Anti-Discrimination (Racial Vilification) Amendment Act 1989 (NSW)

ANTI-DISCRIMINATION (RACIAL VILIFICATION)
AMENDMENT ACT 1989 No. 48

NEW SOUTH WALES

TABLE OF PROVISIONS

1. Short title
2. Commencement

3. Amendment of Anti-Discrimination Act 1977 No. 48

SCHEDULE 1—AMENDMENTS

ANTI-DISCRIMINATION (RACIAL VILIFICATION) AMENDMENT

ACT 1989 No. 48

NEW SOUTH WALES

Act No. 48, 1989

An Act to amend the Anti-Discrimination Act 1977 to render vilification on the ground of race unlawful and to create an offence of serious racial vilification; and for other purposes. [Assented to 17 May 1989]

2 Act No. 48

Anti-Discrimination (Racial Vilification) Amendment 1989
The Legislature of New South Wales enacts:

Short title

This Act may be cited as the Anti-Discriminalion (Racial Vilification)

Amendment Act 1989.

Commencement

*

2. This Act commences on a day or days to be appointed by

proclamation.

Amendment of Anti-Discrimination Act 1977 No. 48

The Anti-Discrimination Act 1977 is amended as set out in Schedule

1.

SCHEDULE 1—AMENDMENTS

(Sec. 3)

(1) Part 2, Division 3A—

After Division 3, insert:
Division 3A—Racial vilification

Definition of "public act"
20B. In this Division, "public act" includes—

(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material; and
(b)

any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing,
signs, flags, emblems and insignia; and

(c)

the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses 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.

Racial vilification unlawful
20c. (1) It is unlawful for a person, by a public act, to incite
Anti-Discrimination (Racial Vilification) Amendment 1989

SCHEDULE 1— AMENDMENTS—continued

(2) Nothing in this section renders unlawful—

(a)

a fair report of a public act referred to in subsection (1); or

(b)

a communication or the distribution or dissemination of any matter comprising a publication referred to in Division 3 of Part 3 of the Defamation Act 1974 or which is otherwise subject to a defence of absolute privilege in proceedings for defamation; or

(c)

a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.
Offence of serious racial vilification
20D. (1) 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, or towards any property of, the person or group of persons.
Maximum penalty:
In the case of an individual—10 penalty units or
imprisonment for 6 months, or both.
In the case of a corporation—100 penalty units.

(2) A person shall not be prosecuted for an offence under this

section unless the Attorney General has consented to the
prosecution.

(2) Section 87 (Definitions)—
After the definition of "Court"', insert:
"racial vilification complaint" means a complaint in respect of
a contravention of section 20c;
"representative body" means a body (whether incorporated or
unincorporated) which represents or purports to represent a
racial group of people within New South Wales (whether or
4 Act No. 48

Anti-Discrimination (Racial Vilification) Amendment 1989
SCHEDULE 1 —AMENDMENTS—continued

(3) Section 88 (Making of complaints)—

Omit section 88 (1), insert instead:
(1) Except as provided by this section, a complaint in writing in respect of any contravention of this Act or the regulations which is alleged to have been committed by a person (other than a contravention in respect of which a specific penalty is imposed) may be lodged with the President by—
(a) a person on the person's own behalf; or

(b)

a person on the person's own behalf and on behalf of another person or other persons; or
(c) 2 or more persons on their own behalf; or

(d) 2 or more persons on their own behalf and on behalf of another person or other persons.

(1A) A racial vilification complaint in writing may be lodged with the President—

(a) in accordance with subsection (1), but only if the person or persons on whose behalf the complaint is lodged is a member, or are members, of the racial group concerned; Or
(b) by a representative body on behalf of a named person who is a member, or named persons who are members, of the racial group concerned.

(1B) If a racial vilification complaint is lodged by a representative body on behalf of a named person or persons, the body must show that the person or persons has or have consented to the lodging of the complaint.

