Mr McCLELLAND (Barton) (3.15 p.m.) —The Racial and Religious Hatred Bill 2003 addresses an issue which has no place in Australian society. The deliberate incitement of racial and religious hatred is a clear threat to Australia's social stability. Such threats force many of our fellow Australians to live in fear and insecurity and are often the precursors to racial or religious violence. All Australians have seen this vividly in the terrorist attacks sponsored by al-Qaeda and associated groups before and since September 2001, which had their origins in a fanatical religious hatred. Those attacks and the reactions they have provoked among some citizens and communities in Western nations have highlighted that no group is immune from the consequences of racial or religious incitement. It has long been the conviction of the Australian Labor Party that incitement or threats based on racial or religious hatred should incur the strongest possible legal sanction. While our federal and state criminal laws address acts of violence, including terrorism, a gap remains under federal law when it comes to behaviour that is often a precursor to violence, including terrorist activity that is motivated by racial or religious hatred.
The bill I present today seeks to close that gap. The bill would create three new offences under the Commonwealth Crimes Act: firstly, threatening to cause physical harm to another person or group because of their race, colour, religion or national or ethnic origin; secondly, threatening to destroy or damage property of a person or group because of their race, colour, religion or national or ethnic origin; and, thirdly, engaging in public acts that have the intention or likely effect of inciting racial or religious hatred against a person or group of persons. Each of these offences would carry a maximum penalty of imprisonment as a potential deterrent. The bill makes clear that it is not intended to exclude or limit the concurrent operation of any state or territory law.
Substantially the same offences were proposed as part of the Racial Hatred Act of 1995 but were opposed by the Greens and the opposition in the Senate. Comparable offences were also proposed as part of the original Racial Discrimination Act 1975 but were blocked by the opposition in the Senate on that occasion as well. Equivalent offences exist in almost every state and territory, as well as the United Kingdom, Canada, New Zealand and a number of states in the United States of America, yet, almost 30 years after the Racial Discrimination Act was passed, they are still absent from federal law in Australia. The bill would implement one of Australia's obligations under article 4(a) of the UN Convention on the Elimination of All Forms of Racial Discrimination, which says that states parties: [start page 23318]
Shall declare an offence punishable by law ... all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin ...
It is always important to consider the effect of legislation of this kind on Australians' freedom of political communication, which is implied in our Constitution. We are confident that this legislation is constitutional. The High Court has held that a law cannot restrict freedom of political communication unless it is enacted to fulfil a legitimate purpose of Australia's constitutional system and the restriction is appropriate and adapted to the fulfilment of that purpose. In most cases the type of conduct targeted by this bill will be devoid of political content and will not constitute political communication for the purposes of the Constitution. Even if the incitement is combined with criticism of government or other comment on political matters so as to amount to political communication, I believe these offences are appropriate and are adapted to protect Australians from violence and other serious harm flowing from incitement and threats based on racial or religious hatred.
By way of comparison, equivalent offences in the Criminal Code of Canada were upheld by the Supreme Court of that country in 1990 in the case of R. against Keegstra, on the basis that, while they infringe the right of freedom of expression in the Canadian Charter of Rights and Freedoms, they were `demonstrably justified in a free and democratic society'. Similarly, this bill is an appropriate and balanced response to an identified gap in legal protection of all Australians from threats based on racial or religious hatred. It targets threats which are a precursor to violence and sends a clear warning to those who might attack the principle of tolerance that all Australians cherish. I commend the bill to the House.
Bill read a first time.
The SPEAKER —In accordance with standing order 104A, the second reading will be made an order of the day for the next sitting.