Milton Dick (Speaker) Share this | Link to this | Hansard source

The House will now consider the bill in detail, in accordance with the resolution agreed to on 19 January 2026. The bill will be now taken as a whole. The question is that the bill be agreed to.

Phillip Thompson (Herbert, Liberal National Party, Shadow Assistant Minister for Defence) Share this | Link to this | Hansard source

I move the amendment circulated in my name:

(1) Schedule 1, page 45 (after line 10), at the end of the Schedule, add:

Part 8 — Burning or desecrating the Australian flag

Criminal Code Act 1995

66 After Subdivision B of Division 80 of the Criminal Code

Insert:

Subdivision BA — Burning or desecrating the Australian flag

80.1AD — Burning or desecrating the Australian flag

A person commits an offence if the person burns or desecrates the Australian National Flag (within the meaning of the Flags Act 1953).

Penalty: Imprisonment for 2 years.

The Australian national flag is far more than stitched fabric fluttering in the wind. It is woven into the very fabric of our nation. It is a living symbol of who we are, the values we hold and the price that has been paid in blood, service and sacrifice to preserve our way of life.

For generations of Australians, the flag has stood as a unifying emblem, raised in moments of triumph and lowered in moments of profound national grief. It is worn with pride on the shoulders of our Australian Defence Force, and it is draped with solemn honour over the coffins of those who never came home. I have buried friends, my brothers, beneath that flag—mates who were killed in combat, who died in training or who were taken by the battles that followed them home. I have stood at gravesites where the Australian flag was the final gesture of gratitude that a nation could offer. That flag does not represent an idea alone; it represents lives given, families broken and a debt that can never be repaid. That is why the growing scenes of flag burning and flag desecration on our streets strike such a raw national nerve.

Over the past year, Australians have watched protesters deliberately desecrate and torch our national flag. For the overwhelming majority of Australians, this is not political expression; it is contempt. It is a deliberate act of disrespect from those who seek to undermine the very values upon which our nation is built. National polling shows that 77 per cent of Australians believe burning the Australian flag should be illegal. That is not a fringe view. It is the clear and overwhelming voice of the Australian people. The symbols on our flag—the Federation star, the Union Jack and the Southern Cross—tell our national story. They represent the unity of our states and territories, the rule of law, the foundations of our democracy and our place beneath the southern skies. These are not abstract concepts. They are the values that underpin our freedoms, our institutions and our national identity. Yet our laws are silent.

The Flags Act 1953 offers no protection against desecration unless it involves damage to private property. That is an indefensible gap. If we accept that the Australian national flag represents our nation, then it must be protected in its own right by this amendment. Some argue that criminalising flag burning infringes on freedom of expression. That argument fundamentally misunderstands both freedom and responsibility. Freedom of expression has never been absolute. We already draw lines where conduct incites violence, promotes hatred or desecrates sacred and culturally significant symbols. Protecting our national flag is not censorship. It is an affirmation of national unity and mutual respect. Desecrating and setting fire to the Australian flag is a disgusting act designed to divide, demean and inflame.

This amendment sends a clear and unequivocal message: we stand united under our flag, the Australian flag. Introducing a maximum penalty of two years imprisonment is a proportionate and necessary deterrent to this hateful and disgraceful act. Every time another grub on the street puts a torch to our national flag without consequence, it is an insult to every Australian, especially those who wore the flag on their shoulder while protecting our nation and those who were buried beneath it. I commend this amendment to the House.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question before the House is that the amendment moved by the honourable member for Herbert be agreed to.

Michelle Rowland (Greenway, Australian Labor Party, Attorney-General) Share this | Link to this | Hansard source

I present two supplementary explanatory memoranda to the bill, and I ask leave of the House to move government amendment (1) on sheet JA104 and government amendment (1) on sheet JA105, as circulated, together.

Leave granted.

I move government amendment (1) on sheet JA104 and government amendment (1) on sheet JA105, as circulated, together:

SHEET JA104

(1) Schedule 1, Part 7, page 42 (after line 10), at the end of the Part, add:

66 Review by Senate committee

The Senate Standing Committee on Legal and Constitutional Affairs, or such other committee constituted under a resolution of the Senate, must:

(a) begin a review of Subdivision CA of Division 80 of Part 5.1 of the Criminal Code as soon as practicable after the second anniversary of the commencement of this item; and

(b) report the Committee's findings to the Senate as soon as practicable after completing the review.

