New SA criminalising hate-speech bill goes too far

The Department of Justice has invited the public to comment on a draft parliamentary bill containing a clause that would create an offence of "hate speech". The gist is that a person will be guilty of hate speech if they intentionally communicate to another person in a manner that advocates hatred towards any other person or group, or is threatening or abusive or insulting towards them.

Communicating includes spoken statements, gestures and displays, written and illustrated matter, and electronic communications. The wrongdoer’s action must, having regard to all circumstances, demonstrate clear intent to stir up violence against a person or group or bring them into contempt or ridicule, or to incite others to harm a person or group whether the harm occurs or not.

The wrongdoer’s action must be based on (the targeted person or group’s, presumably) race or ethnic origin or colour, birth or social origin or nationality, sex or gender or sexual orientation or gender identity, religion or belief, culture or language, disability or HIV status, or occupation or trade.

The department and minister of justice say the bill was drafted after thorough study of similar legislation of countries including Australia. Do Australian laws target as much speech as the bill aims to?

A quick point. The Australian constitution does not expressly empower the federal parliament to enact criminal laws, but the courts have been inventive in finding implied federal powers (as in the US). So, in Australia there are federal hate-speech laws as well as local ones in its states and territories.

Australia’s federal hate-speech law says a person commits an offence if, intending force or violence to occur, they urge others to use force or violence against a person believed to be a member of a group distinguished by race, religion, nationality, national or ethnic origin, or political opinion.

The Australian hate-speech law does not mention every characteristic listed in the South African bill; it does not mention sex or gender or sexual orientation or gender identity, disability or HIV status, or even culture or language, let alone occupation or trade.

Nor does the Australian law criminalise communications which are just threatening or abusive or insulting, or which advocate hatred short of force or violence, or merely bring a group into contempt or ridicule. The South African bill would criminalise all these. The Australian federal law is in the criminal code’s chapter on national security and is said to be aimed at protecting against terrorism more than anything.

Except for Tasmania and Northern Territory, Australia’s states and territories have laws making offences of certain forms of hate speech. New South Wales (NSW) criminalises only serious vilification. Its provisions say a person must not incite hatred towards, or serious contempt for or severe ridicule of, a person or group on the ground of their race, transgender status, homosexuality, or actual or believed HIV/AIDS infection, by means that include threatening or inciting others to threaten physical harm towards that person or group or their property.

The NSW provisions, unlike the aim of the South African draft, do not penalise inciting contempt or ridicule that is less than serious or severe. Nor do the NSW measures criminalise speech on the ground of gender, disability, culture, language or occupation, and so on.

Victoria’s provisions are even narrower, being limited to the grounds of race or religious belief or activity. Queensland’s law is wider than others in criminalising hate speech based on sexuality, but it does not criminalise hate speech based on sex or gender as commonly understood, let alone all other grounds listed in the draft bill.

The South African bill may have been drafted after study of legislation in Australia, but it seeks to penalise a much wider range of speech than is the case in Australia or its states and territories.

Moore is a South African lawyer living in New South Wales, Australia.

This article was first published in Business Day on 10 February 2017

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