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Racial Hatred Bill 1994



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House: House of Representatives

Portfolio: Attorney-General

Commencement: On the twenty-eighth day after receiving Royal Assent.

Purpose

The purpose of the Bill is to prohibit conduct including:

threats to cause physical harm to a person or group;

threats to destroy or damage property;

incitement of racial hatred; and

acts likely to offend, insult, humiliate or intimidate another person or group,

which is done because of the race, colour or national or ethnic origin of a person or a group.

Background

International Law

Australia is a party to two international conventions which address the question of racial vilification. The Convention on the Elimination of All Forms of Racial Discrimination requires in article 4(a) that parties:

Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof...

In an earlier draft of the provision 'incitement to racial hatred' had been included, but this was later removed as the incitement of 'hatred' was considered to be something that a court could not objectively determine. One American commentator has noted that:

The United Nation's focus on incitement to racial discrimination instead of incitement to racial hatred saved the incitement provision from intolerably compromising free expression. 1

Australia ratified the Convention on 30 September 1975, but lodged a reservation to

Racial Hatred Bill 1994

article 4(a), stating that it was not at that time in a position to treat as offences all the matters covered by article 4(a), except to the extent that they were already covered by existing criminal law. It also stated that it is the intention of the Australian Government to 'seek from Parliament legislation specifically implementing the terms of Article 4(a)'.

The International Covenant on Civil and Political Rights also deals with racial vilification. It provides in paragraph 2 of article 20:

Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

Australia ratified the Covenant on 13 August 1980, and lodged a reservation in relation to article 20, reserving its right not to introduce any further legislative provisions on these matters.

State legislation

In 1989, New South Wales was the first jurisdiction to pass a law dealing with racial vilification. The Anti-Discrimination (Racial Vilification) Amendment Act 1989 (NSW) amended the Anti-Discrimination Act 1977 (NSW) by inserting ss. 20B-20D. Section 20C makes it a civil offence to 'incite hatred towards, serious contempt for, or severe ridicule of, a person or group... on the ground of the race of the person or members of the group' by a public act. 'Race' is defined to include 'colour, nationality, descent and ethnic, ethno-religious or national origin'. Exemptions exist for fair reports of public acts of vilification, communications which are the subject of absolute privilege, and public acts, done reasonably and in good faith, for academic, artistic, scientific or research purposes, or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.

Section 20D makes it a criminal offence to commit a public act which incites 'hatred towards, serious contempt for, or severe ridicule of' a person or group on the ground of race, by means which include threatening physical harm towards them or their property, or inciting others to threaten such harm. The maximum penalty for an individual is a fine of $5000 or imprisonment for 6 months, or both, and for a corporation there is a maximum fine of $10,000. A prosecution cannot be brought without the consent of the Attorney General.

Complaints about breaches of these provisions must be made to the Anti-Discrimination Board. The President of the Board must decide within 28 days of receiving the complaint whether a criminal offence under s. 20D may have been committed, and if so, refer it to the Attorney General. Although approximately three matters have been referred to the Attorney General, no prosecutions have been commenced because there was not sufficient evidence.

If a criminal offence has not been committed, the matter is dealt with by conciliation. If conciliation fails, the matter is referred to the Equal Opportunity Tribunal which can made a determination that the complaint is substantiated and:

order the respondent to pay compensation up to $40,000;

order the respondent to stop, or not repeat, any unlawful conduct;

order the respondent to perform any reasonable act to redress any loss or damage suffered by the respondent;

order the respondent to publish an apology or retraction; or

order the respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination.

In 1991 the Australian Capital Territory included similar provisions in its Discrimination Act 1991. The main differences are that there is only a fine of $2000 for the criminal offence, rather than imprisonment, and the consent of the Attorney-General is not needed for prosecutions. There have been no criminal prosecutions under the legislation.

Criminal provisions prohibiting racist harassment and incitement to racial hatred were introduced into the Western Australian Criminal Code by the Criminal Code Amendment (Racist harassment and incitement to racial hatred) Act 1990 which commenced operation on 9 October 1990.

This legislation was not aimed generally at racial vilification. It was intended to stop a long and organised campaign of racist graffiti and publications which had developed during the 1980s. It prohibits the publication, distribution, or display, of material which is threatening or abusive, or the possession of such material for publication, distribution or display, where there is an intention to create, promote or increase hatred of any racial group by means of such use, or where there is an intention to harass a racial group by display of the material. It does not apply at all to speech or other means of expression. Penalties range from imprisonment for 6 months and fines of $2000 to imprisonment for 3 months and fines of $1000.