_____

SHEET JA105

(1) Schedule 1, item 13, page 13 (after line 26), at the end of subsection 114A.3(5), add:

Note: Consistent with the implied freedom of political communication, subsection (5) is directed at serious conduct or the threat of serious conduct of a criminal nature.

The government's amendments will require the Senate Legal and Constitutional Affairs Legislation Committee to conduct a review into subdivision CA of division 80 of part 5.1 of the Criminal Code as soon as practicable after the second anniversary of the commencement of this item. In doing so, this review will ensure there is an appropriate assessment of the effectiveness of these provisions, with a report tabled before the parliament. The government's amendment would insert a legislative note to clarify the remit of subsection (5) of section 114A.3 to explain that it does not seek to capture lawful debate, robust criticism, religious discussion, genuine political advocacy; nor to target legitimate comedy, satire or artistic expression.

Question agreed to.

Mr Tony Burke (Watson, Australian Labor Party, Leader of the House) Share this | Link to this | Hansard source

I will advise the House that, in terms of speeches, I've got a procedure, which I'm hoping to not move, that we deal with all remaining amendments without debate. If we can get through this relatively quickly, then we'll be able to make sure that everybody gets to present their amendments properly, but I'm just flagging that, if people could be conscious of the time, that'd be great.

Milton Dick (Speaker) Share this | Link to this | Hansard source

No, he's not guillotining, Member for Kennedy. He's just saying that, if everyone can be brief, we will not need to go down that path. That means short and sweet.

Sophie Scamps (Mackellar, Independent) Share this | Link to this | Hansard source

by leave—I move amendments (1) to (3) as circulated in my name together:

(1) Schedule 1, item 13, page 22 (after line 19), after paragraph 114B.4(1)(a), insert:

(aa) either:

(i) the person intends the training to facilitate the commission of a hate crime; or

(ii) the training is likely to materially assist the commission of a hate crime; and

(2) Schedule 1, item 13, page 23 (after line 9), after paragraph 114B.5(1)(a), insert:

(aa) either:

(i) the person intends the funds to facilitate the commission of a hate crime; or

(ii) the funds are likely to materially assist the commission of a hate crime; and

(3) Schedule 1, item 13, page 24 (after line 15), after paragraph 114B.6(1)(a), insert:

(aa) either:

(i) the person intends the support or resources to facilitate the commission of a hate crime; or

(ii) the support or resources are likely to materially assist the commission of a hate crime; and

All Australians, including Jewish people, have the human right to feel safe in Australia, and, over the last two years, we've witnessed a deeply troubling escalation in antisemitism that has left many Jewish Australians feeling vulnerable to violence in their own communities. This bill seeks to respond to that reality. Whilst I fully support efforts to criminalise the incitement of racial hatred and to prohibit organisations that actively promote or encourage such hatred—these are important and necessary steps—we must also, while seeking to protect one right, ensure that we do not erode others. Our response must be proportionate, well calibrated and firmly grounded in human rights principles.

I note the rushed nature of this debate and the lack of time in being able to get across this bill adequately, as well as the compressed nature of the bill. I also note that I had a second reading amendment that I would have liked to have introduced, but debate was curtailed, so I was not able to do that. That amendment noted that the Australian Human Rights Commission introduced a National Anti-Racism Framework in November of 2024 and the government has not responded. During the very limited consultation on the original exposure draft, numerous significant concerns have been raised, including by the Australian Human Right Commissioner. Many of those concerns remain unresolved in the current version of this bill.

One particular area of concern relates to the proposed prohibited hate groups framework. As identified by the Australian Human Rights Commission, this framework is overly broad, lacks essential procedural fairness and risks criminalising people on the basis of association rather than on their conduct or their intention. It is this critical aspect of the bill that this amendment addresses. In criminalising a wide array of activities, such as attending training or providing support after a group has been listed without clear evidentiary thresholds or fair-listing processes, the laws could capture people engaged in an activity that had nothing to do with promoting hatred or violence. Under this bill, a person could be prosecuted simply for receiving training from a listed organisation, even if the training had no connection to hate motivated conduct and the individual had no intention to be involved in hate motivated conduct. The threshold is extremely low for offences of such gravity. Remember that this could result in a person spending several years in jail.

This amendment clarifies that offences relating to training, funding or support would apply only where the conduct is intended to facilitate or is likely to materially assist the commission of a hate crime. This amendment responds to the recommendation of the Australian Human Rights Commission. It provides better balance, better targeting and better alignment with human rights principles, and, for that reason, I commend the amendment to the House.

