HANSARD – NSW LEGISLATIVE COUNCIL Wednesday, 20 June 2018
Page 46 – Page 61
Second Reading Speech
The Hon. DON HARWIN (Minister for Resources, Minister for Energy and Utilities, and Minister for the Arts) (16:26): I move: That this bill be now read a second time. I seek leave to have the second reading speech incorporated in Hansard. Leave granted.
I am pleased to introduce the Crimes Amendment (Publicly Threatening and Inciting Violence) Bill 2018. The bill introduces a new indictable criminal offence of publicly threatening or inciting violence in the Crimes Act. The offence will apply to public threats or incitement of violence against targeted persons or groups in New South Wales. The new offence will replace four existing serious vilification offences contained in the Anti‑Discrimination Act 1977. Laws protecting identified groups from threats of violence are important to securing the safety of the New South Wales community. The Government is committed to protecting our diverse and vibrant communities for the benefit of all New South Wales residents. Importantly, a new offence of publicly threatening and inciting violence will demonstrate that the Government does not tolerate threats of violence or incitement of violence. Wednesday, 20 June 2018 Legislative Council- PROOF Page 46 The new offence will replace the following four existing serious vilification offences in the Anti‑Discrimination Act: First, serious racial vilification in section 20D; second, serious transgender vilification in section 38T; third, serious homosexual vilification in section 49ZTA; and fourth, serious HIV/AIDS vilification in section 49ZXC. Currently, the highest possible maximum sentence across all serious vilification offences is six months imprisonment or 50 penalty units, and 100 penalty units for a corporation. To date, there have been no prosecutions brought under these offence provisions. Broadly, the bill will do the following: First, replace the existing serious vilification offences with a single indictable offence in the Crimes Act to demonstrate the seriousness of threatening and inciting violence. Secondly, it will broaden the current grounds of protection to include religious belief or affiliation and intersex status in addition to the existing grounds of serious racial, homosexual, transgender and HIV/AIDS vilification, while updating the existing terminology of “homosexual” and “transgendered” with “sexual orientation” and “gender identity” to reflect modern terminology. Thirdly, it will remove the existing disparity between maximum penalties for serious vilification of different protected groups. And, fourthly, it will reflect community standards through an increased maximum penalty. The bill will also clarify that it is not necessary to adduce evidence of the state of mind of any other person apart from the accused or that any other person has acted as a result of the accused’s alleged act. The new offence will be investigated by the NSW Police Force and require the approval of the Director of Public Prosecutions to commence a prosecution. The requirement for the director’s consent will provide a safeguard to ensure that the offence is only prosecuted where appropriate, in accordance with the Prosecution Guidelines. Importantly, the amendments strike a careful balance between preventing public acts and threats of violence, and facilitating freedom of expression in New South Wales. The bill follows extensive consultation on and reviews of New South Wales’ serious vilification laws. In 1992 the Hon. James Samios, MLC, reviewed the serious racial vilification offence in the Anti‑Discrimination Act. A report on this review was presented to the then Government on 27 August 1992. Among other things, that report recommended that the ground of racial vilification should be extended to cover ethno-religious people and groups, and that the maximum penalty should be increased. In 1999, the NSW Law Reform Commission finalised an extensive review of the Anti-Discrimination Act. Relevantly, the Law Reform Commission recommended that the offence of serious racial vilification be moved to the Crimes Act. In 2009, the then Director of Public Prosecutions, Mr Nicholas Cowdery, prepared a paper on the offence of serious racial vilification in the Anti-Discrimination Act. The paper raised the concern that there had been no prosecutions instituted under the existing offence of serious racial vilification in the Anti-Discrimination Act. To date, there continue to be no prosecutions under any serious vilification offence in New South Wales. In 2012, the then Premier, the Hon. Barry O’Farrell, MP, asked the Legislative Council Standing Committee on Law and Justice to inquire into the serious racial vilification offence in the Anti-Discrimination Act. The Committee on Law and Justice released a report on that inquiry on 3 December 2013. The committee came to the view that the effectiveness of the serious vilification offence in the Anti-Discrimination Act had been hindered by a number of procedural impediments that have prevented practical application of the offence by courts and prosecutors. In November 2016 the then Attorney General, the member for Vaucluse, the Hon. Gabrielle Upton, MP, asked Dr Stepan Kerkyasharian, AO, to undertake broad community consultation on a number of issues relating to serious vilification in New South Wales. Dr Stepan Kerkyasharian met with 50 groups or individuals during 2017. His report on consultation on serious vilification laws in New South Wales shows that many stakeholders considered that moving the offences into the Crimes Act could be beneficial, as it would clarify police responsibilities for investigating serious vilification offences. Some stakeholders supported including religion as a protected ground, and many agreed that the procedural requirements and maximum penalties should be consistent across all serious vilification offences. The Government has given careful consideration to these reviews and community consultations in the preparation of the bill. The focus of the bill is on conduct threatening or inciting violence, in other words, behaviour involving physical force intended to hurt, damage or kill someone or something. I will now outline the details of the bill. Schedule 1 sets out amendments to the Crimes Act to insert a new section 93Z into that Act. The offence in section 93Z of the Crimes Act will replace the four existing serious vilification offences contained in the AntiDiscrimination Act. The new offence will be contained in the Crimes Act to allow the NSW Police Force to take a lead in investigation of possible offences, and therefore, to remove some of the current barriers to prosecution. Containing the offence in the Crimes Act will also remove an existing requirement for the president of the Anti-Discrimination Board to make a referral for prosecution within 28 days after receipt of a complaint. Section 93Z will provide that a person who, by public act, intentionally or recklessly threatens or incites violence towards another person or a group of persons on any of the protected grounds listed in the section, is guilty of an offence. Retaining incitement in the offence is consistent with the language used in international human rights instruments, including in Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination. Incitement is already well understood judicially and has an established body of case law. Consistent with the approach taken by Justices of Appeal Ashley and Neave of the Victorian Court of Appeal in Catch the Fire Ministries v Islamic Council of Victoria Inc (2006) 15 VR 207 concerning religious vilification, cited with approval in Sunol v Collier (No 2) (2012) NSWCA 44, which concerned homosexual vilification, when considering whether a public act is one that would incite violence, this determination should proceed by reference to the effect of the accused person’s conduct on an ordinary member of the class of persons to whom the public act was directed, taking into account the circumstances in which the conduct occurred. To address concerns raised in community consultation and in the 2013 Legislative Council committee report on the difficulties of proving incitement under the current section 20D of the Anti-Discrimination Act, the drafting of the new offence clarifies the following: Recklessness is sufficient to establish criminal intent, and it is irrelevant whether or not, in response to the alleged offender’s public act, any person formed a state of mind or carried out any act of violence. The new offence also includes “threatens” as an alternative to incitement in order to criminalise this conduct. By including threatening violence as a limb of the new offence, the prosecution would not necessarily need to adduce evidence that the defendant in fact intended to incite, or was reckless as to inciting a third party to inflict violence. The protected grounds under the new offence are: first, the race of the person or one or more of the members of the group; second, that the person has, or one or more of the members of the group have, a specific religious belief or affiliation; third, the sexual orientation of the person or one or more of the members of the group; fourth, the gender identity of the person or one or more of the members of the group; fifth, that the person is, or one or more of the members of the group are, of intersex status; and sixth, that the person has, or one or more of the members of the group have, HIV or AIDS. The new offence will broaden the current grounds of protection under the Anti-Discrimination Act to include religious belief or affiliation, and intersex status. Wednesday, 20 June 2018 Legislative Council- PROOF Page 47 In recent years, there has been an increasing focus on violence motivated by religious intolerance in Australia. While existing laws capture the criminality of some of this conduct, including religion as a protected ground under the offence sends a strong signal that those who incite or threaten the use of violence against a person or persons because they hold, or do not hold, a particular religious view will be held criminally responsible for this conduct. It will also bring New South Wales into line with most comparable Australian jurisdictions that have already expressly included religion as a protected category in their respective antivilification laws. The new offence will also introduce intersex status as a protected ground under the offence to ensure that people who are born with atypical reproductive or sexual organs are protected under the Crimes Act. Intersex status is defined to include having physical, hormonal, or genetic features that are neither wholly female nor wholly male, a combination of male and female, or neither female nor male. Currently, the Anti‑Discrimination Act covers vilification on the ground of homosexuality. The new offence will replace “homosexuality” with the ground of sexual orientation. This will modernise the terminology and broaden the existing ground to cover threatening or inciting violence on the ground of sexual orientation. The term “sexual orientation” better serves the purpose of the offence. Specifically, sexual orientation will mean a person’s sexual orientation towards persons of the same sex, different sex or of the same and different sex. The new offence will also replace the ground of transgender status with the ground of gender identity. Currently transgender people are protected against vilification under the Anti-Discrimination Act. The bill proposes to broaden the class of persons who are protected by using the term “gender identity” instead of “transgender”. Gender identity will mean the gender-related identity, appearance or mannerisms or other gender‑related characteristics of a person, whether by way of medical intervention or not, with or without regard to the person’s designated sex at birth. The new offence will retain the protected grounds of race and HIV or AIDS status. Both of these grounds are currently included in the Anti-Discrimination Act. HIV or AIDS status will not be defined under the new offence but means that a person or member of a group has HIV or AIDS. Under the new offence, race will include colour, nationality, descent and ethnic, ethno-religious or national origin. Subsection 2 of the new offence under section 93Z makes it clear that to make out the offence, it is irrelevant whether the alleged offender’s assumptions or beliefs about an attribute of a person or a member of a group of persons were correct or not at the time that the offence is alleged to have been committed. Under the new offence, a public act will include: first, any form of communication to the public, including speaking, writing, displaying notices, playing of recorded material, broadcasting and communicating through social media and other electronic methods; second, any conduct observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia; and third, the distribution or dissemination of any matter to the public. An act can amount to a public act even if it occurs on private land. Under the new offence, violence will include violent conduct and violence towards a person or a group of persons will include violence towards property of the person or a member of the group. Any prosecution of the offence must only be commenced with the approval of the Director of Public Prosecutions. The offence will have a maximum penalty of three years imprisonment or 100 penalty units, or both, for