NSW racial vilification laws strike the right balance in protecting free expression but could be strengthened to ensure they more effectively protect individuals from racist hate speech. In a submission to the NSW Legislative Council Law and Justice Committee inquiry into the effectiveness of NSW racial vilification law, the Human Rights Law Centre said ‘the international community has accepted, at least since the Holocaust, that it is important to combat racist hate speech as part of the "special duties and responsibilities" that attach to the right of freedom of expression. Hate speech diminishes the dignity of a person and a person’s sense of self-worth. It excludes and isolates people and affects democratic participation in society.’
It is a criminal offence in New South Wales and many other Australian States to incite racial hatred and racially motivated violence. However, since this offence was introduced into the statute books in 1989, it has never been prosecuted. This is not because racism doesn’t exist in the community. The HRLC’s Director of Advocacy Anna Brown said ‘the prevalence of racist sentiment in Australia is well-documented, however among other reasons; the high threshold for conviction under the current law makes it virtually impossible to bring a successful prosecution.’
Under section 20D of the Anti-Discrimination Act 1977 (NSW), a person must threaten violence against a person or property or ‘incite’ others to threaten racially motivate violence. The elements of the offence create a threshold, Ms Brown said, that is ‘incompatible with international human rights standards, and should be amended to prohibit acts that have significant potential to promote racial hatred, even without the direct threat of violence’.
‘The law should be able to respond effectively to speech that promotes racial hatred and increases the likelihood of racially motivated violence such as in the Cronulla riots’, Ms Brown said. ‘Speech that merely offends should not be unlawful but speech that stirs up hatred and hostility against racial groups should be prohibited’, Ms Brown added.
The Human Rights Law Centre also urges the NSW Government to develop comprehensive strategies to reduce the prevalence of racist hate speech and conduct.
A copy of the submission can be found here.