Michelle Rowland (Greenway, Australian Labor Party, Attorney-General) Share this | Link to this | Hansard source

I thank the member for her contribution and appreciate the intent of her amendment. The government will not be supporting this amendment. The bill is already appropriately limited to situations where someone intends for this conduct to assist the organisation to engage in hate crimes or to support the organisation to continue to expand or exist.

Question negatived.

Kate Chaney (Curtin, Independent) Share this | Link to this | Hansard source

I move:

(1) Schedule 1, item 13, page 15 (after line 14), at the end of section 114A.4, add:

Decision reviewable by ART

(6) A decision by the AFP Minister under this section is reviewable by the Administrative Review Tribunal.

This amendment introduces a provision to ensure that the AFP minister's decision regarding hate groups is reviewable on its merits by the Administrative Review Tribunal. This bill introduces a significant power for the AFP minister which needs safeguards against misuse or mistake. We have to make laws for bad governments, not assuming that we will have good governments, and, when we look overseas, we can see authoritarian figures are rising. Banning organisations is a typical strategy of authoritarian figures, and frequently associated with democratic backsliding, so we need to ensure that a power like this has sufficient safeguards. Some safeguards do exist—the agreement of the Attorney-General and judicial review of the AFP minister's decision about whether the proper process was followed—but it explicitly exempts the application of procedural fairness, so there is no right to be heard. If someone believes that their group has been wrongly designated a hate group, this amendment would give them the ability to seek an ART review of that decision on its merits.

Michelle Rowland (Greenway, Australian Labor Party, Attorney-General) Share this | Link to this | Hansard source

I thank the member for her contribution. The government will not be supporting this amendment. The bill already contains robust oversight, including the ability for the Parliamentary Joint Committee on Intelligence and Security to review a listing decision. The parliament retains its ability to disallow a listing, and nothing in this bill precludes judicial review.

Question negatived.

Allegra Spender (Wentworth, Independent) Share this | Link to this | Hansard source

by leave—I move:

(1) Schedule 1, item 10, page 8 (line 12), omit "distinguished by race, or national or ethnic origin", substitute "distinguished by race, nationality, national or ethnic origin, religion, sex, sexual orientation, gender identity, intersex status or disability, or because of the target person or target group's personal association (whether as a relative or otherwise) with a person who is distinguished by any of those attributes".

(2) Schedule 1, item 11, page 8 (lines 24 and 25), omit "the race, or national or ethnic origin, of the target person or the persons in the target group", substitute "the race, nationality, national or ethnic origin, religion, sex, sexual orientation, gender identity, intersex status or disability, or because of the target person or target group's personal association (whether as a relative or otherwise) with a person who is distinguished by any of those attributes".

(3) Schedule 1, item 11, page 8 (line 28), omit "the particular race, or national or ethnic origin", substitute "the particular race, nationality, national or ethnic origin, religion, sex, sexual orientation, gender identity, intersex status or disability, or because of the target person or target group's personal association (whether as a relative or otherwise) with a person who is distinguished by any of those attributes".

(4) Schedule 1, page 8 (after line 28), after item 11, insert:

11A After subsection 16A(2AAD)

Insert:

(2AAE) In subsections (2), (2AAC) and (2AAD), association with another person includes:

(a) being a near relative of the person; and

(b) living with the person on a genuine domestic basis; and

(c) having a formal business or employment relationship with the person.

I rise today in support of the bill, but also to put forward amendments. I'm introducing an amendment to part 3, the aggravated sentencing factor. This provision is a matter which must be considered by the court when sentencing persons for federal offences if the factor is relevant and known to the court. This factor is whether the offender's conduct was motivated by hatred of another person or group and, if so, whether that hatred was because of the person's belief that the target person or target group are distinguished by race or national ethnic origin.

I support this provision. A federal offence which has been motivated by hatred, especially on the attributes which are inherent to an individual or group, is an offence which deserves additional punishment upon consideration of the court. In a time of unprecedented antisemitism, particularly directed to those in my community and across the country, and in the wake of the abhorrent attack on 14 December, we must take action to show that hatred is not acceptable and draw bright lines—and this is a fitting way to do so. However, I remain concerned that the groups designated within this provision are too narrowly defined. Consideration of this hatred should not be limited by race, or national or ethnic origin. Hatred can be enacted through violence and crime against members of our LGBTQIA+ community, for example; those with a disability; and those from religious communities.

