Image - www.humanrights.gov.au

Image – www.humanrights.gov.au

In 2004 I was significantly involved with Premier Geoff Gallop in attempting to get changes to the racial vilification provisions of the WA Criminal Code through Parliament. I spent a fair degree of my time in Parliament through the debates and gained bi-partisan support for the legislation. The then Shadow Attorney General Sue Walker and Multicultural Interests Shadow, Ray Halligan were extremely helpful in gaining the support of the Liberal Opposition for the legislation. Hansard has recorded the debates and those who wish to follow the progress of that legislation are welcome to search the transcripts.

By way of background, the WA Criminal Code was amended in this area following the activities of Jack Van Tongeren in the eighties. At the time the Attorney General introduced legislation to make the act of racial vilification illegal and therefore subject to the criminal code. The peak body in the area was adamant that the provisions relating to this should be contained in the Criminal Code. What this achieved was that acts of racial vilification would then be subject to prosecution action by the police. This would remove any issues of intimidation, which is often a feature of racial vilification acts. The legislation as it stood then required the police to bring the charges of vilification which would then result in a maximum jail sentence of 2 years. The Police would also be required to prove the intent of the perpetrator of the racially vilifying act.

The difficulty of this process was that often the perpetrators would argue that they had got themselves into a state of inebriation and therefore their intent was impaired and could not be proven. This would end up with WA Police being reluctant to pursue any legal action herein.

The 2004 amendments changed the legislation markedly. For the first time we had two levels of offence. The less serious offence carried a five year jail sentence and did not require the Police to prove the intent of the perpetrator. The more serious offence carried a 14 year jail sentence if the intent of the perpetrator was proven. I attempted to get government support for legislation that would also take into account acts of vilification on a religious basis. However, this was not to be acceptable to government.

The legislation passed through parliament and royal assent was provided.

Since the time of the legislation you would have expected that there would have been many prosecutions of one kind or another. But this has certainly not been the case. WA Police have demonstrated a complete lack of interest in pursuing prosecutions of any kind. The highest profile case that was prosecuted by police in this time to date has been the case of a 14 year old Aboriginal girl from Kalgoorlie. The case was subsequently dismissed by Magistrate Kate Auty. Since that time I have referred a number of cases to the WA Police unit in this area. For reasons not apparent to me there seems to be a considerable reluctance on the part of Police to act. There are two other cases in this area that I am aware of. One was that of the young University student who had the deeply offensive “Crazy Noongar” website. He pleaded guilty and was fined for his actions. There has also been the case of Simon Barker, who made the film “Flubba Wubba Noongar”. He was acquitted and I am unsure as to the current state of that case. I have asked WA Police the question approximately five times and have not had a response once. Both those cases were brought to the attention of WA Police by me.

In the early days of the legislation, the advice from the Director of Public Prosecutions (DPP) was always that the perpetrator of the racially vilifying act needed to get the ethnicity base of their vilification, correct before a successful prosecution could be achieved. This would then envisage the rather ridiculous situation that someone abusing me on the basis of my Indian ethnicity could not be prosecuted because I was in fact born in Singapore!

After around six years of the passing of the legislation, the DPP changed their view and agreed that vilification was unacceptable and prosecutable irrespective of the correctness of the classification of a victim’s ethnicity.

What has brought this matter to the fore recently for me is the case of the lawyer whose case has been documented in the local newspaper recently. In the particular case there have been findings by the relevant disciplinary arm of the profession that she had abused a security officer at the courts on the basis of his ethnicity (Singaporean/Indian). Clearly that is a matter settled by the professional standards board. Surely this is a case that the WA Police need to be pursuing. Of course, one would hope (I suspect in vain!), that the Minister for Multicultural Interests and the Police Minister might see it worthy of consideration for discussion. The Minister for Multicultural Interests also has an advisory group that should be raising these issues. One wonders what the role of that group really is.

There have been a number of other cases that have required their consideration. The case of William Maker (killed in a hit and run incident in Merriwa) is one. But it has been to absolutely no avail. Any excuses proffered by WA Police that they did not expect success are specious at best. There is no way that any of us are going to get clarity in the interpretation of the legislation unless it is through the courts. The Police and DPP should not be the ones that make that decision. Let the courts and judges make their decisions and clarify the application of the legislation. This will highlight any deficiencies that exist and that can then be referred back to parliament for amendment.

We continue to live in hope that WA Police actually will use this legislation other than to victimise the Aboriginal population of our state.