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	Murdoch University Electronic Journal of Law

RACIAL VILIFICATION AND ICERD IN AUSTRALIA

International Convention on the Elimination of All Forms of Racial Discrimination, Article Four.

"States Parties condemn all propaganda and all organisations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or act of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia:
(a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;
(b) Shall declare illegal and prohibit organisations, and also organised and all other propaganda activities, which promote and incite racial discrimination, and shall recognise participation in such organisations or activities as an offence punishable by law;
(c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination."

1. Introduction

Although Australia ratified the Convention on the Elimination of All Forms of Racial Discrimination on the 30th September 1975, it made a reservation to article 4(a) of the Convention, declaring that "it was not at present able to treat as offences all matters covered by article 4."[1] However, it did manifest an intent to eventually bring in legislation to comply with the requirements of 4(a).  "It is the intention of the Australian Government, at the first suitable moment, to seek from Parliament legislation specifically implementing the terms of article 4a."[2]

The "first suitable moment" was found, and the Australian Federal Government first attempted to bring in racial vilification legislation on the 16th December 1992 with the Racial Discrimination Legislation Amendment Bill. The Bill was introduced fairly tentatively, with the Government emphasising that although "the legislation is intended to show the Government's present intentions relating to this difficult area,... it does not have a finally established position on this Bill."[3] The Bill was left to lie in Parliament over the summer recess to allow for "the widest possible public comment and discussion on the proposals."[4] After the summer recess, no further action was taken on the Bill, and it was allowed to lapse.

A second attempt is presently being made to bring in racial vilification legislation that will cover the obligations contained in article 4(a) of the Convention. This Bill, if passed, will be known as the Racial Hatred Act 1994. It has several differences to the 1992 Bill, and is a more complex piece of legislation.

This report aims to assess Australia's compliance with Article 4(a) of the Convention on the Elimination of all Forms of Racial Discrimination (CERD) (quoted above). It will mainly focus on the Federal Government's actions in attempting to pass the 1994 Racial Hatred Act concerning racial vilification.  As the proposed 1994 Act has not yet been passed into law, community concerns which may prevent it doing so will also be considered, particularly the main concern, which is restriction on the freedom of speech. The States' positions in regard to this article will also be briefly examined.

2. The Convention

Before assessing whether Australia complies with article 4 of the Convention, the article must be examined to discover what it actually requires of a country. Article 4a is a preventative article[5]. Whether or not racist propaganda occurs in a country that is a party to the Convention, that country is still required to bring in legislation that prohibits and punishes it. Although there may already be legislation which punishes the violence or threat of violence, the widespread fear that such violence or vilification imposes on all members of the same group is to be recognised by specific punishment for racist vilification or violence. This article is quite unusual, as it specifically requires legislation to be brought in to prevent the "mischief". In order to stamp out the dissemination of racist thought and practices, the spreading of such ideas, even without the commission of any otherwise illegal acts, is to be punished.  The deterrent effect brought about is aimed at "effect[ing] fundamental societal changes that should prevent the future occurrence of racial discrimination and violence."[6]

"...shall declare an offence punishable by law ..."

The question this part of the article raises is how the country is to go about making the offence "punishable by law". The word "punishable" seems to require that countries seeking to comply with the Convention impose criminal sanctions on those who disseminate racist ideas or commit acts of racist violence or incite or assist such acts or dissemination of ideas. Allowing civil remedies to people affected by the acts or ideas, while it might constitute a deterrent, and so fulfil the requirement in a broad sense, does not appear to specifically fulfil the requirement of declaring the behaviour an "offence punishable by law". This assessment of the articleequirements has been followed in other countries who have ratified the Convention. The United Kingdom, New Zealand and Canada have made "racial hatred" type acts, such as the type described in the Convention, criminal offences.

In the United Kingdom, the Public Order Act 1986 makes it an offence for someone to "use words or behaviour, or display written material, which are or is threatening, abusive, or insulting if he intends to stir up racial hatred or racial hatred is likely to be stirred up."[7] The offender is liable whether the offence is committed in a public or private place unless it was committed in a dwelling house and the accused can prove that he 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.[8] Publication or distribution of racially inflammatory material[9] , or possession of such material with a view to publication or distribution,[10] is also illegal. Proceedings under the Public Order Act cannot be brought without the consent of the Attorney-General.[11]

In New Zealand, the 1971 Race Relations Act  creates both civil and criminal liability for racial vilification-type offences. Criminal liability is created by s 25 (1) prohibiting the incitement of "racial disharmony". This offence includes both publication and distribution of "threatening, abusive or insulting" materials and spoken vilification in a public place.[12] As with the UK Act, any criminal proceedings under this provision require the consent of the Attorney-General.[13] Civil liability for the incitement of racial disharmony is created by s9A. This provision covers the same actions as does s 25(1), but intent to "excite hostility or ill-will, or bring into contempt or ridicule" need not be proved to create liability. The Attorney-Generalonsent is not required to bring a case under this provision.

