NSW intent on tightening up racial vilification legislation

October 21, 2015 by J-Wire News Service
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NSW Attorney-General Gabrielle Upton has told the The New South Wales Jewish Board of Deputies plenum “we cannot allow race hate speech to divide our community”.

Gabrielle Upton   Photo: Henry Benjamin

Gabrielle Upton Photo: Henry Benjamin

The NSWJBD has been involved in talks on the need to seek reforms following the uploading of a video on YouTube displaying an outburst by the Sydney-based leader of  Hizb ut-Tahrir Ismail Alwahwah calling for the destruction of Jews. Attempts to prosecute failed explained by a police statement which said ” the NSW Police Force has investigated the complaint thoroughly and found that at this time, it is not possible to identify who uploaded the footage in question or charge him or her for uploading the offensive material.”

Gabrielle Upton said that racial vilification  “is the ‘elephant in the room” when considering how communities and governments deal with countering violent extremism.

The following is an extract of the address she gave the monthly plenum”

“I am committed to reform in this area – the NSW Government is committed to reform in this area.

For some months since I became Attorney General in April I have been discussing with the Board of Deputies what can be done, what should be done and over what time frame.

But before we get to that important matter, we must recognise the overall success that multiculturalism is in NSW. Ethnic, racial, cultural and religious diversity strengthens our community.

The Jewish community has been a strong contributor to that success. One of the Board of Deputy’s strategic goals is to promote social inclusion of all segments of NSW society. “Mending the world” – working for the betterment of the community and all of humanity – is a basic tenet of Judaism. The community is an exemplar in the way it reaches out to others.

Since 1788, NSW’s evolution has been heavily influenced by immigration. While some things have remain unchanged, like the primacy of the rule of law, our people, institutions and culture have been shaped, sustained and strengthened by successive waves of immigration.

For more than 200 years people have chosen to call our State home for an array of reasons – from escaping harm or prosecution (like my parents-in-law from Stalinist former Yugoslavia) to seeking a better life (like my Irish Catholic great great grandparents). NSW has been a refuge for so many for so long.

NSW is now one of the most culturally, linguistically and religiously diverse communities in the world. People from around 200 birthplaces call our state home, at least one in five people in NSW speak a language other than English at home and according the latest 2011 Census 1 in 4 Australians are born overseas.

I see this at in my electorate at citizenship ceremonies – people from all corners of the world make their home in the Electorate of Vaucluse.

Like those before us, we all been enriched by people’s brave decisions to uproot their lives, venture into the unknown and settle here. NSW is all the richer in so many ways because of it. NSW is a testament to the power of diversity.

NSW and Australia has been particularly enriched by the contributions of the Jewish community. From the arts, academia, law, politics, business, journalism and philanthropy, the breadth of the Jewish community’s contribution to civil society and economic prosperity is great.

This contribution stretches back to the earliest days of the Commonwealth. Of particular interest to an Attorney General is Sir Isaac Isaacs QC was the fifth Attorney General of Australia, third Chief Justice of Australia and first Australian-born Governor-General.

And I need only look to my own backyard in the Eastern Suburbs to also see stunning examples of the community’s generosity and compassion through Jewish House and Our Big Kitchen.

They are a reflection of the community’s deep and sincere commitment to helping all those in need, no matter their background.

This is the century of disruption – new ideas, new powers, new businesses and new technologies are disrupting the world, as we know it at an unprecedented rate.

According to Forbes Magazine 15 years ago, the 4 largest companies (by equal weighting of sales, profits, assets and market value) were (HQ in America):

1. JP Morgan Chase (America) 2. General Electric (America) 3. Bank of America (America) 4. ExxonMobil (America).

Today, the 4 largest companies in the world are based in China: 1. Industrial and Commercial Bank of China (China)

2. China Construction Bank (China) 3. Agricultural Bank of China (China) 4. Bank of China (China).

There has been a seismic economic shift in power towards the Asia- Pacific region. And diversity in thought and leadership is vital to securing our future within a disruptive landscape.

Challenges to cohesion

The disruptive landscape includes new and dangerous radical fundamentalism.

Our newspapers, TVs and social media are flooded with despicable, shocking and depraved images of the brutality of Islamic State.

Now, terrorism has raised its cowardly head in our everyday world. Last year, the world was with us both during and after the Lindt Café siege. And now there is the brutal slaying of a NSW Police employee, Curtis Cheng – father of two – a tragedy.

Terrorism is now being fought here at home; in our communities; in our everyday lives and in the hearts and minds of our community.

Ladies and gentlemen, we cannot allow race hate speech to divide our community.

We cannot allow vulnerable people in our community to be subject to taunts and threats of violence.

Words can be weapons – weapons for race hate preachers, violent extremists and recruiters.

We now know that words can poison the minds of at-risk, marginalised youth.

One of the more disturbing aspects of the shameless murder of Curtis Cheng is the age of the perpetrators.

While the investigation has a long way to go, and it must run its course, the suggestion is that these young people are being radicalised by the race hate coming from the mouths and minds of extremists.

Ladies and Gentlemen, our laws must be up to the task of fostering a secure, inclusive, tolerant and harmonious community.

At present, the Anti-Discrimination Act 1977, prohibits racial vilification. Racial vilification is described as a public act inciting hatred, serious contempt or severe ridicule of a person or group on the grounds of race.

