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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
2021-11-18 Daily Xml
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Sentencing (Hate Crimes) Amendment Bill

Second Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (12:14): I move:

That this bill be now read a second time.

I indicate that this bill 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 in the previous discussion on this legislation in the other place.

I want to recognise the Hon. Tammy Franks, who has been responsible for the presentation of this to the other place and its passage therein. It is true to say that it was a much wider ambit, including provisions for new offences under the Criminal Law Consolidation Act. That has not been progressed, but the issue in relation to mandatory consideration under the Sentencing Act has been, and I am very pleased to support this initiative.

Whilst hate or prejudice may currently be taken into account at sentencing for criminal offences—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 offence. Jurisdictions which I think have already been acknowledged and which have undertaken hate crime reform—namely, New South Wales, Victoria and the Northern Territory—have done so at this sentencing stage.

During debate, I remind members that on the 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 also 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 a synagogue property or vilification of Jewish members of the community are further relevant and contemporary examples of where this consideration would be appropriate. The government thanks the Hon. Tammy Franks for bringing the bill to the council, and I commend the bill to the house.

Ms HILDYARD (Reynell) (12:16): I rise to speak on this bill and indicate that I will be the lead speaker for the opposition. In doing so, I thank the Hon. Tammy Franks in the other place for bringing this very important bill to the parliament. I note that the response to hate crimes is a longstanding issue, and amendments were proposed to a previous piece of legislation that sought to achieve similar aims. It is absolutely an issue it is incumbent upon us to address.

The original bill in the Legislative Council sought to make two changes: firstly, the introduction of a new aggravating factor for offences to section 5AA of the Criminal Law Consolidation Act 1935 and, secondly, the addition of a new sentencing factor to the Sentencing Act 2017. The proposal around the Criminal Law Consolidation Act said that an offence would be aggravated if:

…the offender committed the offence 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, without limiting this paragraph, people of a particular race, religion, sex, sexual orientation, gender identity or age, or people having an intersex variation or living with a particular disability; and knowing, or believing, that the victim was a member of that group or groups whether or not there were also other reasons for the commission of the offence.

There was some concern that the proposal may unintentionally capture people whose actions could possibly be construed as hate, even though they were seeking to protect vulnerable people or parts of the environment. Further, an aggravating factor would simply increase the maximum allowable penalty and not necessarily result in greater penalties for offenders. Accordingly, the bill was amended to remove this element.

What remains is a proposal to change the Sentencing Act 2017 to add a new individual sentencing factor that says a judge must consider:

…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, without limiting this paragraph, people of a particular race, religion, sex, sexual orientation, gender identity or age, or people having an intersex variation or a particular disability)

In doing so, the bill requires judges to consider the element of hatred, amongst many others, when determining the sentence for a crime. The prospect of spending longer in prison may, of course, also act as a deterrent for offenders. Any prejudices shown against any group of people in our community is absolutely something that no decent community should ever tolerate. This bill is focused on ensuring that we do not.

Whilst prosecutions as a result of the passage of this bill for such offending may be few and far between, this bill sends a very important message to our community. However, with regard to that message that we send as legislators and as community leaders, I note that this bill has been in the House of Assembly for almost three months. Despite that length of time, we find ourselves debating this bill and therefore the message it sends very, very late into this parliamentary year.

When a bill effectively consists of one clause and has universal support from the government and opposition and it is focused on such a crucially important message, it is difficult to understand why the government could not find 10 or so minutes of government time before today to progress this bill. The term 'hate crime' has been popularised from the United States, but South Australia has sadly never been immune from the horrific acts that such a term contemplates.

Until quite recent years, the absolutely horrific term 'gay bashing' was heard in conversations around South Australia. The utterly tragic murder of Dr George Duncan, a university law lecturer, at the River Torrens in 1972 rightly triggered community outrage and a change to decriminalise homosexuality, but we did not change the law to specifically recognise the element of hate in such crimes.

Over the last two centuries, utterly shamefully, Aboriginal people have been attacked for their race alone and, in more recent decades, other minority groups have suffered abuse and violence for looking or sounding different. Today, trans people and women find themselves the targets of unfounded acts of aggression.

It is so very sad that these laws are needed, but our parliament has a duty to progress such laws to send a message to our community and to protect members of our community. Importantly, we absolutely have a duty to protect any person who is marginalised or part of a minority group within our community. The opposition commends this bill to the house.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (12:22): I indicate my appreciation to the opposition for their indication of support in relation to the Statutes Amendment (Hate Crimes) Bill 2020. I commend the bill to the house.

Bill read a second time.

Third Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (12:23): I move:

That this bill be now read a third time.

Bill read a third time and passed.

Mr BROWN: Sir, I draw your attention to the state of the house.

A quorum having been formed:

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