LEGISLATIVE COUNCIL Standing Committee on Law and Justice Racial vilification law in New South Wales Ordered to be printed 3 December 2013 according to Standing Order 231. Report 50 - December 2013 i LEGISLATIVE COUNCIL Racial vilification law in New South Wales New South Wales Parliamentary Library cataloguing-in-publication data: New South Wales. Parliament. Legislative Council. Standing Committee on Law and Justice. Racial vilification law in New South Wales / Standing Committee on Law and Justice. [Sydney, N.S.W.] : the Committee, 2013. – [xiv, 118] p. ; 30 cm. (Report ; no. 50) Chair: Hon David Clarke, MLC “December 2013” ISBN 9781921286919 1. New South Wales. Anti-Discrimination Act 1977. 2. Race discrimination—Law and legislation—New South Wales. I. Title. II. Clarke, David. III. Series: New South Wales. Parliament. Legislative Council. Standing Committee on Law and Justice. Report ; no. 50. 342.944 (DDC22) ii Report 50 - December 2013 STANDING COMMITTEE ON LAW AND JUSTICE How to contact the committee Members of the Standing Committee on Law and Justice can be contacted through the Committee Secretariat. Written correspondence and enquiries should be directed to: The Director Standing Committee on Law and Justice Legislative Council Parliament House, Macquarie Street Sydney New South Wales 2000 Internet www.parliament.nsw.gov.au/lawandjustice Email [email protected] Telephone 02 9230 3528 Facsimile 02 9230 2981 Report 50 - December 2013 iii LEGISLATIVE COUNCIL Racial vilification law in New South Wales Terms of reference That the Committee inquire into and report on racial vilification law in New South Wales, in particular: 1. the effectiveness of section 20D of the Anti-Discrimination Act 1977 which creates the offence of serious racial vilification; 2. whether section 20D establishes a realistic test for the offence of racial vilification in line with community expectations; and 3. any improvements that could be made to section 20D, having regard to the continued importance of freedom of speech. 1 These terms of reference were referred to the Committee by the Premier of New South Wales, the Hon Barry O’Farrell MP and were adopted by the Committee on 17 December 2012. 1 Minutes, Legislative Council, 19 February 2013, p 1458. iv Report 50 - December 2013 STANDING COMMITTEE ON LAW AND JUSTICE Committee membership The Hon David Clarke MLC Liberal Party Chair The Hon Peter Primrose MLC Australian Labor Party Deputy Chair Mr Scot MacDonald MLC Liberal Party The Hon Sarah Mitchell MLC The Nationals The Hon Shaoquett Moselmane MLC Australian Labor Party Mr David Shoebridge MLC The Greens Report 50 - December 2013 v LEGISLATIVE COUNCIL Racial vilification law in New South Wales vi Report 50 - December 2013 STANDING COMMITTEE ON LAW AND JUSTICE Table of contents Chair’s foreword xi Summary of recommendations xii Chapter 1 Introduction 1 Conduct of the Inquiry 1 Submissions 1 Hearings 1 Structure of the report 1 Chapter 2 Anti-discrimination regulation 3 Background 3 International human rights obligations 5 Commonwealth regulatory framework 6 Racial Discrimination Act 1975 and the Australian Human Rights Commission 6 Exposure Draft of the Human Rights and Anti-Discrimination Bill 2012 7 New South Wales regulatory framework 8 Anti-Discrimination Act 1977 8 Anti-Discrimination Board of NSW and the Equal Opportunity Division of the NSW Administrative Decisions Tribunal 11 Office of the Director of Public Prosecutions 12 Crimes Act 1900 and the Crimes (Sentencing Procedure) Act 1999 13 Anti-discrimination policies and strategies 13 National Anti-Racism Strategy 14 Previous reviews into s 20D of the Anti-Discrimination Act 15 Samios Report 15 NSW Law Reform Commission Report 16 Nicholas Cowdery’s paper 16 Other state and international jurisdictions 18 Other state jurisdictions 18 International jurisdictions 20 Chapter 3 Effectiveness of s 20D 23 Measuring effectiveness 23 Absence of prosecutions 23 Educative and symbolic function of s 20D 26 Report 50 - December 2013 vii LEGISLATIVE COUNCIL Racial vilification law in New South Wales Chapter 4 Elements of the offence in s 20D 31 Evidentiary threshold 31 ‘Public act’ 35 Distinction between ‘public’ and ‘private’ acts 36 ‘Public communications’ and the internet 38 ‘Incite’ 40 Definition of incite 41 ‘Promote or express’ 41 Establishing ‘incitement’ 43 Intention to incite 46 Impact of offending conduct 50 ‘Hatred towards, serious contempt for, or severe ridicule of’ 51 ‘On the ground of the race of the person or members of the group’ 52 Scope of the current provision 53 Religious vilification 55 ‘By means which include’ 57 Amending the means element 57 Repealing the means element 58 Chapter 5 Other reform proposals 63 Racial harassment provision 63 Civil penalty provision 67 Maximum penalty 69 Attorney General’s consent requirement 73 Location of the offence of serious racial vilification 76 Chapter 6 Complaints procedure 81 Serious racial vilification complaints procedure 81 Lodgement of complaints 81 Standing to lodge vilification