5.3.2 The Human Rights and Equal Opportunity Commission
In 1986, the Australian Parliament created the Human Rights and Equal Opportunity Commission, a permanent independent statutory authority responsible for administering certain federal acts that give force to various international human rights instruments to which Australia has committed itself. It conducted the National Inquiry into Racist Violence, which was created because of a widespread community perception that racist attacks in Australia, both verbal and physical, were on the increase. Public hearings began in 1989, and the Inquiry reported its findings in March 1991.<153>
This report recommended that the following legal measures be taken by the criminal law to combat racist violence:
(a) Acts of racist violence should be treated as distinctive serious criminal offences in exactly the same way as other specific types of assault (such as aggravated assault or sexual assault). Therefore, it was recommended that the Federal Crimes Act 1914<154> be amended to create the new federal offence of racist violence and intimidation. The report stated that this amendment to the Crimes Act 1914 was not meant to displace existing State criminal offences, but it was intended to ensure the effective protection of fundamental human rights by Federal authorities in accordance with the International Convention on the Elimination of All Forms of Racial Discrimination (hereinafter CERD) and Australia's other international obligations;
(b) A clearly identified offence of incitement to racist violence and to racial hatred likely to lead to violence be created and inserted into the Crimes Act 1914. As well, a broad definition of race should be included, covering colour, descent or national or ethnic origin, making the scope co-extensive with that of the federal Racial Discrimination Act 1975 <155>; and
(c) There should be an amendment to section 16A of the Federal Crimes Act 1914 and to State and Territory Crimes Acts stating the relevance of racist motivation in sentencing upon conviction of any offence. Such motivation should be stated to increase the gravity of an offence. Racist motivation may require definition in terms of the expression of ideas based on racial superiority or hatred, of incitement to racial discrimination or to racial violence.<156>
The report also made recommendations concerning additional legal measures to be taken to combat racial violence, not by the criminal law, but by the federal Racial Discrimination Act 1975. These included:
(a) The Act should be amended to prohibit racist harassment on the ground of race, colour, descent or national or ethnic origin. The victims of such conduct should be given a clear civil action in the same terms as those subjected to other forms of racial discrimination by that Act;
(b) The Act should be amended to prohibit incitement of racial hostility. This
would cover such things as racist graffiti and poster campaigns. The Inquiry felt that incitement of racial hostility was not as serious as outright racist violence and intimidation and therefore need not be subject to criminal laws and criminal penalties; and
(c) The Act should be extended to include those who are
discriminated against or who are harassed by reason of
their association with advocates against racism and
supporters of Aboriginal rights.<157>
5.3.3 The Australian Law Reform Commission
5.3.3 The Australian Law Reform Commission
The second commission to address the subject of racial violence was the federal Australian Law Reform Commission. Its recent report, Multiculturalism and the Law<158>, examined, among other issues, whether a specific federal crime of racist violence should be created. The report noted that Australia is a party to the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). Parties to CERD are required to "undertake to adopt immediate and positive measures designed to eradicate all incitement to, and acts of," racial discrimination, which includes declaring "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."<159> In its view, CERD requires the creation of a criminal offence of racist violence, not civil sanctions.<160>
The Commission argued that racist violence was an appropriate matter for federal legislation, given that multiculturalism was an articulated policy of the national government, and that the protection of all Australians from acts and expressions of racist violence and intimidation was an integral part of this policy.
The Commission therefore recommended the creation of a crime of racist violence. In order to create a single uniform offence both in terms of its definition and its penalty, the Commission decide not to create an offence that was linked to the criminal law of the state or territory where it occurred (since this would result in differently defined offences and different penalties). Instead, it proposed to select the law of a single jurisdiction as the underlying law for the whole offence and to apply that body of law as Commonwealth law throughout Australia. The jurisdiction selected was the Jervis Bay Territory, a Commonwealth territory located in the southeast of New South Wales and the only mainland jurisdiction for which the Commonwealth makes criminal law. This enabled the Commonwealth to retain control over all the elements of the offence and the penalty, so that there would be a single law of racist violence throughout Australia. This also would avoid the need to enact a comprehensive code of offences of racist violence ranging from common assault to murder.<161>
The Commission argued that if a crime of racist violence was created pursuant to its recommendation, the offences under Jervis Bay law that comprise an element of the recommended offence should be specifically identified and set out in a schedule to
the Federal Crimes Act 1914. The criteria for selecting the relevant Jervis Bay offences would be that they each involve an "act of violence", but because this phrase was not precise enough to clearly identify the relevant offences, these offences had to be individually identified (through the use of a schedule).<162> With that caveat, the Commission defined its proposed offence of racist violence as follows:
PART VIIBA--OFFENCES RELATING TO RACIST ACTIVITIES
85KZC. In this Part, "identifiable group" means a section of the public distinguished by colour, race, religion or national or ethnic origin.
Racist offences involving violence
85ZKD. (1) If:
(a) a person commits or threatens to do an act of violence that, if it had been committed in the Jervis Bay Territory, would be an offence specified in the Schedule against a law in force in that Territory; and
(b) the person intended the act or the threat to cause, or ought reasonably to have foreseen that the act or threat would cause, members of an identifiable group to fear for their physical safety because they are members of the group; and
(c) the act or threat is likely to cause members of the group to fear for their
physical safety because they are members of the group; the person is guilty of an offence punishable on conviction by a penalty not exceeding one and one-half times the penalty prescribed as the maximum penalty for the act under the law concerned.
(2) An offence ... under subsection (1) is not an indictable offence unless, because of that subsection, the act is punishable by imprisonment for a period of more than 12 months.<163>
This proposed definition contains three interesting features. First, the mens rea for the proposed crime is not limited to intention to cause harm to members of identifiable groups. It suffices to establish criminal liability that the person "ought reasonably to have foreseen" that the act or threat would cause members of an identifiable group to fear for their physical safety because of their membership in the identifiable group, provided also that it was likely to cause members of the group to fear for their physical safety because of their membership in the group (emphasis added). In other words, in terms of consequence, it is a crime of negligence. Secondly, the maximum penalty proposed for these crimes is set out as a general rule: one and one-half times the usual penalty. Thirdly, the definition of the crime would appear to include the crime of murder. <164> The Commission also recommended that the offence of incitement to commit a federal offence found in the Crimes Act 1914 should apply here as well, so that, in effect, incitement to racist violence would be a crime.<165> However, incitement to racist hatred and hostility should be made unlawful at the federal level, but not be made a crime. Conciliation, backed by civil remedies, should be the appropriate way to deal with these forms of racism.<166>
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