Anti-semitic attack proves need for racial vilification laws

The recent incident on the bus in Bondi Beach in which approximately 30 children aged between five and twelve years old were terrorised with anti-Semitic taunts and physical threats is a timely reminder of the ongoing need for community vigilance in condemning such cruel and criminal behaviour. It also reinforces the need for effective enforcement of racial vilification laws in Australia.

State and Commonwealth vilification laws, consistent with Australia's obligations under the International Covenant on Civil and Political Rights (ICCPR), recognise the right to freedom of expression is not absolute. Article 19 of the ICCPR provides that freedom of expression carries with it special duties and responsibilities. This makes it necessary to limit such freedom where needed to respect the rights and reputation of others and/or to protect public order or public health or morals. For this reason, Article 20 of the ICCPR requires States to prohibit any advocacy of racial or religious hatred that constitutes incitement to discrimination, hostility or violence. In ratifying the ICCPR, Australia made a reservation to Article 20 allowing the Commonwealth and States to refrain from introducing specific provisions implementing this obligation as this conduct was already criminally proscribed under general public order offences. The United Nations Human Rights Committee has recommended this reservation be withdrawn by Australia.

Further, Article 4(a) of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) requires states to create an offence prohibiting incitement to violence against any race or group of persons of another ethnic origin. As with the ICCPR, Australia also made a reservation to this provision on the basis that current criminal law provisions deal with many of the matters referred to in Article 4 (a). The Committee on the Elimination of Racial Discrimination which oversees the implementation of ICERD has also suggested that this reservation be removed by Australia. Due to the reservations by Australia in both treaties, the Commonwealth Racial Discrimination Act does not provide a criminal offence for serious racial vilification. The RDA merely provides civil remedies for offensive behaviour based on racial hatred under s18C of the RDA. For this reason, the Commonwealth has deferred to the states to assist in satisfying its international obligations under these treaties by criminalising serious racial vilification.

Australian vilification laws implicitly recognise the need to stem damaging psychological consequences flowing from racist behaviour. The offenders in this instance allegedly hurled anti-Semitic insults at the impressionable children, such as 'kill the Jews' and 'Heil Hitler.' They also allegedly threatened to slit the children's throats. Understandably, these insults and threats seriously traumatized the children on the bus.

This is precisely the type of behaviour which is criminalised by State laws. Section 20D of the NSW Anti-discrimination Act 1977 (ADA) provides an act of vilification is criminal if 'a person incites hatred towards, serious contempt for, or severe ridicule of, a person' by threatening physical harm towards a person on the basis of race (including ethnic origin). There is a cumbersome process for bringing criminal proceedings for a summary offence under this legislation. By s 91 ADA, the President of the Anti-Discrimination Board must investigate any complaint of racial vilification and consider whether an offence may have been committed under s 20D ADA. If the President considers an offence may have been committed, the President is to refer the complaint to the NSW Attorney General who then may refer it to the Director of Public Prosecutions (DPP) to institute criminal proceedings. Since 1990, the NSW Attorney General has delegated this power to the DPP. The maximum penalty is up to 6 months imprisonment or a fine of 50 penalty units ($5500). The state law is intended to preserve social harmony by protecting individuals and groups from harassment because of their race. Despite 27 public complaints about alleged serious vilification since 1998, there have been no prosecutions. The DPP has received 11 referrals from the President of the Anti-discrimination Board since 1992, two of which were in turn referred to the Police for further investigation. Neither of those investigations produced sufficient evidence to justify prosecution under s20D.

Last year, a NSW parliamentary inquiry recommended changes to the state laws to allow racial vilification to be referred directly from the President of the Anti-discrimination Board to the NSW Police Force to investigate possible serious racial vilification and prepare a brief of evidence for the DPP to consider prosecution. Further recommendations were that police officers receive specific training about the offence and that the government increase the time period for lodging complaints about alleged criminal offences from six months to a year.

It is possible for the police to charge alleged perpetrators of racial vilification with the offences of affray or assault. The assault offence would be on the basis that the conduct, including any words used, intentionally put a victim in fear of imminent physical harm. If the physical harm was not considered to be imminent then the police could consider a charge of 'intimidation' under s 13 Crimes (Domestic and Personal Violence) Act 2007 (NSW), which can be proved by harassment of a person which causes them to fear physical or mental harm. These are general criminal offences that don't specifically target the racial element of the vilification but if a perpetrator is convicted and the offence was found to be motivated by racial hatred or prejudice this is an aggravating factor for sentencing under s 21A Crimes (Sentencing Procedure) Act 1999 (NSW).

Overall, this legislative maze demonstrates that there really is a gap in the criminal law in relation to serious racial vilification given the current cumbersome nature of the process for commencing criminal proceedings. The proposed changes would streamline the process so that police could fully investigate allegations of racial vilification and prepare a brief of evidence for the DPP to consider institution of criminal proceedings, which would specifically target the proscribed conduct.

Prosecuting the individuals for serious racial vilification would serve to inform the wider community about the appropriate norms of behaviour expected of members of the public and send an unambiguous message that such behaviour undermines social cohesion and will not be tolerated in our multicultural society.