In Queensland, racial hatred legislation was introduced as part of the Anti-Discrimination Act 1991. Section 126 provides that a person must not incite unlawful discrimination or a contravention of the Act by advocating racial or religious hatred or hostility. The most important point to note is that the section refers specifically to 'religious hatred', unlike other legislation where people such as Jews or Muslims have to establish that discrimination against them is based on their 'ethnicity' rather than their religion.

The other important point is that it is confined to inciting 'unlawful discrimination' or a contravention of the Act. It does not prohibit words or actions which may incite hatred or hostility, but not discrimination. The penalty for an individual is a fine of $2100, and the penalty for a corporation is a fine of $10,200.

Reports

During the period of 1991-2 three reports were written which touched on the question of national racial vilification legislation.

The Australian Law Reform Commission, in its report Multiculturalism and the Law concluded that incitement to racist hatred and hostility should be made a civil offence, which is dealt with by conciliation. The Commission rejected making it a criminal offence, noting that this would unduly restrict freedom of speech. 2

Commissioner Elliott Johnston QC, in his Report of the Royal Commission into Aboriginal Deaths in Custody, also recommended a civil offence, of the kind existing in New South Wales. He supported conciliation as a means of dealing with racial vilification, but rejected the use of criminal sanctions. 3

The Human Rights and Equal Opportunity Commission, in its Report of the National Inquiry into Racist Violence in Australia recommended the creation of a civil offence of 'incitement to racial hostility'. The Commission stressed that the threshold for prohibited conduct must be higher than 'expressions of mere ill will' or conduct which results in 'hurt feelings or injured sensibilities', as this can lead to a large number of trivial complaints, as had occurred in New Zealand.

The Commission rejected the view that 'incitement to racial hostility' should be a criminal offence. It concluded:

Incitement of racial hostility is not as serious as outright racist violence and intimidation. It need not, therefore, be subject to criminal laws and criminal penalties. It should be dealt with as a civil matter under the Racial Discrimination Act, with the same remedies (conciliation and compensation) as provided for racial discrimination. 4

It is often argued that these three reports are the basis for the Commonwealth's proposed legislation, however, the Racial Hatred Bill 1994 is in some aspects completely contrary to the recommendations of these three reports. All three reports recommended against criminal sanctions for incitement to racial hatred/hostility, but proposed s. 60 of the Racial Hatred Bill creates a criminal offence of incitement to racial hatred. In the case of civil offences, it was recommended that 'incitement to racial hatred or hostility', or 'racial vilification' or 'incitement to racial hostility' be the subject of the civil offence. All of these descriptions involve a high threshold of serious conduct. The Racial Hatred Bill, however, establishes a civil offence with the significantly lower threshold of conduct which 'offends, insults, humiliates or intimidates'. These words clearly include the 'hurt feelings', 'injured sensibilities' and 'ill will' which the Human Rights and Equal Opportunity Commission warned should not be the basis for a civil complaint.

The 1992 Commonwealth Bill

The Racial Discrimination Amendment Bill 1992 was introduced into the House of Representatives on 16 December 1992. In order to facilitate public discussion on the Bill, it was left to lie in the Parliament over the summer recess. Before Parliament resumed, an election was called in early 1993 and the Bill lapsed.

The Bill set out two criminal offences. Sub-clause 59(1) provided that it was an offence for a person to do a public act intending to, and knowing that it is likely to, stir up hatred against a person or group on the ground of race, colour or national or ethnic origin. The penalty was imprisonment for 12 months.

Sub-clause 59(2) provided that it was an offence to do such an act with the intention of causing persons of a particular race, colour or national or ethnic origin to fear that violence may be used against them. The penalty was imprisonment for 2 years.

The Bill also set out a civil offence, which was to be inserted as s. 19B of the Racial Discrimination Act 1975. It provided that it was unlawful for a person, knowingly or recklessly, to do a public act that is likely to 'stir up hatred, serious contempt or severe ridicule against a person or a group' on the ground of race, colour, or national or ethnic origin.

After introducing the Bill, the Government undertook a series of public meetings around the country on the subject of the Bill. Meetings were held in late January and early February 1993 in Canberra, Sydney, Brisbane, Townsville, Darwin, Alice Springs, Adelaide, Launceston, Hobart, Melbourne, and Perth. The meetings were hosted by migrant or ethnic organisations in the relevant city.

