The NSW Vilification Act
by Dr Mark Cooray (1997)

A Comment on Vilification in the Anti-Discrimination Act and the proposed amendments by the NSW Government and Clover Moore

Introduction
Principles relevant to regulation of expression of opinion
Comments on the racial vilification provisions prior to the time when the law was enacted
Will the NSW Parliament make reading the Bible an offence
Racial vilification bill: the real agenda
Intimidation and Control
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1 Introduction
The NSW Anti-Discrimination Act was amended some years ago by the addition of two offences entitled "Racial Vilification" and "Serious Racial Vilification" Clover Moore MP introduced a bill into the NSW Parliament which proposed the addition of offences of Homosexual Vilification and Serious Homosexual Vilification. This Bill was voted on and defeated. Subsequently, the present NSW Government introduced the Bill dealing with Homosexual Vilification and Serious Homosexual Vilification, along with other categories of vilification. This Bill was not proceeded with by the government, consequent to pressure exerted by Fred and Elaine Nile and other interest groups. Where upon the Clover Moore bill has once again been brought before the NSW Parliament. It is presently before Parliament.

This short article focuses on the freedom of expression, the proposed homosexual vilification and serious homosexual vilification offences in the context of the Anti-Discrimination Act and the provisions governing Racial Vilification and Serious Racial Vilification which are enshrined within that Act.

The writer's main argument is that the so called "vilification" is not about vilification but is about stifling comment and criticism. The existing vilification legislation and the proposed vilification legislation are not in the public interest and will have many counterproductive effects.

The Parliament of New South Wales has had legislation presented to it by the N S W Government and by Clover Moore M.P. which if enacted will have the effect of making it an offence to read a Bible in Church or any where else if there is a person present who is offended by the passage read and takes the matter up before the Anti-Discrimination Board.

This is not an exaggeration for reasons provided below.

2 Principles relevant to regulation of expression of opinion
There are legal restrictions developed by the common law on freedom of speech. If these are analysed it will be found that the bases for the restrictions are:

  1. defamation, where damages are awarded on the basis of demonstrable economic loss;
  2. protection of institutions (contempt of Parliament and the contempt of the Judiciary);
  3. blasphemy (support of the religion of the majority);
  4. protection of the state (offences such as sedition);
  5. verbal threats of violence or incitement to violence.

Where extensions are made to these restrictions on freedom of speech, they must be justified on the grounds of reason and principle. There are arguments for removing some of the above restrictions. The extension of those long established restrictions cannot be easily justified.

An important underlying basis of the common law was that mere hurt to feelings is not actionable. This is in line with the rationale for freedom of speech. But incitement to violence constitutes a crime.

It is fundamental to a democratic society that persons who incite others to violence must be treated alike by law whether their actions are based on racial hatred, political dissaffection, personal dislike, revenge or any other cause. Persons whose actions fall short of an intention to incite violence should be guilty of no legal offence.

A government which adopts different criteria for people of a race, for homosexuals and other categories is a discriminatory act. Any act which singles out racial hatred or particular exceptional catgegories will be racist and may be classified as discriminatory. Such legislation will generate additional hatred and violence, be counter productive and ultimately operate against the interests of minority groups. Carefully examined such legislation is an insult to minority races, treats them as less than equal and is a patronising exercise.

Freedom of expression is a basic value in a democracy. Freedom of expression involves the toleration of a great deal of nonsense and bad taste. Freedom of expression demands the rational consideration of all views, including, for example, the advocacy of restrictions on immigration. Persons harbouring any type of hatred may legitimately be condemned in public debate through the use of rational argument.

The law should impartially seek to regulate criminal conduct including violence and incitement to violence to persons and property. Persons who break the law are violent or incite others to violence (including damage to property or defacing property) should be treated alike by law whether their actions are based on racial hatred, political disaffection, personal dislike, revenge or any other cause. To do otherwise is to adopt discriminatory criteria. Too often modern governments and the media have condoned damage to property and personal injury by left wing demonstrators and activists. A commitment to the stricter enforcement of law in a uniform way is necessary.

The only justification for the application of the law in the context of racism or homosexuality or any special category is in respect of persons who use, advocate the use of or incite violence or infringe the law of defamation. If the existing laws are inadequate a general law applying to incitement to violence should be enacted. The law should be strengthened based on uniform principles in relation to the generation of hatred, whether based on race or homosexuality on any other cause. Any other approach is discriminatory.