an individual. In the case of a corporation, the maximum penalty will be 500 penalty units. Currently, the highest possible maximum sentence across all serious vilification offences in the Anti-Discrimination Act is six months imprisonment or 50 penalty units, and 100 penalty units for a corporation. The increased maximum penalties will better reflect community standards, and the seriousness of the criminal conduct. Schedule 2 sets out amendments to the Anti-Discrimination Act. Schedule 2 to the bill will repeal all serious vilification offences in the Anti-Discrimination Act. These are the offence of serious racial vilification in section 20D, the offence of serious transgender vilification in section 38T, the offence of serious homosexual vilification in section 49ZTA and the offence of serious HIV/AIDS vilification in section 49ZCX. Schedule 3 to the bill makes a consequential amendment to the Criminal Procedure Act 1986 to provide that the new indictable offence is to be dealt with summarily unless the prosecutor or person charged elects otherwise. This bill amends the Crimes Act to create an offence of threatening or inciting violence on the grounds of race, religion, sexual orientation, gender identity, intersex status or HIV/AIDS status. The new offence will replace the existing serious vilification offences that are contained in the Anti-Discrimination Act. The reform strikes the right balance between community safety and freedom of speech. Freedom of speech is a fundamental tenet of liberal democracy. But so too is freedom from fear. The New South Wales Government has listened to the community and is committed to ensuring that any behaviour that puts community safety at risk will not be tolerated. The amendments contained in this legislation will come into effect on a day or days to be appointed by proclamation. I thank every person and every group that has provided feedback on this topic over the past several years, including the following groups or leaders with whom I have personally discussed the subject matter of the bill on one or more occasions: the Archbishop of Sydney, the Most Reverend Anthony Fisher, OP; the Eparch of the Maronite Diocese of St Maroun, His Excellency Bishop Antoine-Charbel Tarabay, OLM; the New South Wales Gay and Lesbian Rights Lobby; the Anglican Archbishop of Sydney, Dr Glenn Davies; the Antiochian Orthodox Christian Archdiocese of Australia, New Zealand and the Philippines; the Jewish Board of Deputies, especially its Chief Executive Officer Vic Alhadeff and President Jeremy Spinak; representatives of the Keep NSW Safe coalition; and Stepan Kerkyasharian, AO, former president of the Anti-Discrimination Board and author of the 2017 “Report on consultation on serious vilification laws in NSW”. I thank all officers of the Department of Justice who have made important contributions to the development of this bill, including Kelly Roberts, Dr Jacob Campbell and Anita Chen-Hatton. Also I thank Sian Hutchinson from the Department of Premier and Cabinet. I thank my predecessor the Hon. Gabrielle Upton for her extensive work in this area and Tom Payten from the Premier’s office, and in my office all staff members, particularly Mary Klein, my former Chief of Staff Bran Black and my current Acting Chief of Staff Clare Wesley. I commend the bill to the House.
Second Reading Debate
The Hon. ADAM SEARLE (16:26): I lead for the Opposition in debate on the Crimes Amendment (Publicly Threatening and Inciting Violence) Bill 2018. The Opposition does not oppose the bill, but I note that the Government’s performance on this issue has been nothing short of abysmal. The bill contains provisions for which the Opposition, in this House and in the other place, have advocated for many years. Many of the elements Wednesday, 20 June 2018 Legislative Council- PROOF Page 48 of the shadow Attorney General’s 2016 private member’s bill—voted down by the Government in the other place by 48 votes to 31—are contained in this bill. The bill contains many of the elements for which notice was given earlier this year by the Leader of the Opposition in the other place. The provisions of section 20D of the Anti-Discrimination Act impose criminal liability for the act of “racial vilification”. Despite egregious examples of what most would agree was serious racial vilification, there have been no prosecutions. In November 2012, then Premier O’Farrell referred the issue to the Legislative Council Standing Committee on Law and Justice. In a report dated December 2013, entitled “Racial vilification law in New South Wales”, the committee made unanimous and cross-party recommendations. The Government has been stuck there for years. Self-evidently, it has taken the Government five years to produce a bill that contains many of the recommendations in that report. During that time, Government members in the other place voted down private member’s bills introduced by the Opposition that contained many of the committee recommendations. The delay of five years is extraordinary. The Government’s own committee members pointed the way in 2013—it is not as if the Government did not know what needed to be done in this area or, indeed, how to do it. In 2015, then Attorney General Gabrielle Upton conceded that the laws in this area were broken. She promised to introduce new laws in the first half of 2016, but she did not. In late 2016 the Government commenced yet another consultation process, this time with Stepan Kerkyasharian. Stakeholders were told with great excitement that amendments would be introduced to section 20D in mid-2017. That did not happen either. At the end of last year media reports exposed that the Government had decided to take no action and highlighted serious divisions within the Cabinet battle, with the Treasurer and Ministers Roberts, Elliott and Upton opposing any change. They rolled the now Attorney. Their approach no doubt echoed the comments in 2016 of the member for Epping in the other place during the second reading debate on the shadow Attorney’s bill. He said that he opposed the bill on free speech grounds, just as he did the recent safe access zones legislation. The Ministers voting with him on the latter legislation are those identified by the media as opposing these essential elements of this bill in Cabinet. The core of this bill is to insert into the Crimes Act a new section 93Z. In summary, this provision will create a new criminal offence of publicly threatening or inciting violence on the grounds of race, religion, sexual orientation, gender identity, intersex or HIV/AIDS status. A number of things are done in creating this offence. Most obviously, it is a provision of the Crimes Act rather than the Anti-Discrimination Act. These are crimes, and it is symbolically important to have the offence in the Crimes Act particularly given the lack of action taken to enforce this law previously. Schedule 2 makes clear there is no need for a referral by the President of the Anti-Discrimination Board to the Director of Public Prosecutions [DPP] for prosecution and the incidents can be investigated by police as crimes. In practical terms this is quite significant. The people best able to investigate crimes, to prepare statements in admissible form, to prepare statements that allow prosecutions, are police rather than, for example, officers of the Anti-Discrimination Board. That is the job that police do every day. I note in passing that this practical difficulty and issues surrounding briefs prepared by non-police do have echoes of the situation of the Independent Commission Against Corruption [ICAC] submitting briefs to the DPP for possible prosecution. Proposed section 93Z replaces currently existing offences. Their replacement is affected by schedule 2 to the bill. The offences of serious racial vilification under section 20D of the Anti-Discrimination Act, serious transgender vilification under section 38T of that Act, serious homosexual vilification under section 49ZTA, and serious HIV/AIDS vilification under section 49ZXC are all removed. Schedule 2 also has the amendments to the Anti-Discrimination Act no longer requiring investigation by the Anti-Discrimination Board for prosecution to occur. Proposed section 93Z gathers together all these vilification provisions into one section rather than having them spread over various portions of legislation, which reflects the historical evolution of the vilification provisions in the Anti-Discrimination Act. While section 20D has not resulted in successful prosecutions or, as far as I am aware, any prosecutions, other of the vilification provisions have. It would be entirely inappropriate to make amendments to only section 20D and not to the other provisions, as they are based on the same legislative template and are all forms of vilification that ought to be properly criminalised. There are several differences between proposed section 93Z and the previous provision. The terms “homosexual” and “transgendered” are replaced with the more modern parlance of “sexual orientation” and “gender identity”. Another positive difference is that the current protections are extended to intersex status. That seems to members on this side of the House to be entirely uncontroversial. The protections are extended to include “religious belief or affiliation” but do not to defining a religion. That extension is welcomed by the Labor Opposition. Earlier this year the Leader of the Opposition gave notice of a bill in the other place that contained that provision, and the bill remains on the Business Paper. Historically there are some traditional concerns about including religion in anti-discrimination legislation, especially in New South Wales. Race was included as a Wednesday, 20 June 2018 Legislative Council- PROOF Page 49 protected attribute in the anti-discrimination legislation and was defined to include in section 4 ethno-religious origins. In a second reading debate that phrase was said to include Judaism, Sikhism and Islam, but that is not what tribunals and courts have subsequently held it to mean. Opposition to extending religion as a protected attribute is usually based on one of two grounds. One is that it is close to a blasphemy law, which is regarded as inappropriate in a modern liberal democratic society. Nearly 250 years after the death of Voltaire, members on this side of the House agree: blasphemy laws should have no place in New South Wales. There are, of course, several problems with that argument. The first is that those who pursue it have done nothing to remove the blasphemy offence, which is exclusively of Christian religions, from the law in this State. Section 574 of the Crimes Act maintains it is still a criminal offence in this State to scoff at the Christian religion, although not at any other religion. Secondly, the bill has nothing to do with blasphemy or being critical of religions. It is directly and inextricably linked to violence, incitement to violence or threats of violence. People who oppose this provision due to a fear of blasphemy or a fear for freedom of speech simply have not read the legislation or understood it, and cannot seem to distinguish this from the Federal Parliament’s debate on section 18C of the Anti-Discrimination Act. The second potential criticism is that religion can be notoriously difficult to define. For example, will it include Wicca, white witches or Jedi knights? That is a legitimate argument, because some of these have turned up in the census from time to time. But members on this side are not troubled by it in relation to this bill, because this bill is connected very explicitly with violence, incitement to violence or threats of violence. Surely we should all join in supporting measures directed to ending violence wherever it occurs. If it were a more general anti-discrimination issue then maybe that would be a legitimate point, but it seems that there is no argument against the provisions of this bill because it is directed at ending violence. Proposed section 93Z makes clear that recklessness can constitute sufficient criminal intent for prosecution. That has been a live issue discussed for some time. It was recommended by the Legislative Council committee and included in the shadow Attorney’s 2016 bill. It is included in this bill, and ought to be. Proposed section 93Z (2) deals with what is sometimes called the “presumed race” issue. If a person is the subject of racial vilification because the perpetrator believes and says the victim is Japanese when in fact they are Chinese, for example, a prosecution may fail under the current provisions. Resolving this was also a Legislative Council committee recommendation and a provision of the Opposition’s bill. Once again, that is in this bill, and should be in the bill. Proposed section 93Z (4) provides that prior prosecution should only be commenced with the approval of the Director of Public Prosecutions. This is a change to the current position, which requires the consent of the Attorney General. The Legislative Council committee report recommended removing the provision for consent of the Attorney General. That is a position with which the Opposition agrees. The committee adopted that view because the committee thought it would perhaps politicise the decision-making process. The provision of the requirement for the Attorney’s consent stems from an earlier time, when the Attorney was seen to be above the political fray compared to other Ministers and had a greater degree of independence.
