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Crimes Act Amendment (Incitement to Violence) Bill 2005

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2004-2005

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

Crimes Act Amendment (Incitement to Violence) Bill 2005

 

 

 

 

 

Explanatory Memorandum

 

 

 

 

 

 

Circulated by authority of Ms Nicola Roxon MP



 

Crimes Act Amendment (Incitement to Violence) Bill 2005

 

This Bill will criminalise threats of and incitements to racially or religiously motivated violence.

 

Policy rationale

 

In order to maintain harmony in a multicultural and multi-religious society, Parliament must send a strong signal that threatening or inciting racial and religious violence is unacceptable. At the same time, law enforcement authorities should have the tools to target the purveyors of hateful, violent messages before, not simply after these messages are turned to action.

 

This Bill proposes to criminalise activities that would already be criminal when directed to particular individuals. The objective is to criminalise this conduct when it is directed at racially or religiously identified groups. The law should recognise that the harm done by threats or incitement to violence against these groups is qualitatively different to the harm done when these threats are made to individuals, as the effect is generalised throughout the targeted community. It is also appropriate that these laws be enacted at the Commonwealth level, as threats or incitements made in one jurisdiction could generate fear in the targeted community across Australia.

 

Current Commonwealth vilification laws provide only weak civil remedies.

 

Further, Commonwealth laws only deal with racial, not religious, vilification. This is a significant gap, as religious groups are just as likely to be targeted as racial groups, and no doubt feel the same fear when this happens. It is anomalous, for example, that it should be an offence to vilify a group on the basis that they are Vietnamese, Somali or Italian Australians but not on the basis that they are Jewish, Christian or Hindu Australians.

 

This Bill would not criminalise criticism of any religion. It would only criminalise threats and incitement to commit violent or destructive acts on the basis of religion.

 

Provisions of the Bill

 

The Bill would provide the following crimes:

 

a.        threats to cause physical harm because of race, colour or national or ethnic origin

b.       threats to cause physical harm because of religion

c.        threats to property because of race, colour or national or ethnic origin

d.       threats to property because of religion

e.        incitement to cause or threaten physical harm or damage to property because of race, colour or national or ethnic origin

f.        incitement to cause or threaten physical harm or damage to property because of religion.

 

With the incitement offences, e. and f., it would not be necessary that any actual physical harm or property damage actually result from the incitement—the incitement would be enough to attract criminal liability regardless of the outcome.

 

The maximum penalty for offences would be 2 years imprisonment for offences a. and b. and 1 year for offences c. to f.

 



Criminality

 

Free speech is not targeted by the Bill. The Bill would only criminalise threatening or violent behaviour, not mere criticism.

 

It is also important to note this Bill would provide only criminal offences, not civil remedies. This would prevent the use of the laws by one religious group against another. Courts of law should not be used to resolve inter-faith disputes. Only law enforcement authorities would be able to prosecute under this Bill.

 

It does target speech that is intended to incite others to commit acts of violence or property damage against ethnic or religious minorities. This type of speech has no place in a tolerant, pluralistic country like Australia.

 

History of racially and religiously-motivated crimes

 

Parliament has considered laws providing similar crimes on two previous occasions:

 

·          Racial Hatred Bill 1994: Introduced by then Attorney-General Michael Lavarch. Contained offences for racially-motivated threats and incitements to violence or property damage. These provisions were opposed by the Senate. The Bill was passed with only civil remedies.

·          Racial and Religious Hatred Bill 2003: Introduced as private members’ bill by the current Member for Barton. Contained offences for racially and religiously-motivated threats and incitements to violence or property damage.

 

Comparison to sedition provisions of the Anti-Terrorism Bill (No 2) 2005

 

After years of obstructing Labor’s moves to provide criminal laws of this type, the Government has now proposed a similar offence as part of their proposed sedition laws contained in the Anti-Terrorism Bill (No 2) 2005 (see Schedule 7, item 12, proposed paragraph 80.2 (5) ‘Urging violence within the community’.)

 

There are some very important points of difference between this Bill and that provision:

 

·          the sedition provision would only apply when the violence urged would ‘threaten the peace, order and good government of the Commonwealth’. This would make it difficult to use against those who incite violence against minorities at a local or neighbourhood level. It might also be a barrier to prosecution where the incitement is directed solely at a minority group, rather than a large or majority group.

 

·          the sedition provision would only apply where the urging is directed at one defined group against another. It would not apply if the urging to violence is directed at an individual or a group that is not defined against a racial or religious group.

 

Comparison to Victorian laws

 

There is some similarity between this Bill and the Racial and Religious Tolerance Act 2001 (Vic), in that both provide offences motivated by religion. However, there are also two important differences:

 

·          this Bill will only prohibit threats of and incitements to violence on religious grounds, not a broader prohibition on inciting hatred. This means that there is no doubt that mere criticism of a religion will not be caught by this Bill, and

 

·          this Bill only provides criminal offences not civil remedies. This means that it will provide no opportunity for religious groups to sue each other in civil courts or tribunals. Only the police and prosecutors will bring prosecutions.