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Tuesday, 15 November 1994
Page: 3359


Mr WILLIAMS (8.20 p.m.) —Racism is despicable, and racists are despicable. No person in Australia should have to suffer harassment, abuse, a threat of personal injury or a threat of damage to his or her property on account of his or her race or ethnic origin, the colour of his or her skin or his or her nationality. Notwithstanding that, the coalition opposes the Racial Hatred Bill. It is not feasible in the short time available to do justice to all the issues that are raised by the bill or even to the issues that are raised by the form of the bill. I will limit my contribution to offering some comments by way of background. I will question some of the assertions made for the bill by the Attorney-General (Mr Lavarch), and I will also offer some comments on the constitutional basis for the bill.

  The Attorney-General in his speech earlier this evening said that the reports of three major inquiries have found gaps in the protection provided by the Racial Discrimination Act and that:

. . . all argued in favour of an extension of Australia's human rights regime to explicitly protect the victims of extreme racism.

The reports to which he referred were produced by the Australian Law Reform Commission, Commissioner Elliott Johnston QC of the Royal Commission into Aboriginal Deaths in Custody, and the Human Rights and Equal Opportunity Commission. The ALRC in its report of 1992, Multiculturalism and the law, concluded that incitement to racist hatred and hostility should be made a civil offence, to be dealt with by conciliation. The commission specifically rejected making it a criminal offence, noting that this would unduly restrict freedom of speech. Commissioner Elliott Johnston QC in his report of the Royal Commission into Aboriginal Deaths in Custody also recommended a civil offence of the kind in law in New South Wales. Commissioner Johnston supported conciliation as a means of dealing with racial vilification but rejected the use of criminal sanctions.

  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 that hurts feelings. The commission rejected the view that `incitement to racial hostility' should be a criminal offence.

  While these reports may have prompted a racial hatred bill, it is difficult to see how their recommendations are reflected in this bill. All three reports recommended against the creation of a criminal offence of incitement to racial hatred or hostility. This bill creates such an offence. The reports favoured the creation of a civil offence of incitement to racial hatred where a high degree of serious conduct is involved. This bill establishes a civil offence with the significantly lower threshold of behaviour which `offends insults, humiliates or intimidates'. These words clearly include the hurt feelings which the Human Rights and Equal Opportunity Commission rejected as the basis for a civil offence, concerned that such a low standard could lead to a large number of trivial complaints.

  The Attorney-General asserted in his speech that New South Wales has similar legislation to this. I challenge that. There are fundamental differences between the New South Wales legislation and this bill in respect of both the criminal and the civil aspects.

  Under the bill the government proposes to amend the Crimes Act 1914 by adding three criminal offences. The first two involve threats of violence and the third refers to an act that is reasonably likely to incite racial hatred. The bill provides that it be 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 two years. The bill also provides that it be 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 one year.

  Under the laws of the states and territories, it is already an offence to threaten to cause injury to people or to threaten to cause damage to their property. In many cases the penalties imposed by state law are higher than those proposed by this bill.

  The bill provides that the proposed sections of the Crimes Act that will introduce these new criminal offences are not intended to exclude or limit the concurrent operation of a state or territory law. This means that the Crimes Act provisions legislating against specific racially motivated offences do not have the effect of overriding state laws. It is therefore possible that a racially motivated threat of violence to people or property could be punished under either the Commonwealth law or a law of the state.

  While statute and common law prevent a person being punished twice for the same act, I ask: what is the need for the creation of a Commonwealth offence where a state offence already exists? The only reason offered by the Attorney-General in his speech was `the serious nature of the conduct to be dealt with by the proposed sections'. That is not a relevant reason if the conduct is already a criminal offence under the laws of a state.

  The third criminal offence proposed to be introduced by this bill is a contentious one. It is the offence of doing a public act with the intention of inciting racial hatred if it is reasonably likely that that act will in fact incite racial hatred. There are several elements to this offence. The act must be done otherwise than in private. The accused must have intended the act to incite racial hatred; the act must be reasonably likely to incite racial hatred; and the act must be done because of the race, colour or national or ethnic origin of the person or group against whom the act is done. However, the bill does not require that there be actual incitement of racial hatred.

