Preventing Racial Vilification Not Just a Legislative Responsibility

There is recent footage which shows a Caucasian man hurling abuse at, and maliciously humiliating Korean tourists on a Sydney bus. Especially disturbing is the way in which the Korean tourist seems compelled to apologise in an attempt to diffuse the unconscionable situation. Of course, this is not the first episode of its sort, nor are these horrible incidents unfamiliar to the media at large. To be sure, racial vilification is a criminal offence in New South Wales, in compliance with Australia’s international agreements with the Convention on the Elimination of Racial Discrimination (CERD). Section 20D of the Anti-Discrimination Act 1977 (NSW) provides:

“A person shall not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group by means which include:

(a)   Threatening physical harm towards, or towards any property of, the person or group of persons or,

(b)   Inciting others to threaten physical harm towards any property of, the person or group of persons.

In the case of an individual committing an offence, punishment can be up to six months imprisonment. On the other hand though, The Law Society Journal in its terse report entitled, “Racial Vilification should remain a crime in NSW” points out that the Anti-Discrimination Act seldom results in a successful prosecution in NSW. The chief reason for this is not too difficult to trace perhaps – the threat of physical harm must be incorporated into the offence. Notwithstanding the right to free speech, some amendments to the legislation might be useful then to prevent verbal racist abuse. For instance, the Law Society Human Rights Committee submission that the NSW legislation add the terms “including but not limited to” in the subsection providing that offences be committed by “means” of threats or incitement of physical harm is particularly significant I think, and could lead to more successful prosecutions. But still common sense dictates that the burden of social change rests not on political legislation alone. Especially in today’s unprecedented globalised world, we must all do our bit to recognise the intrinsic value of each human person and to work towards solidarity. We must, in the well known idiom of W.H. Auden – “[s]how an affirming flame”, by treating each person with respect and equity.

By Kyu Won Timothy Kim
SRC Legal Service

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