these measures in detail and concluded that depending on how the measures are implemented in practice, there may be a risk that they are incompatible with the rights to freedom of expression, freedom of religion and equality and non-discrimination.[332] As this bill seeks to expand the protected groups in relation to whom these offences would operate, those human rights concerns remain relevant. In this regard, the committee previously made several recommendations to assist with the proportionality of the measure which do not appear to have been implemented.[333]
1.214 As to the rights of the child, there is a clear position under international human rights law that the minimum age of criminal responsibility should be at least 14 years and that the best interests of the child should be prioiritised, including by way of non-judicial alternatives to prosecution and detention of children accused of terrorist offences. As children aged as young as 10 could be charged with any of these offences, there therefore appears to be a significant risk that the measures are not compatible with the rights of the child.
Concluding remarks
1.215 While the measures broadly pursue objectives which would be regarded as legitimate objectives for the purposes of international human rights law and are rationally connected to those objectives, it is unclear whether the proposed limitations on the rights to freedom of expression, religion and equality and non-discrimination would be proportionate in all circumstances. There is a risk that, in practice, the offences could capture a greater range of conduct that may be offensive and insulting but the prohibition of which may constitute an impermissible limit on the rights to freedom of expression and religion. In relation to the offences related to urging violence, this risk appears to be particularly pronounced given the proposed removal of the defence of acting in good faith. Further, in the absence of any requirement to consider non-judicial alternatives to prosecution and detention of children or any other legislative safeguards to protect the rights of the child with respect to any of these offences, there is a significant risk that the measures are not compatible with the rights of the child.
1.216 The committee notes that the bill seeks to expand existing offences in the Criminal Code for intentionally urging another person or a group to use force or violence against a person or a group, including by reducing one relevant fault element to recklessness, expanding the list of protected attributes to include sex, sexual orientation, gender identity, intersex status and disability, and removing the existing defence of acting in good faith. The committee notes that the bill would also make it an offence, punishable by up to five years imprisonment, to threaten to use such force or violence. The bill would also expand existing offences for publicly displaying prohibited symbols to include circumstances where the conduct is likely to offend, insult, humiliate or intimidate a reasonable person who is a member of a group of persons including persons distinguished by sexual orientation, gender identity, and intersex status.
1.217 The committee considers that in seeking to expand existing offences and introduce new offences, the bill would likely promote numerous human rights, including the rights to life and security of person, the right to equality and non-discrimination, and the prohibition against inciting national, racial or religious hatred.
1.218 However, the committee notes that by criminalising certain forms of expression, including communicating information or ideas publicly where it amounts to urging or threatening violence and the display of prohibited symbols, the measures also engage and limit the rights to freedom of expression and religion, and the right to equality and non-discrimination.
1.219 The committee notes that it extensively considered the offences relating to public display of prohibited symbols when they were introduced in 2023, at which time it raised several human rights concerns.[334] The committee notes that it recommended 10 amendments to the bill to assist with its compatibility, and that it does not appear that those amendments were made. Consequently, the concerns the committee previously raised remain relevant to this measure.
1.220 The committee considers that these measures are broadly directed towards important and legitimate objectives of protecting vulnerable people in society and preventing violence and harm. In relation to the public display of prohibited symbols, the committee considers that in circumstances where the measures restrict expression that reaches the threshold of hate speech, it would likely constitute a permissible limitation on the right to freedom of expression. However, the committee remains concerned that there is a risk that in some circumstances, depending on how the measures are implemented by law enforcement in practice, the measures may not be fully compatible with the rights to freedom of expression, freedom of religion and equality and non-discrimination.
1.221 In relation to urging violence, the committee considers that while protecting an expanded list of groups with protected attributes and lowering one fault element to recklessness will capture a broader range of conduct, which may help protect vulnerable groups from violence, there is a risk that in practice the offences could capture a greater range of conduct, including conduct that may be offensive and insulting, but the prohibition of which may constitute an impermissible limit on the rights to freedom of expression and religion.
1.222 The committee considers that in the absence of any requirement to consider non-judicial alternatives to prosecution and detention of children or any other legislative safeguards to protect the rights of the child with respect to any of these offences, there is a significant risk that the measures are not compatible with the rights of the child.
|
Suggested action
1.223 The committee recommends that consideration be given to the
amendments the committee proposed in relation to public display
of prohibited
symbols in Report 9 of 2023.
1.224 The committee recommends that the statement of compatibility be
updated to provide a more fulsome assessment of compatibility
with the right to
freedom of expression, freedom of religion, and equality and non-discrimination,
and to assess the compatibility
of these measures with the rights of the
child.
|
1.225 The committee draws these human rights concerns to the attention of the Attorney-General and the Parliament.
[295] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Criminal Code Amendment (Hate Crimes) Bill 2024, Report 9 of 2024; [2024] AUPJCHR 68.
[296] Criminal Code, sections 80.2A and 80.2B.
[297] Schedule 1, items 3,6, 11 and 14.
[298] Schedule 1, items 4, 7, 12 and 15.
[299] Schedule 1, item 19, proposed section 80.2BA.
[300] Schedule 1, item 19, proposed section 80.2BB.
[301] Criminal Code, section 80.3.
[302] Schedule 1, item 20, proposed substituted subsection 80.3(1).
[303] Per Criminal Code, section 80.2F, a prohibited symbol is 'displayed in a public place' if it is capable of being seen by a member of the public who is in a public place or the prohibited symbol is included in a document, such as a newspaper or magazine, film, video or television program, that is available or distributed to the public or a section of the public (including via the internet). Per section 80.2E, a 'prohibited symbol' is defined as the Nazi hakenkreuz, the Nazi double sig rune, a symbol that a terrorist organisation or its members use to identify the organisation, and something that so nearly resembles these things that it is likely to be confused with, or mistaken for, that thing.