Six hundred and forty-six submissions on the Bill were received from the public. Five hundred and sixty-three were opposed to the legislation, and only eighty-three were in favour of it. 5

In November 1994 the Government introduced its revised version of the Bill, which was intended to take account of prior public consultation. The provisions of the Racial Hatred Bill 1994 are discussed below.

Main Provisions

Criminal Offences - Threats

It is proposed that the Racial Hatred Bill amend the Crimes Act 1914 by inserting in it 'Part IVA - Offences Based on Racial Hatred'. This Part contains three criminal offences, two of which concern threats of violence. The third offence is discussed separately, below. Proposed s. 58 provides that it is an offence to threaten to cause physical harm to a person or group because of their race, colour, or national or ethnic origin. The penalty is imprisonment for 2 years.

Proposed s. 59 provides that it is an offence to threaten to destroy or damage property because of the race, colour or national or ethnic origin of any other person or group. The penalty is imprisonment for 1 year.

Comment

It is already an offence to threaten to cause injury to people or their property in the Australian States and Territories (although in some jurisdictions the laws are limited to specific types of threats). In many cases, the penalties are higher than the penalty provided in the Racial Hatred Bill 1994. Accordingly, if a person were to threaten to destroy or damage the property of another in New South Wales, s. 199 of the Crimes Act 1900 (NSW) provides that he or she would be liable for imprisonment for 5 years. If, however, the threat were motivated by racial hatred, and prosecution was commenced under this proposed amendment to the Commonwealth Crimes Act 1914, the person would only be liable to imprisonment for one year. This discrepancy between the penalties runs the risk of giving the impression that racially motivated crimes are treated less seriously than crimes motivated by other reasons.

A better way to express community repulsion at racially motivated crimes may be to add a premium onto existing penalties. This is the course that has been taken up in the United States. While the Supreme Court of the United States has struck down laws against inciting racial hatred because they are too uncertain or because they breach the First Amendment, it has recently upheld a law which increased a defendant's penalty when the victim was selected on the basis of race. 6 The problem with this approach is that it would have to be done by the States, as it is extremely doubtful that the Commonwealth would have the constitutional power to interfere with State sentencing laws.

The vast differences between the State and Commonwealth penalties on threatening violence against people or property leads to the question of how these laws interact. Proposed s. 61 provides that Part IVA is not intended to exclude or limit the concurrent operation of a State or Territory law, so the Commonwealth provisions do not have the effect of overriding the State laws. The question of double jeopardy is dealt with by s. 4C of the Crimes Act 1914 (Cth) which provides that where an act constitutes an offence under both a law of the Commonwealth and a law of a State (or Territory), and the offender has been punished for that offence under the law of the State or Territory, the offender shall not be liable to be punished under the Commonwealth law. It would appear that the States and Territories have similar laws concerning double jeopardy, or are covered by the common law on this issue. However, questions may still arise as to whether the Commonwealth should withdraw its prosecution if a State commences a prosecution, or vice versa, as s. 4C of the Crimes Act 1914 (Cth) only refers to offences for which a person has already been 'punished'.

Criminal offences - Incitement of racial hatred

The Racial Hatred Billproposes to amend the Crimes Act 1914 by inserting s. 60, which provides that it is a criminal offence to do an act which is reasonably likely to incite racial hatred.

This offence contains several qualifications. The first is that the act must be done 'otherwise than in private'. This phrase is partially defined in proposed sub-section 60(2) which notes that an act is not done in private if it is done in a public place, or within sight or hearing of people in a public place, or is communicated to the public through words, sounds or images. Accordingly, words painted on the wall of a private house which can be seen from the road could be the subject of an offence, but conversations within the house which cannot be heard from the street outside would not be an offence. It is less clear whether meetings of racist organisations would fall within the description of acts done 'otherwise than in private'. If the meeting were held on private property and attendance was restricted to members, with members of the public expressly excluded, then it is possible that the meeting would be considered to take place 'in private'. 'Public place' is defined in the Bill as including any place to which 'the public have access as of right or by invitation'. It would then be a question of determining whether the invited members of the organisation constitute 'the public', for the purposes of the legislation.

The offence does not require that there be actual incitement of racial hatred. There is no test of causation. Accordingly, a person may be convicted of the offence even if no person has been incited to hate on the basis of race.

