Statutes Amendment (Hate Crimes) Bill – Second Reading

Bills, In Parliament, Speeches

Adjourned debate on second reading.

(Continued from 2 December 2020.)

The Hon. T.A. FRANKS (18:08): I rise to continue my remarks from last year, when I introduced this bill. At that time, we had just passed legislation to end the so-called gay panic defence in our state. The bill before us today was originally an amendment I had to that bill, which we have now seen made law. After I filed those amendments, it became clear that members would prefer to consider them as a separate piece of legislation, which is what we have before us today. This is, I believe, a very simple bill. I will note from the outset as well that I am aware that the government has amendments to the bill, and I am very supportive of those amendments.

Ultimately, it comes down to the fact that we still have a clear problem with hate crimes and with dealing with them within our legal system. Generally, hate crimes are understood to be crimes motivated by bias, prejudice or hostility towards a victim based on their particular characteristics, such as race, gender, sexuality or gender identity.

There are limited options for a legal recourse, and some cases—and certainly a few recent instances demonstrate this—such as the spate of Nazi or neo-Nazi stickers that cropped up throughout the streets of Rundle Mall and Adelaide at the beginning of the NAIDOC Week this year, demonstrate that it is time South Australia caught up, stood up and ensured that hate crimes were addressed and dealt with properly. It is high time that we provided real and strong protections for marginalised South Australians.

Clearer hate crime legislation will provide better protection for communities and individuals by equipping our justice system to respond in ways that support victims to pursue that justice. At present they are forced to work with laws that are weak, outdated and confusing. These impediments to properly dealing with and recognising hate crimes mean that we are compounding culture where hate crimes tend to be minimised or dismissed, where incidents are pursued by the police, and they tend to be charged under other laws, like assault, public nuisance or wilful damage, obscuring the data about the nature and the prevalence of these hate crimes.

It misses an opportunity for the collection of accurate data, and by ignoring the harm caused by discrimination it also misses the chance to raise broader public awareness and feed into the development of community education, which could of course have preventative effects.

To know how effective we are at curtailing racism and other hate crimes, such as those perpetrated against the LGBTIQ+ community, we need to be able to measure it, which we do not do if hate crimes continue to be unacknowledged in our justice system. South Australia has had a Racial Vilification Act since 1996, but no-one has been convicted under this act in that time, and, of course, this act does not account for other types of prejudice for other hate crimes. These types of crime are rarely recorded, are rarely acknowledged, let alone acted upon.

The former race discrimination commissioner, Tim Soutphommasane said that, if police did not record and act on common cases of racial vilification and abuse, it made it harder to prevent major hate crimes. To quote him:

What gets measured gets done. If you don’t know just how prevalent hate crime is in in our society, it becomes easy then to dismiss it as just a theoretical threat.

Clearly, our existing laws are not enough. Even if we look at the national picture, only about 20 people have ever been convicted under hate crime laws. We of course know that many more than 20 hate crimes have been committed; we just have not been recognising them.

Prejudice-motivated conduct must be added as a sentencing factor, like it is in New South Wales, Victoria and the Northern Territory. That is why we have this bill. I want to touch upon the first part of it briefly, though I understand the government will not be supporting that element of this proposed legislation. I hope that in speaking to it I can at least put the importance of these changes on the public record, and perhaps they may be considered again in the future.

Part 2 of this bill seeks to amend the Criminal Law Consolidation Act 1935 to allow for aggravated offences. This means that, if an offender committed the crime as a result of, or for reasons related to, the offender’s hatred for or prejudice against a particular group or groups of people, including people of a particular race, religion, sex, sexual orientation, gender identity or age, or people having an intersex variation or particular disability, and knowing or believing that the victim was a member of that group, the offence is treated as an aggravated offence. There is precedence for this. In the UK, for example, they introduced a new crime of racially aggravated assault in 1998—yes, in the last century.

The biggest justification for having this offence stand alone as an aggravated offence is the fact that the gravity of harm created by racial violence is higher than other parallel offences, as the aftermath of such violence is so far-reaching. It can lead to prolonged periods of serious anxiety and depression and social phobias, both among its victims but also among their communities. I have many friends who have been bashed as gay hate crime has been perpetuated on the streets of Adelaide. Some of them are too scared to go out after dark to this day, decades later.

Not only that, the physical violence that accompanies these hate crimes is also frequently more brutal and often leads to higher hospitalisation rates when compared with other assaults that are not motivated by this prejudice. That is why the Greens included that provision in the bill and why the Greens believe it is so important, as it directly addresses the seriousness of the offence and the hate behind it. So while I do not expect that that element of this legislation will remain in the bill that we pass today, I do want to highlight that for the future.

What is so important and vital in this bill and what I am glad to hear that the government will be supporting is that it will amend the Sentencing Act 2017 to include in individual sentencing factors whether the offence was wholly or partly motivated by hatred for or prejudice against a group of people to which the defendant believed the victim belonged, including people of a particular race, religion, sex, sexual orientation, gender identity or age, or people having an intersex variation or a particular disability.

This will ensure that hate crimes are properly acknowledged and addressed in our courts. It will ensure when the courts are considering a punishment that they look at the full extent of the harm done to victims when crimes are motivated by that hate or prejudice. Attacking someone because of who they are or because who you believe them to be offends you should increase your punishment, not reduce it.

Prejudice-motivated crime is not new to Australia or to our state, but we still have not found ways to deal with it properly in our legislation. I hope that this bill goes at least in part to address that gap in our laws and that it is the beginning of more to come. I commend the bill.

The Hon. K.J. MAHER (Leader of the Opposition) (18:16): I will speak very briefly. I thank the honourable member for bringing this bill before this chamber and note that it is a longstanding issue that the honourable member has brought to the attention of this chamber. I think there are amendments to a previous bill that went to the same issue. So it is something that the Hon. Tammy Franks has brought before us a number of times, and I thank her for that.