  The term `racial hatred' is not defined in the bill. The motivation for the unlawful act is to be the race, colour or national or ethnic origin of the person or group that is the object of the act. In the context it appears that racial hatred is hatred of a person or group based on their race, colour or national or ethnic origin.

  The first element of the proposed crime of inciting racial hatred is that the act be done `otherwise than in private'—meaning, in general terms, in a public place. The bill defines a public place as:

. . . any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.

As I said, the bill requires that the accused person be shown to have intended to incite racial hatred. This is a subjective test, which means that what is relevant is whether the accused in fact intended to incite racial hatred. This must be proven beyond reasonable doubt, which is the standard of proof required in criminal prosecutions. The act must also be proven beyond reasonable doubt to have been motivated by the race, colour or national or ethnic origin of the person or group against whom it was directed.

  In addition to this there is an objective test. The prosecution must prove beyond reasonable doubt that the act was reasonably likely in all the circumstances to incite racial hatred against the other person or group of people. These tests of intention are difficult to apply. For example, the objective test of whether the act was reasonably likely to incite racial hatred would depend to a large degree on the audience. This would commonly be the readers of racist material or the audience of a speech.

  In an English case, a man was charged with inciting racial hatred by responding to the death of an Asian man with the words, `One down, a million to go.' Because the comment was made to an audience of the accused's racist supporters, it was difficult to prove that the words would be likely to stir up racial hatred because racial hatred already existed. In that case the accused was acquitted by the jury.

  If hurtful, cruel language motivated by race, ethnicity or colour is to be made a criminal offence in order to prevent the stirring up of racial hatred or racial intolerance in Australian society, it is crucial that the provisions of the legislation be clear and be properly directed to the ill for which the cure is sought. The parliament should learn from the legislative experiences in other countries in this important and sensitive area.

  It has been the experience in Canada that the word `hatred' is difficult to define and almost impossible to apply in the context of incitement to racial hatred. It is not unprecedented for a court to have to apply a purely subjective abstract concept such as hatred. But it must be possible for the parliament to give the courts more guidance as to what this legislation is aimed at. The Canadian Supreme Court pleaded for such guidance when considering the meaning of the word `hatred' in this context; the court was split over the interpretation of the expression. The minority judges quoted the Shorter Oxford English Dictionary definition of `hatred' as `active dislike, detestation; enmity, ill-will, malevolence', saying that `hatred':

. . . is a broad term capable of catching a wide variety of emotion.

The bill does not properly define `race' in the context of `racial hatred'. There is an indication that the phrase is to cover `race, colour or national or ethnic origin'. It is not clear whether `racial hatred' is intended to include religious hatred. This question arises because in the United Kingdom certain religious groups are covered by the racial hatred legislation and some are not. For example, Jews and Sikhs have been recognised as having an `ethnic origin', while Muslims, Rastafarians and Christians have not. In the outline paragraphs of the government's explanatory memorandum, it is stated that `ethnic origin' is intended to be interpreted as it was in the New Zealand case of King-Ansell v. Police, reported in 1979 New Zealand Law Reports, volume 2. The explanatory memorandum goes on to provide that this interpretation would:

. . . provide the broadest basis for protection of peoples such as Sikhs, Jews and Muslims.

Applying the United Kingdom tests, it would not. The government's use of explanatory memoranda is cause for some concern. During the second reading debate on the Witness Protection Bill, I drew the House's attention to the correct role of an explanatory memorandum. It is not appropriate to have recourse to an explanatory memorandum in order to properly understand a bill.

  Under the Acts Interpretation Act, in certain circumstances consideration may be given by a court to extrinsic material—including an explanatory memorandum—if such material is capable of assisting in the ascertainment of the meaning of a provision in an act. But the Acts Interpretation Act makes it clear that such material is to be considered only in either of two sets of circumstances. The first is where it is necessary to confirm that the meaning of the provisions is the ordinary meaning conveyed by the text of the provision in its context. The second is where the provision is ambiguous or obscure, or its ordinary meaning is manifestly absurd or unreasonable, and consideration of the extrinsic material is necessary to determine the true meaning of the provision.

  The parliament should not use phrases already known to be ambiguous, uncertain or obscure, and thus make the explanatory memorandum crucial rather than merely explanatory. The experience in the United Kingdom has shown that religious groups, such as Muslims, may fall outside the definition of `ethnic origin'. Parliament should not use a phrase that has already proved ambiguous.

