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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Criminal Code Amendment (Racial Vilification)
Bill 2004
CONTENTS
1. Short title 1
2. Commencement 2
3. The Criminal Code amended 2
4. Section 1 amended 2
5. Section 76 amended 2
6. Sections 77 to 80 replaced by sections 77 to 80H 3
7. Section 313 amended 8
8. Section 317 amended 8
9. Section 317A amended 9
10. Section 338B amended 9
11. Section 444 amended 9
12. Section 597A replaced 10
331--2 page i
Western Australia
LEGISLATIVE ASSEMBLY
(As amended during consideration in detail and upon reconsideration)
Criminal Code Amendment (Racial Vilification)
Bill 2004
A Bill for
An Act to amend The Criminal Code.
The Parliament of Western Australia enacts as follows:
1. Short title
This Act may be cited as the Criminal Code Amendment (Racial
Vilification) Act 2004.
page 1
Criminal Code Amendment (Racial Vilification) Bill 2004
s. 2
2. Commencement
This Act comes into operation on the day on which it receives the
Royal Assent.
3. The Criminal Code amended
5 The amendments in this Act are to The Criminal Code*.
[* Reprint 10 as at 7 February 2003 (see the Schedule to the
Criminal Code Act 1913 appearing as Appendix B to the
Criminal Code Compilation Act 1913).
For subsequent amendments see Western Australian
10 Legislation Information Tables for 2003, Table 1, p. 95 and
Acts Nos. 50 and 78 of 2003 and 4 of 2004.]
4. Section 1 amended
Section 1(1) is amended by inserting in the appropriate
alphabetical position --
15 "
The term "circumstances of racial aggravation" has
the meaning given to it in section 80I;
".
5. Section 76 amended
20 (1) Section 76 is amended by inserting in the appropriate
alphabetical positions --
"
"animosity towards" means hatred of or serious
contempt for;
25 "harass" includes to threaten, seriously and
substantially abuse or severely ridicule;
"member" of a racial group includes a person
associated with a racial group;
".
page 2
Criminal Code Amendment (Racial Vilification) Bill 2004
s. 6
(2) Section 76 is amended in the definition of "written or pictorial
material" by inserting before "newspaper" --
" book, magazine, ".
6. Sections 77 to 80 replaced by sections 77 to 80H
5 Sections 77, 78, 79 and 80 are repealed and the following
sections are inserted instead --
"
77. Conduct intended to incite racial animosity or racist
harassment
10 Any person who engages in any conduct, otherwise
than in private, by which the person intends to create,
promote or increase animosity towards, or harassment
of, a racial group, or a person as a member of a racial
group, is guilty of a crime and is liable to imprisonment
15 for 14 years.
78. Conduct likely to incite racial animosity or racist
harassment
Any person who engages in any conduct, otherwise
than in private, that is likely to create, promote or
20 increase animosity towards, or harassment of, a racial
group, or a person as a member of a racial group, is
guilty of a crime and is liable to imprisonment for
5 years.
Summary conviction penalty: Imprisonment for 2 years
25 or a fine of $24 000.
79. Possession of material for dissemination with intent
to incite racial animosity or racist harassment
Any person who --
(a) possesses written or pictorial material that is
30 threatening or abusive intending the material to
be published, distributed or displayed whether
by that person or another person; and
page 3
Criminal Code Amendment (Racial Vilification) Bill 2004
s. 6
(b) intends the publication, distribution or display
of the material to create, promote or increase
animosity towards, or harassment of, a racial
group, or a person as a member of a racial
5 group,
is guilty of a crime and is liable to imprisonment for
14 years.
80. Possession of material for dissemination if material
likely to incite racial animosity or racist harassment
10 If --
(a) any person possesses written or pictorial
material that is threatening or abusive intending
the material to be published, distributed or
displayed whether by that person or another
15 person; and
(b) the publication, distribution or display of the
material would be likely to create, promote or
increase animosity towards, or harassment of, a
racial group, or a person as a member of a
20 racial group,
the person possessing the material is guilty of a crime
and is liable to imprisonment for 5 years.
Summary conviction penalty: Imprisonment for 2 years
or a fine of $24 000.
25 80A. Conduct intended to racially harass
Any person who engages in any conduct, otherwise
than in private, by which the person intends to harass a
racial group, or a person as a member of a racial group,
is guilty of a crime and is liable to imprisonment for
30 5 years.
