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Latest AIJAC Submission On Appendix A: Racial Hatred Laws – The Pattern Among Liberal Democracies Many critics of Australian Racial Hatred laws – particularly sections 18C and 18D of the Racial Discrimination Act 1975 (RDA) – strongly imply that such acts create a limit to free speech that is fundamentally incompatible with democracy and personal freedom. This view appears absurd because, as AIJAC’s research indicates, such laws are widespread among polities about whose democratic credentials there is no dispute. Indeed, if one looks at the 86 countries rated as “free” by Freedom House in its latest report33 – a status which Freedom House says implies “both electoral and liberal democrac[y]”, that is both political rights and civil liberties34 – it seems probable that a majority of them have laws designed to make illegal in some way some forms of racist expression. Indeed, unless one is prepared to argue that most acknowledged liberal democracies are not in fact liberal democracies, it seems obvious that such laws are fully compatible with both political liberty and civil rights, including the vitally important right to free speech. It is worth reviewing a few examples of such laws from different nations to see how the language of the relevant section of the Australian RDA compares to similar laws in comparable states. New Zealand Section 61 of the Human Rights Act of 1993 states35: (1) It shall be unlawful for any person— (a) to publish or distribute written matter which is threatening, abusive, or insulting, or to broadcast by means of radio or television or other electronic communication words which are threatening, abusive, or insulting; or (b) to use in any public place as defined in section 2(1) of the Summary Offences Act 1981, or within the hearing of persons in any such public place, or at any meeting to which the public are invited or have access, words which are threatening, abusive, or insulting; or (c) to use in any place words which are threatening, abusive, or insulting if the person using the words knew or ought to have known that the words were reasonably likely to be published in a newspaper, magazine, or 33 The latest ratings can be retrieved from https://freedomhouse.org/report/freedom-world-2016/table- scores. 34 “Methodology: Freedom in the World 2016” by Freedom House - https://freedomhouse.org/report/freedom-world-2016/methodology (retrieved on Nov. 24, 2016). 35 Retrieved from http://www.legislation.govt.nz/act/public/1993/0082/latest/DLM304643.html on Nov. 24, 2016. 27 periodical or broadcast by means of radio or television,— being matter or words likely to excite hostility against or bring into contempt any group of persons in or who may be coming to New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons. (2) It shall not be a breach of subsection (1) to publish in a newspaper, magazine, or periodical or broadcast by means of radio or television or other electronic communication a report relating to the publication or distribution of matter by any person or the broadcast or use of words by any person, if the report of the matter or words accurately conveys the intention of the person who published or distributed the matter or broadcast or used the words. Great Britain Sections 18 and 19 of the Public Order Act 1986 state:36 18 Use of words or behaviour or display of written material. (1)A person who uses threatening, abusive or insulting words or behaviour, or displays any written material which is threatening, abusive or insulting, is guilty of an offence if— (a)he intends thereby to stir up racial hatred, or (b)having regard to all the circumstances racial hatred is likely to be stirred up thereby. (2)An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the written material is displayed, by a person inside a dwelling and are not heard or seen except by other persons in that or another dwelling… (4)In proceedings for an offence under this section it is a defence for the accused to prove that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the written material displayed, would be heard or seen by a person outside that or any other dwelling. (5)A person who is not shown to have intended to stir up racial hatred is not guilty of an offence under this section if he did not intend his words or behaviour, or the written material, to be, and was not aware that it might be, threatening, abusive or insulting… 19 Publishing or distributing written material. (1)A person who publishes or distributes written material which is threatening, abusive or insulting is guilty of an offence if— (a)he intends thereby to stir up racial hatred, or (b)having regard to all the circumstances racial hatred is likely to be stirred up thereby. (2)In proceedings for an offence under this section it is a defence for an accused who is not shown to have intended to stir up racial hatred to prove that he was not aware of the content of the material and did not suspect, and had no reason to suspect, that it was threatening, abusive or insulting. (3)References in this Part to the publication or distribution of written material are to its publication or distribution to the public or a section of the public. 36 http://www.legislation.gov.uk/ukpga/1986/64 28 The Netherlands The Dutch penal code prohibits both insulting a group (article 137c) and inciting hatred, discrimination or violence (article 137d)37: Section 137c 1.Any person who in public, either verbally or in writing or through images, intentionally makes an insulting statement about a group of persons because of their race, religion or beliefs, their hetero- or homosexual orientation or their physical, mental or intellectual disability, shall be liable to a term of imprisonment not exceeding one year or a fine of the third category. 2. If the offence is committed by a person who makes a profession or habit of it or by two or more persons in concert, a term of imprisonment not exceeding two years or a fine of the fourth category shall be imposed. Section 137d 1. Any person who publicly, either verbally or in writing or through images, incites hatred of or discrimination against persons or violence against their person or property because of their race, religion or beliefs, their sex, their hetero- or homosexual orientation or their physical, mental or intellectual disability, shall be liable to a term of imprisonment not exceeding one year or a fine of the third category. 2. If the offence is committed by a person who makes a profession or habit of it or by two or more persons in concert, a term of imprisonment not exceeding two years or a fine of the fourth category shall be imposed. France France has a series of laws that criminalise speech that insults, defames or incites hatred, discrimination or violence on the basis of religion, race, ethnicity, nationality, disability, sex or sexual orientation, including under Articles 24, 32 and 33 of the Law on the Freedom of the Press of 29 July 1881. Moreover, the Gayssot Act sets a prison term and fine for the expression of ideas that challenge the existence of the crimes against humanity committed by Nazi Germany during World War II. In addition, France's penal code forbids private acts of defamation, insult and incitement of a person or group for belonging or not belonging, in fact or in fancy, to an ethnicity, a nation, a race, a religion, a sex, or a sexual orientation, or for having a handicap (articles R. 624-3, R. 624-4 and R. 625-7).38 Germany Section 130 of the Strafgesetzbuch (Germany's criminal code) forbids Volksverhetzung ("incitement of popular hatred")39: Section 130 Incitement to hatred (1) Whosoever, in a manner capable of disturbing the public peace 37 The original Dutch language of this legislation can be read at http://wetten.overheid.nl/BWBR0001854/2016-07-01 - BoekTweede_TiteldeelV_Artikel137c. The translation cited here is from the website of the European Judicial Training Network, and can be found at http://www.ejtn.eu/PageFiles/6533/2014seminars/Omsenie/WetboekvanStrafrecht_ENG_PV.pdf. 38 Sharyn Mittelman, “Paris no excuse for revisiting 18C”, The Australian, Jan. 21, 2015. 39 Translation of the German Criminal code provided by the Bundesministerium der Justiz und für Verbraucherschutz, downloaded from http://www.gesetze-im- internet.de/englisch_stgb/englisch_stgb.html - p1241 29 1. incites hatred against a national, racial, religious group or a group defined by their ethnic origins, against segments of the population or individuals because of their belonging to one of the aforementioned groups or segments of the population or calls for violent or arbitrary measures against them; or 2. assaults the human dignity of others by insulting, maliciously maligning an aforementioned group, segments of the population or individuals because of their belonging to one of the aforementioned groups or segments of the population, or defaming segments of the population, shall be liable to imprisonment from three months to five years. Israel Under the Israeli Penal Law 5737 – 1977 Sixth Edition40: Article One "A": Racism Definitions 144A.In this Article: "racism" - persecution, humiliation, degradation, a display of enmity, hostility or violence, or causing violence against a public or parts of the population, all because of their color, racial affiliation or national ethnic origin.
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