Page 5224 - Week 16 - Thursday, 28 November 1991
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MR CONNOLLY (Attorney-General, Minister for Housing and Community Services and Minister for Urban Services) (12.15): Mr Duby makes a sound point here. As the Chief Minister said in her response, there is obviously a freedom of speech issue here. This is treading a fine line between allowing full freedom of speech and saying when it is appropriate for the law to move in.
There are two key things to say. One is that this provision is structured in two categories. It makes unlawful something which gives rise to a civil action under the Discrimination Act and the conciliation procedures and the complaint procedures. In the proposed section 63B provisions it is not creating a criminal offence for mere racial vilification. The only time a criminal offence is created is under proposed section 63C, which is the severe racial vilification that is the actual incitement to physical harm towards another person.
The other key point to make is that the test is not that a person finds something offensive. Rather, the test is that the doing of the thing incites hatred towards, or contempt for, or ridicule of a group. I think Mr Duby gave a good example where the waving of a flag, a national emblem, would fall on one side of that line. That may cause offence to another, but it cannot be said to incite hatred or contempt. If we were to take the Balkans conflict, the waving of one or other national flag, Serbian or Croatian, would not be racial vilification; but the holding of a sign accusing one of the other racial groups of brutality or atrocity or saying "Serbs" or "Croats", or whatever, would fall within this provision.
The Government is satisfied that this is not an unjustifiable infringement on a person's civil liberties, but Mr Duby is quite right in raising the concern.
Mr Duby: What about a swastika?
MR CONNOLLY: A swastika outside a synagogue would, I think, fall across the line. The circumstances always are necessary. Alternatively, filming a motion picture on World War II with people running around in German uniforms would not, I think, be likely to be caught. Again, this is not creating a criminal offence so that someone is going to say, "You have infringed section 63B. You are fined". It is creating the basis for a complaint action through the civil process of the Discrimination Commission. So, the making of a film would not be covered. It is not the giving of offence; it is the inciting to serious contempt. So, it depends on the circumstances. While we respect your concerns, Mr Duby, we think they are probably met in the legislation as it stands.
MR DUBY (12.18): I am gratified for that explanation of the legal terms of the Bill. I did have concerns and they have been laid to rest.
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