When the views of a large section of the community are stifled, the consequence is that feelings grow and manifest themselves in more undesirable and violent ways. Freedom of speech, apart from its intrinsic value as a fundamental human right, is an important safety valve. Its suppression by law and by abuse and intimidation is potentially dangerous. If people are not allowed to let off steam by words, they will do so in many other undesirable and underhand ways. Vilification legislation will lead to a backlash. It is not in the long term interests of minority race groups.

This is the answer to Ted Pickering's comments reported in the media that the homosexual vilification amendments are intended to prevent violence against homosexuals. Is he correctly reported as stating that the proposed legislation would prevent murder? Suppression of speech (which does not contain a deliberate incitement to violence) is more likely to lead to violence. The law already prohibits intentional incitement to violence.

Hatred is all too common (unfortunately too common) in society. The law cannot deal with hatred per se. The law should focus on conduct.

The vilification offences (existing and proposed) are objectionable because they deal with hatred per se, unrelated to financial loss, or physical harm or protection to an institution. In addition, some types of hatred are singled out and others are ignored. Harm to feelings is caused by words involving racial hatred. Similar hurt to feelings is caused by words giving vent to other forms of hatred. There is no logic in singling out hurt caused by words involving racial hatred and homosexuality and ignoring words caused by political hatred or religious hatred.

The vilification offences (existing and proposed) constitute discrimination. They single out categories and discriminate. It is therefore objectionable. The justification that it is a beneficial law is not by itself a justification. In any event it is highly contentious as to whether it is beneficial law. It is my view that the law will create more problems than it solves.

Vilification offences (existing and proposed) raise other worrying issues:

There is a legitimate concern that the Anti-Discrimination Board will not act objectively, given that it is staffed by persons with "politically correct" anti-discrimination perspectives. The Anti-Discrimination Board is the bureaucracy which handles complaints in the first place. The composition of the ADB is a major reason for concern about the working of the proposed Vilification provisions of the Anti Discrimination Act.

These principles are infringed by the vilification provisions of the Racial Discrimination Act, the homosexual vilification provisions in the NSW Government amending Bill and the Clover Moore Bill about Homosexual vilification.

The word "vilification" is used but the Anti Discrimination Act and the proposed homosexual vilification Bills are about stifling comment and criticism, not vilification. The definition provisions of the Act do not mention the word "vilification". The drafters of the Act and a Parliament which passes it under the title "vilification" are guilty of deception.

There are serious problems with the proposed amendments also with the analogous provisions in the Anti Discrimination Act.

The definition of "public act" is the operative provision. Section 49ZT(1) sub section (C) is as follows:

it is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group"

The words of that section which propose that any person who by a public act incites: ..."hatred towards, serious contempt for or severe ridicule of a person, or group of persons on the ground of homosexuality" ... require careful analysis.

What this in effect means is that inciting contempt or inciting ridicule is sufficient to make a person liable under the Act. Thus it is not the intention of a person's words or actions that are relevant. It is the effect of words or actions. This is clear by the use of the language of the section. A person who reads Biblical texts would be guilty of an offence.

Therefore a person making a very true and balanced statement (without hatred — and even with love) expressing a view critical of homosexuality would fall foul of the section.

True statements about the spread of the HIV virus would attract the application of the section.

Such a provision is contrary to all basic notions of free speech and expression.

What is disturbing about whether this can be done is his use of the words "may incite hatred". If any statement which "may" incite hatred against a particular group is the measure of vilification little can be said about homosexuals without fear of prosecution. Put in another way, the exercise of care required to satisfy the criteria of "constructive viewpoints" and "measured discussion" will disqualify ordinary people from any expression of opinion. For any viewpoint which is "constructive" or "measured" up to a point will not pass the test."

Editorial, Good - Government April 1993 page 1

Section 49ZT(2)(C) provides a defence where

"a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter".

Why does this provision make no reference to religious beliefs or "conscience"? Two amendments are essential. First, an amendment may with advantage be moved to 49ZT (2) (c)— the addition of the word "religious" after academic.

Second, an amendment should make possible a defence as a matter of conscience. This requires an addition to 49ZT (2). This would be a new and, seperate clause 49ZT (2) (d). The suggested amendment is as follows:

"any words or actions based on a persons sincere belief or any words or actions which are an expression of a persons religious beliefs or any words or actions which involve a matter of conscience".