There are, however, two tests of intention which must be met. The first test is a subjective test, which requires it to be established, according to the criminal standard of 'beyond reasonable doubt', that the defendant committed the impugned act 'with the intention of inciting racial hatred against another person or a group of people'. It must also be established that a substantial reason for doing the act was the race, colour, or national or ethnic origin of the person or group against whom it was intended to incite racial hatred.

The second test is an objective test. It must be proved that the act 'is reasonably likely, in all the circumstances, to incite racial hatred against the other person or group of people'.

The term 'racial hatred' is not defined in the Bill. One might assume that 'racial' was intended to cover 'colour or national or ethnic origin', but this is not made explicit by the Bill.

Comment

Intention

The tests of intention have caused some difficulty in countries such as the United Kingdom. One problem is that it often depends upon the people to whom the act is communicated (i.e. the audience of a speech or the readers of racist material). If the people at whom the act is directed are unlikely to be incited to hatred (such as members of Parliament and other public officials), or if the intention of the act is to get them to support a change in policy, then no matter how offensive the words, an offence will not have been committed.

For example, in R v Britton, 7 which was the very first prosecution for incitement to racial hatred in the United Kingdom, the defendant was a seventeen year old boy who had left a pamphlet objecting to black immigration on the door of the home of a Member of Parliament. He was convicted, but on appeal his conviction was quashed. The case turned on the meaning of 'distribution', but Lord Parker CJ also noted that it could not be said that the act was intended to stir up hatred, when it was in fact intended to persuade the Member of Parliament to change his policy and fight against further immigration.

It may also be the case that exceptionally offensive racial vilification is likely to cause reasonable people to feel sympathy for the victims of the insults or abuse. 8 In the case of R v Read 9 the defendants were prosecuted for a speech in which they referred to people as 'wogs', 'coons', 'niggers' and 'black bastards'. In their defence they argued that the speeches were so intemperate that they were likely to stir up sympathy for the abused groups, rather than hatred. They were acquitted by the jury.

In other cases, where the words in question are part of a speech delivered to a racist audience, it is difficult to establish that it would be likely to stir up racial hatred, when the racial hatred already existed. For example, when the leader of the British Nationalist Movement, John Read, was charged for responding to the death of an Asian man by saying 'one down, a million to go', the judge directed that there was no evidence that he intended to stir up hatred amongst an audience consisting of his supporters. 10

The meaning of hatred

As noted above in the Background, the international instruments which form the constitutional support for this Bill, avoided reference to 'incitement to racial hatred', on the basis that 'hatred' is too subjective a term for a court to assess. In the United States and Canada, concern has also been expressed that the term 'hatred' is too uncertain a standard to include in penal legislation.

For example, in State v Klapprott 11 the Supreme Court of New Jersey held that a statute that made it an offence to utter any statement inciting hatred, abuse, violence or hostility against a group by reason of race, colour, religion or manner of worship, was void for uncertainty, because the terms 'hatred', 'abuse' and 'hostility' are abstract and indefinite. Chief Justice Brogan concluded that it is not possible to say when ill will becomes hatred. He noted that there is no norm to say when such an emotion comes into being, and that it cannot be made a legitimate standard for a penal statute.

The Canadian Supreme Court, in R v Keegstra also discussed the meaning of 'hatred', in the context of incitement to racial hatred. Chief Justice Dickson considered that the term 'hatred' was a restriction on the application of the relevant legislation, because it 'connoted emotion of an intense and extreme nature that is clearly associated with vilification and detestation'. 12 Madam Justice McLachlin, however, on behalf of the minority comprising McLachlin, Sopinka and La Forest JJ, considered that the term 'hatred' was overbroad. She observed:

The Shorter Oxford English Dictionary defines "hatred" as: "The condition or state of relations in which one person hates another; the emotion of hate; active dislike, detestation; enmity, ill-will, malevolence." The wide range of diverse emotions which the word "hatred" is capable of denoting is evident from this definition. Those who defend its use in [the relevant section] emphasize one end of this range - hatred, they say, indicates the most powerful of virulent emotions lying beyond the bounds of human decency and limiting [the section] to extreme materials. Those who object to its use point to the other end of the range, insisting that "active dislike" is not an emotion for the promotion of which a person should be convicted as a criminal. To state the arguments is to make the case; "hatred" is a broad term capable of catching a wide variety of emotion. 13

Her Honour also observed that the subjectivity of the term presents further dangers, particularly when the speech was unpopular.

