Sean Nicholls, Sydney Morning Herald, December 3, 2013
Serious cases of racial vilification could be referred directly to the police for full investigation with a view to possible criminal prosecution under changes recommended by a NSW parliamentary inquiry.
The inquiry has also recommended the NSW government increase the period within which criminal complaints can be lodged from six months to a year, review current penalties for serious racial vilification and give police training about the offence.
However, it has rejected calls to lower the bar for prosecutions so that offensive racial slurs could be criminally prosecuted even if they do not incite violence.
The inquiry into racial vilification laws in NSW was initiated by the upper house Law and Justice Committee after a request by Premier Barry O’Farrell last year.
Mr O’Farrell said he was concerned there have been no successful criminal prosecutions in the history of the laws and that they have fallen out of step with community expectations.
The inquiry focused on Section 20D of the NSW Anti-Discrimination Act, which deals with the criminal offence of “serious racial vilification” and requires proof “beyond a reasonable doubt” for a prosecution.
Penalties of up to $5500 and six months’ jail apply to anyone found guilty of inciting “hatred”, “serious contempt” or “severe ridicule” of a person or group by threatening physical harm to them or their property or inciting others to do so on the basis of their race.
Yet not one of the 27 complaints referred to the Anti-Discrimination Board for criminal prosecution since 1998 has been prosecuted.
In the final report tabled in the NSW Parliament on Tuesday, committee chairman David Clarke, a Liberal MP, said the the operation of Section 20D had been hampered by “a number of procedural impediments”.
The report recommends allowing the president of the Anti-Discrimination Board to refer serious racial vilification directly to police, rather than having seek consent from the Attorney-General, who then may refer it to the Director of Public Prosecutions.
It points out that while there is a 12 month timeframe in which to commence a prosecution under the Anti-Discrimination Act, the Criminal Procedure Act only allows six months.
The committee said this could prevent serious racial vilification matters being prosecuted and recommends extending the time within which a criminal matter can be commenced to 12 months.
The inquiry also recommends changing the law so serious racial vilification can be prosecuted even if the perpetrator is mistaken about the race of the person they are allegedly vilifying.
In their submissions to the inquiry, the NSW Jewish Board of Deputies and the NSW Community Relations Commission called for a radical overhaul of the laws, arguing that the reference to physical harm should be removed.
The board of deputies suggested a new offence of “conduct intended to harass on grounds of race” be introduced to allow criminal prosecutions for racial harassment that involves threats, intimidation or “serious racial abuse”, whether or not a physical threat is involved.
The groups called for larger fines and jail sentences of up to three years.
The inquiry said the government should “review the adequacy” of existing penalties but agreed with stakeholders who argued that criminalising racial harassment would “unduly infringe on freedom of expression”.
It said any amendments made by the government following the recommendations should be reviewed by the committee in five years.
If in place at the time, the recommended changes could have made it easier to criminally prosecute broadcaster Alan Jones for labelling Lebanese Muslims “vermin” and “mongrels” who “rape and pillage” in an April 2005 broadcast before the Cronulla race riots the following December.
Jones was instead ordered by the NSW Administrative Decisions Tribunal to apologise on air, which he did last December. Last month he was granted the right to an appeal.
Criminal prosecution of a woman who racially abused the ABC newsreader Jeremy Fernandez on a Sydney bus in February might also have been possible under the proposed changes.