In Canada, racial vilification offences have been part of the Canadian Criminal Code since 1970. The two main racial vilification offences relevant for the purposes of this report under the Canadian Code are "public incitement of hatred" and "wilful promotion of hatred". To be convicted of public incitement of hatred, the incitement must be in a public place, and likely to bring about a breach of the peace.[14] A conviction for wilfully promoting hatred does not require that the action be likely to bring about a breach of the peace,[15] but the consent of the Attorney-General is necessary for any prosecution under the provision to be commenced.[16]

The UK, New Zealand and Canadian laws making offences described by article 4a of CERD punishable by criminal sanctions seem to suggest that other Western countries view criminal sanctions necessary in fulfilling the obligations created by this article. Interestingly, article 4a does not specifically require civil sanctions, although in certain circumstances, such as where the offence is committed by a large corporation that can easily meet a fine, and cannot be jailed, civil sanctions allowing the vilifier to be sued for compensation and possible exemplary damages might be more appropriate.

"...dissemination of ideas..."

"Dissemination of ideas" seems to have been widely interpreted as public dissemination of ideas. In the UK legislation, the fact that the words, behaviour, or written material are displayed inside a dwelling, and are not heard or seen except by persons in that or another dwelling is a defence.[17] In New Zealand, written material must be "published, distributed, or broadcast by means of radio or television" and speech must be "use[d] in a public place"[18] before it comes within the ambit of the Act. In Canada, the statements must be communicated in either "a public place"[19] (public incitement of hatred) or "other than in private conversation"[20] (wilfully promoting hatred). Although the article says "all dissemination of ideas", this may have been interpreted narrowly to minimise problems of detection and proof, and also prevent invasion of privacy and reduce conflicts with the right to freedom of opinion guaranteed in Article 5 of the Convention.

Prima facie, all dissemination of ideas appears to be what the article covers, and so should be covered by legislation seeking to comply with Article 4 of the Convention. Arguably, such legislation may conflict with Article 5 of the Convention and its protection of freedom of opinion and expression, but any compliance with article 4 could presumably have this effect. Article 4 necessarily conflicts with article 5; these articles provide a balance between the freedom of speech given by article 5, and the freedom from fear which article 4 attempts to grant. Compliance with article 4 requires an encroachment on rights given by article 5, but should not extinguish them.[21]

"...all dissemination of ideas..."

A second question arises with the "dissemination of ideas" phrase. Should "all dissemination of ideas", that is, dissemination of ideas for any purpose, be prohibited under the terms of article 4a? On the face of the article, this is what it requires. However, when looking at different legislation, this is not how it has been implemented.

The Canadian legislation includes a defence for wilfully promoting hatred if it can be established that the statements were true, they were used in good faith to argue an opinion on a religious subject, they were believed to be true and discussed for the benefit of the public, or if they were used in good faith for the purpose of removal, to point out matters producing feelings of hatred towards an identifiable group in Canada.[22]

The UK and New Zealand legislation is a lot stricter in that it has does not have a list of exceptions to the types of statement that may render someone liable to prosecution. However, under the Australian legislation, the statement must be "threatening, abusive or insulting" to begin with, as well as being motivated by a desire to stir up racial hatred, or being likely to do so, rather than just a statement which incites or promotes hatred. Moreover, there is a defence to the offence of possessing, publishing or distributing racially offensive material that the accused can "prove 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.[23]

This seems to be in reasonable conformity with the aims of the Article, as it does prohibit the dissemination of racist ideas, and incitement of racist violence, while protecting people who had no knowledge or intent to disseminate these ideas, or incite violence. Also, consideration must be given to the statement in Article 4 which indicates that it must be read with due regard to the rights expressly set out in Article 5 of the Convention.  An over-strict reading of article 4a would not be giving these right "due regard".

However it must be considered whether article 4a was meant to cover even these people, who may be unwittingly assisting people who *do* have that knowledge and intent. Possibly a stricter reading of the article would result in increased vigilance. On the whole, though, a strict reading may lead to unnecessarily harsh penalties being imposed on people who are essentially innocent of any wrongdoing.

"... and also the provision of any assistance to racist activities, including the financing thereof..."

An interesting issue when considering what the convention actually requires, is the extent of the "assistance" that must be prohibited. Without a definition of "assistance" it may, as suggested by Meron, "be extended to providing financial support by purchasing the publications of racist groups, or renting or leasing facilities such as public auditoriums to racist organisations." This is an extremely broad reading of the article, and certainly would be very difficult to follow in legislation, as it would be difficult to assess how far back along a "chain of assistance" the assistance is to be punished, and how direct the assistance must be to make the provider liable. Although the article in no way requires or suggests that intent is to be linked with liability, it would be difficult to legislate to prohibit assistance without linking it with some sort of intention to further the work of the racist organisation or person. A lack of this type of link would probably encroach too heavily on rights to association, and require an enormous amount of resources to police. While some encroachment into Article 5 rights is inevitable and necessary to enforce article 4, it is difficult to believe that article 5 rights were to be completely extinguished by article 4.

3. The Australian Legislation

The 1994 Bill aims to reduce racial vilification both through criminal law and civil law. Firstly, the Crimes Act 1914 (Commonwealth) is to be amended to include a Part IVA "Offences Based on Racial Hatred", which creates three new criminal offences.

"s58. A person must not threaten to cause physical harm to another person or a group of people because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group." Penalty: Imprisonment for 2 years.