complaints 81 Timeframe for lodging complaints 84 Steps for prosecution of serious racial vilification offences 85 Timeframes for prosecutions 86 Development of a brief of evidence 88 Police involvement in s 20D prosecutions 89 Reflecting proposed amendments in s 20C 93 viii Report 50 - December 2013 STANDING COMMITTEE ON LAW AND JUSTICE Appendix 1 Submissions 95 Appendix 2 Witnesses 97 Appendix 3 Tabled documents 98 Appendix 4 Answers to questions on notice 99 Appendix 5 Sections 18C and 18D of the Racial Discrimination Act 1975 (Cth) 100 Appendix 6 Minutes 102 Appendix 7 Dissenting statement 118 Report 50 - December 2013 ix LEGISLATIVE COUNCIL Racial vilification law in New South Wales Case studies Case study #1 4 x Report 50 - December 2013 STANDING COMMITTEE ON LAW AND JUSTICE Chair’s foreword This Inquiry was referred to the Committee by the Premier, the Hon Barry O’Farrell MP, in November 2012. The Inquiry looked specifically at s 20D of the Anti-Discrimination Act 1977 (NSW) which sets out the criminal offence for serious racial vilification. To date there have been no prosecutions under this provision. A number of inquiry participants viewed the absence of prosecutions as a sign that s 20D has been ineffective. Other participants, however, argued that a lack of prosecutions should not necessarily deem the provision ineffective as racial vilification legislation serves a number of purposes, which include having educative and symbolic functions and acting as a general deterrent. In our view the effectiveness of s 20D has been hindered by a number of procedural impediments. We have therefore made several recommendations designed to overcome these issues. In particular, we have recommended that issues with timeframes for lodging and referring complaints be addressed, that the President of the Anti-Discrimination Board be permitted to directly refer serious racial vilification complaints to the NSW Police Force, and that the NSW Police Force be authorised to prepare a brief of evidence for the Director of Public Prosecutions, following the referral of a serious racial vilification complaint. There were also a number of issues raised during the Inquiry relating to the substance of s 20D, such as whether the requirement to prove incitement should be modified or whether the means element should be amended or repealed. The Committee has made few recommendations on these issues as we wish to see the effect of our procedural recommendations first. The Committee believes that if the procedural issues with s 20D are resolved then many of the other matters raised during the Inquiry may no longer be an issue, or as significant of an issue. In order to assess this we have proposed that there be another review of the effectiveness of s 20D, to be conducted as soon as possible after five years from the implementation of any amendments to s 20D that have been recommended in this report. On behalf of the Committee, I extend my gratitude to all the participants in this Inquiry, including those who made submissions, shared their experiences with us and provided expert advice. I also express my thanks to my colleagues for their thoughtful contributions and unanimous approach to this important Inquiry. Our role has benefited from both our individual perspectives and our cooperative approach. I would also like to thank Teresa McMichael, Kate Mihaljek, Rebecca Main and Anna Perkins of the Committee Secretariat for their outstanding support throughout the Inquiry. I commend the report to the Government. The Hon David Clarke MLC Committee Chair Report 50 - December 2013 xi LEGISLATIVE COUNCIL Racial vilification law in New South Wales Summary of recommendations Recommendation 1 40 That the NSW Government consider amending section 20B of the Anti-Discrimination Act 1977 to ensure that it covers communications that occur in quasi-public places, such as the lobby of a strata or company title apartment block. Recommendation 2 40 That the NSW Government consider amending section 20B of the Anti-Discrimination Act 1977 to insert an exception for private conduct, as per section 12 of the Racial and Religious Tolerance Act 2001 (Vic). Recommendation 3 50 That, for avoidance of doubt, the NSW Government amend section 20D of the Anti-Discrimination Act 1977 to state that recklessness is sufficient to establish intention to incite. Recommendation 4 55 That the NSW Government amend Division 3A of the Anti-Discrimination Act 1977 to include persons of a presumed or imputed race. Recommendation 5 62 That the NSW Attorney General refer the same or similar terms of reference to the Standing Committee on Law and Justice as soon as possible after the period of five years of any amendments to Division 3A of the Anti-Discrimination Act 1977. Recommendation 6 73 That the NSW Government review the adequacy of the maximum penalty units in section 20D of the Anti-Discrimination Act 1977, taking into account the maximum penalty units for comparable offences within the Crimes Act 1900 and other Australian jurisdictions.