As I've said previously, the Jewish community has not asked for special treatment in relation to these bills and I think that is really relevant. Given what has happened in my community, I wouldn't be standing in this space on this without having spoken to the Jewish community. What they have said to me is that we need to protect all Australians from hatred and vilification. We need to draw bright lines across this country and we need to make sure that everybody feels that they are equal in front of the law. I really cannot understand why the government, in this case, would bring in what I think is an appropriate piece of legislation but then, in terms of this part of the bill, not apply it consistently. That is actually inconsistent internally with the rest of the act. So just from the point of view of good governance this is bad, because we have laws applying to some in some ways and not in other ways. I think that it is not good for the message that we're trying to send the country: that we are all equal in front of the law and that hatred matters to everyone. While, again, I have very much stood for and fought for antisemitism protections in the last parliament and in this parliament, I have always done it in consultation with the Jewish community. They have said, 'Don't single us out; make sure that this is protection for everyone.'

I raise this particularly because I represent the biggest Jewish community in the country, and I think I probably represent the biggest LGBTQI+ community in the country as well. I'm going to read something that someone sent to me about this: 'For much of my life I was a senior banking executive. Due to my public role, I attracted the attention of a man who sought to destroy my life. I am a gay man, and the hatred and homophobia he directed to me over a number of years was of an order that Chief Justice Lucy McCallum said she had never seen. He sent thousands of emails to everyone I knew—family, board members, colleagues, associates. He left multiple phone messages every day; came to my home and workplace; generated pornographic and other images of me; and accused me publicly of all manner of terrible crimes and so on. I was forced to sell my house, move jobs, resign from several boards and more or less live as a hermit for some years, with security guards accompanying me. That is the case for some people in our community.' I have been there and have talked to Jewish community members who are afraid to go out in their country and do not know if they will ever be safe again. As a parliament, we have to fight for that, but we need to fight for the safety of all Australians. The targeting of hatred against any Australian should not be acceptable to this parliament. The laws need to apply broadly and equally so that those people are not forced to go through this, and to recognise that the hatred against them does not matter as much. I think that is actually better for the social cohesion of our country rather than worse.

Michelle Rowland (Greenway, Australian Labor Party, Attorney-General) Share this | Link to this | Hansard source

I thank the member for her contribution and acknowledge her constructive engagement with the government. The government will not be supporting this amendment. The government is focused as a priority on measures to respond to antisemitism noting the Jewish community has been subjected to serious and significant harm, most recently with the deadly terrorist attack on Australian soil. Existing offences in the Criminal Code, including for advocating or threatening force or violence already protect other groups, including those distinguished by religion, sexual orientation and disability. Those provisions will be further strengthened by this bill.

Question negatived.

Barnaby Joyce (New England, National Party) Share this | Link to this | Hansard source

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

(1) Schedule 1, item 13, page 12 (lines 18 to 27), omit subparagraphs 114A.3(2)(a)(ii) and (iii).

(2) Schedule 1, item 13, page 12 (line 32) to page 13 (line 4), omit subsection 114A.3(3).

I believe that it is incredibly important that we understand that in the division, in the bifurcation of this omnibus bill, we now have a complete change in what went before the committee for inquiry. As that is the case, I have seen an enlargement of the scope and the net of what this bill now brings about. I bring your attention to this section and this amendment because a hate crime is also conduct whether engaged in before or after this section commences, as would constitute an offence and provision of a law of the Commonwealth. We can understand that. We're in the Commonwealth parliament. We have the authority, and that is our remit.

It also goes on to say that it would constitute an offence against a provision of a law of a state parliament. It would constitute a provision of a law of a territory parliament, enforced at the commencement of this section, and if engaged before a provision referred to in subparagraph 1 or 2 commenced, would have constituted an offence against the provision had the provision been enforced at the time the conduct was engaged in.

This is getting awfully large. There seems to be an awfully large net here. We have a lot of policemen and a whole range of people who can now get caught up in this. We can have dualling views of what hate crimes are by respective parliaments and respective territories. They could actually take retribution against another person's view by deeming something a hate crime in their state parliament and then relying on the Commonwealth to enforce it. At the end, an aggravated form of this has 15 years in jail. This is way beyond anything discussed at the inquiry that was rightly held.