"s59 A person must not threaten to destroy or damage property (other than property belonging to the person) because of the race, colour or national or ethnic origin of of any other person or group of persons." Penalty: Imprisonment for 1 year.

"s60 (1) A person must not, with the intention of inciting racial hatred against another person or a group of people, do an act, otherwise than in private[25], if the act; (a) is reasonably likely, in all the circumstances, to incite racial hatred against the other people or group of people; and (b) is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group." Penalty: Imprisonment for 1 year.

There is also a section which defines when an act may be taken to have been racially motivated. "s 57 If: (a) an act is done for 2 or more reasons; and (b) one of the reasons is the race, colour or national or ethnic origin of a person; and (c) that reason is a substantial reason (whether or not it is the dominant reason) for doing the act; then, for the purposes of this Part, the act is taken to be done because of the personace, colour, or national or ethnic origin."

Secondly, the Racial Discrimination Act 1975 is to be amended to insert a Part IIA; "Prohibition of Offensive Behaviour Based on Racial Hatred". Under section 18C (1) it is unlawful "for a person to do an act, otherwise than in private, if (a) the act is reasonably likely in all the circumstances, to offend, insult, humiliate or intimidate another person or group of people; and (b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

Under s18B, If: (a) an act is done for two or more reasons; and (b) one of the reasons is the race, colour or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act) then, for the purposes of this Part, the act is taken to be done because of the personace, colour or national or ethnic origin.

Under the proposed legislation, there is also provision (in section 18D) for vicarious liability, allowing an employer or principal to be liable for the actions of an employee or agent, if those actions were done in connection with their duties.  It is a defence to establish that the employer took all reasonable steps to prevent the employee or agent from doing the act.

It is specifically stated in both the criminal and civil liability sections of the Act that the operation of the Act is not intended to exclude or limit the concurrent operation of any law of a State or Territory. This intention not to "cover the field" is a step towards closer adherence to the Convention. It means that if any State wishes to bring in more stringent racial vilification legislation, it will be valid. All legislation dealing with racially motivated vilification and violence, such as the Western Australian laws dealing with racist publications, also remains valid, and enable States to bring in measures specifically tailored to prevent the types of racial vilification most prevalent in their own jurisdictions.

4. Non-compliance With Article 4

The proposed legislation does make article 4a-type racial incitement a criminal offence. The act therefore satisfies this requirement. However, even in contrast with legislation of other countries, and disregarding the article itself, it displays certain shortcomings.

Possibly one of the most obvious shortcomings is the requirement, under section 60, that the act inciting racial hatred be reasonably likely in all the circumstances to incite hatred, and that the accused commit the act with the intent to incite this hatred. The additional subjective requirement of intent means that people committing acts which can be proven to be likely to incite hatred may not be liable for their actions.  The Act could be greatly improved by an addition to the act which includes liability for actions which stir up hatred, or are likely to stir up hatred without the subjective (and difficult to prove) requirement that the accused perform them with the intent of stirring up hatred. Article 4a in no way requires or suggests that intent be linked with the prohibited actions or consequences of the actions.

The requirement that the "race, colour or national or ethnic origin" of a person be a "substantial" reason for an act may also result in the Bill being less in compliance with the article. Although the stated reason[26] is to prevent people being prosecuted under this legislation if racism is only a "peripheral reason", one of the ideas of implementing this legislation is to make a statement that Australian society will not tolerate acts of racist violence. If a violent act is motivated by racism, it should be able to be punished by this legislation. This Bill emphasises that an act may be done for many reasons. However, to comply with the requirements of the Article, it could be improved by giving the criminal "reasons for doing an act" section greater similarity to the civil section.

The wording of sections 58 and 59 could also be improved. These sections create liability if someone "threatens to cause physical harm" or "threatens to destroy property" because of race. This wording focuses strongly on the action of the perpetrator. Yet one of the main reasons for bringing in legislation to combat racial vilification and violence is the fear this behaviour creates, not just in the immediate victim, but in all those who share the victimace, colour, nationality or ethnicity. A greater focus on the victimxperience would reflect this aim, and bring the Bill into closer compliance with the Article. A better wording might be "to cause fear that violence may be used against them or other persons of that race, colour or national or ethnic background" as was used in the 1992 Bill.

As with the overseas legislation considered, there is a requirement that the actions or words be public actions or words. The Australian requirement that the act be done "otherwise than in private" appears to be very similar to overseas legislation in this respect. The broad definition of "otherwise than in private", which includes acts "done in the sight or hearing of people in a public place", may make the Australian legislation conform more closely with the requirements of the Article than many "in public" requirements of foreign legislation. This section is certainly an improvement on the 1992 Bill, which required the accused to have actual knowledge that the act committed was being committed in a public place.[27]

Even with this broad interpretation of a "public" act, the 1994 Bill may still fall short of what the Convention requires. Article 4 of the Convention does not differentiate between public and private acts, and so this provision seems to fall short of the article. If the Article is intended to apply only to public acts, (possibly to prevent encroachments on rights to freedom of speech or opinion), the Australian Act could still be improved. This improvement could be brought about by removing any mention of "acts done otherwise than in private" from the offence, and making it a defence that an act or conversation was a private act or conversation. The UK legislation, "that the words, behaviour, or written material are displayed inside a dwelling, and are not heard or seen except by persons in that or another dwelling" seems to be a good compromise between protecting the aims of article 4, and protecting the rights of freedom of association and opinion. As there is little legislative recognition of the right to privacy in Australia, (unlike the United States), privacy may possibly be viewed as a less important consideration than freedom of speech when drafting the Australian legislation.

