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Honourable Shaoquett Moselmane, MP

The New South Wales Islamic community under attack without the Legislative protections afforded to others: Honourable Shaoquett Moselmane MLC

Dear Mr Zafar Hussain, Editor in Chief of Sada-e-Watan,

I wish to bring to your attention my short speech on the committee report of the Standing Committee on law and Justice which I delivered yesterday. The report makes various changes to facilitate removal of procedural barriers to prosecutions. It is a good report and the recommendations it makes were agreed to unanimously by committee members.

 What was disappointing however was the fact that it remains the fact that religious vilification is not part of the Anti-Discrimination Act and that means the Australian Muslim Community will continue to be afforded no protections from vilification and attack that we see too often these days.

 I do hope through your Sada e Watan website that your readership will write to members of parliament expressing their dismay but in particular to write to the Government to refer to the committee the task of inquiring into the question of whether religious vilification should be prohibited under the terms of the Anti-Discrimination Act.

 If the community does not take on this issue then they remain exposed to attack simply because neither the State’s Anti- Discrimination laws nor the Federal Racial Vilification laws afford the Muslim community the protections they deserve.

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 The Hon. SHAOQUETT MOSELMANE [5.15 p.m.]: I also support the report and concur with the comments of the Hon. David Clarke, the chair of the committee. This was a minimal committee that worked well in looking deep into the arguments, presentations and submissions of many organisations and witnesses who appeared before the committee. This inquiry was established to look into the effectiveness of section 20D of the Anti-Discrimination Act 1977. This section creates the offence of serious racial vilification. It, of course, was referred to the committee by the former Premier, whose argument was that to date there has been no successful prosecutions under this provision. The inference to be drawn from that was that the bar may need to be lowered.

 Furthermore, the committee was asked to inquire into whether or not section 20D establishes a realistic test for the offence of racial vilification in line with "community expectations", which I put in inverted commas. I note that there were many divergent submissions, and I believe they reflected to some extent these so-called community expectations. We were also asked to determine whether any improvements could be made to section 20D but, note, we must have regard to the continued importance of freedom of speech. This was critically argued by a number of submissions. If members look at appendix 1, they will see that more than 46 significant submissions were made. So our role was effectively to find the balance between the freedom to speak and protection from vilification.

 The report makes 15 recommendations, which were summarised in the report on pages xii and xiii. However, that summary was bettered by the Anti-Discrimination Board, and they are as follows: amending section 20B of the Anti-Discrimination Act 1977 to cover communications that occur in quasi-public places; the insertion of an exception for private conduct; amending section 20D to state that recklessness is sufficient to establish intention; amending division 3A to include persons of a presumed or imputed race; the board to refer serious racial vilification complaints to the Attorney General under section 91 (2) of the Anti-Discrimination Act; either extending the time limit for commencing prosecutions under section 179 of the Criminal Procedure Act 1986 to 12 months, or extending the timeframe for the president of the board to refer complaints to the Attorney General under section 91 (3) of the Anti-Discrimination Act; amending section 91 of the Anti-Discrimination Act to allow the president of the board to directly refer serious racial vilification complaints to the NSW Police Force; and amending the Anti-Discrimination Act to allow the NSW Police Force to prepare a brief of evidence for the Director of Public Prosecutions following the referral of a serious racial vilification complaint.

 The committee made a number of less significant recommendations, including that the NSW Police Force provide training to its members about the offence of serious racial vilification; reviewing the operation of any amendments after five years; reviewing the adequacy of the maximum penalty units in section 20D, taking into account the maximum penalty units for comparable offences within the Crimes Act 1900 and other Australian jurisdictions; and amending section 20C of the Anti-Discrimination Act, where appropriate, to reflect the amendments made to section 20D. I note that some, such as the Anti-Discrimination Board, expressed some disappointment with the report. I will not go into that matter, but I will say that I hear their concerns, which were agreed to by some submissions but rebutted by others.

 I understand also that the board considers that the review period be reduced from five to three years so the Government can address its concerns earlier. The committee believes that five years is more appropriate as it will provide the necessary time for the relevant institutions to mould the recommendations into their systems and provide time for prosecutions, if any arise. The committee believes that the proposed changes will remove a number of procedural barriers to prosecutions and simplify the transition of a complaint from the board to the police or the Director of Public Prosecutions. We hope this will assist with possible prosecutions with minimum complications.

 This report was disappointing for me and other quarters in that religious vilification was painted as being outside the terms of reference of the inquiry. The inquiry was about vilification and remains so whether it is racial or religious. Not a single day passes without seeing or hearing of a denigrating attack on the Australian Islamic community across the airwaves, on television screens or in print. A significant part of the New South Wales community is under attack for no fault of their own: They are collectively trashed simply because of the behaviour of a few citizens; the community cannot be expected to have control over what they do or say. The Federal Government's racial vilification laws and the State's anti-discrimination laws cover a broad range of categories but not religion, thus keeping the New South Wales Islamic community under attack without the protections afforded to others.

 Currently, discrimination on the grounds of religion is unlawful in the Australian Capital Territory, Queensland, Northern Territory, Tasmania, Victoria and Western Australia, but not so in South Australia or New South Wales. In New South Wales, discrimination on ethno-religious grounds, as opposed to religious grounds, is deemed unlawful, but that categorisation extends only to groups of people recognised as both ethnic and religious, such as the Jewish and Sikh faiths and not the Islamic faith. During the inquiry, discussion was had about the possibility of widening the scope of section 20D of the Anti-Discrimination Act to capture religious vilification, particularly when ethno-religious vilification was incorporated into the Act in 1994 with the intention of including groups such as Jews, Muslims and Sikhs. However, for some reason, the Islamic religious categorisation was not included in the Act.

 The Human Rights Law Centre highlighted that Australia's international obligations as set out in Article 20 (2) of the International Covenant on Civil and Political Rights requires States to prohibit vilification motivated by race, ethnicity or religion. When vilification against Muslims is raised, it immediately is acknowledged as a problem but then is placed in the too-hard basket. I will not go through the various submissions or refer to the witnesses who expressed support for or agreed with that presumption but, generally, they argued that it was too difficult at this point to include religious vilification in the Act. As a result, three committee members—the Hon. Peter Primrose, Mr David Shoebridge and me—made a statement dissenting on the majority decision in the committee comment to not include the following statement:

The Committee notes that certain inquiry participants supported extending the coverage of s 20D of the Anti-Discrimination Act to include religious vilification as they did not consider the inclusion of the term "ethno-religious" within the definition of race to adequately address the issue. While Australia has international human rights obligations to implement a criminal and civil prohibition on religious vilification, there was clear opposition to the introduction of such a provision.

I hope the Government will consider a referral and recommend to the committee to inquire into the question of whether religious vilification should be prohibited under the terms of the Anti-Discrimination Act. I thank the committee chair and committee members for their professionalism and particularly, as the chair indicated earlier, the staff for assisting in a very informative inquiry and for a well-written report, which I recommend

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