The reference arose from the problem of large-scale racist poster and graffiti campaigns inflicted upon public property in metropolitan and some rural areas. Although these activities breached certain provisions of the Police Act 1892 (WA) and the Litter Act 1979 (WA), authorities were often frustrated in their attempts to enforce the applicable laws. This was largely due to the scale of the activity, as well as the fact that most of the inflammatory material was being posted late at night. The issue had received a high degree of publicity and was the subject of intense public debate that evidenced concern about both the social and financial1 costs attaching to this problem.
Terms of Reference
In November 1988 the Commission was asked to consider what changes to the law, if any, were needed to adequately deter acts that incite racial hatred.
Outcomes
The Criminal Code Amendment (Incitement to Racial Hatred) Bill, which sought to implement the Commission’s recommendations, was introduced into the Legislative Assembly in October 1989. Its passage was marked by wide ranging debate. The Bill was eventually passed and the Criminal Code Amendment (Racist Harassment and Incitement to Racial Hatred) Act 1990 (WA) received the Royal Assent on 9 October 1990. The Act now constitutes Chapter XI of the Criminal Code 1913 (WA).
The Commission’s recommendations were substantially implemented by the Act. However, the element of ‘threatening, abusive or insulting’ was reduced to simply ‘threatening or abusive’ in respect of all four enacted offences. Further, the Commission’s recommendation for the third and fourth offences to include ‘intended or likely to cause serious harassment, alarm, fear or distress’ was limited by Parliament to ‘intends any racial group to be harassed’. In view of these small but nevertheless significant changes to the nature and scope of the Commission’s proposed offences, the question whether the legislation sufficiently deters acts that incite racial hatred remains.
