In his article ‘Confronting the reality of hate speech’ ((1995) 20(5) AltLJ 231), Luke McNamara noted that after Wagga Wagga Aboriginal Action Group v Eldridge (EOR ¶92-701), questions remain about the operation of racial vilification laws in NSW and nationally. A fundamental question, glossed over in the case, is what a complainant must prove under S.20C of the NSW Anti-Discrimination Act 1977. The same question arises under similar provisions in the ACT and Queensland, and the NSW gay vilification laws.
The Tribunal in Wagga v Eldridge accepted the complainant’s submission (at 78,265) that ‘[no] proof [is] required that any person was incited’ — it is enough therefore to show that the conduct complained of is likely to incite. The wording of S.20C does not support this view. Nor does the legislation’s second reading speech, quoted at length by the Tribunal, support this view.
The section is quite clear: a complainant must prove the causative effect of the conduct, that is, that someone was actually moved to hatred/contempt/ridicule: ‘It is unlawful for a person . . . to incite . . . hatred [etc]’.
There is no objective test here, no reference to what might reasonably be expected to follow from the conduct. Wording found in similar sections elsewhere, such as cl.6 of the federal Racial Hatred Bill, s.9A of the New Zealand Race Relations Act 1971, s.6 of the UK Race Relations Act 1965 or cl. 281.2 of the Canadian Criminal Code, is essentially different: it proscribes conduct ‘likely to’ have the undesired effect. This approach focuses on the vilified and the victim; it does not introduce considerations of the changed state of mind of another party.
The NSW Act, however, does not invite the Tribunal to opine on what is likely to have followed from the conduct — the complainant must show what d id follow. The ACT provision is in similar terms, as is the relevant Queensland criminal provision.
In Wagga v Eldridge the Tribunal’s reading of the section as involving an objective test of likelihood is necessarily generous to the complainant — it is the only reading that makes practical sense of the provision. A strict reading renders the provision almost pointless in its effect — what are the chances of a complainant finding and obtaining the co-operation of a person who, demonstrably as a result of the conduct alleged, now has feelings of hatred, contempt or ridicule in relation to the complainant?
(It is difficult to manage references to the three touchstones of racial vilification in NSW in a grammatically sensible and compact way — ‘hatred’, ‘contempt’ and ‘ridicule’ are not like words; the first two are each a state of mind while the last is the manifestation of a sentiment, and each requires the use of different prepositions and syntax. The categories of vilification are not closed: the New Zealand Act adds ‘hostility’ and ‘ill will’, the UK Act comes up with conduct that is ‘threatening’ and ‘abusive’, while the federal Racial Hatred Bill gives us acts that ‘offend’, ‘insult’, ‘humiliate’ and ‘intimidate’.)
For a complaint to succeed within the strict meaning of S.20C, the full process runs like this:
It is not enough that the first person (the respondent) says/does something. As a result of the conduct, a second person must be moved to hatred/contempt/ridicule of a third person (the complainant). That third person must be able to prove the before-and-after state of mind of the second person to show that the first person incited the second person to hatred/contempt/ridicule, and thereby vilified the third person.
No matter how insulting, offensive or inciteful the conduct, unless someone is moved by it to form a particular view, no vilification, as defined in NSW, the ACT and perhaps Queensland, can have taken place.
The NSW S.20C has, in Wagga v Eldridge, been read at least as broadly as the ‘likely to incite’ test in the New Zealand, UK and Canadian Acts. Indeed why, if it is to have any real effect, should it be read any more restrictively? Because, on a fair reading of the words of the section, it is hard to avoid a strict interpretation; there is quite simply no reference to a test of ‘likelihood’ and to find one does, as they say, violence to the meaning.
The point was taken in the parliamentary debate that introduced the racial vilification provisions into the Act, Mr Aquilina saying ‘Lawyers at the Public Interest Advocacy Centre have expressed concerns to me about the word incite and the difficulty of showing that incitation has taken place. I ask the Minister (Mr Dowd) to clear up any problem s in this area. [Hansard, 10 May 1989, p.7930]’.
Nothing happened. The point was repeated in submissions made more recently during the development by the NSW Parliament of s.49ZT(l) — the gay vilification provision — but the identical wording was used.
The decision in Wagga v Eldridge now stands for the proposition that it is not necessary for a complainant to prove that any person was incited by the respondent’s conduct. Such a view is an eminently sensible one — it makes practical sense of the provision, and is reflected in other similar legislation. I doubt, however, that it is supported by the wording of the Act or by any of the Parliamentary discussion surrounding its introduction.
Why not simply amend the Act? Perhaps because almost all such complaints are resolved in conciliation without the eventual need to argue over interpretation. Perhaps because to amend draws attention to the issue and invites another debate about the merit of vilification laws. Perhaps because to amend would be misunderstood and criticised as an attempt to strengthen, rather than merely to make sense of, the vilification laws.
In the meantime complainants’ hope for a just result depends on an unlikely interpretation of an onerous provision.
Published in 1995 in Vol 20(6) of the Alternative Law Journal as ‘Racial vilification: The missing words’.