Racially based threats of violence merit little protection
In the Australian newspaper on 12 April 2013, the Institute of Public Affairs’ Simon Breheny described as ‘unprecedented’ and ‘a radical expansion of the law as it currently stands’ a proposal we made about reform of NSW’s law that criminalises serious racial vilification. Our suggestion is neither of these things.
NSW Premier Barry O’Farrell has asked the Legislative Council’s Standing Committee on Law and Justice to consider the effectiveness of the NSW law ‘having regard to the continued importance of freedom of speech’. The offence has not been used since it was introduced by the Greiner government 24 years ago.
In our written submission, available on the NSW parliament website, and in our appearance before the committee, we addressed the competing interests when speech involves threats of assault or damage to a person’s property because of their race.
The committee’s inquiry is not about the desirability of the racial vilification laws that applied in the Andrew Bolt case last year, but about conduct that is criminalised because it includes threats of violence to members of a racial group.
We recommended some reforms because the current law reflects an outdated view of how serious racial vilification occurs. It focuses on public conduct that incites others to hate members of a particular racial group by threatening physical harm or damage to property. In doing so, it assumes a demagogue on a soap box on a street corner who urges passers-by to respond violently to people because of their race.
As recent incidents on public transport demonstrate, this is not how serious racial vilification often occurs or the best way of responding to the harm caused by this behaviour.
We submitted to the inquiry that instead of being unlawful to incite a third party to action, it should be an offence to engage in conduct on the basis of race that is intended, or is reasonably likely, to cause a person to have a reasonable fear in the circumstances for their own safety or security of property, or for the safety or security of property of their family or associates.
We also submitted that the offence should cover conduct wherever it occurs, except when it was intended to be private. It was this part of our proposal that attracted some animated questions from committee chairman David Clarke and led to Breheny’s comments about the radical nature of the proposed reforms.
The reform we propose for NSW is neither radical nor original. It is simply wrong to say, as Breheny does, that ‘this is a move away from the law as it currently stands’. As we point out in our written submission, we propose that NSW copy a Victorian law dealing with racial vilification that has been in force since 2001, when it was passed with the support of both major parties. Western Australia also has criminal offences for similar conduct, unless it occurs in private.
Nor does our proposal threaten the right of people to have private conversations, as Breheny claims; to the contrary, it exempts conversations that were intended to be private.
The Victorian law on which our proposal is based assumes that conduct involving racial vilification is public, and requires a person to show that it was intended to be private.
Breheny speculates without foundation that this reform is proposed for the same reasons as those that led to the inclusion of a shifting onus in the commonwealth government’s recent draft anti-discrimination law. He suggests that an unspecified ‘they’ will go ‘from one area of law to another changing the onus of proof’.
Many reasonable people might suggest that a person should not be allowed to avoid criminal liability for vilifying comments involving threats of violence even when they were intended to be private. The usual policy is that criminal conduct is criminal wherever it occurs. It is rare for criminal law to allow conduct in private but condemn it in public.
An assault is an assault on the street or in the home.
Our proposal recognises that free speech – even when it involves racially based threats of violence – ought to be allowed when it occurs in private, where it will cause no one to fear for their safety.
The freedom to hold and express unpopular opinions is one of our most important rights. So, too, is the right to live in the community without threats of racially based violence. Sometimes one right must give way substantially to another when great harm is caused by exercising one right.
In a proposal that is far from novel in Australia, we propose that NSW outlaws racially based threats of violence in all but private conversations, because speech of this nature merits little protection.
Written jointly with Neil Rees, and published on 19 April 2013 in The Australian newspaper as ‘Causing fear through hate speech is conduct that crosses the line’.