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December 3, 2013

Response to recommendations by NSW Legislative Council Standing Committee on Law and Justice to reform racial vilification law in New South Wales

The NSW Jewish community welcomes the recommendations by the Legislative Council’s Standing Committee on Law and Justice to reform racial vilification law in New South Wales. Important improvements to the process for securing a prosecution have been put forward and the report also recommends a review of the penalty provisions.

However, the Committee has not recommended legislation to proscribe intentional racist harassment. This sends a message to the community that such harassment is acceptable conduct in New South Wales.

Second, as noted in 2009 by former Director of Public Prosecutions Nicholas Cowdery QC, even in serious cases it has not been possible to prove beyond reasonable doubt the means by which incitement causes harm to victims and the specific physical harm itself. These requirements present the principal obstacles to having a workable criminal law. The Standing Committee makes no recommendations to remedy these fundamental defects in the current law.

The Standing Committee was charged with bringing the law into line with community expectations. It is thus regrettable that despite the submissions of the Anti-Discrimination Board, the NSW Council for Civil Liberties, the NSW Jewish Board of Deputies and a broad range of ethnic communities, including the Arab, Armenian, Chinese and Kurdish communities and the Ethnic Communities Council of NSW - those most affected by serious racial vilification - the two central weaknesses in the current law have been left for another inquiry to deal with in five years’ time. 

This represents a lost opportunity to make the law workable and to give much-needed protection to communities affected by serious racial vilification. The need for stronger remedies against racial vilification is highlighted by the 59 per cent increase in racial hatred complaints received by the Australian Human Rights Commission last year.

It is nevertheless commendable that the recommendations made by the inquiry, although limited, would go some way towards strengthening racial vilification laws, especially at a time when the Federal Coalition government is looking at weakening them.

Yair Miller

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