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Back to "Community & Associations Newsletter - July 2016"

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Hate Speech in NSW

The sharp rise in racist taunts and racial vilification in the UK following the Brexit referendum has added a vivid perspective to the debate of a Bill before New South Wales Parliament in relation to making “hate speech” unlawful in NSW.

The Bill proposes adding a new section, Section 50AB, to the Anti-Discrimination Act 1977 (NSW), which would make it unlawful for a person by a public act to intentionally or recklessly promote hatred, serious contempt or severe ridicule of person(s) on the basis of race, transgender identity, homosexuality, or HIV/AIDs. This Section seeks to extend the protection (under the existing Section 20D) for serious racial vilification beyond “race” as well as extending the scope of the vilifying conduct to beyond the “inciting” of hatred. There will be protection for vilification based on a “presumed race” – that is, where a person is vilified on the basis of an incorrectly attributed racial identity. The Bill also extends the timeframe for prosecution from 6 to 12 months, allows the Anti-Discrimination Board to refer the complaint to the police, and removes the requirement for the consent of the Attorney General to prosecute.

In advocating for the proposed Bill, the Shadow Attorney General noted there have been zero prosecutions under the existing Section 20D.  He observed that “most people would be shocked to know that there isn’t a law in this state effectively prohibiting someone from advocating violence against people on the basis of their race, gender or sexual orientation.

The events in the UK following the Brexit Referendum expose the seriousness of where hate speech can lead notwithstanding multiple bases of protection under UK law, including:

  • Section 4A of the Public Order Act 1986 which makes it an offence (with intent of causing harassment, alarm or distress) to use threatening, abusive or insulting words or behaviour or disorderly behaviour which causes such harassment, alarm or distress.
  • Section 18 of the Public Order Act 1986 which specifically addresses “racial hatred” by use of threatening, abusive or insulting words or behaviour, or displays of such material if done with the intention to stir up racial hatred, or, having regards to all circumstances, racial hatred is likely to be stirred up.
  • Section 26 of the Equality Act 2010 which protects against harassment on the basis of a discriminatory characteristic for the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

Whilst these provisions may have gaps or inefficiencies, the widespread legislative targeting of hatred and discrimination on the basis of different protected personal attributes is visible here. Their utility in responding to post Brexit racial vilification is yet to be seen. Watching on perhaps will be the MPs of NSW as they consider the proposal to legislate in NSW against hate speech.

Kim Leontiev, Solicitor

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