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Tuesday, 15 November 1994
Page: 3336


Mr LAVARCH (Attorney-General) (6.14 p.m.) —I move:

  That the bill be now read a second time.

Next year will mark the 20th anniversary of the passage of the Racial Discrimination Act. The act was the first specific Commonwealth law on human rights. It was based on the fundamental belief that all Australians irrespective of race, colour or national or ethnic origin are entitled to fair treatment. In this country, we take pride in the community's consensus that everyone should be able to advance through life on their own efforts and abilities; that it is wrong to judge anyone on the colour of their skin or the sound of their accent.

  Be it under a law, or in employment, or the provision of services, or access to facilities and accommodation, discrimination based on racial prejudice and intolerance is addressed by the Racial Discrimination Act. The law provides a remedy to those who have experienced discrimination. It exists because, even with general community tolerance, we know racism exists. And racism leads to discrimination.

  The Racial Discrimination Act does not eliminate racist attitudes. It does not try to, for a law cannot change what people think. But it does target behaviour—behaviour that causes an individual to suffer discrimination. The parliament is now being asked to pass a new law dealing with racism in Australia. It too targets behaviour—behaviour which affects not only the individual but the community as a whole.

  The Racial Hatred Bill is about the protection of groups and individuals from threats of violence and the incitement of racial hatred, which leads inevitably to violence. It enables the Human Rights and Equal Opportunity Commission to conciliate complaints of racial abuse. This bill is controversial. It has generated much comment and raises difficult issues for the parliament to consider. It calls for a careful decision on principle.

  I wish to address the issues most consistently raised in the public debate and then examine the provisions of the bill in detail. The bill is intended to close a gap in the legal protection available to the victims of extreme racist behaviour. No Australian should live in fear because of his or her race, colour or national or ethnic origin. The legislation will provide a safety net for racial harmony in Australia, as both a warning to those who might attack the principle of tolerance and an assurance to their potential victims.

  Three major inquiries have found gaps in the protection provided by the Racial Discrimination Act. The National Inquiry into Racist Violence, the Australian Law Reform Commission Report into Multiculturalism and the Law, and the Royal Commission into Aboriginal Deaths in Custody all argued in favour of an extension of Australia's human rights regime to explicitly protect the victims of extreme racism.

  The 1992 report of the national inquiry into racist violence found that while state and territory criminal law punishes the perpetrators of violence, it largely is inadequate to deal with conduct that is a pre-condition of racial violence. The report documented 60 such incidents. The Law Reform Commission report and the royal commission also dealt extensively with examples of extreme racist behaviour.

  Since then there has been an upsurge in the activities of extremist racist groups which have resulted in harassment and intimidation of individuals. As well, public gatherings of ethnic communities have been disrupted, sometimes violently. In Sydney, police are investigating seven arson attacks on synagogues in less than four years. In Melbourne, there have been reports of teenage gangs targeting Australians of Asian background. While these incidents are not everyday occurrences, they tear at the fabric of our society and cause immense concern to many of our citizens.

  Racism is often a by-product of ignorance, and education is an essential part of any response. The Human Rights and Equal Opportunity Commission has a number of programs which target racism in schools, reinforced by a variety of programs run by educational authorities. The commission also provides resources to help employers deal with racism in the workplace. The commission will also be conducting a public education program to promote this legislation upon its passage.

  Racism should be responded to by education and by confronting the expression of racist ideas. But legislation is not mutually exclusive of these responses. It is not a choice between legislation or education. Rather, it is, in the government's view, a case of using both.

  There is no doubt that the Racial Discrimination Act has been a powerful influence on the rejection of racist attitudes over the past two decades. It has forced many people to confront racist views and have them debunked. It can be compared to the contribution of the Sex Discrimination Act over the past 10 years to improving the way women are treated in our society.

  This bill has been mainly criticised on the grounds that it limits free expression and that to enact such legislation undermines one of the most fundamental principles of our democratic society. Yet few of these critics would argue that free expression should be absolute and unfettered. Throughout Australia, at all levels of government, free expression has had some limits placed on it when there is a countervailing public interest.

  Laws dealing with defamation, copyright, obscenity, incitement, official secrecy, contempt of court and parliament, censorship and consumer protection all qualify what can be expressed. These laws recognise the need to legislate where words can cause serious economic damage, prejudice a fair trial or unfairly damage a person's reputation. In this bill, free speech has been balanced against the rights of Australians to live free of fear and racial harassment. Surely the promotion of racial hatred and its inevitable link to violence is as damaging to our community as issuing a misleading prospectus, or breaching the Trade Practices Act.

