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Shofar FTP Archive File: orgs/canadian/canada/justice/hate-motivated-violence/hmv-005-03

Archive/File: orgs/canadian/canada/justice/hate-motivated-violence/hmv-005-03
Last-Modified: 1997/01/21
Source: Department of Justice Canada

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

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

(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

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

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:



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

(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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