[304] Criminal Code, subsections 80.2H(7) and 80.2HA(7).
[305] Schedule 1, item 20.
[306] International Covenant on Civil and Political Rights, articles 6 (right to life) and 9 (right to security of person), 20 (prohibition against racial and religious discrimination and hatred) and article 26 (equality and non-discrimination); Convention on the Elimination of All Forms of Racial Discrimination, article 4.
[307] UN Human Rights Committee, General Comment No. 36: article 6 (right to life) (2019) [3]: the right should not be interpreted narrowly and it ‘concerns the entitlement of individuals to be free from acts and omissions that are intended or may be expected to cause their unnatural or premature death, as well as to enjoy a life with dignity’.
UN Human Rights Committee, General Comment No. 6: article 6 (right to life) [5]: the right should not be understood in a restrictive manner. It requires States to adopt positive measures, noting that it would be desirable for State parties to take all possible measures to reduce infant mortality and increase life expectancy.
[308] United Nations Human Rights Committee, General Comment No. 36: article 6 (right to life) (2019) [20].
[309] The UN Human Rights Committee has stated that measures taken in respect of article 20, namely laws prohibiting the advocacy of national, racial or religious hatred, 'constitute important safeguards against infringements of the rights of religious minorities and of other religious groups to exercise the rights guaranteed by articles 18 and 27, and against acts of violence or persecution directed toward those groups'. See UN Human Rights Committee, General Comment No. 22: Article 18 (Freedom of thought, conscience or religion) (1993) [9].
[310] International Covenant on Civil and Political Rights, articles 2 and 26. Article 2(2) of the International Covenant on Economic, Social and Cultural Rights also prohibits discrimination specifically in relation to the human rights contained in the International Covenant on Economic, Social and Cultural Rights.
[311] International Covenant on Civil and Political Rights, article 19(2).
[312] UN Human Rights Council, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, A/HRC/17/27 (2011) [37].
[313] UN Human Rights Committee, General comment No. 34: Article 19: Freedoms of opinion and expression, CCPR/C/GC/34 (2011) [11] and [38].
[314] UN Human Rights Committee, General Comment No.34: Article 19: Freedoms of Opinion and Expression (2011) [21]-[36].
[315] UN Human Rights Committee, General comment No. 34: Article 19: Freedoms of opinion and expression, CCPR/C/GC/34 (2011) [2]–[3], [21]–[22], [52].
[316] Crimes Act 1914, sections 4M and 4N provide that a child under 10 cannot be liable for an offence and a child aged 10–14 can be liable but only if they know their conduct is wrong.
[317] Convention on the Rights of the Child. See also, UN Human Rights Committee, General Comment No. 17: Article 24 (1989) [1].
[318] UN Human Rights Committee, General Comment No. 17: Article 24 (1989) [5]. See also International Covenant on Civil and Political Rights, articles 2 and 26. The right to freedom of expression is protected by article 13 of the Convention on the Rights of the Child.
[319] Convention on the Rights of the Child, article 3(1).
[320] UN Committee on the Rights of Children, General Comment 14 on the right of the child to have his or her best interest taken as primary consideration (2013). The UN Committee on the Rights of the Child has said: 'the expression "primary consideration" means that the child's best interests may not be considered on the same level as all other considerations. This strong position is justified by the special situation of the child'. See also IAM v Denmark, UN Committee on the Rights of the Child Communication No.3/2016 (2018) [11.8].
[321] International Covenant on Civil and Political Rights, article 18. See UN Human Rights Committee, General Comment No. 22: Article 18 (Freedom of thought, conscience or religion) (1993).
[322] UN Human Rights Committee, General Comment No. 22: Article 18 (Freedom of thought, conscience or religion) (1993) [4].
[323] Statement of compatibility, p. 5.
[324] Statement of compatibility, pp. 12–13.
[325] Statement of compatibility, p. 6.
[326] In relation to section 80.2 of the Criminal Code (an offence for sedition), the Australian Law Reform Commission stated that the focus should be on providing that a person intentionally urges the use of force or violence and to consider the context in which it is made rather than relying on defences after a person has been found to satisfy all the elements of the offence: see, Australian Law Reform Commission, Fighting Words: A Review of Sedition Laws in Australia (Report 104, July 2006) p. 259.
[327] Statement of compatibility, p. 9.
[328] Statement of compatibility, p. 13.
[329] Sections 80.2A and 2B were introduced in 2010 pursuant to the National Security Legislation Bill 2010.
[330] Explanatory memorandum, p. 39 in reference to Australian Law Reform Commission, Fighting Words: A Review of Sedition Laws in Australia (ALRC Report 104, 2006).
[331] Australian Law Reform Commission, Fighting Words: A Review of Sedition Laws in Australia (ALRC Report 104, 2006) [2.70].
[332] Parliamentary Joint Committee on Human Rights, Report 8 of 2023 (2 August 2023) pp. 22–45 and Report 9 of 2023 (6 September 2023) pp. 61–94.
[333] Parliamentary Joint Committee on Human Rights, Report 9 of 2023 (6 September 2023) pp. 93–94.
[334] Parliamentary Joint Committee on Human Rights, Report 8 of 2023 (2 August 2023) pp. 22–45 and Report 9 of 2023 (6 September 2023) pp. 61–94.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/other/AUPJCHR/2024/68.html