2nd Reading Speech

20 June 2018

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 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 theBusiness Paper. Historically there are some traditional concerns about including religion in anti-discrimination legislation, especially in New South Wales. Race was included as a 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.

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.”