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Criminal Code Act 1995

Schedule - The Criminal Code

Section 3

CHAPTER 5 - THE SECURITY OF THE COMMONWEALTH

Part 5.1 - Treason and related offences

Division 80 - Treason, urging or threatening violence, offences against groups or members of groups, advocating terrorism or genocide, and prohibited symbols and Nazi salute

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Subdivision C - Urging or threatening violence, offences against groups or members of groups and advocating terrorism or genocide

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SECTION 80.2B Advocating force or violence against members of groups or close associates

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Offences

(1)
A person (the first person ) commits an offence if:

(a) the first person advocates the use of force or violence against a person (the targeted person ); and

(b) the first person does so reckless as to whether force or violence will occur; and

(c) the first person does so because of the first person ' s belief that the targeted person is:

(i) a member of a group (the targeted group ); or

(ii) a close associate of a member of a group (the targeted group ); and

(d) the targeted group is distinguished by race, religion, sex, sexual orientation, gender identity, intersex status, disability, nationality, national or ethnic origin or political opinion; and

(e) the use of the force or violence would threaten the peace, order and good government of the Commonwealth.

Penalty: Imprisonment for 7 years.

Note:

For intention, see section 5.2 . For recklessness, see section 5.4 .

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(2)
A person (the first person ) commits an offence if:

(a) the first person advocates the use of force or violence against a person (the targeted person ); and

(b) the first person does so reckless as to whether force or violence will occur; and

(c) the first person does so because of the first person ' s belief that the targeted person is:

(i) a member of a group (the targeted group ); or

(ii) a close associate of a member of a group (the targeted group ); and

(d) the targeted group is distinguished by race, religion, sex, sexual orientation, gender identity, intersex status, disability, nationality, national or ethnic origin or political opinion.

Penalty: Imprisonment for 5 years.

Note:

For intention, see section 5.2 . For recklessness, see section 5.4.

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(3)
For the purposes of paragraphs (1)(c) and (2)(c) , it is immaterial whether the targeted person:

(a) actually is a member of the targeted group; or

(b) actually is a close associate of a member of the targeted group.

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(4)
The fault element for paragraphs (1)(d) and (2)(d) is recklessness.

Note:

For recklessness, see section 5.4 .

(4A)
For the purposes of paragraphs (1)(d) and (2)(d) , the person may have in mind a combination of attributes mentioned in those paragraphs.

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Alternative verdict

(5)
Subsection (6) applies if, in a prosecution for an offence (the prosecuted offence ) against subsection (1) , the trier of fact:

(a) is not satisfied that the defendant is guilty of the offence; but

(b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence (the alternative offence) against subsection (2) .

(6)
The trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

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