NSW to Improve Racial Vilification Laws
Wednesday 4 December 2013 @ 3.03 p.m. | Crime | Legal Research
The final report of a public inquiry into racial vilification law in NSW, released yesterday (3 December 2013), has outlined 15 recommendations regarding improving the racial vilification sections of the NSW Anti-Discrimination Act 1977.
Set up in November 2012 by Premier Barry O’Farrell, the parliamentary inquiry looked specifically at the effectiveness of 20D of the Anti-Discrimination Act 1977 (NSW) which sets out the criminal offence for serious racial vilification. In the 20 years since NSW became the first jurisdiction in the world to criminalise the racist incitement of hatred, serious contempt, or severe ridicule there have been no prosecutions under the section.
Also included in the terms of reference were whether section 20D establishes a realistic test for the offence of racial vilification in line with community expectations; and any improvements that could be made to section 20D, having regard to the continued importance of freedom of speech.
Procedural Obstructions
In the view of the committee, the effectiveness of s 20D has been mired by several "procedural obstructions". In particular, it has recommended:
- That timeframes for lodging and referring complaints be extended from 28 days to 12 months;
- That President of the Anti-Discrimination Board be allowed 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.
David Clarke, Chairman of the New South Wales parliamentary law and justice committee commented that although the report recommends improving section 20D of the Racial Vilification act strengthening laws dealing with serious racial vilification will not affect free speech.
"The evidence we got indicated that there was a lot of confusion about this," he said, explaining that the bar has not been lowered on evidence for criminal cases...We've maintained the balance between the offence and also there's no loss of freedom of speech."
The president of NSW's Anti-Discrimination Board Stepan Kerkyasharian has welcomed the report and says it removes a lot of red tape and uncertainty.
Mr Kerkyasharian believes the current laws are too restrictive and should be broadened beyond the current focus on physical harm to also cover verbal insults.
"At the moment, the way that the racial vilification laws are structured- unless there is physical harm or physical violence, it is almost impossible to get a prosecution going and it is quite clear that verbal attack or oral attack and vilification can also be very harmful to individuals and it's important that the law captures that."
Vic Alhadeff from the NSW Jewish Board of Deputies says the inquiry was very much needed.
"The need for stronger remedies against racial vilification is highlighted by the 59-per cent increase in racial hatred complaints received by the Australian Human Rights Commission in the last year."
The NSW Government has six months to respond to the report.
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