Today the NSW Government has announced that it will amend the Crimes Act 1900 to criminalise the incitement of racial hatred. The offence would carry a maximum penalty for an individual of two years’ imprisonment, fines of up to $11,000, or both, while corporations can face fines of $55,000.
The incitement of violence on the basis of race, religious beliefs, sexual orientation, gender identity, intersex status and HIV status is already illegal, and rightly so. These laws protect our community while not unreasonably burdening free speech. The proposed changes expand these laws to criminalise only the incitement of racial hatred and will have the effect of expanding existing divisions in our community.
By way of example, there is a dispute between members of the Indian diaspora in NSW regarding the formation of Khalistan, a Sikh nation. This is a movement that is often opposed by Hindu groups. If these communities were to vilify each other, the definition of ‘race’ in our criminal law is such that the new laws would have the effect of only leading to the prosecution of the Hindu groups because of the ethno-religious or national elements of the Sikh community that does not apply to the Hindu religion.
These perverse outcomes, and also the likely overrepresentation of Aboriginal and Torres Strait Islanders, marginalised communities, people with a disability, children and young people in prosecutions, were all foreseen in the findings of the review into section 93Z of the Crimes Act that was handed to the government late last year.
The review into s93Z outlined that provisions like those suggested by the Minns’ Government are imprecise and subjective. Further, the review made clear they go against the advice of the UN Committee on the Elimination of Racial Discrimination which warned that restrictions on freedom of speech should not be “broad or vague”.
The NSW Government has not consulted with legal and human rights experts or broader civil society groups on these proposed new laws and they should abandon these laws until they do.
Comments attributable to Timothy Roberts, President NSWCCL
“The proposed laws will do nothing but deepen divisions in our community. This will always happen when you seek to rush legislation through Parliament and not listen to sound advice.
“The Premier is wrong to go against the recommendations of the former Chief Justice Tom Bathurst. Minns is completely disregarding advice commissioned by his own government which clearly shows that these laws are not needed and will have perverse outcomes.
“Criminal laws should always be a last resort, you cannot arrest your way to social cohesion, you cannot arrest your way to stop hate. Just as heavy criminal penalties already in place have not stopped arson, hate symbols and graffiti.
“The government is driving hatred with this bill and their rhetoric. When the NSW Government seeks to extend criminal laws in such an uneven and ill-considered way, they are the ones dividing our community.
“Criminal laws must be able to be clearly understood across the community to protect against miscarriages of justice. As the Law Reform Commission review pointed out, a wider range of criminal conduct is likely to impact already marginalised communities.
“Sam Kerr is a great example of how these types of laws can have unexpected outcomes. It cannot have been the intention of the legislature to protect a white police officer from someone of anglo indian heritage calling them white. However, to great expense of the UK taxpayer that is exactly the prosecution that took place, and and will take place here if the government is not more careful.
“We are calling on the NSW Government not to proceed with these laws, or at the very least, send them to an inquiry so they can hear from experts and people across our community to understand why they are so unwelcome.”