This issue has only just appeared. If I had had a little bit more time than receiving this at around 10 o'clock and now having a guillotine, I suppose, for the next half hour, we could have probably gone through this with a little more depth. I don't intend to divide on this, but I will be calling a division on the third reading to vote against the bill. This is incredibly dangerous and goes way beyond what we were supposed to be doing. We're supposed to be dealing with antisemitism, the hatred of Jews, and people who murder people of the Jewish faith. That was where it was supposed to be.

It could have been succinct, clear and focused, but we've now opened this net up so wide that it has become quite dangerous. I think it's hard enough that we have to come up with legislation in this chamber, which we know a future parliament may change or do with as they wish, but we're now saying that we're willing to take on the risk of not only future federal parliaments but future state parliaments and future territory parliaments. That is just beyond the breadth of something that can be tolerated. So I ask my colleagues here to truly consider how wide you want the police force to go. How far do you think this legislation should reach? I think you are all happy to say, 'This will favour me on a certain area,' but just imagine the person who's the political polar opposite of you and the fun they could have by being able to go to a state parliament and bringing forth a section, which they deem to be hate legislation, and then taking you off to court. It won't be too hard to prove; they've got their own state legislation. You'll definitely have a criminal offence. If they can find it's aggravated, there is the potential that you'll go to jail for 15 years. How did you come up with that complete lunacy of legislation?

Michelle Rowland (Greenway, Australian Labor Party, Attorney-General) Share this | Link to this | Hansard source

I thank the honourable member for his contribution. The legislative package before the parliament is appropriate, and the government will not be supporting this amendment.

Question negatived.

Nicolette Boele (Bradfield, Independent) Share this | Link to this | Hansard source

by leave—I move amendments (1) and (2), as circulated in my name, together:

(1) Page 2 (after line 16), after clause 3, insert:

4 Sunset clause

The amendments made by this Act are repealed on the day that is 2 years after the day this Act receives the Royal Assent.

(2) Schedule 1, item 13, page 12 (lines 1 and 2), omit "80.2C or 80.2D,".

I want to be really clear about my approach to my role in this place. I am committed to doing everything that is necessary and appropriate to rid this country of the scourge of antisemitism. The murderous terror inflicted on the Jewish community and on Australians more broadly on 14 December must never be allowed to happen again. It is precisely because of that desire to get our response right that I've been so disappointed in the haste with which the government has approached this task—the severely truncated inquiry; the lack of meaningful consultation; and the limited time given to parliamentarians to review and understand the legislation, let alone an opportunity to work with the government on behalf of my constituents to try and improve it. After all, these are very significant changes being proposed. We're talking about new criminal offences with penalties of imprisonment of up to 15 years. As a lawmaker new to this place, it is utterly confounding to me that—in what is supposed to be one of the most robust parliamentary systems in the world—I'm being asked to vote on a law today which could result in someone being sentenced for up to 15 years in prison the very same day as I am receiving texts of that law.

I completely understand, I respect and I support the need to act swiftly to protect people. Indeed it's the duty of this government to do so. But what if we are acting swiftly to enact laws which trade off people's rights without being sure that they will even achieved desired results? Expert after expert has expressed deep concerns about not only the substance of the laws but the process by which they will make their way through this parliament. In its submission to the inquiry conducted by the Parliamentary Joint Committee on Intelligence and Security, held hastily over a couple of days last week, the Law Council reminded us:

The rule of law requires that the law must be both readily known and available, and certain and clear.

It was in that context that the council criticised the lack of clarity and precision in those laws before us. They couldn't even be certain of just how unclear and how imprecise these laws are because they haven't had enough time to review them. This is both disappointing and, frankly, outrageous. The sentiment was echoed by eminent constitutional lawyer, Anne Twomey, who said:

The time given for submissions to be made and for the Committee to report … is manifestly inadequate …

She went on to outline some possible outcomes of the application of the laws, outcomes which deserve due consideration as they concern all of us.

It's for this reason that I have moved an amendment which introduces a sunset clause to this bill. My amendment means that the bill would automatically be repealed after two years. This is one step beyond a mere review clause, which must happen, and it will force the government to go back to the people and say, 'This has worked and it is still necessary.' If that is indeed the case, passing the laws again will be a simple matter. It is also relevant to note that the offence of publicly inciting racial hatred was introduced to New South Wales by the New South Wales government last year and contains a three-year sunset clause.