The Hon. Dr Peter Phelps: Hear, hear! That’s Mr Speakman entirely.
The Hon. ADAM SEARLE: Well, perhaps. I suspect the current Attorney might like to go back to those days, but at least for the foreseeable future those times are probably long gone.
The Hon. Dr Peter Phelps: Shame!
The Hon. ADAM SEARLE: It is a shame. The requirement for Attorney’s consent was seen as a safeguard on overzealous or injudicious prosecutions. The perception of the Attorney’s role has, I think, changed significantly—perhaps for the worse, but nonetheless it has changed. There are still provisions requiring the Attorney’s consent for prosecution—for example, in proposed section 316 and proposed section 316A of the Crimes Act. It seems a little odd that those provisions concerning the Attorney remain, especially, as we understand it, when the Attorney has to all practical intents and purposes delegated his decision-making powers to the DPP in any case. One of the other ongoing debates is the private versus public publication issue. The general public policy objective has been to criminalise public actions but not necessarily private ones. That inevitably gives rise to disputes about what is considered private and what is considered public. This bill includes any form of communication available to the public that includes social media and other electronic methods. It also includes any conduct observable by the public. For more abundant caution, it can be a public act even if occurring on private land. That seems like a reasonably good place to start to get this definitional issue right. Wednesday, 20 June 2018 Legislative Council- PROOF Page 50 The precise offence in proposed section 93Z is of threatening or inciting violence towards another person or group on the basis of the protected attributes. “Incite” is the term currently in the provision of section 20D. The Labor Opposition had proposed to lower the bar for prosecution by replacing this with the term “promote”. There was discussion about this in the Legislative Council report. The bill provides, as an alternative basis for the offence, “to threaten violence”. Section 20D (1) (a) has a reference to “threatening” already, albeit in a differently structured offence. The current maximum penalties for section 20D offences are 50 penalty units or six months imprisonment or both for an individual, and 100 penalty units for a corporation. That is the same as the penalty for section 49ZXC. Section 38T has 10 penalty units or six months imprisonment or both for an individual and 100 penalty units for a corporation, as does section 49ZTA. Proposed section 93Z provides a maximum penalty of 100 penalty units or three years’ imprisonment or both for an individual or 500 penalty units for a corporation. This makes proposed section 93Z an indictable offence to be dealt with by a judge. However, schedule 3 to the bill amends the Criminal Procedure Act so that proposed section 93Z is inserted into table 1 of that Act, which means it may be dealt with summarily unless the prosecution or person charged elects otherwise. As I indicated, given that the Opposition has advocated for so many of these provisions in this bill for such a long period of time, it will surprise nobody that the Opposition will not oppose the bill. It has taken this Government five years; that is five years too long. It is outrageous that it has taken that long but I guess those opposite might say, “Better late than never.”
Reverend the Hon. FRED NILE (16:42): I am pleased, on behalf of the Christian Democratic Party, to support the Crimes Amendment (Publicly Threatening and Inciting Violence) Bill 2018. The bill amends the Crimes Act 1900 to insert a new indictable offence of publicly threatening or inciting violence on the grounds of race, religion, sexual orientation, gender identity or intersex or HIV/AIDS status. The new offence will replace four serious vilification offences of serious racial, transgendered, homosexual and HIV/AIDS vilification presently contained in the Anti-Discrimination Act 1977. The bill follows extensive consultation on, and reviews of, New South Wales’ serious vilification laws. Community consultations have revealed concerns that the existing Anti-Discrimination Act offences do not adequately protect the community from threats and incitement of violence. This is illustrated by the fact that no prosecutions have been brought under the serious vilification offences in the Anti-Discrimination Act, despite conduct putting people in New South Wales at risk having been reported. The lack of prosecutions was considered in the 2013 Legislative Council Standing Committee on Law and Justice report, “Racial vilification law in New South Wales”. The committee recommended that the New South Wales Government consider various amendments to the Anti-Discrimination Act offences and their application. As members know, in 2017 Mr Stepan Kerkyasharian, AO undertook broad community consultation on serious vilification. He advised in his report on the consultation about serious vilification laws in New South Wales that the majority of stakeholders agreed that the serious vilification offences should be moved to the Crimes Act and that it should be an offence to incite violence on the grounds of religion. This bill seeks to address these community concerns. In particular, schedule 1 to the bill will amend the Crimes Act to insert a new indictable offence of publicly threatening or inciting violence, replacing the four existing serious vilification offences in the Anti-Discrimination Act. It will also introduce a threshold for the new offence of “intentionally or recklessly threaten or incite violence”. It will include religious belief or affiliation and intersex status as protected grounds in the new offence, in addition to the existing grounds of race and HIV/AIDS status under the ADA offences. The bill will include gender identity and sexual orientation as protected grounds to replace the existing grounds of homosexuality and transgender status under the Anti-Discrimination Act offences. The bill provides that any prosecution of the new offence must only be commenced with the consent of the Director of Public Prosecutions. The bill provides for a maximum penalty of three years imprisonment and an $11,000 fine for an individual, or, in the case of a corporation, a $55,000 fine. The current maximum penalty under the Anti-Discrimination Act offences is six months imprisonment and a $5,500 fine for serious racial vilification or six months imprisonment and a $1,100 fine for serious transgender, homosexual or serious HIV/AIDS vilification. The Christian Democratic Party is pleased to support this bill with proposed new section 93Z because public threats and incitement to violence is a scourge that is plaguing certain sections of society—hopefully a minority. The party has been contacted by stakeholders who have an interest in combating vilification in New South Wales, mostly because they themselves have been on the receiving end of such vilification. I acknowledge in the public gallery Mr Vic Alhadeff, Chief Executive Officer of the Jewish Board of Deputies, who has provided the Christian Democratic Party with background material which included a strong case in support of the amendments in the bill before the House. Material has been provided to us showing that the trend of incitement to violence may be growing in some parts of our community, and New South Wales should have the right mechanisms to deal with it with the full force of the law. However, it should also be noted that these Wednesday, 20 June 2018 Legislative Council- PROOF Page 51 laws do not, and are not intended, to stifle legitimate debate; nor are they intended to criminalise speech or opinions that some may merely find offensive. I think that should be quite clear to everyone. I have been reassured that the scope of the bill’s provisions are narrow and that the principle behind them is pragmatism. The Attorney General has indicated that the bill is about community safety and not injured feelings. I understand this to mean that the objective is to fight against the ideology which fosters the real threats of terrorism that the West faces today and the real threats of violence from organised groups that are criminally minded. The test under the new section 93Z is objective but has a mental element, which means that there has to be an intention to incite violence. That may be difficult to prove in court but that is the definition in this legislation. Language used by the radical Muslim preacher Ismail al-Wahwah will be caught by the provision. He said: “The ember of jihad against the Jews will continue to burn … Tomorrow you Jews will see what will become of you— an eye for an eye, blood for blood, destruction for destruction.” I believe we should do all that we can to discourage that kind of public statement, which those on the receiving end obviously find very offensive. In addition to the existing groups based on race and HIV/AIDS status, the bill will apply to a defined group of targets including religious groups and those with intersex status. Homosexuality and transgender status grounds will be replaced with gender identity and sexual orientation. The Christian Democratic Party is pleased to support the bill.