In answer to public concern about the Homosexual Vilification provisions the New South Wales Attorney General has said that the provisions of this legislation, carefully framed,will ensure "protection from scurrilous abuse or statements which may incite hatred against a particular group, but are not cast so broadly that constructive viewpoints or measured discussion of the issue is prohibited".

The Attorney-General of NSW was making these following comments about a NSW Government Bill. This Bill applies to homosexuality and other areas but is in other respects "very similar to the Clover Moore Bill". His comments are unsupportable for reasons provided above. The Attorney-General is speaking through his hat (or should I say his wig).

3 Comments on the racial vilification provisions prior to the time when the law was enacted
Every Asian country has strict rules on immigration which make it nearly impossible for a white person or foreigner to become a citizen. Few employment permits are granted to foreigners. This policy may be defended on grounds of excess population and scarce resources. But it is clear that even if these factors did not exist, all these countries would impose restrictions on free immigration to ensure that the existing racial and cultural groups predominate. This is born not necessarily of racial superiority or hatred of other races, but a desire for uniformity and continuity based on historical factors and culture. There are arguments for a multi-cultural nation but there are also arguments for a predominant single culture.

I know Australian people without ideas of racial superiority or any animosity to Asians, who feel that the preservation of the British heritage involves restriction of Asian immigrants. This approach does not deserve the abuse that is generated and the enactment of special legislation.

The abuse without argument approach is totally counter productive. Labelling people who provide these and other arguments as racist and abusing them does nothing to change their attitudes.

A major part of blame for the present strong feeling against Asian immigration must be laid on those who have prevented rational debate by abusing all those who advocate restrictions on immigration, without consideration of their arguments. Many people who are in no sense racists, are being called "racists". The recent upsurge of feeling on the immigration issue was not caused by John Howard and the Coalition. It was caused by the violence of the opposition to Howard and all those who put forward similar views. Is the Coalition Government about to embark on an apartheid and unfair legislation which will lead to an escalation of racism? Such legislation is not in the best longterm interests of Asians and minority groups.

How wide will the net be cast? For example, would an Irish joke broadcast over the radio be unlawful? And if so, is that what a free society wants or needs?

How can it be ensured that the so-called exemptions are not selectively applied? How, for example, would Professor Blainey fair with a defence of "academic purposes" or purposes in the "public interest"? And what, for that matter, is the "public interest"? And who has the right to say what it is?

How would press reports of "Chinese criminal gangs responsible for drug importation and distribution" go? It has been argued that such reports amount to racial defamation.

4 Will the N.S.W Parliament make reading the Bible an offence?
The Parliament of New South Wales has had legislation presented to it which if enacted will have the effect of making it an offence to read a Bible in Church or any where else if there is a person present who is offended by the passage read and takes the matter up before the Anti-Discrimination Board.

The word "vilification" is used but the Anti-Discrimination Act and the proposed homosexual vilification Bills are about stifling comment and criticism, not vilification. The definition provisions of the Act do not mention the word "vilification". The drafters of the Act and a Parliament which passes it under the title "vilification" are guilty of deception.

When ability to speak freely is restricted and stifled, the consequence is that feelings grow and manifest themselves in more undesirable and violent ways. Freedom of speech, apart from its intrinsic value as a fundamental human right, is an important safety valve. Its suppression by law and by abuse and intimidation is potentially dangerous. If people are not allowed to let off steam by words, they will do so in many other undesirable and underhand ways. Vilification legislation will lead to a backlash. It is not in the long term interests of minority race groups.

This is the answer to Ted Pickering's comments reported in the media that the homosexual vilification amendments are intended to prevent violence against homosexuals. Is he correctly reported as stating that the proposed legislation would prevent murder? Suppression of speech (which does not contain a deliberate incitement to violence) is more likely to lead to violence. The law already prohibits intentional incitement to violence.

Hatred is all too common (unfortunately too common)in society. The law cannot deal with hatred per se. The law should focus on conduct. It should deal with violence and intentional incitement of violence.

5 Racial vilification bill: the real agenda
— Editorial News Weekly, July 2, 1994, p 3

The Keating Government's planned Racial Vilification bill is one of the worst pieces of legislation ever put up in this country. Not only is it unnecessary for achieving its stated purpose—which is in the words of the Prime Minister, to "safeguard our record of tolerance"—it is also a direct threat to the rights of Australians to freely hold and express their own political opinions.

The bill has been widely condemned in the press. That is not necessarily a valid reason for opposing it — journalists are frequently as prejudiced in their own ways as any other interest group—but the arguments raised in relation to this particular piece of legislation are overwhelming.