  Where precision and clarity of expression are vital in legislation such as this, the role of the parliamentary drafter is an important one. During the weekend I attended a conference on `Courts in a representative democracy'. Among the speakers were the Attorney-General, the Minister for Justice (Mr Kerr), the shadow Attorney-General (Senator Vanstone) and me; another was the First Parliamentary Counsel, Ms Hilary Penfold. She astonished those present by indicating that explanatory memoranda, in fact, are not drafted by the parliamentary drafter; they are drafted by the department of the relevant minister.

  That was news to not only me but also, among others, judges. Chief Justice Wilcox of the Industrial Relations Court of Australia said that in his 10 years experience as a Federal Court judge he had always understood that explanatory memoranda were drafted by parliamentary drafters, and he treated them in the course of his judgments on that basis. An unintended consequence of the practice of departmental officers, rather than parliamentary counsel, drafting the explanatory memoranda is that phrases may be used in a sense that were not intended by the drafter—the drafter, but not necessarily the departmental officer, knowing that a court would interpret those phrases in a particular technical sense.

  This bill proposes a civil consequence for the doing of an act that is reasonably likely to `offend, insult, humiliate or intimidate', if one of the reasons for the act is the `race, colour or national or ethnic origin' of the other person or group of people. Differing from the case of the proposed criminal offence of inciting to racial hatred, in this case there is to be no subjective test of intention. This means that it is irrelevant whether or not the person who did the act intended to offend, insult, humiliate or intimidate the other person. It is sufficient that the act satisfy the objective test of being `reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate'. The bill does not require that any person, in fact, has been offended by the conduct complained of.

  The bill sets out exemptions to the civil offence. These cover acts done or things said reasonably and in good faith in relation to discussion or debate in the public interest; fair and accurate reporting of a matter of public interest; fair comment; representing a genuinely held belief; creation of artistic works; and academic, artistic or scientific purposes. The consequence of committing the proposed civil offence is that a person aggrieved by the offence may take a complaint to the Human Rights and Equal Opportunity Commission. The low threshold of relevant behaviour—namely, acts likely to offend, insult or humiliate—would allow a multitude of complaints of a trivial nature to be made to the commission.

  I now refer to the constitutional basis for the bill, but unfortunately I can only deal very briefly with this complex topic. The Attorney-General has glibly asserted that the government is fully convinced that the bill does not infringe the implied freedom of communication identified by the High Court in recent cases. The fact is that the constitutionality of the bill is in doubt on that account and for other reasons.

  Australia is a party to two international covenants which relate to racial vilification. The International Covenant on Civil and Political Rights—I will refer to that as `the covenant'—in paragraph 2 of article 20 provides:

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

Article 4(a) of the Convention on the Elimination of All Forms of Racial Discrimination—which I will refer to as `the convention'—requires 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 . . .

The convention specifically excludes incitement to racial hatred from article 4(a). The article of the covenant I quoted refers to advocacy of racial hatred where that constitutes incitement to hostility or violence. This is clearly much stronger language than that used by the bill. As a result, the bill goes much further in its prohibition than is provided for in the covenant. The criminal offence of incitement to racial hatred and the civil offence of offending a person by an act that was partly motivated by race fall short of racial hatred constituting incitement to hostility or violence. Another consideration is that the covenant contains guarantees of freedom of expression. We must be careful not to lose sight of the objective of freedom of expression that is also enshrined in this covenant.

  Even assuming that Australia's international obligations provide the constitutional support for this bill by virtue of the external affairs power, the bill in its present form may fall foul of the constitutionally implied freedom of political expression. Racist comments that contain an element of criticism of government policy or actions such as immigration policy or administration are likely to be protected by this implied freedom. The bill is clearly directed at certain sorts of speech and, under the authority of recent High Court cases, requires a compelling justification to sustain its validity. If the public interest behind this bill can be served by less drastic measures, then the law will be invalid—and that is a real risk.

  What is essential is a campaign aimed at educating the public, in changing racist attitudes by making such behaviour socially unacceptable. This legislation goes further than is necessary to achieve what all agree is a desirable end: the elimination of racial discrimination.