The Hon. SHAYNE MALLARD (16:49): I speak on the Crimes Amendment (Publicly Threatening and Inciting Violence) Bill 2018. I congratulate the Attorney General in the other place for introducing this bill. In 1989 a New South Wales Liberal-Nationals Government was the first government in Australia to introduce laws to support targeted individuals and groups. Today a Liberal-Nationals Government has acted again to strengthen those laws to stamp out the threat or the incitement to violence and to enhance community safety. As has been canvassed by other speakers, the new law prohibits the threat or incitement of violence against any person on the grounds of race, religion, religious affiliation, sexual orientation, gender identity, intersex or HIV/AIDS status. The bill introduces a new indictable criminal offence in the Crimes Act 1900 of publicly threatening or inciting violence. The offence will apply to public threats or incitement of violence against targeted persons or groups in New South Wales. The new offence will be investigated by the NSW Police Force and require the approval of the Director of Public Prosecutions to commence a prosecution as a safeguard for freedom of speech. These landmark reforms contained in the Crimes Amendment (Publicly Threatening and Inciting Violence) Bill 2018 create a new offence in the Crimes Act 1900 which will replace and improve existing offences contained in the Anti-Discrimination Act 1977. The Government has listened carefully to the community and is acting further to protect our diverse and vibrant community. The bill follows extensive consultation on and reviews of New South Wales’ serious vilification laws, as has been outlined at some length by other speakers. In 1992 the Hon. James Samios, MLC, reviewed the serious racial vilification offence in the Anti-Discrimination Act. It has been a long process to get to here. In 2009 the then Director of Public Prosecutions, Mr Nicholas Cowdery, prepared a paper on the offence of serious racial vilification in the Anti-Discrimination Act. The paper raised the concern that there had been no prosecutions instituted under the existing offence of serious vilification in the Anti-Discrimination Act. To date, there are no prosecutions under any serious vilification offence in New South Wales. For the benefit of the Hon. Adam Searle I point out that Nicholas Cowdery’s report was in 2009, when Labor was still in government and had two more years to respond to it. I will not recap the various inquiries, as they have been covered by other speakers. There has been extensive consultation and that has helped strike the right balance between freedom of speech and community safety, which is where we are today. Freedom of speech is a cornerstone of our free and open community but it should not be used as a shield for those who cross the line by threatening or inciting violence against others. Preventing the incitement to violence is not about limiting free speech but rather about preventing threats to physical harm and preserving public safety. Every person in our community should be able to go about their lives without fear of violence because of who they are or what they believe. I join with Reverend the Hon. Fred Nile and acknowledge in the public gallery Mr Vic Alhadeff, the Chief Executive Officer of the New South Wales Jewish Board of Deputies, and congratulate him on his leadership in achieving this reform. He brought to my attention—and I am sure the attention of other members—the dreadful, violent posters put up around Sydney. I quote from the 14 March 2018 “Miranda Live” article in the Daily Telegraph: Sydney has been hit with a spate of vile anti-semitic and homophobic posters, but there’s almost nothing the authorities can do to prosecute the neo-Nazis responsible due to a quirk in the law. Posters, some with images depicting the Holocaust and calling for people to murder Jews and gay people, have appeared in Sydney, Melbourne and regional Victoria and NSW, and law enforcement believe neo-Nazi group Antipodean Resistance is responsible. Wednesday, 20 June 2018 Legislative Council- PROOF Page 52 I am emotional about this because this is very personal. Quoting Mr Alhadeff, the article states: This is not about insulting people or defaming them—this is about inciting violence, it’s unacceptable that you can stand up in Martin Place and say “we should kill that group of Australians”, he told Miranda Devine on her online radio show. Honourable members would be familiar with the abhorrent posters. This is why these reforms are needed. Until now upon finding those posters the police were unable to act on those threats against the groups listed. The Government is committed to protecting our diverse and vibrant communities for the benefit of all New South Wales residents. Importantly, a new offence of publicly threatening and inciting violence will demonstrate that the Government does not tolerate threats of violence or incitement of violence against people. The bill amends the Crimes Act 1900 to create an offence of threatening or inciting violence on the grounds of race, religion, sexual orientation, gender identity, intersex status or HIV/AIDS status. Today, I would hope that we have moved on, at least from HIV/AIDS vilification. Thankfully medical advances regarding the disease have made it a manageable chronic illness. The 1980s and 1990s were dreadful for people with HIV/AIDS in our community. The new offence will replace the existing serious vilification offences that are contained in the Anti-Discrimination Act. The reform strikes the right balance between community safety and freedom of speech. I quote the Attorney General, Mr Mark Speakman, in the other place. He said: Freedom of speech is a fundamental tenet of liberal democracy. But so too is freedom from fear. I congratulate the Attorney General on introducing this very important bill. I am proud to support it, and I commend it to the House.
The Hon. JOHN GRAHAM (16:55): I am pleased to support the Crimes Amendment (Publicly Threatening and Inciting Violence) Bill 2018. I believe it is an important priority for this Parliament. I note—as previous Labor speakers have—that it reflects the attempts we made in 2016, as well as the evidence of similar attempts in the Notice Paper, to raise these issues and it is a pity that this has taken some time. I welcome the Government’s actions in the bill’s specifics and its general intent. I refer specifically to four changes in the bill that go to the heart of the new provisions, all of which are welcome, and the fact that these are being moved in the Crimes Act rather than in the Anti-Discrimination Act. I welcome the increase in penalties to a maximum of three years, and I welcome that prosecution can only be commenced with the approval of the Director of Public Prosecutions [DPP] rather than the Attorney General. The fourth change I specifically welcome is that police will be able to conduct these investigations directly. They are four specific elements of this legislation that are at the heart of the approach that has been taken. I agree with the previous speakers, including Reverend the Hon. Fred Nile, who have observed that they are happy to support this bill because it is about violence, and not necessarily an imposition on free speech. It is not about hurt feelings. We have to be very careful where we draw those lines. I am very comfortable with where the lines are drawn in this bill, putting violence and the incitement to violence squarely before this Parliament and enabling us to say we are opposed to that where it occurs. I briefly refer to some comments from the 2016 debates, because it was a pity that the then Attorney General, in opposing a similar bill, said this: The Government cannot support this bill without knowing where the people of New South Wales stand on it— The community campaign, which has been referred to already in this debate, and the 31 groups that support it makes it clear where the community stands on this issue. I was disappointed to see that but I welcome the fact that the current Attorney General has taken a different view. The contribution of the member for Epping in that debate was less helpful. I note his comment in the debate on the previous bill where he said: I stand here as an extremist— I will let that speak for itself but I will deal directly with two of his other comments. He went on to state: The Leader of the Opposition seems to be suggesting that if members of the community are not being prosecuted by the Government there is a problem. It is almost has though he is willing people to be prosecuted. That is not the case; it is not that we are seeking prosecutions. We simply believe that peace is best secured through vigilance and by this Parliament strongly indicating its values and the community’s values. The third element of the speech of the member for Epping that I will address is his reliance on the British philosopher John Stuart Mill for his defence, and I was encouraged by that. He provided the following quote from Mill: Truth and the best long-term consequences are most likely to emerge when people are free to say anything short of advocating physical harm to others. That was the philosophy used to oppose this bill or a very similar previous bill. That argument is precisely what we are dealing with now; that is, the prospect of people advocating physical harm to others. That is the exception Wednesday, 20 June 2018 Legislative Council- PROOF Page 53 that John Stuart Mill referred to and it is the exception we should act upon. The quote the member for Epping used in his contribution to that debate is the reason this legislation is unanimously supported. Other speakers have referred to the Keep NSW Safe campaign, and I congratulate the campaigners on their untiring efforts. I also acknowledge Vic Alhadeff, who is in the gallery. It is a remarkable coalition that in part reflects his personal work in assembling it. Why was that campaign important and why is this legislation important? As was indicated by the previous speaker—and I support his comments—we are seeing the rise of online hate communities and of groups such as Reclaim Australia and Antipodean Resistance. I do not think we should single out these groups lightly or give them more publicity. However, it is important at the extreme to be clear about what we dealing with. I refer in particular to Antipodean Resistance. Information provided about the group was based on an Australian Security Intelligence Organisation briefing to Federal Parliament, some of which was then made public. It contained the following advice: Members of these groups are diverse and have differing agendas, including extreme white right-wing and extreme left-wing ideologies. A few small subsets of these groups are willing to use violence to further their own interests. As members have stated, that group has been putting up posters around Sydney and Melbourne, tweeting photos of Nazi symbols and stating, “You must be White to join our organisation—no Blacks, Asians, Jews or mixed abominations.” We must oppose those views. Why was this campaign important and why is this legislation important? It is important now because of the social media age in which we live. It is a culture that prioritises outrage and shock and whatever is new. One of my fears is that even though we are moving into the information age often debates or online discussions happen without reference to history, without facts and without context. It is crucial that we stand for those things; we must be champions of history, the facts and the context. When these events and incitement happens involving our Chinese community, it is against centuries of violence against the Chinese diaspora, including in our part of the world. That includes recent violence in Papua New Guinea in 2009, in Honiara in the Solomon Islands in 2006, in Tonga in 2006 and, of course, in Indonesia and Malaysia in 1998, when as many as 1,500 people may have died. This is the context for Muslim Australians. The member for Lakemba spoke about little kids going to primary school and walking past a “Suicide Bomber” sign on their school fence. We also must not forget the context for our Jewish communities between 1421 in Vienna and Linz, through Florence, Tuscany, Poland, and Lithuania 1494 and 1495, and in Spain in 1492 and Portugal in 1497, when city after European city expelled Jewish people. That is the context for the Jewish community in Australia when these attacks happen and when incitement occurs. Those are facts and that is history, and it is hard to explain on Twitter. It does not fit into the outrage culture or the social media culture with their endless search for the latest shocking development. That is why these laws have always been important. It is also the reason this Parliament must act now to push back as that culture develops. That is precisely why I believe a sense of history and continuing vigilance are important. The campaign to support these changes has been important and it is why this legislation is crucial. I support the bill.