  The bill places no new limits on genuine public debate. Australians must be free to speak their minds, to criticise actions and policies of others and to share a joke. The bill does not prohibit people from expressing ideas or having beliefs, no matter how unpopular the views may be to many other people. The law has no application to private conversations. Nothing which is said or done reasonably and in good faith in the course of any statement, publication, discussion or debate made or held for an academic, artistic or scientific purpose or any other purpose in the public interest will be prohibited by the law.

  It is worthy of note that New South Wales has had similar legislation for five years and yet no-one has seriously argued that free speech has been curtailed there. Nor has it been unduly limited in any other Australian jurisdictions where similar legislation exists. But perhaps most noteworthy are the experiences in other liberal democracies throughout the world that ban racial hatred and violence. Free speech is a constitutional right in Canada and many European countries, yet the highest courts in these countries have held provisions which ban racist hatred and violence in public to be reasonable and necessary. In fact, in 1989 the Canadian Supreme Court upheld Canada's anti-hate legislation. Recently the Australian High Court has established the existence within the constitution of an implied guarantee of free expression. The High Court decisions have been closely examined and the government is fully convinced that the bill does not infringe on the principles developed by the court.

  Clearly then, while these are important issues, the Commonwealth parliament is not the first Australian legislature to grapple with them. Criminal laws dealing with the incitement of racial hatred operate in New South Wales, Western Australia, Queensland and the Australian Capital Territory. Civil provisions are also in place in each of these jurisdictions except Western Australia. New Zealand has had laws of this nature since 1971. Along with Canada, Great Britain and a number of the states of the United States also have specific laws on racial hatred.

  The principle of legislating to deal with racial hatred has for some time enjoyed the support of the leadership of the federal Liberal Party. The former Leader of the Opposition, the member for Wentworth (Dr Hewson), in an address to the Zionist Federation in May 1992, said national anti-vilification legislation would be a worthwhile initiative in Australia. The federal coalition's commitment to such legislation was reconfirmed with the release of the Liberal and National parties' 1993 Fightback law and justice policy by the then shadow Attorney-General and now the Deputy Leader of the Liberal Party, the member for Higgins (Mr Costello). The Fightback policy document stated unequivocally that inciting fear or damage to people or their property on racial grounds should be prohibited. The member for Higgins reaffirmed this commitment in a letter dated 8 February 1993 to Mr Mark Leibler which said of the 1992 draft legislation:

We accept the principles underlying the first part of the Bill, which is designed to prevent intentionally stirring up racial hatred, fear of violence or injury to person or property.

As recently as May this year the coalition again publicly endorsed the need for such legislation when its then spokesperson on these matters, the member for Tangney (Mr Williams), said:

The opposition recognises the need for the legislation and, in principle, we accept that legislation should provide criminal sanctions for racial violence and hatred.

The current Leader of the Opposition has also publicly recognised the need for racial hatred legislation and committed himself to supporting such action by this parliament. Only four months ago, in a wide ranging interview reported in the Australian Jewish News, Mr Downer said:

Where there is incitement to violence or to damaging property on the basis of race, then there is no question that should be a criminal offence. You obviously have to find a balance between free speech, on one hand, and ensuring that there isn't incitement to racial vilification in our society.

However, the opposition is not supporting this bill. It has been advanced that the bill restricts freedom of speech and that a model based on the New South Wales Anti-Discrimination Act 1977 would allay opposition concerns.

  Let me now detail the provisions of the bill and where appropriate make comparisons with the New South Wales legislation. I believe a fair assessment is that, while the New South Wales law is a perfectly workable model, the bill before the House overcomes some deficiencies in the New South Wales act and is consistent with the Commonwealth's own human rights regime.

  In outline, the bill amends the Crimes Act 1914 to provide for three criminal offences and amends the Racial Discrimination Act 1975 to provide for a civil prohibition. The criminal provisions do not attempt to replicate the general criminal law which deals with physical violence and the damage to property. Rather the provisions centre on the precursors of actual violence; that is, the incitement of racial hatred and threats made to a person or persons or property because of race, colour or national or ethnic origin.

  The bill seeks to close a gap in the operation of the current laws by protecting people confronted by situations likely to lead to fear and racist violence. The three criminal provisions to be inserted in the Crimes Act 1914 are set out in clause 4 of the bill. The first two offences deal respectively with threats, done because of race, colour or national or ethnic origin, against people and property, while the third prohibits acts done, otherwise than in private, with the intention of inciting racial hatred. I shall speak about each provision in turn.

  Proposed section 58 is quite simple in its terms—it creates an offence which requires a person to threaten another because of their race, colour or national or ethnic origin. While the general law affords protection where a person is the subject of physical threat, proposed section 58 will expressly cover such a person where the basis of the threat is the person's race, colour or national or ethnic origin. Perhaps, more significantly, it will also afford protection throughout Australia in cases where there is no single person threatened, but a group of people identifiable by their race.