The prejudices shown against various sectors in our community are something that ought not be tolerated. Parts of this bill will go in some way to, if not stopping that, properly allowing that to be taken into account in how an offender who is motivated wholly or partly by hatred of prejudice against particular groups can be subject to potential increased penalties for that.

We will be supporting the bill. We will also be supporting the government’s amendments so that the first part of the bill will not succeed on this occasion, but I do take into account the commentary from the Hon. Tammy Franks today. But we will be very pleased to support that other part that allows it to be taken into account in sentencing.

I think the honourable member is right: they are very far and few between in prosecution, but in allowing it to be taken as a factor in sentencing we think not just that this will have an effect of highlighting the issue via sentencing remarks but that it could potentially act as a deterrent for this sort of behaviour.

The Hon. R.I. LUCAS (Treasurer) (18:17): On behalf of the Attorney-General, I confirm the government supports the intention of the Statutes Amendment (Hates Crimes) Bill moved by the Hon. Ms Franks. To that end, amendments have been filed in my name that remove the changes to the Criminal Law Consolidation Act but keep the changes proposed to the Sentencing Act. Should the government’s amendments be accepted, the government will support this bill.

The bill as introduced amends section 5AA of the Criminal Law Consolidation Act to make it an aggravating factor to commit an offence where a reason for the offence was the offender’s hatred for or prejudice against a particular group of people and the offender knew or believed that the victim was a member of that group. The hatred can be based on religion, race, sex, age, disability or other factors. There can be other reasons for the offence; hatred or prejudice only has to be one reason. The question of whether a person hates or is prejudiced against a particular group ‘is to be determined according to the standards of ordinary people’—proposed section 5AA(2aa).

Adding hate to the list of aggravated offences in section 5AA would only have a tangible impact where there is already a separate penalty for an aggravated form of an offence—for example, assault. It would have no impact where there is not an aggravated form of an offence. There is no aggravated rape or aggravated murder.

In circumstances where there is an aggravated offence component, and were the bill to pass unamended, it would have the potential to double up as both an aggravated factor and a factor to be considered in sentencing. I do not think it was the intention of the mover to have this distinction between offences.

The bill also amends section 11 of the Sentencing Act that sets out individual sentencing factors to add that the court must take into account that the offence was wholly or partly motivated by hatred for or prejudice against a group of people to which the defendant believed the victim belonged, including, without limitation, the same factors as mentioned above.

Whilst hate or prejudice may currently be taken into account in sentencing for criminal offences, pursuant to section 11(1) of the act, it is the government’s view that making it a mandatory and explicit consideration would ensure greater consistency in sentencing and consideration of the offence in a wider context. It does so without complicating or creating distinctions in aggravated offences. Indeed, this change does not create any new offences.

Jurisdictions that have undertaken hate crime reform—namely New South Wales, Victoria and the Northern Territory—have done so at the sentencing stage. During debate on self-defence laws last year, when the partial defence of provocation was abolished, all parties agreed that crimes committed on the basis of hate could not and should not be considered mitigating. That is correct, but it is the government’s view that hate on the basis of immutable or protected characteristics adds a different dimension to an offence that ought to be considered in sentencing.

In addition to the examples already proffered by the Hon. Ms Franks in her second reading contribution, crimes against Australians of Chinese background during the onset of COVID or the defacement of synagogue property or vilification of Jews are further relevant and contemporary examples of where this consideration would be appropriate.

The government thanks the Hon. Ms Franks for bringing this bill to the council, and urges members to consider the sensible amendments proposed in this bill to the Sentencing Act.

The Hon. T.A. FRANKS (18:20): I thank those who have just made a contribution and shown an interest in this debate: the Leader of the Opposition and shadow attorney-general, the Leader of Government Business and Treasurer, as well as the ongoing interest of SA-Best in this particular bill. In particular, I want to thank the Attorney-General and her staff, most notably Ingo Block, as well as the South Australian Rainbow Advocacy Alliance, without whose work we would not be debating this right now.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. R.I. LUCAS: I move:

Amendment No 1 [Treasurer–1]—

Page 2, line 4—Delete ‘Statutes Amendment (Hate Crimes) Act 2020’ and substitute:

Sentencing (Hate Crimes) Amendment Act 2021

I gave the reasons for this amendment in the second reading reply I gave on behalf of the Attorney-General.

The Hon. T.A. FRANKS: For the record, given reference to my second reading speech providing a fuller position from the Greens, we support this.

The CHAIR: I indicate to the committee that it is the view of the table that the actual words should be in italics. That is a clerical matter that will be dealt with.

Amendment carried; clause as amended passed.

Clause 2 passed.

Clause 3.

The Hon. R.I. LUCAS: I move:

Amendment No 2 [Treasurer–1]—

Page 2, line 8 to page 3, line 7 [clause 3 and Part heading]—Part 2 will be opposed

The CHAIR: The amendment is that part 2 will be opposed, so the question I will be putting is that clause 3 stand as printed.

Clause negatived.

Clause 4 passed.

Schedule.

The Hon. R.I. LUCAS: I move:

Amendment No 3 [Treasurer–1]—

Page 3, lines 18 to 21 [Schedule 1 clause 1]—Delete clause 1

Amendment carried; schedule as amended passed.

Title.

The Hon. R.I. LUCAS: I move:

Amendment No 4 [Treasurer–1]—

Long title—Delete ‘the Criminal Law Consolidation Act 1935 and’

Amendment carried; title as amended passed.

Bill reported with amendment.

Third Reading

The Hon. T.A. FRANKS (18:27): I move:

That this bill be now read a third time.

Bill read a third time and passed.