Finding our way with vilification laws
DURING the recent marriage equality postal survey, there were over several hundred recorded incidents of hate speech vilifying gay people nationwide, including some cases in and around Darwin.
In May, Alan Joyce, the CEO of Qantas, who is gay, had a pie thrown in his face while he was giving a speech at a business breakfast in Perth.
This conduct is a timely reminder of the ongoing need for the Territory to adopt vilification laws. The Northern Territory is the only jurisdiction in Australia that has neither civil nor criminal racial vilification laws.
Since there was no Territory legislation prohibiting vilification, no action could be taken under local laws to address some of the vile conduct surrounding the marriage equality survey.
The number of instances inciting racial hatred and discrimination as well as threatening physical harm towards people or their property has surged in recent years in Australia.
A recent discussion paper prepared by the Northern Territory Department of Attorney-General and Justice on Modernising the Anti-Discrimination Act of the Northern Territory sought comments on potential future changes to the law.
The discussion paper proposes to make an act that is reasonably likely to “offend, insult, humiliate or intimidate” an individual or groups of people because of their race, sexual orientation, disability, religious belief, or gender identity illegal.
The discussion paper also suggests broad exemptions (or defences to liability) for artistic works or anything said or done reasonably and in good faith in the context of an academic or scientific debate or any other genuine purpose in the public interest.
These proposed changes are modelled on the civil provisions of Section 18C and 18D of the Commonwealth Racial Discrimination Act 1975 (RDA) and reflect an appropriate balance between freedom of speech and freedom from vilification.
The move by the NT to provide civil remedies for vilification should be applauded.
Access to Commonwealth remedies for racial vilification entails a lengthy procedure that must be followed by the victim as a precondition to commencing civil proceedings.
This process depends solely on complaints brought by individuals or groups affected by the challenged breach.
The Commonwealth Australian Human Rights Commission has neither the resources nor the mandate to initiate investigations of breaches of the law in the absence of a complaint.
Most victims lack the resources and inclination to pursue civil remedies if the matter is not resolved through conciliation. Being able to access remedies in the Territory through local laws will provide another avenue of redress for victims of vilification.
Vilification can cause a variety of negative feelings, such as loss of dignity and depression. A number of national and international studies have documented the links between personal experiences of racism and homophobia and poor health. There was a reported surge in requests for mental health services as a result of some of the negative debate surrounding the marriage equality postal survey, including instances of vilification.
Given the proposed changes to the NT legislation is modelled on Commonwealth laws, federal case law can be relied upon in interpreting the parallel language in the proposed provisions of the Northern Territory legislation. For example, the federal courts have found conduct prohibited by Section 18C of the RDA must involve profound and serious effects rather than mere slights.
The suggested changes are also consistent with Australia’s obligations under the International Covenant on Civil and Politics Rights (ICCPR), which recognises the right to freedom of expression is not absolute. Such freedom carries with it special duties and responsibilities including respect for the rights and reputation of others and/or to protect public order.
The discussion paper makes no mention about potential criminal provisions in the proposed changes. The Northern Territory should consider implementing criminal provisions for instances of severe forms of vilification involving incitement to hatred and overt violence, and physical threats to persons and property.
The creation of specific severe vilification offences would serve the goals of retribution, community protection, denunciation, and deterrence by punishing such conduct, denouncing the perpetrators of such conduct, and discouraging others from committing such offences in the future.
The reluctance to adopt criminal sanctions in the proposed legislative changes could be due to several factors. Laws proscribing serious vilification have almost never been enforced at the state and territory level because of complicated procedural hurdles in the relevant legislation, a lack of knowledge on the part of law enforcement about the existence of such offences, and resistance by prosecutors to bring claims under offences which impose much higher evidentiary burdens and lighter sentences than exist for parallel common crimes, such as assault, affray and intimidation.
New South Wales, along with Queensland, South Australia, Victoria and the Australian Capital Territory have made serious vilification a criminal offence within current anti-discrimination legislation, however, the laws do not form part of the consolidated criminal law legislation or the crimi-
“Vilification can cause a variety of negative feelings, such as loss of dignity and depression”
nal codes of those jurisdictions. The only jurisdiction in which there has been a successful prosecution under state or territory legislation is Western Australia.
To overcome the hurdles to successful enforcement in other jurisdictions, the Northern Ter- ritory should make the offences of severe vilification part of the NT’s criminal code, provide greater penalties than exist for parallel common crimes, such as assault, affray and intimidation, and educate law enforcement officers about the existence of such offences.
The changes proposed in the discussion paper will provide a civil remedy in the Territory against instances of bigotry and intolerance having profound and serious effects on the psychological wellbeing of indi- viduals and groups targeted by harmful hate speech.
This remedy would complement changes in the criminal law suggested in this article for the most harmful forms of hate speech involving physical threats to persons or property.
Such criminal sanctions would promote meaningful participation of minorities in public discourse and hopefully deter potential violators.