The Hon. ROBERT BORSAK (17:06): I will make a brief contribution to debate on the Crimes Amendment (Publicly Threatening and Inciting Violence) Bill 2018 on behalf of the Shooters, Fishers and Farmers Party. Before I do so, I thank everyone who has spoken or written to me about this important piece of legislation. I pay full credit to the Keep NSW Safe coalition, tirelessly led from the front by Vic Alhadeff, the chief executive officer of the NSW Jewish Board of Deputies. Vic has been championing this cause for several years, not only for his community but also for the different and diverse communities of New South Wales. We thank him and salute his efforts on this issue. We have a duty to keep people safe from public threats or from people who are determined to incite physical violence. Next year will mark 30 years since Premier Nick Greiner took the landmark decision to include section 20D in the New South Wales Anti-Discrimination Act. About 30 cases have been referred to the Director of Public Prosecutions since that provision was introduced. However, the law is so complicated and so convoluted that not a single charge has been laid under that provision, let alone a conviction secured. An upper House parliamentary inquiry under the O’Farrell Government concluded that it was unworkable in practice. This bill seeks to address that anomaly. It makes incitement to violence illegal by introducing a new indictable criminal offence of publicly threatening or inciting violence in the Crimes Act. This legislation is not about hate speech; it is about one thing and one thing only: violence. It is a statement by this Parliament to everyone in New South Wales: No-one has the right to incite violence against others. I am the son of migrant parents and I am a proud Australian. However, I am also proud of the diverse and vibrant society in which I live. That diversity is manifested in many ways, whether it be in the food we eat, the clothes we wear, or the place we Wednesday, 20 June 2018 Legislative Council- PROOF Page 54 worship. At the end of the day, we are all Australians. The legislation before the House has nothing to do with shutting down debate or limiting free speech. Our democracy allows freedom of expression, but no-one has the right to incite violence against others. I commend the bill to the House.
The Hon. NATALIE WARD (17:08): I support the Crimes Amendment (Publicly Threatening and Inciting Violence) Bill 2018 and commend it to the House. I will address one or two specific points, and in particular the concerns raised by my friend the Hon. Adam Searle. I commend the Government for introducing this bill. As the Hon. Adam Searle said, it is better late than never. We are here today to ensure that it is passed. I would like to speak about the consultation undertaken by the Government on this reform because I think it is important to put that in context. The New South Wales Government has undertaken extensive community consultation to ensure that the bill makes amendments that will most appropriately protect the New South Wales community. The Government has been committed to obtaining the views of a large cross-section of the community with a view to developing a common understanding on a way forward that strikes the right balance between preserving freedom of speech and protecting people from violence. The Government has also considered the feedback from consultations of other inquiries. As has been referred to by other members, in 2012 the Government requested that the Legislative Council Standing Committee on Law and Justice inquire into the serious racial vilification offence in the Anti-Discrimination Act. The Standing Committee on Law and Justice released a report on that inquiry on 3 December 2013. The committee came to the view that the effectiveness of the serious vilification offence in the Anti-Discrimination Act had been hindered by a number of procedural impediments that have prevented the practical application of the offence by courts and prosecutors. There were no prosecutions. The impediments will be largely addressed by the bill. However, the committee’s report raised serious and important issues making it necessary for the Government to conduct further consultation not only on the serious racial vilification laws but also on all serious vilification laws in the Anti-Discrimination Act. Further, due to the lapse of time since consultations were undertaken in 2012, it was essential that the Government undertake further targeted consultation in order to achieve broad community consensus before progressing any reform. The Hon. Adam Searle referred to the 2016 position, and 2016 was the time the consultation was undertaken. As other members have mentioned, in November 2016 the former Attorney General, Ms Gabrielle Upton, MP, requested Mr Stepan Kerkyasharian, AO, consult with the community as widely as possible. That consultation included 50 groups representing a diverse range of races and faiths as well as, importantly, the lesbian, gay, bisexual, transgender and intersex community. The report on that consultation process was completed in May 2017 and is now available on the Department of Justice’s website. Over the past year the Government has given careful consideration to the issues raised by various stakeholders captured in the report. This bill is the culmination of a considered and detailed examination of the views expressed by many stakeholders and community groups over the past years. I join my colleagues in acknowledging the tireless work of Mr Vic Alhadeff and the NSW Jewish Board of Deputies in this important area. He personifies a saying my children know very well: Persistence beats resistance. I commend him for this work. I also thank my colleague the Hon. Shayne Mallard for his eloquent articulation of the importance of these reforms. I commend the Attorney General, Mark Speakman, SC, and his team of advisers and staff for their persistence, thoroughness and dedication to this important reform. In the interest of brevity and getting on with this bill, my contribution does not adequately reflect my passion for this reform. This has been done by others adequately, sufficiently and better than by me in the other place and in this place. Nevertheless, I passionately commend this bill to the House.
The Hon. PENNY SHARPE (17:12): I shall speak briefly to what is a very important bill, the Crimes Amendment (Publicly Threatening and Inciting Violence) Bill 2018. I note from the start that this bill is long overdue but nevertheless it is extremely welcome. Tonight we say to the people of New South Wales that we are setting the standard for what we as a community through our Parliament are prepared to accept. I refer to what has become a famous quote from former Chief of Army David Morrison: The standard you walk past is the standard you accept. I am pleased that David Morrison has told people that he pinched the quote from our Governor, His Excellency the Hon. David Hurley, for his famous speech when he talked about the Australian Defence Force. That is how I see the bill before the House tonight. When passing the bill tonight, we need to think about the groups who have been involved in getting us here, because it has been a very long and important journey. I recognise the Keep NSW Safe coalition, the religious organisations, the multicultural organisations, our legal groups, our human rights organisations and our lesbian, gay, bisexual, transgender, intersex or queer [LGBTIQ] organisations who have been talking about the need for this reform for a long time. What has been clear is that the laws, as well intended as they were, just have not worked. It is not possible to bring a prosecution in relation to some of the Wednesday, 20 June 2018 Legislative Council- PROOF Page 55 activities and things that communities and individuals have experienced over this time and we need to fix the law. I am very pleased that we are going to do that tonight. When I think about what we are legislating tonight I am pleased to see that this Parliament is saying that it is not okay to racially vilify someone or to incite violence against someone who is gay, lesbian or trans and, for the first time, acknowledging the difficulties that our intersex friends also experience. We would like to think that we are well past the HIV-AIDS vilification. Those who were around in the 1980s and 1990s will remember that that was very real and very scary. It not only had a real impact on our ability to deal with the disease, which we fundamentally did very well, but caused a great deal of grief at the time. Tonight as we pass this bill and I think collectively about the groups, I think about the Jewish community in New South Wales who understand where serious vilification leads to. They have the lived experience of what that means. We do not heed the warnings that they give us if we do not take these matters seriously. I again acknowledge Vic Alhadeff for his tireless work in this area. I also reflect on my friends and family within the LGBTIQ community who have been at the pointy end of serious vilification—not just threats but incitement to violence against them, incitement to rape and incitement to harm. They have experienced that. The impact on those communities and the disproportionate experience of violence within those communities show that this is not fake. It is lived, and I am very pleased we are doing something about it tonight. I commend this bill to the House. Tonight we are setting an important standard that says we are not prepared to leave anyone in our community behind. We are not prepared to walk past when others seek to do individuals and groups harm.
