TasCOSS Submission: Sentencing Amendment (Racial Motivation) Bill 2016

Catherine Vickers Director Office of Strategic Legislation and Policy Department of Justice Email: amber.mignot@justice.tas.gov.au

Re: Sentencing Amendment (Racial Motivation) Bill 2016 Thank you for the opportunity to comment on the proposed Amendment Bill.

TasCOSS would like to support the proposed amendment to the Sentencing Act. Discussions with TasCOSS members about the experiences of members of the Tasmanian Aboriginal community and culturally and linguistically diverse communities in Tasmania supports the finding of the Tasmanian Law Reform Institute in its report Racial Vilification and Racially Motivated Offences1 – that is, ‘that the status quo is an inadequate response to incidents of racial vilification and racially motivated offences’ experienced by diverse communities in Tasmania, and that legal reform is needed.

It is TasCOSS’s view that this amendment bill will send an important and positive message to the community that our society values respect for different cultures and racial identities. It also sends a strong message that racially motivated crime, and racial bigotry will not be tolerated. It is hoped that such leadership has powerful effects - it has been suggested elsewhere that sentencing enhancement provisions for racially motivated crimes do provide effective specific and general deterrence to offenders who are motivated by racial prejudice2.

We note that the amendment states that the aggravating factor is applicable where the offence ‘was motivated to any degree’ by the offender’s racial hostility or because of their membership of a group. This addresses the difficulty faced by the prosecution if required to prove that the primary motivation for an offence was racial hatred or prejudice, even where there is enough evidence to show that it formed part of the offender’s motivation. This is the approach adopted in New Zealand and Victoria3. It would also appear to cover those situations where people are targeted opportunistically because of their apparent association with a particular group (eg a Chinese student robbed because the offender thinks all Chinese students are rich).

We also note that the amendment appears to cover all situations of racist aggravation, including where the victim was selected because of their actual or presumed membership of a particular racial group.

1

Tasmania Law Reform Institute 2011, Racial Vilification and Racially Motivated Offences, Final Report No 14, UTAS, Hobart, pv 2 Sentencing Advisory Council (Victoria) 2009, cited in Tasmania Law Reform Institute 2010, Racial Vilification and Racially Motivated Offences: Issues Paper No 16, UTAS, Hobart 3 TLRI 2011, p42

2nd Floor, McDougall Building, Battery Pt TAS 7004 PO Box 1126, Sandy Bay TAS 7006 p 03/6231 0755 ABN 69 078 846 944

TasCOSS is supportive of reform which strengthens sentencing provisions rather than the creation of a new category of crime to deal specifically with racial vilification. It is the view of our organisation that crimes against people on the basis of race are reprehensible crimes, but are only one face of the violence and stigmatisation directed at many people in the community because of perceived or actual difference. In other situations, people are victimised because of their gender, their age, their mental health status, their perceived poverty or homelessness, or because of the presence of a disability. TasCOSS accepts the argument that creating specific racial vilification offences risks making ‘martyrs’ out of offenders who commit racially motivated crimes4. We agree with the proposed approach, of treating these offenders as people committing crimes, with enhanced sentencing provisions to address the specific aggravating factors and the increased trauma experienced by their victims as a result of being targeted because of their race with enhanced sentencing provisions.

TasCOSS would also like to note that an important virtue of this proposal is that it provides a way of dealing with the problem of racially motivated crime does not impact on judicial discretion.

Kym Goodes CEO 29 September 2016

4

The Victorian Council of Civil Liberties, cited in TLRI 2011 p42

2nd Floor, McDougall Building, Battery Pt TAS 7004 PO Box 1126, Sandy Bay TAS 7006 p 03/6231 0755 ABN 69 078 846 944