The meaning of 'race'

The Racial Hatred Bill refers generally to 'race, colour or national or ethnic origin'. As noted above, proposed s. 60 refers only to 'racial' hatred, without using these other terms, but paragraph 60(1)(b) further provides that the act which is intended, and reasonably likely, to incite 'racial' hatred must be done because of the 'race, colour or national or ethnic origin' of the person or group against whom the 'racial' hatred is directed.

The relationship between race or ethnicity and religion has caused problems in interpreting such legislation in other jurisdictions. The main difficulty is that while membership of a racial or ethnic group is inherited, membership of a religious group involves personal choice. A person of any race may convert to religions such as Judaism, Islam or Christianity, and there are many communities of these faiths which are of vastly different racial and ethnic origins. It is therefore difficult to categorise religious groups, such as Jews, Muslims or Christians as members of a 'race' or of the same ethnic origin. Nevertheless, it is clear that vilification of some groups, such as Jews and Muslims occurs due to a combination of religion and presumed ethnic origins. In the United Kingdom this problem has led to unfortunate legal distinctions being drawn between those religious groups that are covered by racial hatred legislation, and those not covered. It appears that Jews and Sikhs have succeeded in achieving recognition as belonging to a certain 'ethnic origin', 14 whereas Christians, Muslims 15 and Rastafarians 16 do not receive the same protection of the law.

The Explanatory Memorandum to the Racial Hatred Bill provides that 'it is intended that Australian courts' would follow the definition of 'ethnic origin' set out in the New Zealand case of King-Ansell v Police, and that this would 'provide the broadest basis for protection of peoples such as Sikhs, Jews and Muslims'. If the Parliament 'intends' this, it should state it in its legislation, rather than attempting to legislate by an Explanatory Memorandum, which is a Government document that is neither passed nor approved by the Parliament. While the courts may take into account the Explanatory Memorandum if there is an ambiguity in the legislation, it is surely the Parliament's role to pass legislation which is not deliberately ambiguous. The experience in the United Kingdom has shown that religious groups such as Muslims may fall outside the definition of 'ethnic origin', so that the use of this phrase cannot be certain. In New South Wales, the Anti-Discrimination Act 1977 was amended in 1994 to insert reference to 'ethno-religious origin', in an effort to ensure that it covered groups such as Jews and Muslims. In Queensland, the Anti-Discrimination Act 1991 specifically refers to 'religious' hatred.

The absence of exemptions

Proposed s. 60 does not contain any exemptions in favour of freedom of speech. Accordingly, even if the impugned act is the making of a statement or report which is true, either being a report of an historic event or a report of current events, the maker of the statement can still be sent to prison if the statement was reasonably likely to incite racial hatred and was intended to incite racial hatred.

This absence of exemptions must be of concern to some ethnic newspapers, where reports of atrocities committed in civil wars by one ethnic group against another, could be seen as reasonably likely to incite hatred against the ethnic group accused of committing the atrocities, and could be seen as intended to do so. This could lead to the writers of such articles being sent to prison, even though they are reporting the truth.

In the United Kingdom, further protection is given to freedom of speech by requiring that the words or behaviour be 'threatening, abusive or insulting', before action can be taken. This eliminates the prospect of a person being sent to prison for merely expressing ideas or facts in a temperate manner.

Civil offence - offending people on the basis of race

The Racial Hatred Bill 1994 proposes to amend the Racial Discrimination Act 1975 by inserting Part IIA, entitled 'Prohibition of Offensive Behaviour Based on Racial Hatred'. Contrary to its title, the Part does not make any reference to racial hatred. Proposed s. 18C provides that it is unlawful to do an act which is reasonably likely to 'offend, insult, humiliate or intimidate' another person or group, if one of the reasons for doing the act is their race, colour or national or ethnic origin.

As with the criminal offence in proposed s. 60, the act must be done 'otherwise than in private'. The definition of 'otherwise than in private', is the same, and is discussed in relation to proposed s. 60, above.

Proposed s. 18C does not contain a subjective test of intention. The person doing the act does not have to intend to offend, insult, humiliate or intimidate the other person. It is enough if one of the reasons for doing the act (and it need not be the dominant reason) is the 'race, colour or national or ethnic origin' of the other person or people.

The main test is the objective test that the act be 'reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate' another person or group. There is no requirement than any person actually be offended, insulted, humiliated or intimidated.