  This offence of threatening physical harm to people is based on an assault-type provision—although it does not cover actual battery. The concept of threatening physical harm has been considered judicially on many occasions, and requires that `the person to whom violence is offered, to whom the threat is made, must . . . believe that violence is to be feared'.

  Proposed section 59 is similar, except that it is directed at cases where a person's property, rather than their own physical safety, is threatened with damage or destruction. Given the serious nature of the conduct to be dealt with by proposed sections 58 and 59, I believe that there is a strong case for including these provisions in the Commonwealth's criminal law.

  Proposed section 60 creates a criminal offence in relation to the intentional incitement of racial hatred. There are four elements of the offence. First, the offence will only arise in relation to an act done otherwise than in private. I draw the House's attention to proposed section 60(2), which provides a definition of what acts are taken not to be done in private. Secondly, such an act must be done with an intention to incite racial hatred—that is, the offence contains a subjective test. Thirdly, the act must be done because of race, colour or national or ethnic origin. Fourthly, the act must be one which is reasonably likely in all the circumstances to incite racial hatred—that is, the offence contains an objective test.

  The term `incitement' is to be regarded as referring to a conscious and motivated act—hence the inclusion of a subjective test as an element of the offence. The travaux preparatoires to the Convention on the Elimination of All Forms of Racial Discrimination refer to `incitement' in the sense of provocation. The travaux also refer to `provocation to violence' against any race or group of persons of another colour or ethnic origin.

  The travaux do not define `racial hatred' but it may be inferred by analogy to article 1 of the convention that the term `racial hatred' simply means hatred based on race, colour, descent or national or ethnic origin. Thus, the United Kingdom Public Order Act 1986 states that `racial hatred' means hatred against a group of persons defined by reference to colour, race, nationality—including citizenship—or ethnic or national origins. As used in proposed section 60, `hatred' carries its ordinary meaning indicating intense dislike or enmity.

  It is instructive to compare the use of `hatred' in this bill with section 20D of the New South Wales Anti-Discrimination Act, which refers also to inciting `serious contempt for', or `severe ridicule of', a person or group. This seems to indicate that that act's use of the terms `incitement of', `serious contempt' or `severe ridicule' makes that act in some ways broader in scope than the bill, which uses the term `incitement to racial hatred'.

  In considering whether a particular act, which in other respects satisfies the various elements of the offence in proposed section 60, `is reasonably likely in all the circumstances to incite racial hatred', a court would have to have regard to all the circumstances surrounding the case to determine whether that objective test has been satisfied.

  Section 20D of the New South Wales Act specifies two things to be included in the means used to incite, namely, where a person threatens physical harm to a person or property, or incites others to so threaten. In this bill, such activity is dealt with by proposed sections 58 and 59. However, it should be noted that if those threats do not incite hatred, either because there is no third party present or that person is not incited to hate, there can be no offence under section 20D of the New South Wales act. This is a serious shortcoming.

  Among other things, proposed section 60 would deal with those cases where a person's acts are reasonably likely to incite, against persons of a particular race, colour or national or ethnic origin, intense racial enmity of a kind which is likely to lead to physical harm to persons of that group or damage or destruction of their property. In other words, a person does not necessarily need to actually threaten physical harm to persons or property to commit an offence against section 60.

  It needs to be recognised that racial hatred does not exist in a vacuum or for the intellectual satisfaction of those feeling it. Racial hatred provides a climate in which people of a particular race or ethnic origin live in fear and in which discrimination can thrive. It provides the climate in which violence may take place. It is of itself a threat to the wellbeing of the whole community as well as to individuals or groups in the community. It needs to be confronted.

  The kind of behaviour that proposed section 60 is designed to address has been made the subject of criminal sanctions in similar legal and social systems. I refer members to section 319(2) of the Canadian Criminal Code; section 63 of the Human Rights Act of New Zealand; and section 18 of the United Kingdom Public Order Act. The bill provides a maximum penalty of two years imprisonment for the offence in proposed section 58 of threatening to harm a person, while the offences in proposed sections 59 and 60 of threatening to damage property and incitement to racial hatred, respectively, carry a maximum penalty of one year.

  I should explain that imprisonment is by no means the only sentencing option available to a court where a person is found guilty of one of these three offences. Where a person is found guilty of any Commonwealth offence, including those which the bill creates, the starting point for a court is found in section 16A of the Crimes Act 1914, which sets out the matters a court must have regard to when sentencing and requires the court to impose a sentence that is `appropriate in all the circumstances of the offence'.

  To determine the most appropriate sentence, a court is provided with a full range of options, such as fines, bonds or community service orders in addition to imprisonment. For example, section 4B of the Crimes Act provides a mechanism by means of which a term of imprisonment can be converted into a fine.

