NSW Reforms Vilification Offences

PIAC welcomes the Crimes Amendment (Publicly Threatening and Inciting Violence) Act 2018 (NSW), passed this week by the NSW Parliament.

This legislation makes significant changes to anti-vilification provisions in NSW, implementing some of the key recommendations of the Standing Committee on Law and Justice’s 2013 inquiry into Racial vilification law in New South Wales.

The reforms also point to the need for an overhaul of the Anti-Discrimination Act 1977 as a whole.

The changes introduced this week include:

  • Repealing the four offences of serious vilification in the Anti-Discrimination Act 1977
  • Introducing a new offence of publicly threatening or inciting violence in the Crimes Act 1900
  • Providing that recklessness is sufficient to establish intent for this offence
  • By creating an indictable offence, removing the previous short time periods for commencing prosecutions, and
  • Giving NSW Police primary responsibility for prosecuting this new offence, removing the role of the Anti-Discrimination Board in referring people for prosecution, and of the Attorney-General in approving prosecutions (although the Director of Public Prosecutions will continue to perform this function).

The new offence also attracts a higher penalty – up to 100 penalty units or 3 years imprisonment – than any of the four abolished Anti-Discrimination Act offences. Importantly, these penalties will also be harmonised, irrespective of the protected attribute involved (whereas currently the penalties for racial and HIV/AIDS vilification are higher than for homosexual and transgender vilification).

The Bill will expand the range of groups protected against vilification. It retains both race, and HIV/AIDS status, while adding:

  • Religious belief or affiliation (including lack of religious belief)
  • Sexual orientation (which is updated, broader terminology than homosexuality, which is the attribute covered in the Anti-Discrimination Act)
  • Gender identity (again, reflecting updated and more inclusive terminology than transgender), and
  • Intersex status.

These last three attributes (sexual orientation, gender identity and intersex status) are modelled on the Commonwealth Government’s 2013 reforms to the Sex Discrimination Act 1984, although disappointingly the NSW Government has not replaced intersex status with sex characteristics which is the terminology preferred by intersex advocates, including Intersex Human Rights Australia, as articulated in the 2017 Darlington Statement. 

An interesting omission from the list of protected attributes in the new offence of ‘publicly threatening or inciting violence’ is sex. While vilification on the basis of sex is not currently prohibited under the Anti-Discrimination Act, it could be considered a missed opportunity that it has not been added in the Crimes Act.

Nevertheless, the changes are overall a significant step forward and PIAC hopes the new offence will prove more effective than the four offences of serious vilification previously found in the Anti-Discrimination Act, for which no-one has ever been successfully prosecuted.

The changes also make the case for more comprehensive reforms to the Anti-Discrimination Act.

There are now significant inconsistencies between those groups who are protected under the Crimes Act compared to those who continue to have the ability to make civil complaints about vilification to the Anti-Discrimination Board. Specifically, while bisexual people, people with non-binary gender identities, people with intersex variations and people of different faiths are directly covered by the new offence of publicly threatening and inciting violence, none are fully protected by the Anti-Discrimination Act.

The updated terminology used in the Bill, particularly regarding sexual orientation and gender identity, also throws the out-dated terminology found in the Anti-Discrimination Act (homosexuality and transgender) into stark relief.

For these and other reasons, PIAC will continue to call for broader changes to the 41-year old Anti-Discrimination Act, so that it provides adequate and appropriate protections for the NSW community in the 21st century.

By Alastair Lawrie, PIAC Senior Policy Officer.

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Towards Truth is a partnership between PIAC and UNSW Indigenous Law Centre.
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