Proposed s. 18D sets out exemptions to the above provision. These exemptions cover things said or done reasonably and in good faith in relation to:

artistic works;

'genuine' academic, artistic or scientific purposes;

discussion or debate on a 'genuine' purpose in the public interest;

fair and accurate reports of any event or matter of public interest; and

fair comment, representing a genuinely held belief, on any event or matter of public interest.

Proposed s. 18E provides that an employer is liable for a breach of proposed s. 18C made by his or her employee, when it is done in connection with the employee's duties, unless the employer can establish that he or she 'took all reasonable steps to prevent the employee' from doing the act.

Section 22 of the Racial Discrimination Act 1975 is proposed to be amended by the consequential amendments in the Racial Hatred Bill, to provide that a person aggrieved by an act which is unlawful under Part IIA may make a complaint to the Human Rights and Equal Opportunity Commission. The complaint will be dealt with by means of conciliation by the Racial Discrimination Commissioner, but if conciliation fails, the complaint must be referred to the Commission for determination. The Commission may make a determination which dismisses the complaint or finds it substantiated. If it is found to be substantiated, s. 25Z provides that the Commission may:

declare that the respondent has engaged in unlawful conduct and that it should not be repeated or continue;

declare that the respondent must perform 'any reasonable act' to redress the loss or damage suffered by the complainant;

declare that the respondent should pay the complainant damages as compensation for any loss or damage suffered by the respondent; or

declare that the respondent should employ, re-employ, or promote the respondent.

Under the current arrangements (which are under constitutional challenge in the High Court) 17 the Commission's determination must be registered with the Federal Court, and will then have effect as if it were a court order, subject to any application for review by the Federal Court, within the review period.

Comment

In the 1992 Commonwealth Bill, the civil provision related to acts likely to 'stir up hatred, serious contempt or severe ridicule'. In contrast, the 1994 Bill merely refers to acts which are reasonably likely to 'offend, insult, humiliate or intimidate' a person. As noted in the Background, the Human Rights and Equal Opportunity Commission expressly recommended against such a low threshold as would allow complaints for 'hurt feelings' and 'injured sensibilities'. The word 'offend' is defined in the Macquarie Dictionary as meaning 'to irritate in mind or feelings; cause resentful displeasure'.

The problem with using terms such as 'offend', 'insult' and 'humiliate' is that they are largely subjective in nature. The courts of the United Kingdom have had trouble interpreting the word 'insult' in relation to public order legislation. In Brutus v Cozens the Divisional Court of the Queen's Bench Division considered an insult to be 'behaviour which affronts other people and evidences a disrespect for their rights, behaviour which reasonable persons would foresee is likely to cause resentment or protest such as was aroused in this case'. 18 On appeal to the House of Lords, Lord Reid disagreed, observing that the word 'affront' is too vague, and that there can be disrespect without insult. He concluded that there can be no useful definition of 'insulting' but that 'an ordinary sensible man knows an insult when he sees or hears it'. In this case he disagreed with the Divisional Court (which obviously was not comprised of ordinary sensible men), and held that there was no insult involved in disrupting a Wimbledon tennis match to protest against apartheid. 19

The Explanatory Memorandum notes that the provision is analogous to the sexual harassment provisions of the Sex Discrimination Act 1984 (Cth). Section 28A of the Sex Discrimination Act, which was inserted in 1992, provides that if a person makes unwelcome sexual advances towards a person or engages in other unwelcome conduct of a sexual nature, in circumstances where a reasonable person would have anticipated that the person harassed would be 'offended, humiliated or intimidated', this constitutes sexual harassment for the purposes of the Act. Sexual harassment is only unlawful when committed in certain circumstances, such as in the work place or in educational institutions. It does not apply generally, as does the provision in the Racial Hatred Bill.

Secondly, it should be noted that the sexual harassment provisions do not relate to acts done because of a person's sex. They provide no redress for statements which vilify people on the basis of gender, or for statements which members of one gender find offensive. Sexual harassment relates to unwelcome conduct of a sexual nature. If men and women could bring complaints to the Human Rights and Equal Opportunity Commission on the basis that statements made in the media or elsewhere relating to the characteristics of members of one sex are offensive, then there would be a flood of complaints almost every day.

The Racial Hatred Bill 1994 and the Constitution

External Affairs Power

There are two aspects of the Constitution which are relevant to this Bill. The first is the extent to which there is a head of legislative power to enact the Bill. The second is the extent to which it may conflict with the constitutional implication of freedom of political speech.

