Dr WOODRUFF (Franklin – Leader of the Greens) – Honourable Speaker, the Greens will be supporting the Sentencing Amendment (Aggravating Factors) Bill 2025. This is a profoundly important bill. It builds on something the Greens have long campaigned for. We’re not alone in this place on this. I’m proud to say the Greens have long campaigned to have these considered as aggravating factors, to have the full extent of prejudice and hate recognised as abhorrent and not supported by the Tasmanian community, and to make sure our laws make clear that people can’t be targeted through violent or non-violent assaults, through speech to stir up hate in the community, on the basis of the way people are. That’s whether they were born with different abilities, different colour skin, a different faith, they live and were born into different sex characteristics, sexual identity, gender, whether they’re of different age. We’re all at a different age at different times in our life with different sectors, especially from different ethnic origins – all of the things that are covered in this bill.
Fundamentally, Tasmanians are Tasmanians, and we should all be treated equally under the law. If people in the community target us for our different characteristics, different ways of being in the world, and use that to beat up hate, or as an outlet for their hate, then the law should protect them from that. This is another step along that pathway.
It’s also an amazing concurrency today, after the motion that parliament just passed against the racist rallies promoting an anti-immigration stance, and for supporting multicultural communities, Aboriginal communities in Tasmania. This is the first way since then that we can show as a parliament that we’re serious about making Tasmania a more inclusive, fairer society and one that will do everything we can to make sure we don’t divide communities, but we bring people together.
I acknowledge the work of the Attorney-General in bringing this forward. I understand that it will be viewed as one of the strongest pieces of legislation of this nature in the country, which is welcome. It’s a body of work that reflects your department’s responsiveness to feedback. For example, the vulnerability provisions were extended from just being age, disability and personal relationships to the full and diverse range of characteristics in the bill that we have today, which is race, ethnicity and nationality, age of a person, religious belief or affiliation, language used to communicate, gender or gender identity, sexual orientation, sex characteristics, disability of the person not limited to physical, mental, cognitive, intellectual or sensory impairments. These are significant changes and I know genuinely reflect what Tasmanians would expect to be included in this bill. This is the society we live in today and it’s a reflection of it.
The application of section 11B was also extended to nationality, perceived characteristics. That’s very welcome in light of current things that have been happening.
I also acknowledge the fantastic work of the Sentencing Advisory Council (SAC). The Greens and other members in this place hold the SAC in extremely high regard. The work they produce is clear, persuasive, thorough and of extremely high quality. The contribution they make to our state and our justice system cannot be overstated, and we are strong supporters.
I also acknowledge everyone who made a submission to the draft of this bill, as well as the stakeholders who have been advocating outside of this process long and strong. It’s fair to say that the development of this bill sets a really good standard. It’s also a positive thing that a bill involving sentencing matters and discriminatory behaviour – two issues that sometimes divide the community and this Chamber – appear likely to be broadly supported by the parliament. It would be a very good thing for more justice bills to be of this nature.
At the risk of opening up a contentious debate after those positive statements, I strongly encourage the government, the Attorney‑General and other ministers to avoid announcing populist criminal justice reforms. If the government wants to explore matters like youth sentencing, we encourage them to submit those matters to the Sentencing Advisory Council for a sober assessment, rather than making social media launches for political purposes, which unfortunately has been occurring. This is our justice system. It’s not a political playground. We all deserve to have a fair, proportionate and consistent justice system, one where individual cases are arbitrated by the facts of the case in front of the court and not by a broad sense of general outrage that is not meaningfully connected to, or informed by the circumstances and the nuances of the individual cases being considered by a court. The community, the victims, the innocent and even the guilty deserve this.
In our view, this bill is consistent with these principles. It shows that you can achieve justice reforms that increase sentencing terms and that are in line with community expectations without causing division and undermining the justice system. It shows there’s no wholesale opposition to the notion of increasing penalties in the criminal justice system in this Chamber.
This bill is targeted, it’s informed by expert advice and it maintains appropriate judicial discretion. There are no identified unintended consequences for the victims that we understand. There is a genuine gap that’s been covered here. The way the Attorney‑General has progressed this bill has been commendable. I don’t want to distract from that by focusing too much on other reforms, other than to encourage you and the government to look to how this process has been conducted to assess and progress any other criminal justice system reforms.
The Sentencing Advisory Council makes a very persuasive case for the reforms in the bill before us. They weren’t able to find any cases since the introduction of section 11B in 2017, which is the substance of the bill that we have, of that provision being directly utilised to determine a sentence. The SAC notes that common law principles currently allow for prejudicial offending to be considered as an aggravating factor but they were only able to identify two cases where the courts considered whether hatred or prejudice was a motivating factor in the context of sentencing before the introduction of section 11B.