Mr DAVID SHOEBRIDGE (17:17): On behalf of The Greens, I indicate that we support the Crimes Amendment (Publicly Threatening and Inciting Violence) Bill 2018. The bill inserts a new section 93Z into the Crimes Act, which creates an offence of inciting violence against a person or group of people on the grounds of race, religious affiliation, sexual orientation, gender identity, intersex status, or HIV or AIDS status. It is not a defence to the proposed offence if the person’s assumptions or beliefs about the group of people was correct or incorrect when they committed the offence. That is important because often bigots do not know the nature of the person they seek to press their bigotry upon. Often they get the race or even the religion of the person they are seeking to vilify wrong. That should not be a defence to one of these prosecutions. The offence applies to public acts which include all forms of communication to the public, any conduct observable by the public, or public distribution of material. Importantly, the act can be public even if it occurs on private land, such as a strata scheme or the like. The offences of serious vilification on the grounds of race, transgender status, sexuality, and HIV-AIDS status are proposed to be removed from the Anti-Discrimination Act as a result of these inclusions in the Crimes Act. The Greens support the bill and the strengthening of laws against vilification and violence, particularly against vulnerable people and minority groups. The bill indicates the seriousness of offending by identifying it as more than discrimination and making it a criminal offence. The bill removes the current requirement that the Attorney General grant consent for prosecutions and the necessarily political decision-making that that would potentially entail. Instead, the decision to prosecute will be made by the Director of Public Prosecutions, who The Greens believe is far better placed to assess such matters. That is no doubt an issue we will return to in debating another bill later tonight. The increased penalties also reflect the understanding of the seriousness of the offending, with a maximum penalty of 100 penalty units or three years imprisonment for an individual or 500 penalty units in the case of a corporation. Personally, I would deregister a corporation if it engaged in such conduct. Perhaps we should consider an amendment to the bill to include such a provision. In any event, the proposed penalty is 500 penalty units. The offence is to be dealt with summarily, unless the prosecutor or person charged elects otherwise. Stakeholders, including the NSW Bar Association and the Law Society, have indicated their support for the proposal. In his second reading speech the Attorney General identified that,to date, there have been no prosecutions brought under the offence provisions in the Anti-Discrimination Act. While that is accurate, I also note the observations of former Attorney General John Dowd, who introduced that Act. His observation was that simply because there has not been a prosecution, it does not therefore necessarily hold that the existing laws have not served an important role. The laws that were instituted more than three decades ago have set a bar for public activity and a guide both for those who might seek to target others and for those who seek to have protection. It is important that in making these amendments we do not negate the important role that those changes—that were made under a former Liberal Attorney General—have played in setting community standards. I will make some further observations about why we are debating this bill in 2018 when there was a unanimous committee report in 2013 that recommended these changes. Why has it taken us five years to get here? I think it has taken five years because there have been some unsavoury divisions in the Government on this issue, pulling and pushing in different directions. Unfortunately, that has delayed Parliament from arriving at a position where we can make these changes. It should not have taken five years. All parties that participated in the inquiry Wednesday, 20 June 2018 Legislative Council- PROOF Page 56 into law and justice in 2013 unanimously recommended that we make these changes. This could have happened, largely without political difficulty, five years ago. That is a failure of New South Wales politics and of the Parliament. I have also heard it suggested that the police have been unable to prosecute for the inciting violence offences. There are examples of individuals and organisations clearly inciting violence, one of which was read onto the record by the Hon. Shayne Mallard. That deeply offensive behaviour was clearly an incitement to violence, and it is clearly already criminal conduct. There is no question that, both under the common law and statute law, inciting violence is already a criminal offence. The fact that police are not acting on these offences is not only a failure of Parliament to legislate properly for them; it is a failure of the police to take the appropriate steps, gather the evidence and prosecute for inciting violence. As I said, not only is it a common law offence, but it is also an offence under the Crimes Prevention Act, which was passed by this Parliament in 1916. That Act clearly states that there is a statutory offence of inciting violence or inciting somebody else to undertake a criminal act. If the police have been saying in response to these hateful sheets that they have no crime to prosecute, they are wrong. In some ways, this identifies that still to this day in 2018 minority groups have trouble being heard by the NSW Police Force when their rights are infringed. Things have improved with the NSW Police Force. However, the fact that the police have not acted on those things despite there being a criminal offence of inciting violence is not just a failure of the laws of this Parliament, it is also a failure of the police in 2018 to look properly at their powers, at the Crimes Act and at the common law, and protect minority interests. We can pass as many laws as we like but if the police are not willing to act it will not deliver fairness.
The Hon. Dr PETER PHELPS (17:24): This is one of those horrendous situations where I find myself in agreement with Mr David Shoebridge—and that scares me to some extent! Mr David Shoebridge is absolutely right. Speaking as a person who has come to this place as a strong advocate for freedom of speech, there is nothing new or novel about the idea that we do not have an absolute right to free speech. Anyone who argues that case is either an anarchist or madman. We do have the right to a broad range of speech. However, the right to advocate the use of violence against another person is not and never has been a part of that right, either under statutory law or common law. Mr David Shoebridge is correct that the Crimes Prevention Act 1916 was introduced by Premier William Holman. At that stage, he was a Labor Premier and soon to be a Nationalist Premier. Section 2 of the Act is quite clear: If any person incites to, urges, aids, or encourages the commission of crimes or the carrying on of any operations for or by the commission of crimes that person shall be guilty of an offence against this Act. The Act was originally introduced to try to clamp down on the activities of the Industrial Workers of the World and other militant left-wing organisations that were actively sabotaging the war effort, but the application of that broad terminology is still applicable to this day. Those people in my party who seem to think that this is some new and mysterious invention have conveniently forgotten the last 102 years of legislative enactment in relation to incitement. One could argue that we could have simply increased the penalties relating to the Crimes Prevention Act 1916 rather than introduce new provisions into the Crimes Act. However, that would have faced more opposition, certainly from the legal profession, most of whom realise why the Act was introduced in the first place and would not like to see it extended to more contemporary issues. This idea of a limited right to free speech is not new. It is also not a novel concept. The Crimes Act already includes specific provisions in relation to incitement to murder and incitement to sexual assault.
Mr David Shoebridge: And affray.
The Hon. Dr PETER PHELPS: And affray. Those three things already exist, so a broader incitement power against violence is a perfectly reasonable and logical step forward. However, this bill eliminates section 20D in its entirety and leaves 20C of the Anti-Discrimination Act still in place. That section still allows for judgement by the Anti-Discrimination Board in relation to hatred towards, serious contempt for and severe ridicule of persons on the ground of race or a series of other groups. Again, I do not think that is necessarily a bad thing. It has to be serious contempt or severe ridicule. In that respect, tonight we will allow for a degree of speech in this State which is broader than that allowed under section 18C of the Federal Racial Discrimination Act, because there is no adjectival conditioning of the actus reus of the criminality within the Act as there is in this bill. Tonight we unanimously support a broadening of free speech far beyond what Tony Abbott could ever deliver as Prime Minister. Criminalising hatred is perfectly acceptable. As a free speech advocate, I see no problem with this bill. No-one has the right to advocate for the murder, rape, bashing or assault of anyone. That act should be prosecuted in court to the extent of the law—not as discrimination, but as a crime. Wednesday, 20 June 2018 Legislative Council- PROOF Page 57 I take Mr David Shoebridge to task for his concern about the five-year delay. The simple fact is that there were people who wanted the holus-bolus criminalisation of hurt feelings. There were people who advocated for that and our side of politics vigorously opposed it; we were not going to criminalise hurt feelings. The outcome that we have before us today is a testament to the courage, foresight and brilliance of the Attorney General. I put on record today my full respect for what he has done. All members of this place should wholeheartedly support the bill.