The Act also sets up an offence of serious racial vilification. The criminal offence occurs where the public act inciting hatred, serious contempt or severe ridicule involves threatening physical harm, or inciting others to threaten physical harm.

The President of the Anti-Discrimination Board receives and makes a limited investigation of complaints of racial vilification. Complaints under the Act are then investigated by the NSW Police Force at the request of the President. A decision to prosecute is made by the Director of Public Prosecutions (DPP), who is independent of Government.

An Attorney General is bound by the decision of the DPP as to whether a matter should be prosecuted.

The racial vilification offence has now been law for over 20 years – with the offence being inserted into the Act by the Greiner Government in 1989.

By doing so, NSW enacted the first laws in the world that criminalised the incitement of hatred, serious contempt or severe ridicule of people on the basis of race by threatening harm or inciting others to threaten harm.

The amending Bill recognised that victims of racial vilification required an accessible way for redress through a criminal offence and it was on this basis that the racial vilification offence was inserted into the Act.

At the time the legislation was introduced, then Attorney General, The Hon John Dowd said that legislation against racial vilification must involve a balancing of the right to the freedom of speech and the right to a dignified and peaceful existence, free from racist harassment and vilification.

As a result, the racial vilification offence under section 20D has been carefully framed in recognition of the rights of citizens in a democracy to exercise freedom of expression and ideas, while ensuring that when those rights are exercised, people are respectful of the rights and reputations of others.

So it is only when a person, in expressing their opinions or exercising their right to free speech, incites hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race that it will be a criminal offence.

A further important amendment to the Act was made by the Fahey Government in 1994.

This amendment extended the definition of ‘race’ to include the concepts of descent and ethno-religious origin. The effect of the amendment was to clarify those ethno religious groups such as Jews and Sikhs have access to the racial vilification and discrimination provisions of the Act. The amendment confirmed that vilification against a person on the basis of ethno-religious origin falls within the protections under the Act.

However, while the racial vilification offence is an important provision in the Act, no one has been succesfully prosecuted under section 20D since it was inserted into the Act in 1989.

In light of this, former Premier the Hon. Barry O’Farrell requested the NSW Legislative Council Law and Justice Committee to inquire into the serious racial vilification offence. In particular, the Committee was asked to consider:

  •   the effectiveness of section 20D
  •   whether section 20D establishes a realistic test for the offence of racial vilification in line with community expectations, and
  •   any improvements that could be made to section 20D, having regard to the continued importance of freedom of speech.

The Committee carried out a comprehensive review of the racial vilification offence, which included consideration of similar offences in other jurisdictions, particularly Western Australia.

Western Australia has adopted a significantly different vilification model to NSW. Under the Western Australia Criminal Code there is a range of offences that deal with racial misconduct including behavior that is intended to incite racial animosity or hatred, conduct intended to racially harass and offences relating to the possession of material with intent to incite racial animosity and harassment.

Along with considering the law in other jurisdictions, the Committee received submissions and heard evidence from a wide variety of stakeholders including from the NSW Jewish Board of Deputies.

I have read that submission and understand the concerns that were raised. In particular, the Board said there was a gap between the way the legislation was expected to operate and the way it was actually operating.

The Board’s position in its submission is very clear – to remove section 20D from the Act and include it in the Crimes Act, with a reformulated set of statutory provisions for the criminal prescription of serious vilification, which should be defined in classical criminal law terms requiring proof to a criminal standard.

While the Board prefers the offence be recast in these terms, this position was not agreed to by the Committee.

Rather, the Committee primarily recommended procedural changes to the Act in the 15 recommendations in its Report.

These changes were focussed on improving the operation of the racial vilification offence and prosecutions of offences under section 20D.

In making its recommendations, the Committee noted many stakeholders consider section 20D to be ineffective, given the lack of prosecutions under the provision. However, the Committee also acknowledged there was a strong body of opinion that the lack of prosecutions showed that section 20D was working.

This is because some stakeholders believe the civil and administrative mechanisms for dealing with vilification under the Act are effective in dealing with inappropriate but less serious forms of vilification and discrimination and that prosecution under section 20D is not required because of these mechanisms.

While the Committee believed both of these arguments carry weight, it put forward its own view – that the effectiveness of section 20D has been hindered by a number of procedural impediments, which the Committee considered could be addressed through its recommendations.

Some of the procedural changes to the Act recommended by the Committee include:

  •   repealing the requriement for the Attorney General to consent to prosecutions under section 20D;
  •   extending the time limit for commencing prosecutions; and
  •   allowing the President of the Anti-Discrimination Board to directly serious racial vilification complaints to the police.

What is clear from the Committee Report and from the submissions that were made to the Committee is that changes are required to the Act. The Act is not working as it is intended and must be changed to ensure it is meeting its objectives and purposes.

Change is needed to protect our community from hate speech. Change is needed if we are to better protect our community from violence or threats of violence. Change is needed if we are to better foster a secure, inclusive, tolerant and harmonious community.

In light of this I was pleased to announce on Monday that the NSW Government is working on reform that will strengthen the law.

The reform will be informed by the Legislative Council’s Report; we intend to implement most of the recommendations.

Following extensive consultation, we will release an exposure draft of the bill in January 2016. Legislation will be introduced in the 2016 Budget Session.

Importantly, the consultation leading up to that is an opportunity for the community to comment on whether further changes, changes above and beyond the Report’s recommendations, are necessary.

I look forward to working with you to protecting peaceful community diversity and tolerance. It is a top priority for the NSW Governme

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