The SAC presented three justifications for prejudicial offending to be considered as an aggravated factor. That is the enlisted set of attributes that we have here. To paraphrase them, these justifications are the elevated harm, the elevated culpability, and the denunciation of prejudice.
The Sentencing Advisory Council also explicitly noted that deterrence is not one of the justifications for additional factors, referring to a wealth of evidence that exists against the notion that lengthier sentencing provides a deterrent. In other words, even though this bill would enable the court, at their discretion, to increase sentencing on the basis of one of these being an aggravating factor, that is not a justification for introducing these recommended reforms because all the evidence shows that lengthier sentencing does not provide a deterrent for behaviours to occur in the first place. We talk more about that later.
I want to raise that matter to also reemphasise the value of sober assessment and deterrence is too often pointed to as the rationale for reform when there’s strong evidence that the reforms will not achieve this outcome. We always need to make sure the reforms we pursue are matched with evidence that they are likely to achieve their intended objectives. I am confident that a robust case has been made for the reforms we have here.
The SAC notes myriad studies have shown that victims of offending based on prejudice suffer from elevated physiological harm than victims of offending that was not based on prejudice. Those elevated harms include trauma, depression, panic attacks, as well as the considerable social harms like people relocating, moving away from an area, avoiding physical expressions of identity of themselves, covering their skin colour, trying to pretend that they are someone that they’re not, and not going into public places.
The effects of this on communities are persuasively and evocatively summarised in an article published in the International Review of Victimology by a couple of academics, Barbara Perry and Shahid Alvi, who said -(OK for name of publication and the academics)
Hate crimes are message crimes that emit a distinct warning to all members of the victim’s community. Step out of line, cross invisible boundaries and you too could be lying on the ground, beaten and bloodied.
The additional harm caused by prejudice and motivated offending, as well as the harm caused more broadly by a ‘message crime,’ are factors that continue to increase the culpability of the offender.
On the final matter of denunciation, the SAC noted that aggravated sentencing would be a counterbalance to the message crime effect of prejudice‑motivated offending. It would send a message that the state values victims and their communities as equal members of society deserving of respect. So, despite the fact that it would not, in all likelihood, be an active deterrent to people doing that in the first place, there would be an additional sense of justice and an additional sense of being heard by the community in that what that person suffered was an outrage to the community’s fabric and that they were heard and understood by this option for aggravated sentencing.
I will address section 11B(2). It is perhaps the most commented on provision that has not been altered as a result of the feedback from the submissions that were made.
The feedback from the Law Society advocated removing section 11B(2) altogether, and the Tasmanian Prejudice Related Violence Working Group has advocated for the removal of the word ‘immediately’.
To be clear, section 11B(2) says –
For the purposes of this section, a person is taken to be motivated to commit an offence as a result of hatred for, or prejudice against, a person or group due to a relevant attribute if, at the time of committing the offence or immediately before or immediately after committing the offence, the person demonstrated, or expressed, hostility, malice or ill-will in respect of that attribute.
It’s really talking about what happens before or immediately after the offence occurs.
The Greens have considered both of these arguments very closely and seriously. Attorney‑General, I guess you’ll be pleased to hear that we are comfortable with the position that the government has taken with the provisions. On balance, we consider them to be appropriate as they stand, at the moment.
Nonetheless, I want to put on record our reasoning for getting to this position. The Law Society argues –
The difficulty with the subsection is that it is likely to apply in circumstances where the offence was in no way motivated by a specific attribute such as those mentioned in Subsection 3.
They go on to say –
By way of example, two people may have a vehement disagreement about sport. Their argument about the topic has nothing to do with an attribute to which the amendments might apply. They start fighting. One of the participants is a recent immigrant from Iran. During the fight, the accused person tells that person that they should go home or some other racist comment.
The above example would be caught by Subsection 2, even though the assault was not motivated at all by racism. Even assuming the comment was racist, it did not by itself reveal a racist motivation for any assault.
The Society is of the view that Subsection 2 should be removed. We ask that consideration be given to this. Making it easier for the prosecution to argue the applicability of this Section is not a sufficient reason to keep the Subsection, as the unintended consequences of it outweigh any benefits to prosecutors.
This was a very persuasive argument put by the Law Society, but it became clear from our reading of the Sentencing Advisory Council’s report that this subsection was recommended to capture the conduct that I just read out that the Law Society mentioned, specifically by design, rather than it being a loophole.
The SAC report actively considered a subjective animus model, where proof is required of motivation, as well as an objective animus model, where proof of hostility or demonstrated prejudice is required, rather than proof of subjective motivation. The SAC report specifically recommends a joint subjective and objective model. Subsection 2 reflects the objective animus model.