(l.c) Despite any other provision of this Act, the President may
require a representative body which has lodged a racial vilification complaint to nominate a person to appear for the representative body in conciliation proceedings concerning the complaint before
the President.

(4) Section 8 9 B —

After section 89A, insert:
Prosecution for serious racial vilification
89B. (1) The President—
(a) after investigating a racial vilification complaint; and

(b)

before endeavouring to resolve the complaint by conciliation,
Anti-Discrimination (Racial Vilification) Amendment 19S9

SCHEDULE 1— AMENDMENTS—continued

(2) If the President considers that an offence may have been committed under section 20D, the President shall refer the complaint to the Attorney General.
(3) The President may only make such a referral within 28 days after receipt of the complaint.
(4) On making the referral, the President shall, by notification in writing addressed to the complainant, advise the complainant of—
(a) the making of the referral; and
(b) the rights of the complainant under section 91 (1).
(5) Despite section 96, the Tribunal may stay an inquiry into the complaint until the conclusion of proceedings for the alleged offence under section 20D.

(5) Section 91 (Reference of complaint to Tribunal at requirement of
complainant)—
Section 91 (1)—
After "section", insert " 8 9 B (4) or".

(6) Section 113 (Order or other decision of the Tribunal)—
(a) After section 113 (b) (iii), insert:
(iiia) in respect of a racial vilification complaint, order the respondent to publish an apology in respect of the matter the subject of the complaint or order the respondent to publish a retraction in respect of the matter (or order both)

and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both);

(iiib) in respect of a racial vilification complaint, order the respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination;

(b) At the end of section 113, insert:
(2) The power of the Tribunal to award damages to a
complainant shall, in the case of a racial vilification complaint
lodged by a representative body, be taken to be a power to award
6 Act No. 48

Anti-Discrimination (Racial Vilification) Amendment 1989

SCHEDULE 1— AMENDMENTS—continued

(3) In making an order for damages under this section concerning a racial vilification complaint lodged on behalf of a person or persons, the Tribunal—

(a)

except as provided by paragraph (b), may make such order as it thinks fit as to the application of those damages for the benefit of the person or persons; and

(b)

shall not. if 2 or more complaints are made in respect of the same public act of the respondent and those complaints are found to be substantiated, make an order or orders that would cause the respondent to pay more than $40,000 in the aggregate in respect of that public act.

(7) Section 1 16 (Compliance with order of the Tribunal)—

Omit "or (iii)", insert instead ", (iii), (iiia) or (iiib)'\

(8) Section 125—

Omit the section, insert instead:
Proceedings for offences
125. Proceedings for an offence against this Act or the regulations shall be dealt with summarily before a Local Court constituted by a Magistrate sitting alone.

[Minister's second reading speech made in—

Legislative Assembly on 3 Mar 1989
Legislative Council on 10 May 1989]

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Anti-Discrimination (Racial Vilification) Amendment Act 1989 (NSW)

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(a)	a fair report of a public act referred to in subsection (1); or
(b)	a communication or the distribution or dissemination of any matter comprising a publication referred to in Division 3 of Part 3 of the Defamation Act 1974 or which is otherwise subject to a defence of absolute privilege in proceedings for defamation; or
(c)	a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.

(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, or towards any property of, the person or group of persons.

(a)	in accordance with subsection (1), but only if the person or persons on whose behalf the complaint is lodged is a member, or are members, of the racial group concerned; Or
(b)	by a representative body on behalf of a named person who is a member, or named persons who are members, of the racial group concerned.

(l.c) Despite any other provision of this Act, the President may require a representative body which has lodged a racial vilification	complaint to nominate a person to appear for the representative	body in conciliation proceedings concerning the complaint before
the President.

(a)	except as provided by paragraph (b), may make such order as it thinks fit as to the application of those damages for the benefit of the person or persons; and
(b)	shall not. if 2 or more complaints are made in respect of the same public act of the respondent and those complaints are found to be substantiated, make an order or orders that would cause the respondent to pay more than $40,000 in the aggregate in respect of that public act.