The Hon. DANIEL MOOKHEY (17:30): As members can see, I struggle to contain my enthusiasm to participate in debate on the Crimes Amendment (Publicly Threatening and Inciting Violence) Bill 2018. I am indebted to my Labor colleagues who have made contributions to the debate for the calibre of their insight. I support their views on the bill. In March, I made a contribution during the adjournment debate about the need for criminal incitement laws on the basis of race. During my contribution, I made reference to an appalling series of incidents in the eastern suburbs of Sydney. The Jewish community was subjected to posters being stuck to their streetlights that encouraged people to support legalising the execution of Jews and invited people to join their local Nazi group. That took place in this State in March. It was appalling and it was rightly denounced by all sides of politics—long may that continue. Sadly, since then other incidents of incitement against other groups on the basis of race have occurred— most notably and seriously in Ryde, where the Chinese community has been subjected to a campaign of vilification on the basis of race. Of course, this has sadly been a backdrop to the lives of many people of colour, particularly when they engage in community group meetings, religious practices or the expression of their religious beliefs. Often such campaigns take place because some groups in the community want to engage in a pattern of disruption and a campaign of dehumanisation. I would like to consider these incidents as random acts by people who are suffering from forms of mental illness, but that is not the case. As we have seen, there are organised campaigns world wide by far-right groups that go by various titles, most notably the “alt-right”. They engage in campaigns of incitement with the deliberate purpose of singling out people, inciting hatred, and separating people from the norm and thus licensing further discrimination. It is taking place in Hungary, where discrimination is being directed at the Jewish community, and it is taking place in Poland, where discrimination is again being directed at the Jewish community. We ought not view what took place in the eastern suburbs of Sydney as an isolated incident that is peculiar to the State or to that part of the community. Sadly, it is reflective of a worldwide phenomenon of people seeking to capitalise on divisions. Whenever this incitement takes place, parliamentarians, community leaders and the community are confronted with a choice: to ignore the conduct, hoping that it will go away; to appease the conduct by altering some of our policies to address the concerns of those who engage in hate-based campaigns; or to confront the perpetrators. The Labor Party has always had an attitude that prefers confrontation when it comes to fascists and fascist organisations. Labor members have unambiguously supported laws against criminal incitement on the basis of race or religion. We call for laws such as this. The Leader of the Labor Party in the other place has campaigned consistently for laws such as this. The establishment of an offence such as the one covered by the bill is well and truly overdue, and ought to have been in our criminal laws sooner. Arguably, it ought to have been included in our anti-discrimination laws in a way that made it seriously capable of prosecution. The other aspect of the bill that is slightly different from what was contemplated with the Anti-Discrimination Act is the extension of protections to people of HIV/AIDS status, people of various sexual orientations, people of various gender identities and people who identify as intersex. These protections are equally needed. Within recent memory, the New South Wales gay and lesbian community was subjected to hate-based campaigns—particularly during the 1980s when HIV was not well understood. I spent the summer reading a book about how various communities in the United States organised themselves to fight back and demand proper health treatment in respect of HIV and AIDS. As recently as three decades ago, respectable people in the community openly advocated that the right way to treat people of HIV or AIDS status was to separate them for the wider community. The view presented was that it was okay for people to engage in forms of violence in order to achieve that, whether or not it was sanctioned by law. Every time there is anxiety about a health epidemic or disease, the debate is loaded with a view that the people who suffer from the disease brought it upon themselves and therefore violence is justified. It is absolutely necessary for the Parliament to say that it is not acceptable. In that sense, the extension of such protections to HIV and AIDS sufferers, as well as to the gay and lesbian community, is well and truly necessary and overdue. It is another step forward in liberalising Australian laws to ensure that gay and lesbian people have adequate protection. I conclude by referring to how the bill came about. Other members have mentioned some of the difficulties experienced in Parliament in the past five years since the report, which called for reform, was tabled by the committee. I make no such reference to that. I simply acknowledge the fact that a powerful community coalition was constructed and adequately led by the Jewish Board of Deputies. The group brought together people Wednesday, 20 June 2018 Legislative Council- PROOF Page 58 of various backgrounds, religions, faiths and ethic identities into a powerful coalition to call for such reforms. I have no doubt that if it were not for the political pressure they brought to bear on Parliament and on all political parties, we would not have this bill—and we certainly would not have had this bill this month. I congratulate that group on the campaign they waged. I was very happy to partner with them. They deserve a lot of the credit for the reason Parliament is acting now. I pay tribute to their leadership.
Dr MEHREEN FARUQI (17:36): I support the Crimes Amendment (Publicly Threatening and Inciting Violence) Bill 2018, which strengthens laws against vilification and violence. The bill inserts in the New South Wales Crimes Act a new criminal offence of publicly threatening or inciting violence. Proposed new section 93Z creates an offence of inciting violence against a person or group of people on the grounds of race, religious affiliation, sexual orientation, gender identity, intersex status or HIV/AIDS status. My colleagues Mr David Shoebridge in this place and the member for Newtown, Jenny Leong, in the other place have contributed to debate on the bill and I support their comments. I will focus particularly on the offence of inciting violence against a person or group of people on the grounds of race and religious affiliation. Notably, this bill removes section 20D from the Anti-Discrimination Act 1977, which is presently the only part of State legislation that deals with the offence of serious racial vilification. Section 20D has been criticised for being ineffective. As many members know, I migrated to Australia in the early 1990s and lived in regional New South Wales for some years before returning to Sydney. My experience of Australia in those days was a harmonious and welcoming one. But things have changed since then. The Cronulla riots in 2005 were a reminder of the ugliness of racism. I know that many of us were shocked, outraged and distressed. Text messages sent before the riots said, “Just a reminder that Cronulla’s 1st wog bashing day is still on this Sunday. Chinks bashing day is on the 27th and the Jews are booked in for early January”. We know that this particular action, and other actions leading up to the riots, went unpunished under section 20D of the Anti-Discrimination Act. More than 13 years on from the riots, we are still grappling with issues of racial vilification and incitement to violence. I support the strengthening of laws provided by this bill. The bill not only makes offences for serious vilification on the grounds of race, religious affiliation, sexual orientation, gender identity, intersex status or HIV/AIDS status, but also sends a strong message that inciting violence on these grounds will not be tolerated against anyone—and absolutely not against some of the most marginalised groups in society, who are often the targets. We know that lesbian, gay, bisexual, transgender, intersex, and questioning [LGBTIQ] people are already at a far greater risk of a range of mental health problems and at a high risk of self-harm due to the daily discrimination, stigma and prejudice they face. Everyone deserves to live a life free from discrimination, vilification, violence and harassment. This bill brings us closer to removing these injustices, and we must keep working hard and diligently to create a society that is more just and equal. Tonight, as we debate the bill, we must acknowledge the destructive role that racism plays in society, in politics and in our public and private lives, and in getting societies to a point where racial vilification and violence become a reality. Recently, in some of the highest and most visible public offices of this country, there has been a push to weaken our Commonwealth laws that deal with racial discrimination, with a push from sections of the Federal Government to amend section 18C of the Racial Discrimination Act. This was a direct attack on any progress that we have made towards racial equality in this country. Those who wish to weaken our laws actually wish to make it harder to fight back against discrimination and vilification. To pretend that racism does not exist in Australia is to be oblivious to the daily experiences of millions of Australians.
The Hon. Dr Peter Phelps: Or in any country.
Dr MEHREEN FARUQI: Or in any country. Last year a survey commissioned by SBS through Western Sydney University revealed some shocking statistics about racial discrimination. In the sizable sample of 6,000 people, 31.6 per cent of respondents said that they had “negative” feelings towards Muslim Australians— that is nearly one-third of Australians.
The DEPUTY PRESIDENT (The Hon. Shayne Mallard): Order! The Hon. Dr Peter Phelps will come to order. He has had an opportunity to contribute to the debate.
Dr MEHREEN FARUQI: The survey also tells us that those who belong to a “language other than English” background reported the highest rates of workplace racism, at 54.1 per cent, and the highest rates of racism within various educational institutions, at 55.8 per cent. I have an accent, which I am proud of. One look at me will tell anyone that I come from a language background other than English. These are shocking statistics and they are unacceptable. Recently there have been suggestions about changing the title of the Race Discrimination Commissioner and watering it down to “Community Relations Commissioner”, which has been described by the Federal Attorney General as “conciliatory”. How patronising to those who experience racial Wednesday, 20 June 2018 Legislative Council- PROOF Page 59 discrimination in their daily lives—on the street, on public transport, at their workplace, in university and in school. Sadly, Muslim women have become the latest targets of these attacks and this abuse, and they feel fearful and alienated. Changing the title will serve no purpose other than to appease a far-right, bigoted minority. Recent research shows that anti-discrimination organisations across Europe have recorded a significant rise in race discrimination, hate speech and hate crime related to race, which has flowed from negative media coverage and political speeches. That is why it is important that those with the visibility of high public office— and the media—act responsibly and not further marginalise people of colour. We live in a time where dangerous tides of nationalism and extremism are sweeping across nations around the world. We must do all we can to signal to people that government—whether local, State or Federal—is here to stand up and protect the marginalised, and not to pretend that racism simply does not exist. We know that laws are not meant only for punishment; they also set standards for what is acceptable behaviour. This bill will create a new standard, with a strong statement that inciting hatred, physical harm and violence because of someone’s skin colour, race, religion, sexual orientation or gender identity is plain wrong and will not be tolerated. At the same time, however, we know that implementation of these laws is fraught, at best. Laws need to be coupled with a much stronger outreach into communities to encourage people to come forward and report incidents of incitement to violence and racial discrimination. Law enforcement and equality bodies need the right tools and training to deal effectively with these reports and support people who report them and those who have been subjected to vilification. It is also time for politicians to stop their divisive dog whistling to score political points and to stop scapegoating refugees and migrants. That only serves to create divisions and harm people who may already be marginalised.
The DEPUTY PRESIDENT (The Hon. Shayne Mallard): Order! I remind the Hon. Dr Peter Phelps that he is on one call to order. If he continues to interject, I will call him to order again. This is his final warning.