To explain the value of the objective animus model, the report highlights that expressions of prejudice and hate, regardless of what a private motivation may be, cause comparable harm relative to privately motivated prejudice or hate. To use the Law Society’s example of the football dispute, our view is that the offending as outlined is more harmful if it involves the racist comments, compared to if it did not involve the racist comments, and as such, it is appropriate to consider it as an aggravating factor.
We’re also mindful that judicial discretion is retained to allow for the precise circumstances and nature of the harm to be considered in determining sentencing. There is no arbitrary allocation, for example, of an additional six months for the sentencing. That is entirely up to the courts to decide, which is why we give them that responsibility.
To provide full and fair context to the Law Society, I will say that the Government’s explanatory fact sheet for the draft bill did say –
This change intends to make it easier for the prosecution to argue that this aggravation factor is applicable where there is objective evidence of prejudicial conduct.
With the context provided in the fact sheet alone, we would have been inclined to agree with the Law Society. I’ll just leave it at that. I’ll just make the point that it was not so clear from the explanatory sheet what was actually being proposed and the motivation for it.
Similarly, we’re also not inclined to support the recommendation of the Tasmanian Prejudice Related Violence Working Group for the removal of the word ‘immediately’ from section 11B(2). As the subsection currently stands, demonstrated prejudice during the offence or immediately before or after the offence means the offender is taken to be motivated by prejudice. It’s important to note subsection two does not operate to limit the scope of matters that can be considered by a court in determining if offending is prejudicial, it only operates to outline the circumstances where the offending is taken to be prejudicial.
A hateful remark that’s given immediately before, after or during the commission of an offence is intrinsically connected to the offence. A Facebook post from a year ago, 10 years ago, or a month ago, is a very different matter. Under the current drafting, historic conduct, not just immediate conduct, is still relevant. A pattern of behaviour or specific historic comments with a tangible connection to the offence, such as threatening comments, could be considered to determine whether aggravated factors apply. If the word ‘immediately’ were to be removed, which is what’s being proposed, that would mean, in contrast, that any expression of hostility, malice or ill will in respect of an attribute at any point in a person’s life before or after the commission of an offence, would automatically mean the aggravated circumstances would apply, even if there was no compelling case that they were in any way connected. In our view, that would be far too broad a scope. We also recognise that a review clause has been included in the bill and this also adds to our comfort with the current drafting. If there remain challenges with applying this legislation in practice, those issues can be identified and addressed in the future. In considering all the above, acknowledging that the subsection is consistent with a well-reasoned and well-argued Sentencing Advisory Council recommendation, we support provision 11B(2) as drafted.
I also want to raise a number of other non-statutory recommendations that have been made to accompany these reforms and I’m hoping the minister can provide a response to the government’s position on some of these recommendations, acknowledging that some of the matters fall under other portfolios, nonetheless, if you’re able to provide a response or consider some actions that might occur, I’d appreciate that. Equality Tasmania recommended that police data systems are reformed to allow evidence for prejudice and hate‑related motivation for crimes to be recorded and for professional development for police so that they’re able to identify those sorts of motivations. Equality Tasmania, TasCOSS, Community Legal Centres, the Tasmanian Aboriginal Legal Service and the Tasmanian Prejudice Related Violence Working Group also recommended investing in an education campaign about this bill. Equality Tasmania recommended victims of crime compensation for victims of prejudice, motivated mistreatment and targeted violence. TasCOSS, Community Legal Centres and the Tasmanian Prejudice Related Violence Working Group recommended police, judicial officers and other key decision makers are trained in relation to the experience and impact of prejudice and discrimination.
TasCOSS also recommended additional funding for organisations which support individuals and groups who experience harm motivated by prejudice and or hatred, so that victims are able to access holistic supports. The Tasmanian Aboriginal Legal Service and Equality Tasmania recommended perpetrator education and rehabilitation programs for prejudicially motivated offenders. If there’s any information you can provide about the Government’s response to those recommendations, that would be appreciated.
To sum up, I’d like to emphasise again how grateful we are for the contributions of everyone who’s involved, people who’ve made submissions, the Attorney‑General staff and the Attorney‑General. What we have before us, I believe is a nation leading bill that looks set to have broad political support in this chamber, which is very welcome. Advocates should feel proud of the work that they’ve done in getting us here as well as the changes that have been adopted through their submissions by the Attorney‑General in the consultation process. The Sentencing Advisory Council was instrumental in the framing of this legislation and they deserve our thanks and warm congratulations for the high-quality work.
On behalf of the Greens, I echo the Attorney‑General in commending the bill to the House.