The concept of incitement to racial violence or hatred—which the Court wants to outlaw — is an extremely difficult one to enshrine in law. Unlike clear-cut anti-social acts like destruction or defacement of property, or creating a public nuisance in the streets (all of which are already illegal, and rightly so), the concept of incitement relies "as much on intention and attitudes as on spoken words". In other words,what is to be outlawed under this legislation is certain kinds of ideas. It is a thought control bill.

6 Intimidation and Control
This is the real agenda of those who are promoting racial vilification legislation —to use the law to intimidate, and thus to control the expression of opinions with which they disagree. No credibility can be placed in the claim by supporters of this bill — because no evidence has been advanced for it—that there has been any recognisable increase in racial vilification of ethnic groups which might justify a new law. The Minister for Immigration and Ethnic Affairs, Senator Bolkus, has made an unsupported assertion that the offences to be outlawed by the bill "are of such magnitude that the criminal sanction is the most appropriate one". But remarkably, he did not say what these offences were.

It is true that at the time of the Gulf War there was a brief spate of attacks on some Islamic communities in Australia. Nevertheless it is notable that it is not the Arab or Islamic communities which are the strongest proponents of the racial vilification bill. Where Australian Arab community representatives have publicly addressed the issue of Mr Keatings bill, they have generally emphasised the importance of education, not criminal sanction, in overcoming racial prejudice. Mr A. Elkotrib, chairman of the Australian Arabic Brotherhood Charitable Association, went further:

"We are concerned that the proposed legislation will limit the democratic right of freedom of speech that is accepted as the foundation of Australia's multicultural society."

According to former Labor Cabinet Minister Peter Walsh, impetus for the racial vilification bill comes from a

"cell of social engineers in the Attorney General' s Department who, with a few other fringe groups, have been pushing for such legislation"

He also says the bill is aimed at limiting what it is permissible to think, rather than what it is permissible to do. Criticising the Prime Minister for his support of the bill, he wrote:

Both violence and incitement to violence, racial or otherwise, is already a crime—a fact acknowledged in Keating's May 28 speech by reference to long-term jail sentences handed down in Perth. He went on, however, seemingly to deplore the fact that these people were prosecuted only for what they did, not for what they believed.

A further important argument advanced by Peter Walsh was that whatever little racial conflict or violence does exist in contemporary Australia, most of it is

"between ethnic groups, rather than immigrant groups and the mainstream population, against which the social engineers are aiming this legislation."

The conflict over Macedonia is a prime example of this point.

What's more, responsibility for some of this conflict can fairly be sheeted home to the very Government which is promoting racial vilification legislation. This was pointed out by Monash University political science lecturer Max Teichmann, in a further attack on the bill he said.:

"The only real threat of racial violence here was created by the Federal Government, when it played off the Greeks and Macedonians and then welshed on them

The Immigration Minister, Senator Nick Bolkus, was a key actor in that fiasco.

The main occasion for racist utterances here was when 50,000 Greeks charged down Bourke Street looking for Bolkus, with important sanctions in mind; only pausing occasionally to slag the Macedonians.

Luckily, they ran into our Jeff [Victorian Premier, Mr Kennett], who promised them sunshine right through winter and a mini-GP in every back yard. Otherwise the souvlaki could have hit the fan."

Max Teichmann said it was "either obtuse or insulting" to Australians to suggest that events which took place in Germany after 1930, and in parts of Europe since, could happen here.

"To use the new lingo of Mark Leibler, it is on the edge of a racial slur."

It is significant that Mr Teichmann chose to mention Mr Leibler in this context, because it is Mr Leibler and other prominent representatives of the Australian Jewish community who have been among the most important backers of the racial vilification bill. Nor is it co-incidental that when Mr Keating chose recently to re-ignite debate on the bill, he did so at a conference of the Zionist Federation of Australia. Remarkably, the Liberals' Deputy Leader Peter Costello who was also in attendance at the conference, refrained from distancing his party from Mr Keating's bill. Thus it appears to have bipartisan political support.

Those who have cause to publicly disagree with these Jewish representatives — as this newspaper did in criticising certain aspects of the push for war crimes legislation a few years ago-have in the past found themselves unjustly castigated as "anti-Semitic". If those who are willing to toss around such labels without just cause are to be allowed to enshrine their own political agendas in Australian law, we are all in trouble.

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