Another concern with the Australian legislation can be raised in respect of the "all dissemination of ideas" phrase in article 4a. Although there are no explicit exceptions to the criminal liability section of the Racial Discrimination Legislation Amendment Bill, (which already has a broad implicit exception in the requirement that the accused intend the act to incite hatred and that the act is "reasonably likely" to do so (s60) or that race be a "substantial reason" for committing an act) this is not so for the civil liability section. Australia has an extensive list of explicit exceptions to the type of speech or action covered by this section.

"s18D Section 18C does not render unlawful anything said or done reasonably and in good faith: (a) in the performance, exhibition or distribution of an artistic work; or (b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or (c) in making or publishing;     (i) a fair and accurate report of any event or matter of public interest; or   (ii) a a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment."

This list of exceptions is a real improvement on the list contained in the 1992 Bill. The new list requires the "academic, artistic or scientific purpose" to be genuine, and the "fair report" to be accurate. The "fair comment" must now be an expression of a genuine belief. Despite these significant improvements in the Bill, Article 4(a) makes no mention of States being able to make exceptions to liability for acts inciting hatred, so these exceptions do prevent Australia from complying fully with the requirements of the Convention.

Australian legislators should be particularly careful when giving the media an exception under which it may make or publish reports or comments which might incite hatred. The media are in a particularly good position to publish, broadcast or disseminate racist ideas and incitement to racial discrimination or racist violence. They have also been historically ambivalent towards human rights which may limit the freedom of the press. Although the "Aims, Principles and Constitution" of the Australian Press Council include the guideline that

"[t]he publication in a newspaper of matter disparaging or belittling persons or groups in the community by reference to their sex, race, nationality, religion, colour, or country of origin is a serious breach of ethical standards,"[28] racism in the media is still apparent. The  Australian Press Council seemsto confine its ability to censure the offending  papers to the strict letter of the guidelines. An example of this is  Australian Press Council Adjudication No 272 which took place in 1986.  Part of the case involved three headlines; "Few Support Aboriginal Land  Rights", "Land Rights Pose Threat To Nation Says Legal Expert", and "Land  Rights To Cover 25% Of Country".  Although it was found by the Council  that these headlines were misleading, as they did not present an accurate picture of the contents of the articles, they were not found to be racist.

"The Council believes that the headlines over the three land rights articles were misleading. It is noteworthy that the succession of headlines consistently reflected the least favourable interpretation of the subsequent articles from an Aboriginal standpoint. However, they were not accompanied by any racial denigration and they do not substantiate a charge of publishing racist matter."

In 1991, the West Australian published the sensationalist headline "Aboriginal Gangs Terrorise Suburbs". The Royal Commission into Aboriginal Deaths in Custody described this headline as a "fundamental untruth" in its report in May 1991[29]. Despite the falsity and sensationalism of the headline, which was likely to contribute to a climate of fear about crime, and ill-feeling towards Aboriginal people, the Australian Press Council found that this headline was not a breach of ethical standards.[30]

Racism in the media was a constant cause for complaint to the National Inquiry Into Racist Violence, and resulted in several recommendations specifically addressing problems with media racism.[31] Racism in radio and television is better able to be controlled. Unlike the Australian Press Council, which relies on voluntary compliance with its guidelines and has no real power to punish breaches, the Australian Broadcasting Tribunal has the power to cancel or refuse to renew a broadcasting licence if its standards are breached. The transmission of a programme which is likely to incite or perpetuate hatred against, or that gratuitously vilifies, a person on the basis of ethnicity, nationality, race, religion, gender, sexual preference or disability is a breach of ABT guidelines. However no cancellation has ever occurred on this ground.[32]

In Western Australia, Radio 6PR and, in particular The Sattler File  have been accused of possessing an unsympathetic attitude towards  Aboriginal people. In answer to a complaint involving two incidents of jokes involving strongly negative racial stereotypes, the ABT commented: "We find that each of the broadcasts in question was tasteless and likely to have been highly offensive to a significant number of listeners, and in particular, Aboriginal listeners. After careful consideration of the material available to us, however, we find that the broadcasts do not satisfy the high test which the word "vilification" imposes."[33]

The frequency of complaints about the program was disposed of with the comment "It appears to us that Mr Sattler has a controversial style of broadcasting which accounts for the regularity and frequency of the complaints elicited by the Sattler File".[34]

The loophole in the Bill relating to the media may prove to be a serious defect when considering the underlying aim of the Article to effect societal change. Given the power of the media to create a climate of fear and hatred, it is important that there be corresponding safeguards in place to ensure that the media uses its great power responsibly, and to give those it injures redress. While respecting the importance of freedom of the Press, in order to comply with article 4, racial vilification laws must be able to control abuses of this freedom, to allow members of minorities to be protected from the effects of racial hatred.

