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Speech: Statutes Amendment (Hate Crimes) Bill - Second Reading

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 At present they are forced to work with laws that are weak, outdated and confusing.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.

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