Proposal to Change the NSW Anti-Discrimination Act


Words || Yehuda Aharon

While people from all political spectrums debate what George Brandis has called the ‘right to be a bigot’, a coalition of 35 ethnic community leaders have banded together to advocate for changes to New South Wales’ Racial Discrimination Act. The diverse group have formed an umbrella organisation called Keep NSW Safe, calling upon the NSW Attorney-General Gabrielle Upton to uphold her promise and push through reforms that will make it easier to prosecute perpetrators of racial hatred that encourages violence.

While Keep NSW Safe is made up of a variety of community leaders, the push for change has drawn criticism for some in Australia’s Muslim community for its failure to incorporate protections against Islamophobia. Ahmed Kilani of Muslim Village described this ‘as a huge slap in the face to Australian Muslims in a time of rising Islamophobia’.

Unlike its national counterpart, Section 20D of the NSW Anti-Discrimination Act does not include any reference to offence, humiliation or intimidation of minority groups. It instead focuses entirely on instigating violence.

“Not a single prosecution has occurred under this law.”

According to Keep NSW Safe Spokesperson Vic Alhadeff, the NSW Act is ‘unworkably convoluted’ and has failed to protect minorities to a satisfactory level. The law, which was created in 1977, requires a prosecutor to prove that there was incitement of hatred, serious contempt or severe ridicule by means which included a threat of physical harm or incitement of others to threaten physical harm.

According to Alhadeff, ‘The result is that not a single prosecution has occurred under this law despite Attorney-Generals referring 12 matters for investigation over the years. We believe the law should be simplified to make it an offence to promote violence against people on account of any of these categories. As with all crimes, such an offence should be placed in the Crimes Act’.

Responding to the pressure from the community leaders, the NSW Attorney-General recently told Parliament that ‘it is important that a government consults and takes views across the community, and any reform in this area must strike a balance between both principles of protection from violence in speech and free speech’.

The response had Chris Merritt of The Australian wondering if the NSW Attorney-General would allow a little violence or a lot of violence before coming to the conclusion that freedom of speech is a fundamental right. Merritt says that personal safety is another fundamental right that must be protected by the Act: ‘If a balance is to be struck [between personal safety and freedom of speech], it should favour safety — not the other way around’.

The event that instigated the push to change the Act was a fiery speech given by a member of Hizb-Ut-Tahrir, an Islamic organisation that politicians from across the political spectrum have attempted to ban, despite numerous academics and analysts stating that they it would do more harm than good. According to the Jewish Board of Deputies, of which Alhadeff is the CEO, the speech by the Hizb-Ut-Tahrir member was anti-Semitic to the point of instigating violence.

“We are either opposed to giving platforms to bigotry and violence or we are not.”

To the undiscerning eye, the constitution of Keep NSW Safe – which, according to Alhadeff, consists of ‘Armenians, Chinese, Greeks, Copts, Kurds and Indians to Sikhs, Koreans, Philippines, Assyrians, Jews, Christians and Vietnamese leaders and organisations’ – appears to be very ethnically diverse. There is, however, only a minimal representation of Muslim community leaders in Keep NSW Safe. When asked about this, Alhadeff said, ‘discussions with major Muslim organisations are ongoing and the Keep NSW Safe coalition is hopeful that they will join us. If they do, they will of course be very welcome’.

Ultimately, having laws in place to protect minorities from discrimination is of the utmost importance, but individuals are also responsible for calling out injustices. Alhadeff says: ‘All people of goodwill have an obligation to speak out on these issues. We are either opposed to giving platforms to bigotry and violence or we are not. There is a clear choice to be made [by the NSW government]’.