Assistance

A striking omission from the proposed racial vilification legislation is the lack of a penalty with regard to assistance and financing of racist activities. Assistance is not mentioned anywhere in the Bill as a source of liability. As assistance and financing of racist activities is specifically mentioned in Article 4a of the CERD Convention as actions which should be made offences liable to punishment, the Bill certainly does not comply with the Convention in this respect. The 1994 Bill is a step backwards from the 1992 Bill in this respect, as the 1992 Bill at least provided for assistance to racist activities as a ground of civil liability.

5. Compliance

Apart from many noticeable deficiencies regarding compliance with the Convention, the Australian Bill does have one improvement over the Canadian, United Kingdom and New Zealand Acts. This improvement is that no permission is required for a crime under the Bill to be prosecuted. This is a great improvement, as the discretionary nature of the application of the overseas legislation might be an obstacle to the functioning of the legislation. Every prosecution of every crime would be rendered political, and so there might be extreme unevenness and partiality in the prosecution process. For instance, crimes in the run-up to an election might be vigorously prosecuted when there is a community concern about law and order, and overlooked if prosecution would be unpopular with the electorate.

6. Community Concerns With Racial Vilification Laws

As the proposed 1994 racial vilification legislation has not yet been passed into law, it might be useful to identify some community concerns about the enactment of such legislation, in order to gauge possible changes the government may be likely to introduce to make the Bill more popular.

The main concern with the proposed legislation seems to be that it will impose restrictions on freedom of speech. There also seems to be an underlying fear of the government invading the privacy of private citizens. This fear has been expressed as:  "At this time, in this part of the world, thought police armed with criminal sanctions are not the answer ... [35] The spectre of "thought police" weighs heavily against concerns about racial discrimination. It is considered that in a democracy all people should have an equal right to express their own points of view, and while governments should punish discriminatory acts, they should not punish discriminatory speech.

There is also the concern that with this type of legislation, the government is "meddling with an area that doesn't concern them". "In the area of opinion, general attitudes, likes and dislikes, the state has no business to declare what is the truth and has no business to punish deviation."[36] This view has been followed in the United States where protection of freedom of speech has resulted in racial hatred statutes being deemed unconstitutional. The US Supreme Court has held that a "local government's interest in communicating to minority groups that it did not condone such hatred did not justify selectively silencing speech on the basis of its content."[37]

General public opinion seems to be divided over the freedom of speech issue. When the Attorney-General's department was canvassing the issue of freedom of speech versus freedom from harassment in relation to the 1992 Bill, it had a very mixed response. In the course of consultations, the department found that 60% of people supported freedom from harassment. However, out of over 600 written submissions, approximately 80% preferred freedom of speech.  Media commentators were, "on the whole, grudgingly supportive".[38]

When this issue was researched by the Australian Law Reform Commission, it was recommended that racist violence should be made a criminal offence[39], but that incitement to racist hatred or hostility should only be made unlawful, not criminal.  The majority of the Commission considered that the criminalisation of racist vilification restricted speech unduly, and that conciliation, backed up with civil remedies was a more appropriate method to deal with the problem.[40]

There is also concern about the method by which racial vilification is to be discouraged. Some regard imposing criminal sanctions on racial vilification as too heavy-handed and impractical.  "I doubt the practicality of the distinction, unless one sort of violence is to be judged more ideologically unsound than another since it is more likely to be reported sensationally by the media."[41]

It may also be suggested that the prohibition of racial vilification may hamper discussion about issues such as multiculturalism, and that the best way to reduce racist speech is to allow it to be spoken, so that others may argue against the views expressed. In this way, the racist views will slowly be diminished by time, as racism is "educated" out of Australian society. "Community benchmarking and education represent a far better way to proceed."[42]

This view ignores the power imbalance usually in place upon the occurrence of racial vilification.  Often when someone of a particular group is vilified, they are not in a position to answer their attacker, particularly if the attack causes "fear of violence". Also, simply allowing any view, even those which are aimed at inciting racially-based hatred , to be freely spoken may seem to give these views the tacit approval of Australian society. "[D]eterrance is not the sole purpose of criminal law, and no-one suggests that there not be penalties for murder or rape simply because these fail to deter. Criminal penalties serve the purpose of vindicating the victim and expressing social disapproval of the crime."[43]

7. State Legislation

Certain States have also enacted legislation that is designed (at least in part) to deal with the problem of racially or ethnically motivated vilification and incitement to violence, as well as laws designed to deal with the actual violence. In Western Australia, a new chapter to the Criminal Code was added after a racial vilification campaign by the Australian Nationalist Movement. This campaign, involving the use of posters and graffiti, inspired the introduction of four new offences. These  were: possession of material for publication to incite racial hatred[44], publication of material to incite racial hatred[45], possession of material for display to harass a racial group[46] and display of material to harass a racial group[47]. These provisions do not, and were not intended to comply with article 4a. Noticeably, they do not cover racial vilification by way of television or radio, or acts of racist violence.

