NSW Community Leaders and the Racial Vilification Law
Peter Wertheim
David Knoll
Two former presidents of the New South Wales Jewish Board of Deputies and its current Chief Executive Officer will appear today before the Standing Committee on Law and Justice.
Peter Wertheim, David Knoll and NSWJBD CEO Vic Alhadeff presented a submission to the enquiry in February. Wertheim told J-Wire: “These laws were passed in 1989 and to the best of my knowledge there have been eleven cases presented to the Attorney-General but not one was prosecuted.” In one widely publicised incident, a Sydney North Shore resident erected a sign fronting on to busy Military Rd proclaiming that :Jews make great lampshades”.
In the submission made in February, the Board stated “The terms of reference of the present inquiry focus on the effectiveness of section 20D of the Anti Discrimination Act 1977 (NSW) (“the ADA”), and whether it establishes a ‘realistic’ test for the offence of serious racial vilification ‘in line with community expectations’.
We submit that section 20D does not contain a ‘realistic’ test as it has proven to be completely ineffective. Some 27 matters have been referred by successive Attorneys General from both sides of politics to the Director of Public Prosecutions (“DPP”) for prosecution under that section, but no charges have been laid and no prosecutions have been commenced. On this basis, it is our contention that the section has failed to operate ‘in line with community expectations’.
Nicholas Cowdery AM QC, the former Director of Public Prosecutions for NSW, considers that the most common reason why prosecutions have not been commenced has been the inability of the prosecution to adduce evidence to prove to the criminal standard certain elements of the offence as currently defined.1 Any reform will therefore need to ensure that the elements of the offence are set out simply yet with precision so as not to set the evidentiary bar for a successful prosecution at too low or, as is presently the case, at too high, a level.
Vic Alhadeff
Reform is needed to protect the basic right of all citizens to go about their daily lives free from racial hatred and with the unimpaired capacity to participate to the best of their abilities in all aspects of the life of the community. The law should be targeted specifically at public conduct that intentionally or recklessly incites racial hatred or racially harasses others. We do not advocate the criminal proscription of robust public debate on any topic unless the manner of debate descends to the level of such conduct. The Jewish community knows too well that leaving such conduct unpunished invites even worse conduct. The reform we advocate would not involve a major or strategic change, but rather the minimum change necessary to make the law fulfil its original purpose in practice. The crime of serious vilification is thus about prosecuting real wrongdoing and redressing real harm, and not about censorship.
The treatment of racial vilification in Australia generally is far from uniform.2 In NSW, the ADA contains both a civil prohibition3 and criminal proscription4 of racial vilification. In Western Australia, only criminal proscriptions exist.5 In the United Kingdom, by comparison, the Public Order Act criminalises conduct which is “threatening, abusive or insulting” with intent to “stir up hatred on the ground of race”.
The Board has made the following recommendations submitted in February:
1. That section 20D, (and sections 49ZTA, 49ZXC and 38T) be removed from the ADA and replaced by a reformulated set of statutory provisions for the criminal proscription of serious vilification, to be inserted into the Crimes Act 1900.
2. That the replacement provisions incorporate the following recommendations.
Recommendation 1
The definition of public act be clarified to include acts in both physical places and cyberspace.
Recommendation 2
The serious vilification offences be defined in classical criminal law terms requiring proof, to the criminal standard, of both an actus reus (the act constituting the serious vilification) and a mens rea (criminal intent or criminal recklessness). It is NOT recommended that there be strict liability offences.
Recommendation 3
- “Hatred” should be defined so that it is clear that it involves truly gross behaviours such as detestation, enmity, ill-will, revulsion, serious contempt or malevolence.
- Both (i) the public incitement of hatred against and (ii) harassment of, any person, on any of the four grounds that are currently proscribed, should be criminal offences.
- The concepts of “threaten”, “intimidate” or “seriously or substantially abuse” should be incorporated into a definition of harassment, adapting the definition contained in Division XI of The Criminal Code of Western Australia.
Recommendation 4
The criminal proscription of serious vilification and harassment should extend to serious vilification of those presumed to have the characteristic giving rise to the proscribed conduct, as is provided for under section 80F of The Criminal Code of Western Australia. Section 88 of the ADA should be repealed.
Recommendation 5
The qualification ‘By means which include… physical harm’ currently contained in section 20D (and sections 49ZTA, 49ZXC and 38T) of the ADA should be repealed, so that the crime to be proved is either:
- (a) public incitement to hatred with intent or recklessness; or
- (b) harassment with intent or recklessness;
- on a proscribed ground.
Recommendation 6
The penalties for all the serious vilification offences should be the same, with the maximum being:
- In the case of an individual – 250 penalty units or imprisonment for 2 years or both.
- In the case of a corporation – 1250 penalty units.
Recommendation 7
The prosecutor should to be able to apply for interim orders requiring the conduct that is the subject of the charge to cease pending trial, and for any alleged evidence of the conduct to be preserved. The court should also, on its own motion, be able to make such orders.
Recommendation 8
- Prosecutions for serious vilification should not require the prior consent of the Attorney General, but the Attorney-General should continue to be at liberty to refer cases to the DPP.
- Prosecutions should be conducted by the police or, on referral from the police or at the request of the Attorney General, by the DPP. All matters reported to the police that might give rise to a prosecution for serious vilification should be notified to the President of the Anti Discrimination Board.
Recommendation 9
Serious vilification cases should be tried before a jury.
Recommendation 10
A penalty enhancement regime (similar to that contained in s.80I of The Criminal Code of Western Australia) should also be introduced into the Crimes Act 1900 (NSW) to increase by one-third the maximum penalties for other criminal offences (e.g. murder, assault, rape) that are proved to have been aggravated by hatred or harassment on any of the proscribed grounds.