  Commonwealth legislation will be amended following enactment of the bill to provide that, where a person or corporation is convicted of a criminal offence under the bill as enacted, that person or corporation will not be eligible to receive a government grant or subsidy. For example, a company convicted of disseminating literature which was found by the court to be reasonably likely to incite racial hated would not be eligible to receive an export market development grant from the government.

  So, in essence, the difference between the Commonwealth bill and the NSW Anti-Discrimination Act in criminal matters turns on the offence of the incitement of racial hatred. The New South Wales law does not criminalise as such the making of a threat on the grounds of race, but rather covers threats only where they are means by which racial hatred is incited. In contrast, this bill provides that the making of threats on racial grounds is an offence of itself. Threats may often be associated with the incitement of racial hatred. However, in the government's view, a threat to violence is of sufficient concern to be a specific criminal offence even when it is not a factor in the incitement of racial hatred.

  The bill also provides for a civil regime by the amendment of the Racial Discrimination Act. Section 18C will be inserted in the act to make it unlawful for a person to do an act, otherwise than in private, if:

(a)the act is reasonably likely in all the circumstances to offend, insult, humiliate or intimidate another person or group of people; and

(b)the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

A number of initial points need to be made. First, the provision is civil and not criminal in effect. That is, the process will be initiated by the victim of alleged unlawful behaviour via a complaint to the Human Rights and Equal Opportunity Commission and not by police investigations. Secondly, like all complaints under Commonwealth human rights laws, the commission will endeavour to resolve the matter by private and confidential conciliation. Only if conciliation cannot resolve the matter is there a public hearing and a determination by the commission. The commission can immediately dismiss frivolous or vexatious complaints.

  The format of the civil provision is similar to the model used in other Commonwealth human rights legislation such as the Sex Discrimination Act. It is—

.based upon the availability of a remedy in specified circumstances,

.judged against the objective criteria of what is reasonably likely in all the circumstances to give rise to a valid complaint, and

.limited and targeted through the use of exemptions.

The requirement that the behaviour complained about should `offend, insult, humiliate or intimidate' is the same as that used to establish sexual harassment in the Sex Discrimination Act. The commission is familiar with the scope of such language and has applied it in a way that deals with serious incidents only.

  The bill requires an objective test to be applied by the commission so that community standards to behaviour rather than the subjective views of the complainant are taken into account. The exemptions are broad and cover acts done:

.in the performance, exhibition or distribution of an artistic work,

.in the course of discussion or debate for an academic, artistic or scientific purpose or other purpose in the public interest, and

.in making or publishing a report or comment on a matter in the public interest.

  Under proposed section 18E an employer may be vicariously liable for the unlawful acts of an employee. However, the employer has a complete defence if it is established he or she took all reasonable steps to prevent the employee from doing the unlawful act. This provision is in terms similar to section 106 of the Sex Discrimination Act and section 18A of the Racial Discrimination Act. The terms of section 123 of the Disability Discrimination Act achieve the same result.

  The NSW Anti-Discrimination Act also contains, in section 20C, a civil prohibition of the incitement of hatred towards, serious contempt for or severe ridicule of a person or group on the ground of race. The provision is likewise qualified by exemptions, and vicarious liability was extended to employers by an amendment to the act this year. The difference between the Commonwealth and NSW provisions turns on the description of the conduct giving rise to a potential complaint and the extent of the exceptions. It is arguable whether these differences would greatly alter the work of either the Commonwealth or NSW human rights bodies.

  In the government's view, this bill is to be preferred over other models because it represents the sum of experiences in these jurisdictions. There are procedural defects in the New South Wales legislation and the allied system of administration required by the law, particularly the procedure for referring civil complaints to the Director of Public Prosecutions without the benefit of any criminal investigation.

  The Commonwealth bill reflects the input of public comment on the 1992 draft bill. The bill is simpler, more focused and easier to administer. It targets circumstances which are preliminary to violence. It does not attempt to replicate laws dealing with actual violence. It has a clear distinction between civil and criminal prohibitions. It fills a gap in our laws and enhances the social compact which underpins racial harmony in Australia.

  Australia has a very proud record of protecting and promoting human rights. This parliament, as it should have, has led the nation in legislating to protect and enhance all Australians' human rights. The legislative regime, including the Racial Discrimination Act, the Sex Discrimination Act and the Disability Discrimination Act passed by this parliament, is a clear demonstration of Australia's commitment to basic human rights.

  We are fortunate in that Australia has a significant degree of social cohesion and racial harmony. This bill is an appropriate and measured response to closing the identified gap in the legal protection of all Australians from extreme racist behaviour. It strikes a balance between the right of free speech and the other rights and interests of Australia and Australians. It provides a safety net for racial harmony in Australia and sends a clear warning to those who might attack the principle of tolerance. And importantly this bill provides Australians who are the victims of racial hatred or violence with protection.

  I table the explanatory memorandum for the bill, and commend the bill to the House.