New South Wales has what is probably the most comprehensive State anti-vilification laws.  Similarly to the proposed legislation, both criminal and civil liability has been included.  The criminal liability is generated by the offence of "serious racial vilification". This offence involves the committing of a public act of racial vilification[48] which involves "threatening physical harm towards, or towards the property of, the person or group of persons, or inciting others to so threaten".[49] Civil liability is generated by the new complaint of racial vilification under the Anti-Discrimination Act 1977 (NSW). These provisions have similar shortcomings to the proposed Federal legislation, as well as omitting "assistance" as a ground of liability.

The Queensland Anti Discrimination Act prohibits discrimination on the grounds of race or religion. Incitement of unlawful discrimination by the advocacy of racial or religious hatred or hostility is an offence.[50]

The Australian Capital Territory also has racial vilification legislation.  The format of the legislation is similar to the format of the New South Wales legislation, with civil or criminal liability being dependent on the gravity of the offence.  It is unlawful for a person to incite hatred, serious contempt for, or severe ridicule of a person or persons on the ground of race by a public act. If the vilification includes the threatening or the incitement of others to threaten physical harm towards persons or property on the ground of race, it is categorised as "serious racial vilification" and is an offence.[51]

8. Conclusion

Australia is presently far from compliance with the requirements of article 4a of the Convention on the Elimination of All Forms of Racial Discrimination. The State Acts, while covering some aspects of Article 4a, do not comprehensively cover the requirements, and are additionally handicapped by the fact that only some of the States have enacted them, and their application necessarily ends at State borders. The legislation that would go the furthest to bring Australia into compliance is the Racial Hatred Act. However, this Act has substantial shortcomings. Community fears about the effect of such an Act may further reduce its compliance with the requirements of the Convention. The Australian public needs to be fully informed about the Act, and the necessity for the Act, so that community concerns do not cause the Act to be further weakened, and so there is no community backlash to the implementation of such legislation.

 Endnotes

[1]Watson, R, Racial Vilification. Racist Organisations, Racist Propaganda, Racial Hatred  Aboriginal Legal Service 10 October 1993. p8

[2]Twomey, Anne Racial Vilification and Freedom of Speech Issues Brief Number 2 1993 Parliamentary Research Service Law and Government Group 2 April 1993, p9.

[3]Duncan, Speech on the Second Reading of the Racial Discrimination Legislation Amendment Bill 1992, Extract from the Weekly House Hansard Database 16th December 1992, p3888.

[4]Duncan, Speech on the Second Reading of the Racial Discrimination Legislation Amendment Bill 1992, Extract from the Weekly House Hansard Database 16th December 1992, p3888.

[5]Meron, Theodor, The Meaning and Reach of the International Convention on the Elimination of All Forms of Racial Discrimination, p264. L364 Aboriginal Legal Rights Course Reader One, Semester 2 1994.

[6] Ibid, at p 264.

[7]UK Public Order Act  1986 c 64 Part III Racial Hatred s 18(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.  quoted from Incitement to Racial Hatred, Issues Paper No 86, The Law Reform Commission of Western Australia p21.

[8]ss 18 (2), (4)

[9](UK) Public Order Act 1986 Publishing or distributing written material s 19 (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. quoted from Incitement to Racial Hatred, Issues Paper No 86, The Law Reform Commission of Western Australia p 23

[10]Possession of racially inflammatory material s 23 (1) A person who has in his possession written material which is threatening, abusive or insulting, or a recording of visual images or sounds which are threatening, abusive or insulting, with a view to - (a) in the case of written material, its being displayed, published, distributed, broadcast or included in a cable programme service, whether by himself or another, is guilty of an offence if he intends racial hatred to be stirred up thereby, or having regard to all the circumstances racial hatred is likely to be stirred up thereby. (2) For this purpose, regard shall be had to such display, publication, distribution, showing, playing, broadcasting or inclusion in a cable programme service as he has, or it may recently have been inferred that he has, in view. (3) 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 written material or recording and did not suspect, and had no reason to suspect, that it was threatening, abusive or insulting.

[11]s27

[12]s25(1) Every person commits an offence and is liable on summary conviction to imprisonment for a term not exceeding three months or to a fine not exceeding $1000 who with intent to excite hostility or ill-will against, or bring into contempt or ridicule, any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons- (a) Publishes or distributes written matter which is threatening, abusive or insulting, or broadcasts by means of radio or television words which are threatening, abusive or insulting; or (b) Uses in any public place (as defined in section 40 of the Police Offences Act  1927), 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, being matter or words likely to excite hostility or ill-will against, or bring into contempt or ridicule, any such group of persons in New Zealand on the ground of the colour, race or ethnic or national origins of that group of persons.  quoted from Incitement to Racial Hatred, Issues Paper No 86, The Law Reform Commission of Western Australia p 25, fn 35.

[13]s26

[14]s281.2(1) Everyone who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of (a) an indictable offence and is liable to imprisonment for two years; or (b) an offence punishable on summary conviction. quoted from Incitement to Racial Hatred, Issues Paper No 86, The Law Reform Commission of Western Australia, p20.

[15]s281.2(1): Everyone who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of (a) an indictable offence and is liable to imprisonment for two years; or (b) an offence punishable on summary conviction. quoted from Incitement to Racial Hatred, Issues Paper No 86, The Law Reform Commission of Western Australia, p20.

