Zali Steggall (Warringah, Independent) Share this | Hansard source

by leave—I move amendments (1) to (3) on sheet 1 and the amendment on sheet 2 as circulated in my name together:

(1) Schedule 1, item 7, page 4 (line 31), omit subparagraph 80.2DA(1)(b)(ii), substitute:

(ii) a spiritual leader who provides religious instruction or religious pastoral care; or

(iia) a leader of a prohibited hate group (within the meaning of Part 5.3B); or

(2) Schedule 1, item 7, page 5 (line 12), omit subparagraph 80.2DA(2)(b)(ii), substitute:

(ii) a spiritual leader who provides religious instruction or religious pastoral care; or

(iia) a leader of a prohibited hate group (within the meaning of Part 5.3B); or

(3) Schedule 2, page 43 (after line 28), after item 2, insert:

2A Paragraph 5C(1)(d)

Omit "there is a risk", substitute "there is a reasonable risk".

_____

SHEET 2

(1) Schedule 1, item 13, page 13 (after line 31), at the end of section 114A.3, add:

(7) In this section, a reference to race or national or ethnic origin includes a reference to race, nationality, national or ethnic origin, religion, sex, sexual orientation, gender identity, intersex status or disability.

It's impossible to properly scrutinise this legislation when it's provided to members only hours before debate. It makes a mockery of our responsibility to carefully scrutinise laws. Despite this, my serious concerns about the bill and the extremely limited amount of time, I've been able to at least draw out these four amendments to areas that are contentious and incredibly concerning. In seeking to act quickly, this bill grants the minister broad discretion with inadequate safeguards, weakens procedural fairness and sets a dangerous precedent that future governments could exploit. My concerns and amendments address three areas: the breadth of ministerial power, the lowering of visa cancellation thresholds and the narrowing complete definition of hate crime and consequently the prohibited groups to which it applies. As drafted, it enables a significant overreach of ministerial power, weakens procedural fairness and sets a dangerous precedent that may be exploited.

In relation to my amendments, the revised bill circulated just recently is intended to combat antisemitism, hate and extremism, and that is something I would hope we are all united about, but the execution is flawed and unacceptable. The bill continues to define hate crimes narrowly, focusing on race, nationality and ethnic origin. I certainly welcome that, but it is clear that we have hate crimes that are done on the basis of faith, sexuality, gender, sexual orientation and disability. Why these are not included in the definition of hate crime for the purpose of prohibited groups I do not understand. I know that for many in Australia, in such a multi- faith country, that why hate crimes done on the basis of at least religion are not included is really quite astounding.

So one amendment seeks to broaden the definition of hate crime—to expand it to include targeted people on the basis of religion, sex, sexual orientation, gender identity, intersex status or disability. We know that hate does not stop at race or ethnicity. There is no justification for excluding those other communities. I know they are quite distressed at the moment at hearing the debate in this place and hearing that the government does not care about the hate that they face.

Narrowing the definition of secular pastoral leadership—as drafted, the bill criminalises conduct by anyone providing religious or secular pastoral care. Secular pastoral care is not defined. That term has no clear legal meaning and no settled boundaries. I have consulted with academics and legal experts in relation to this. The amendment removes the concept of so-called secular pastoral care leader entirely and limits the offence to genuine religious officials or members of prohibited hate groups. With this change, the risk of unintended consequences—and, I would say, a constitutional challenge that would be an embarrassment for this government—is important.

Finally, I come to the visa cancellation threshold. This bill changes the legislation in relation to the discretionary power of the minister to cancel a visa on the basis of a concern that someone 'would' commit an offence to 'might'. That dramatically lowers the threshold for cancelling a visa and for consideration—'might' is entirely speculative. On a balance of probability, you could say that, on the basis of a chance of one out of a 100, that is a might. 'Would' requires already slightly higher consideration. My amendment seeks to include that, where a minister seeks to cancel a visa based on speculation about what a person might do, they should at least make clear there must be demonstrable and reasonable risk. That is not an objective test. It invites arbitrary decision-making and broad discrimination. The amendment seeks to make clear a defensible standard—one that respects the rule of law while maintaining public safety.

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