Dr MEHREEN FARUQI: We should be proud of our diverse and multicultural society, and extend equal respect, dignity and protection to innocent people. Finally, I congratulate the community organisations that have campaigned hard to make these positive changes a reality. I commend the bill to the House. The
Hon. ERNEST WONG (17:44): I rise to speak in debate on the Crimes Amendment (Publicly Threatening and Inciting Violence) Bill 2018. The Labor Party does not oppose this bill—why should it? The bill is a reincarnation of the Crimes and Anti-Discrimination Legislation Amendment (Vilification) Bill 2016 introduced by the shadow Attorney General, Paul Lynch. It was this side of politics that initiated the process to legislate to fight against racial, gender and other vilification for the people of New South Wales after the inaction of the Liberal-Nationals Government. A cross-party Legislative Council committee unanimously recommended amendments to the legislation in December 2013. The Government took no action. In 2016 when the shadow Attorney General introduced a private member’s bill into the Legislative Assembly to strengthen section 20D, it was the Labor Party that had listened to the desire of the community to adopt the report’s recommendations promptly. The Government voted that bill down. Labor subsequently gave notice of the intention to introduce the bill again—is on the Business Paper in the name of the Leader of the Opposition. The laws set out in section 20D of the Anti-Discrimination Act have not led to a single successful prosecution in 30 years, despite examples of incitement to racial violence. I tried to move my formal business notice of motion on that subject in this House but it was objected to. In 2015 the Director of Public Prosecutions was unable to charge Ismail al-Wahwah, the leader of the fringe Islamic organisation Hizb ut-Tahrir, after he described Jews as the “hidden evil” and called for a “jihad against the Jews” and the “destruction of the Jewish race”. In 2015 former Attorney General Gabrielle Upton conceded that the laws were not working and promised to introduce a bill to strengthen and streamline section 20D. But no bill was ever introduced. In November 2016 then Attorney General Upton asked Dr Stepan Kerkyasharian to undertake further community consultation on the issue. It was expected that legislation would be introduced as a result in mid-2017. It was not. The New South Wales Government had since quietly dropped plans to reform the State’s racial vilification laws that are widely seen as deficient, prompting anger from Jewish leaders, ethnic groups and the Labor Opposition. In 2015 an alliance of 31 ethnic community groups and prominent individuals—a combined force ranging from Armenians, Chinese, Greeks, Hindus and Copts to Indians, Assyrians, Muslims, Jews, Christians and Vietnamese, to mention a few, and including Indigenous leader Warren Mundine—was formed to lobby for change to the “weak and ineffective” laws. A spokesperson for the Keep NSW Safe campaign, Vic Alhadeff—who is in the public gallery—said: It is unconscionable that one can incite violence against fellow Australians and the law is powerless to respond. … Wednesday, 20 June 2018 Legislative Council- PROOF Page 60 The only people in NSW who don’t want to make the promotion and advocacy of violence on the basis of race illegal appear to be in government. The government can talk about social cohesion but when the time came for real and meaningful action, it has fallen short, and all the citizens of NSW will be the worse off for it. Now we have this bill. We are, in effect, endorsing a Labor bill. The bill aims to stop serious racial vilification— 20D of Anti-Discrimination Act—by inserting new section 93Z into the Crimes Act 1900 to prohibit a person from intentionally or recklessly, by a public act, threatening or inciting violence on the basis of: (a) the race of the other person or one or more of the members of the group, (b) that the other person has, or one or more of the members of the group have, a specific religious belief or affiliation, (c) the sexual orientation of the other person or one or more of the members of the group, (d) the gender identity of the other person or one or more of the members of the group, (e) that the other person is, or one or more of the members of the group are, of intersex status, (f) that the other person has, or one or more of the members of the group have, HIV or AIDS. Also, the words “homosexual” and “transgendered” are replaced by “sexual orientation” and “gender identity”. It is an indictable offence but can be dealt with summarily. The penalty is increased to 100 penalty units or imprisonment for three years or, in the case of a corporation, 500 penalty units. In addition, prosecution can only be commenced with the approval of the Director of Public Prosecutions rather than with the approval of the Attorney General. The police will be able to conduct investigations, removing the need for the President of the Anti-Discrimination Board of NSW to make a referral for prosecution. Recklessness is included as being sufficient to establish criminal intent. Incitement is retained as the basis of the offence. Labor believes a better way to protect the vulnerable is to lower the bar for prosecution from “incite” to “promote”. Around the world, racism—in particular towards migrant, immigrant, indigenous, minority and marginalised communities—and discrimination against lesbian, gay, bisexual and transgender people and those with HIV has had devastating consequences for their full enjoyment of equality and fundamental human rights in public and private spaces. According to the Challenging Racism Project run by the University of Western Sydney in 2014, about 20 per cent of Australians said that they had been on the receiving end of racist hate talk. About 11 per cent had been excluded from the workplace or social settings because of their race, and about 5 per cent said that they had experienced physical assault because of their race. There are indications that racism is on the rise. When it comes to children and young people, the problem of racism may be even more acute. The students, many of whom were from migrant or refugee backgrounds, also reported that more than two-thirds of those experiences of racism occurred at school. Discrimination, whether due to race, gender or other factors, has damaging effects wherever it occurs. Prejudice and discrimination are barriers to fair treatment and equal opportunity. They can curtail a person’s participation as a free citizen and impair social cohesion. It is evidenced that discrimination is inevitably linked to a range of adverse health conditions, including poor mental health and wellbeing. This bill is long overdue but, as many members have said, it is better late than never. As a migrant who has experienced discrimination in my 39 years in Australia, I wholeheartedly support the bill and thank members who support it. The Hon.
DON HARWIN (Minister for Resources, Minister for Energy and Utilities, and Minister for the Arts) (17:52): In reply: I acknowledge the contribution of the Hon. Shayne Mallard, who is in the chair, and particularly his focus on where these laws come from and who is responsible for them. It is important to note—particularly in light of some of the remarks made by the Hon. Ernest Wong—that this legislation has its beginnings in the racial vilification legislation enacted by the Greiner Government. The Greiner Government was the first mover in this area. As was often the case with the Greiner Government being the first mover, its legislation was not always perfect and other jurisdictions did it better. But, frankly, despite the test of time, the legislation introduced by the Greiner Government has been very good indeed. Moreover, given the excellent comments by the Hon. Daniel Mookhey about the terrible plight of people with HIV and the discrimination they suffer, it is worth remembering also that a Coalition government—I think under Premier Fahey—moved to make vilification of someone on the basis of their HIV status illegal. Having succeeded the Hon. Ted Pickering as Leader of the Government and Leader of the Liberal Party in this Chamber, I remind the House that it was his vote that got homosexual vilification legislation through. As members have remarked in the debate, over the years some problems have been identified with the existing legislation. Indeed, in 2012-2013 a committee of this House examined the racial vilification legislation. I particularly mention the Keep NSW Safe coalition, which came together to urge the New South Wales Parliament to enact legislation that would make it illegal to incite violence against others based on race, colour, descent or national, ethnic or ethno-religious origin. That coalition’s scope is, in fact, narrower than the bill before the Chamber. Nevertheless, I pay my respects to the coalition and, in particular, to the contribution made by Wednesday, 20 June 2018 Legislative Council- PROOF Page 61 Vic Alhadeff as its spokesman. His efforts were tireless, and during the later stages of the campaign he was certainly well aware that the problem was even wider than the coalition’s particular brief. His personal advocacy ought to be noted. I had not intended to go through the differences between the bill introduced by the Opposition in 2016 and the bill before the House today. But given the remarks made by a number of members and their attempt to claim that this is just the Opposition’s bill, it is worth putting the differences on the record. In fact, there are key differences between this and the previous bill. This bill creates a new indictable offence; the Opposition bill proposed a summary offence. Creating an indictable offence reflects the seriousness of the offence and ensures that there is no time limit to commencing prosecutions. The time limit was a key difficulty with the prosecution of the serious vilification offence in section 20D of the Anti-Discrimination Act, as identified by the Legislative Council Standing Committee on Law and Justice in its inquiry into racial vilification law in New South Wales. The Opposition bill proposed only to extend the time limit for prosecution from six months to 12 months. The Government bill sets a higher maximum penalty to reflect community standards and the objective seriousness of the offence. The maximum penalty in the bill is 100 penalty units or three years imprisonment or both for an individual, and 500 penalty units for a corporation. The Opposition bill proposed a penalty of six months imprisonment and 50 penalty units for an individual, and 100 penalty units for a corporation, which effectively retained the maximum across the existing serious vilification offences. The Government is taking a strong stand against threats and incitement to violence. The Government bill introduces a criminal offence that will clarify that New South Wales police will take the lead in investigations, avoiding the procedural issues identified by the Legislative Council inquiry. The Opposition bill proposed that the President of the Anti-Discrimination Board of NSW consider referring a complaint under the Opposition’s proposed offence to the police commissioner. In the Government bill, approval is required from the Director of Public Prosecutions to commence a prosecution and that provides a safeguard. The Opposition bill did not have that safeguard. Critically, the Government bill goes further than the Opposition bill by expanding the protected grounds to include religious belief or affiliation and sexual orientation. That is wider than just homosexuality, which was what was in the Opposition bill. It proposes gender identity wider than transgender status, which was in the Opposition bill. It also includes intersex status, which was not in the Opposition bill. The Opposition bill only retained the existing grounds in the Act. In every respect this is a different and better bill than the Opposition bill. In my view, it was worth waiting for this legislation. It was also worth the wait because, as members are well aware, this issue is deeply personal, as was evident in many members’ contributions to this debate. This legislation is certainly personal for me as well. I have had a direct personal experience of what an incitement to violence based on the grounds in this legislation can mean, and therefore I appreciate the very careful work the Attorney General has done to bring this good bill to this Chamber. I agree with the remarks of the Hon. Dr Peter Phelps in that respect. This is a very good bill, and the fact that it will pass through both Houses with the unanimous support of every member of both Houses is a wonderful outcome. It is testament to our great Attorney General. I have known the Attorney General since I was 18 years old, and I have worked with him since then. I was proud to support the Attorney General becoming the member for Cronulla because I always knew that he would be an outstanding Attorney General. This bill demonstrates why I had that belief. I commend the bill to the House.
The DEPUTY PRESIDENT (The Hon. Shayne Mallard): The question is that this bill be now read a second time.
Motion agreed to.
The Hon. DON HARWIN: I move: That this bill be now read a third time. Motion agreed to.