[16]s281.2(6) Criminal Code  RSC 1970

[17]s18 (2),(4) Public Order Act  UK 1986

[18]s25(1) Race Relations Act  NZ (1971)

[19]s281.2(1) Criminal Code  RSC 1970

[20]s281.2(2) Criminal Code  RSC 1970

[21]However, it might be considered that "the required prohibitions are fully compatible with the right of freedom of expression ... the exercise of which carries with it special duties and responsibilities." General Comment 11, 38 UN GAOR Supp (No 40 at 110 UN Doc A/38/40 (1983) quoted from Meron, Theodor, The Meaning and Reach of the International Convention on the Elimination of All Forms of Racial Discrimination, p264. L364 Aboriginal Legal Rights Course Reader One, Semester 2 1994.

[22]s281.2(3) the person wilfully promoting hatred shall not be convicted: (a) if he establishes that the statements communicated were true; (b) if, in good faith, he expressed or attempted to establish by argument an opinion on a religious subject; (c) if the statement were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or (d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred towards an identifiable group in Canada. quoted from Incitement to Racial Hatred, Issues Paper No 86, The Law Reform Commission of Western Australia, p20, fn 9.

[23]ss19 (2) and 23(3)

[24]Meron, Theodor, The Meaning and Reach of the International Convention on the Elimination of All Forms of Racial Discrimination, p264. L364 Aboriginal Legal Rights Course Reader One, Semester 2 1994.

[25]s60 (2) For the purposes of subsection (1) an act is taken not to be done in private if it: (a) causes words, sounds, images or writing to be communicated to the public; or (b) is done in a public place; or (c) is done in the sight or hearing of people who are in a public place.

(3) In this section: "public place" includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place."

[26]in the Explanatory Memorandum to the Bill, p5.

[27]s 59 Racial Discrimination Legislation Amendment Bill 1992

[28]Aims, Principles and Constitution - Statement of Principles Australian Press Council 1994

[29]Royal Commission Into Aboriginal Deaths In Custody, Inquiry Into The Underlying Issues In Western Australia, Vol 2, AGPS, Canberra, May 1991, p725. quoted from Mickler, Steve, Gambling on the First Race a Comment on Racism and Talk-Back Radio- 6PR, the TAB, and the WA Government  Centre For Research in Culture and Communication, Murdoch University, WA, May 1992.

[30] Ibid, (Mickler), p29.

[31]The report was tabled in Federal Parliament on 18 April, 1991. Earle, Jenny, Racist Violence: A Plethora of Proposals For Reform in Reform  Winter 1991, No 62, p99.

[32]Multiculturalism and the Law The Australian Law Reform Commission Report No 57, p142.

[33]Australian Broadcasting Tribunal, 6PR Perth Commercial Radio Licence Renewal Inquiry IL/90/101, May 1991, p24. quoted from Mickler, Steve, Gambling on the First Race a Comment on Racism and Talk-Back Radio- 6PR, the TAB, and the WA Government  Centre For Research in Culture and Communication, Murdoch University, WA, May 1992 p36.

[34]Ibid, p 25 (ABT Inquiry)

[35](Jesuit lawyer and Aboriginal rights advocate Father Frank Brennan quoted in Butler, Julie, Rights Expert Warns of Hate Law Risk The West Australian , Saturday, August 13, 1994. But Father Brennan says criminal law is a blunt tool for reshaping the hearts of racists. "At this time, in this part of the world, thought police armed with criminal sanctions are not the answer," he said. In a society which habitually persecuted its members such laws might be useful, but in Australia most vilification was exchanged between members of warring minorities. "It would be an unenviable task for the police officer to have to decide whether to arrest to Croat or the Serb," he said.

[36]Allen, David, quoted in The Issue of Racial Vilification The Law Institute Journal August 1990, p711.

[37]R.A.V. v City of St Paul, Minnesota, 112 S. Ct. 2538 (1992) at 2549 quoted in Mueller, A. Can Motive Matter? A Constitutional and Criminal Law Analysis of Motive in Hate Crime Legislation.  Volume 63 UMKC Law Review  Number 3, 1993, p619.

[38]Statistics taken from Racial Vilification Amendmentin Reform, Autumn 1993 p24.

[39]Australian Law Reform Commission Report No 57, Multiculturalism and the Law , p155

[40] Australian Law Reform Commission Report No 57, Multiculturalism and the Law , p161.

[41]Id

[42]Tim Fischer, Leader of the Federal National Party quoted in Butler, Julie, Rights Expert Warns of Hate Law Risk The West Australian , Saturday, August 13, 1994.

[43]Serling, K., and Mason, D. Racism in the Media: If Legislation, What Kind? (1988) Migration Monitor p17, quoted in Incitement to Racial Hatred, Issues Paper No 86, The Law Reform Commission of Western Australia, p41, fn 8.

[44]Western Australian Criminal Code s77 Any person who- (a) possesses written or pictorial material that is threatening or abusive; and (b) intends that material to be published, distributed or displayed whether by that person or by another person; and (c) intends hatred of any racial group to be created, promoted or increased by the publication, distribution or display of the material, is guilty of a crime and liable to imprisonment for 2 years.