The source of constitutional power for the Bill appears to be the external affairs power in s. 51(xxix) of the Constitution. The Bill is presumably, therefore, intended to partially implement article 4(a) of the Convention on the Elimination of All Forms of Racial Discrimination ('CERD') and article 20(2) of the International Covenant on Civil and Political Rights ('ICCPR'). As noted in the Background, reference to 'incitement to racial hatred' was specifically excluded from article 4(a) of the CERD. Article 20(2) of the ICCPR provides:

Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

It appears from a strict reading of the words that the advocacy of 'racial hatred' should only be prohibited by law when it 'constitutes incitement to discrimination, hostility or violence'. While proposed ss. 58 and 59 are clearly covered by the reference to 'incitement to violence', it is not quite as clear that 'incitement to racial hatred', as prohibited by proposed s. 60, is covered by the reference to 'hostility'. 'Hatred' and 'hostility' do not appear to be treated by article 20 as having the same meaning (because if they did have the same meaning, the whole second part of the article would be redundant). Accordingly, if a court were to read article 20(2) of the ICCPR and article 4(a) of the CERD strictly, it is possible that they would not provide a source of legislative power for the enactment of proposed s. 60.

However, in interpreting international treaties the High Court has taken a much broader view of the obligations of Australia under international treaties, and it is unlikely that it would strike down proposed s. 60 on this basis.

The civil provisions in proposed s. 18C of the Racial Discrimination Act may be more vulnerable. There is no requirement in proposed s. 18C that the act include ideas based on racial superiority or hatred, or incite racial discrimination or violence, nor is there a requirement that it involve the advocacy of racial hatred or incite hostility. There appears to be quite a wide chasm between racial hatred and 'offending' a person by an act, where one of the reasons for the act was the race of a person.

In deciding whether proposed s. 18C is supported by the ICCPR or the CERD, the High Court would consider whether proposed s. 18C is 'appropriate and adapted' to the objects of the CERD and the ICCPR. The Court would also have to consider the other objectives of these treaties, such as freedom of expression. In the CERD, express mention is made in article 4 to the fact that parties implementing article 4(a) must pay 'due regard to the principles embodied in the Universal Declaration of Human Rights' and the rights set out in article 5 of the CERD, both of which include the right to freedom of expression. In the ICCPR, article 19 sets out a right of freedom of expression.

Freedom of Political Speech

The question of how the constitutional implication of freedom of political discussion recognised in Australian Capital Television Pty Ltd v The Commonwealth 20 and Nationwide News v Wills 21 may impact upon proposed racial vilification legislation was discussed in PRS Issues Brief No. 2 of 1993. The most recent decisions of the High Court in Theophanous v Herald Weekly Times, Stephens v West Australian Newspapers, and Cunliffe v The Commonwealth 22 reinforce some aspects of the earlier cases, and give a clearer understanding of the breadth of 'political discussion', but do not substantially change the situation.

There are two substantial questions that must be addressed. The first is whether matters covered by the Racial Hatred Bill would fall within the category of freedom of political discussion and communication. If this is the case, the second question arises as to how the public interest in freedom of political discussion is balanced against other public interests in freedom from racial harassment, and whether the Bill achieves the appropriate balance.

On the first question, it would appear that a limited category of the statements covered by the Bill would fall within the area of freedom of political discussion. Examples would include statements asserting that members of certain races should be deported, or should not be allowed to migrate to Australia, and statements attacking the multicultural basis of our society. On the other hand, the abuse of people by reference to their race, colour or ethnic background (e.g. references to 'coons' or 'wogs') would not appear to amount to 'political discussion'. There would have to be an element of criticism of government policy or actions before it would meet this criteria.

In those cases where the impugned statements do fall within the category of political discussion, the next question to ask is whether the law directly curtails freedom of political discussion, or whether this effect is merely an incidental and remote consequence of the operation of a law upon some other subject matter. If it is merely an incidental and remote effect, it will not involve a significant curtailment of the freedom of political discussion, and therefore will be valid.

If, however, the law is directed at restricting freedom of speech, and in particular if it 'targets information or ideas or... prohibits or regulates the content of communications', it will require a 'compelling justification to sustain its validity'. 23

The Racial Hatred Bill 1994 is clearly directed at restricting certain forms of speech, and is targeted at the subject matter of the speech. It will, accordingly, require a 'compelling justification to sustain its validity'.

