Hate Crime and Vilification Law: Developments - The University of ...

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6 The fact that there have been no prosecutions raises the question of whether there is a gap between the way legislators and the public have expected the criminal provisions to operate and the way they in fact operate – an “expectation gap”. If there is such a gap, the main reason according to the advice received from the DPP is the need to prove two of the elements of the offence that are particularly difficult to prove – the “incitement” element and the “means” element. (a) The ‘incitement’ element I have already mentioned the difficulties involved in proving ‘incitement’, even in the civil context and to the civil standard. Are there alternatives, particularly in the context of the NSW criminal provisions? Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination, to which Australia is a party, requires States to “declare as an offence punishable by law all dissemination of ideas based on racial superiority or hatred” (see para. (a)). The Convention thus seems to require that the mere expression and advocacy of racial hatred to others ought to be made a punishable offence. Implicit in this requirement is the proposition that the mere dissemination of ideas of racial hatred necessarily involves a sufficiently serious breach of the peace to justify the imposition of criminal sanctions. As noted earlier, there may well be sound sociological and historical reasons for accepting that proposition, although it remains controversial and would almost certainly be challenged by some on civil liberties grounds. Moreover, removing the terminology of incitement from the ADA and replacing it with new terminology, such as “the dissemination of hatred” on any of the prohibited grounds, would involve jettisoning the body of jurisprudence that has developed in Australia in particular around the concept of incitement. Whatever benefit may be obtained from removing the difficulties inherent in the concept of incitement from the criminal provisions may well be outweighed by introducing entirely new concepts whose interpretation by the Courts could not be predicted. Neither the civil nor the criminal provisions of the ADA expressly require that the incitement be intentional. When anti-vilification laws were first introduced in New South Wales in 1989, the then Attorney-General said in his Second Reading Speech that intention to incite would need to be proved in order to establish a breach of the criminal provisions, but not of the civil provisions. The argument that proof of intention to incite ought to be a requirement for securing a conviction under the criminal provisions derives from the common law concept that the element of mens rea (literally “guilty mind”) must be present to justify the imposition of criminal sanctions. Satisfying this requirement in any criminal prosecution usually entails proof of criminal intent or at least reckless indifference by the accused to the consequences of the proscribed behaviour. The counter-argument is that public acts of vilification on any of the prohibited grounds ought to be criminalised whether or not there is intent or recklessness, because of the destructive message that would be conveyed to society if those acts went unpunished. One possible way of dealing with the mens rea element would be to introduce two types of offence to proscribe vilificatory behaviour. The first offence would require proof of an intention to incite hatred and would carry the heavier penalty. The second offence would be in the nature of a strict liability offence and would require proof only of the likelihood (or reasonable likelihood) of a proscribed outcome. A person charged with the first offence could, if intention is not proved, be liable nevertheless to be convicted of the second offence, if the evidence is sufficient to prove the elements of the second offence.
7 In essence, this is the regime that was introduced in The Criminal Code of Western Australia in 2004. The “strict liability offences” in that Code are framed in identical terms to the criminal offences but without the element of intent. If the proscribed conduct is merely “likely” to incite racial animosity or racist harassment or to result in racist harassment, the offence in each case will be proved. The word “likely” is usually associated with the civil standard of proof, and its appearance in a criminal statute might be considered anomalous. Further, there are defences that are available to a person accused of committing any of the strict liability offences, which are not available to persons accused of the intentional offences. These defences are set out in Section 80G. In essence, these defences excuse conduct that is done “reasonably and in good faith” if the conduct was either a fair report of a public act, or a communication in respect of which a defence of absolute privilege would apply in defamation proceedings or a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter. The availability of these defences can provide an accused person with the opportunity of using the proceedings to grand-stand and repeat the vilificatory conduct in the court-room with impunity. (b) The ‘means’ element Even the most egregious examples of public acts of incitement to hatred on one of the prohibited grounds will not attract criminal sanctions unless it can be proved, beyond reasonable doubt, that the means of incitement were those stipulated in the criminal provisions. This element, the “means” element, presents perhaps an even more significant evidentiary hurdle than the need to prove incitement and, perhaps more than any other factor, accounts for the fact that there have been no prosecutions for serious vilification in New South Wales to date. The policy underpinning the inclusion of this element in the criminal provisions is that public incitement to hatred on a prohibited ground is said not to be sufficiently serious to warrant the imposition of criminal sanctions, even if the incitement is proved beyond reasonable doubt to have been intentional. Only a contemporaneous threat of harm to a person or property is said to justify criminalising vilificatory behaviour. And yet it seems clear that a vilificatory act need not be accompanied by, or itself constitute, a threat, or incitement to others to threaten, physical harm to person or property, and the act may nonetheless be perceived by the target person or group (and by others) – and reasonably perceived – as extremely threatening. The threat may be unmistakable to a reasonable observer even if it is merely implicit and not provable beyond reasonable doubt. There is a strong argument to be made that public incitement of hatred on any of the prohibited grounds, of itself, entails a breach of the peace, and that criminal sanctions are therefore appropriate where the incitement is intentional. Even if the incitement is not immediately accompanied by a threat of physical harm, or by an incitement of others to threaten physical harm, the incitement of the public to hatred on one of the prohibited grounds contributes to the creation of a social climate that is more conducive to the occurrence of acts or threats of physical harm to the groups that are targeted, and more conducive to social violence in general. Also, threats of physical harm towards a person or property, even in the absence of incitement to hatred, may well fall within the reach of the general provisions of the criminal law. For example, a person who “counsels or procures another” to commit a serious indictable offence can be prosecuted as an accessory before the fact under section 346 of the Crimes Act (NSW) 1900. To “counsel” others would include urging or inciting them. Apprehended violence orders are available under Part 15A of the Crimes Act and a common assault, if sufficiently serious, can be prosecuted as an indictable offence under Section 61 of that Act. The common law concept of assault
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