[45]Western Australian Criminal Code s78 Any person who- (a) publishes, distributes or displays written or pictorial material that is threatening or abusive; and (b) intends hatred of any racial group to be created, promoted or increased by the publication, distribution or display of the material, is guilty of a crime and is liable to imprisonment for 2years.

[46]Western Australian Criminal Code s79 If- (a) any person possess written or pictorial material that is threatening or abusive; and (b) that person intends the material to be displayed whether by that person or by another person; and (c) that person intends any racial group to be harassed by the display or the material, that person is guilty of a crime and is liable to imprisonment for one year.

[47]Western Australian Criminal Code s80 If- (a)any person displays written material that is threatening or abusive; and (b) that person intends any racial group to be harassed by the display of the material, that person is guilty of a crime and is liable to imprisonment for one year.

[48]"inciting hatred towards, serious contempt for or severe ridicule of a person or persons on the ground of the race of the person or members of the group." Anti-Discrimination Act 1977 (NSW) s20C

[49]Anti-Discrimination Act 1977 (NSW) s 20D

[50]Anti-Discrimination Act 1991 Qld s 126, quoted from Australian Law Reform Commission Report No 57, Multiculturalism and the Law , p145.

[51]Discrimination Act 1991 (ACT) s 66-67, quoted from Australian Law Reform Commission Report No 57, Multiculturalism and the Law , p145.

 Bibliography

Articles , Books and Reports

Aims, Principles and Constitution  Australian Press Council  Sydney, 1994(?).

Backlash Tipped against Race Law The West Australian  Monday, October 31, 1994

Butler, Julie, Jail Terms For Racial Hatred The West Australian  Tuesday November 1, 1994.

Earle, Jenny, Racist Violence: A Plethora of Proposals For Reform in Reform  Winter 1991, No 62, p99.

Earle, J. and Magarey, K. Words That Wound Alternative Law Journal  Volume 17, No 2 April 1992.

Incitement to Racial Hatred Issues Paper  The Law Reform Commission of Western Australia Project No 86, 1989.

The Issue of Racial Vilification  The Law Institute Journal  August 1990, p711.

Martin, Roger, Race Law "Unworkable" The West Australian,  Tuesday November 1, 1994

McWilliams, Evelyn  Justice Evatt at the UN in Reform , Summer 1993, p15.

Meron, Theodor, The Meaning and Reach of the International Convention on the Elimination of All Forms of Racial Discrimination,  in L364  Aboriginal Legal Rights Course Reader One,  Semester 2 1994.

Mickler, Steve  Gambling on the First Race- a Comment on Racism and Talk-Back Radio- 6PR, the TAB and the WA Government.  Centre For Research in Culture and Communication, Murdoch University  May 1992.

Mueller, Abby  Can Motive Matter? A Constitutional and Criminal Law Analysis of Motive in Hate Crime Legislation UMKC Law Review  Vol 61 No 3 1993 p619.

Multiculturalism and the Law  Commonwealth Law Reform  Commission Report Number 57.

Potter, D. Submission Outlining the Aboriginal Legal Service of WA (INC) Position in Relation to the Racial Vilification Bill 1992 (Commonwealth)  Aboriginal Legal Service 16th April 1993.

Race Discrimination in Reform  Volume 53, January 1989 p35.

Racial Discrimination- Questions and Answers  The Attorney-Generalepartment, February, 1993.

Racial Vilification in Reform  Volume 55, July 1989, p135.

Racial Vilification in Reform  Volume 59 July 1990, p121.

Racial Vilification Amendment in Reform,  Volume 65, Autumn 1993 p24.

Striving For Justice Vol 2 Report to the Commonwealth Government on the Implementation of the Recommendations of the Royal Commission into Aboriginal Deaths in Custody  Aboriginal Legal Service 1994.

Twomey, Anne Issues Brief Number 2 1993 Racial Vilification and Freedom of Speech  Parliamentary Research Service Law and Government Group 2 April 1993.

Watson, R,  Racial Vilification. Racist Organisations, Racist Propaganda, Racial Hatred  Aboriginal Legal Service 10 October 1993.

 Cases

The Australian Press Council Adjudication No 148 (issued 1st November 1982)

The Australian Press Council Adjudication No 149 (issued 1st November 1982)

The Australian Press Council Adjudication No 272 (issued 4th March 1986)

R.A.V. v City of St Paul, Minnesota,  112 S. Ct. 2538 (1992)

 Hansard

Extract from the Weekly House Hansard Database 16th December 1992 page 3888 on the Racial Discrimination Legislation Amendment Bill 1992 (Commonwealth) Second Reading.

Legislation

Anti-Discrimination Act  1977 (NSW)  Anti-Discrimination Act  1991 (Qld)  Criminal Code  1970 (Canada) Criminal Code  Western Australia Discrimination Act  1991 (ACT)  Public Order Act  1986  (United Kingdom) Race Relations Act  1971 (New Zealand)  Racial Discrimination Legislation Amendment Bill  (Commonwealth) 1992  Racial Discrimination Legislation Amendment Bill  (Commonwealth) 1992   Explanatory Memorandum  Racial Hatred Bill (Commonwealth) 1994 Racial Hatred Bill (Commonwealth) 1994 Explanatory Memorandum