Very briefly, the second amendment I have moved today relates to the definition of 'hate crime' for the purposes of banning hate groups. As currently drafted, it is not possible to ban a hate group for advocating terrorism or genocide. This is an illogical aspect of the bill, especially given we are attempting to combat terrorism. I seek to amend the bill to ensure that the crimes of advocating terrorism and advocating genocide can cause a group to be banned. The reason I give for this is that we want to stamp out hate against targeted groups. The intentional exclusion of these worst types of hateful conduct is completely irrational.

Michelle Rowland (Greenway, Australian Labor Party, Attorney-General) Share this | Link to this | Hansard source

The government will not be supporting these amendments. The provisions respond strongly to antisemitism, hated and extremism. The consequence of supporting these amendments would amongst other things recommend them temporary, including the important listing regime for prohibited hate groups.

Question negatived.

Monique Ryan (Kooyong, Independent) Share this | Link to this | Hansard source

I move the amendment circulated in my name:

(1) Schedule 1, page 42 (after line 10), at the end of the Schedule, add:

Part 8 — Reporting

Criminal Code Act 1995

65 At the end of Subdivision C of Division of the Criminal Code

Add:

80.2DA Annual report

(1) The AFP Minister must, as soon as practicable after the end of each financial year, cause to be prepared a report about the operation of this Subdivision, and the rest of this Part to the extent that it relates to this Subdivision, during the financial year.

(2) Without limiting subsection (1), the report must include the following matters:

(a) the types and number of alleged offences reported to police;

(b) the types and number of alleged offences referred to a prosecutorial agency;

(c) of the alleged offences referred to a prosecutorial authority, the types and number that were finalised without court proceedings;

(d) of the alleged offences referred to a prosecutorial authority, the types and number that were finalised by a court, including whether a conviction was recorded;

(e) in relation to matters finalised by a court, details of any sentence imposed.

It's clear that the Australian community has insufficient evidence based information in relation to existing hate speech offences. There has been a lot of misinformation about these offences, how they operate and whether they're successful in the prosecution of serious instances of hatred within our communities. To have respectful, fact driven conversations about hate crimes and about how well we are addressing them, we need clear and regular reporting about the incidents, nature and outcomes of those crimes in this country. That data can then guide assessment of the effectiveness of interventions such as the legislation that we are debating today.

At the eleventh hour, earlier today the government agreed with the opposition to include reporting on new aggravated offences for hate preachers and listings of prohibited hate groups within this legislation. Those additions are welcome. But they relate to only two new hate provisions. They are too limited in scope, and they won't take effect for two years. The amendment I put in front of the House now requires the government to provide annual reporting on the effectiveness of existing hate offences under the Criminal Code—those reported to the police, those referred to prosecutorial agencies, those finalised with and without court proceedings—and the details of any sentences imposed. With this I call for anonymised reporting on the substance of those alleged or prosecuted offences and the reasons why some may fail to result in a prosecution.

To date, the convictions, prosecutions and sentencing of crimes committed under the hate regime of the Criminal Code have not reflected the broader community's view on the seriousness of these crimes. I expressed this concern in this place in February 2025. Since that time the laws have been invoked to charge only a handful of people in the face of a very significant number of hate crimes that we know are ongoing within our communities. This is just disproportionate to the seriousness and prevalence of hate crimes in our communities. The reports that would be generated as a result of this amendment will provide a clear and accurate picture of whether a hate crime regime is effective or whether its threshold remains too high to enable meaningful outcomes. The amendment is based on recommendations of expert groups, including the Executive Council of Australian Jewry and the office of Australia's Special Envoy to Combat Antisemitism. We need a better understanding of the effectiveness of this critical piece of legislation. This amendment would represent a constructive contribution to that effect.

Michelle Rowland (Greenway, Australian Labor Party, Attorney-General) Share this | Link to this | Hansard source

I thank the member for her contribution. The government will not be supporting this amendment. The bill contains robust oversight of the provisions. There are other means through which this information can be obtained, including three parliamentary process.

Question negatived.

Zali Steggall (Warringah, Independent) Share this | Link to 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.

Michelle Rowland (Greenway, Australian Labor Party, Attorney-General) Share this | Link to this | Hansard source

I thank the member. The government does not support these amendments for the reasons provided in response to the amendments of the member for Wentworth. In addition, leaders of prohibited hate groups would already be subject to penalties of up to 15 years under this bill, so it is unnecessary to extend the aggravated offences for religious leaders, which carry penalties of up to 12 years, to them.

Question negatived.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question is that the bill, as amended, be agreed to.