In order to justify such legislation, it would not only have to be shown that there is a compelling public interest in preventing acts or words which might incite racial hatred, but it would have to be shown that the law is proportionate to the public interest that it is intended to achieve. The law must therefore be reasonably and appropriately adapted to achieve that end, and it must curtail freedom of political discussion no more than is absolutely necessary to achieve that end. 24 If the public interest can be served by 'less drastic measures', then the law will be invalid. 25

Accordingly, if, after its enactment, the Racial Hatred Bill 1994 were to be challenged before the High Court, and if the Court accepted that the legislation curtails freedom of public discussion, then the Commonwealth would have to establish that the legislation is intended to achieve a 'compelling interest', and that the legislation is reasonably and appropriately adapted to this end. The exemptions provided under proposed s. 18D of the Racial Discrimination Act 1975 will be important in establishing that the legislation does not go further than is absolutely necessary in restricting freedom of political discussion. The absence of any exemptions in relation to the criminal offence of inciting racial hatred under proposed s. 60 of the Crimes Act 1914 may be significant in this context.

The Commonwealth would also need to establish that the same end could not be achieved by other measures that would not curtail freedom of political discussion. This might be difficult to establish, as it is arguable that public education campaigns will have a far greater effect in changing public attitudes and preventing racial hatred than will criminal laws.

Endnotes

1. Korengold, M., 'Lessons in Confronting Racist Speech: Good Intentions, Bad Results, and Article 4(a) of the convention on the Elimination of All Forms of Racial Discrimination' (1993) 77 Minnesota Law Review 719, 726.

2. Australian Law Reform Commission, Multiculturalism and the Law, Report No. 57, 1992: paragraph 7.47.

3. Johnston, E., National Report of the Royal Commission into Aboriginal Deaths in Custody, Canberra: AGPS, 1991: Volume 4, pp. 74-5.

4. Human Rights and Equal Opportunity Commission, Racist Violence, Canberra: AGPS, 1991: p. 300.

5. Attorney-General's Department, Media Evaluation, Racial Vilification Amendment Bill Public Consultations, 5 April 1993.

6. Wisconsin v Mitchell 113 S. Ct. 2194 (1993).

7. [1967] 2 QB 51.

8. See for example the case of R v Jones and Cole, where this view appears to have been accepted by the jury: Human Rights Commission, Incitement to Racial Hatred: The International Experience, Occasional Paper No. 2, 1982: p. 35, f.n. 26.

9. The Times, 7 January 1978, referred to in Oyediran, J., 'The United Kingdom's Compliance with Article 4 of the International Convention on the Elimination of all Forms of Racial Discrimination' in Coliver, S. (ed.), Striking a Balance, University of Essex, 1992: p. 247.

10. Bindman, G., 'Incitement to Racial Hatred in the United Kingdom: Have We Got the Law we Need?' in Coliver, S. (ed.), Striking a Balance, University of Essex, 1992: p. 261.

11. 127 NJL 395 (1941); 22 A 2d 877, 882.

12. [1990] 3 SCR 697, 777.

13. [1990] 3 SCR 697, 855-6.

14. Mandla v Dowell Lee [1983] 1 All ER 1062. See also King-Ansell v Police [1979] 2 NZLR 531 for recognition by the New Zealand Court of Appeal that Jewish people fall within the category of 'ethnic origin' in the New Zealand legislation.

15. Nyazi v Rymans Ltd, Unreported, 10 May 1988. See reference in Halsbury's Laws of England, 4th ed., Vol. 4(2), para. 153, f.n. 5.

16. Crown Suppliers (PSA) v Dawkins [1993] ICR 517.

17. Brandy v Human Rights and Equal Opportunity Commission, judgment reserved, 4 October 1994.

18. [1972] 1 WLR 484, 487.

19. For further cases discussing the meaning of 'insulting' see: Bryan v Robinson [1960] 2 All ER 173; R v Ambrose (1973) 57 Cr App Rep 538.

20. (1992) 177 CLR 106

21. (1992) 177 CLR 1.

22. (1994) 124 ALR 1, 80, and 120 respectively.

23. Cunliffe v The Commonwealth (1994) 124 ALR 120, per Mason CJ at 133.

24. Cunliffe v The Commonwealth (1994) 124 ALR 120, per Deane J. at 164.

25. Cunliffe v The Commonwealth (1992) 124 ALR 120, per Gaudron J. at 202.

A. Twomey (Ph. 06 277 2432)

Bills Digest Service 14 November 1994

Parliamentary Research Service

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Commonwealth of Australia 1994.

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Published by the Department of the Parliamentary Library, 1994.