Summary conviction penalty: Imprisonment for 2 years
or a fine of $24 000.
page 4
Criminal Code Amendment (Racial Vilification) Bill 2004
s. 6
80B. Conduct likely to racially harass
Any person who engages in any conduct, otherwise
than in private, that is likely to harass a racial group, or
a person as a member of a racial group, is guilty of a
5 crime and is liable to imprisonment for 3 years.
Summary conviction penalty: Imprisonment for one
year or a fine of $12 000.
80C. Possession of material for display with intent to
racially harass
10 Any person who --
(a) possesses written or pictorial material that is
threatening or abusive intending the material to
be displayed whether by that person or another
person; and
15 (b) intends the display of the material to harass a
racial group, or a person as a member of a
racial group,
is guilty of a crime and is liable to imprisonment for
5 years.
20 Summary conviction penalty: Imprisonment for 2 years
or a fine of $24 000.
80D. Possession of material for display if material likely
to racially harass
If --
25 (a) any person possesses written or pictorial
material that is threatening or abusive intending
the material to be displayed whether by that
person or another person; and
page 5
Criminal Code Amendment (Racial Vilification) Bill 2004
s. 6
(b) the display of the material would be likely to
harass a racial group, or a person as a member
of a racial group,
the person possessing the material is guilty of a crime
5 and is liable to imprisonment for 3 years.
Summary conviction penalty: Imprisonment for
one year or a fine of $12 000.
80E. Conduct and private conduct
(1) A reference in section 77, 78, 80A or 80B to conduct
10 includes a reference to conduct occurring on a number
of occasions over a period of time.
(2) For the purposes of sections 77, 78, 80A and 80B
conduct is taken not to occur in private if it --
(a) consists of any form of communication with the
15 public or a section of the public; or
(b) occurs in a public place or in the sight or
hearing of people who are in a public place.
80F. Belief as to existence or membership of racial group
For the purposes of proceedings for an offence under
20 section 77, 79, 80A, 80C, 313, 317, 317A, 338B or 444
it does not matter whether a group of persons was a
racial group or whether a person was a member of a
racial group as long as the accused person believed at
the time of the alleged offence that the group was a
25 racial group or that the person was a member of a racial
group, as the case may be.
80G. Defences
(1) It is a defence to a charge under section 78 or 80B to
prove that the accused person's conduct was engaged
30 in reasonably and in good faith --
(a) in the performance, exhibition or distribution of
an artistic work;
page 6
Criminal Code Amendment (Racial Vilification) Bill 2004
s. 6
(b) in the course of any statement, publication,
discussion or debate made or held, or any other
conduct engaged in, for --
(i) any genuine academic, artistic, religious
5 or scientific purpose; or
(ii) any purpose that is in the public interest;
or
(c) in making or publishing a fair and accurate
report or analysis of any event or matter of
10 public interest.
(2) It is a defence to a charge under section 80 or 80D to
prove that the accused person intended the material to
be published, distributed or displayed (as the case may
be) reasonably and in good faith --
15 (a) in the performance, exhibition or distribution of
an artistic work;
(b) in the course of any statement, publication,
discussion or debate made or held, or any other
conduct engaged in, for --
20 (i) any genuine academic, artistic, religious
or scientific purpose; or
(ii) any purpose that is in the public interest;
or
(c) in making or publishing a fair and accurate
25 report or analysis of any event or matter of
public interest.
80H. Consent to prosecutions
A prosecution under section 77, 78, 79 or 80 must not
be commenced without the consent of the Director of
30 Public Prosecutions.
page 7
Criminal Code Amendment (Racial Vilification) Bill 2004
s. 7
80I. Meaning of "circumstances of racial aggravation"
In sections 313, 317, 317A, 338B and 444 --
"circumstances of racial aggravation" means
circumstances in which --
5 (a) immediately before or during or immediately
after the commission of the offence, the
offender demonstrates hostility towards the
victim based, in whole or part, on the victim
being a member of a racial group; or
10 (b) the offence is motivated, in whole or part, by
hostility towards persons as members of a
racial group.
".
7. Section 313 amended
15 Section 313(1)(a) is amended by inserting after "60 years" --
"
or the offence is committed in circumstances of racial
aggravation
".
20 8. Section 317 amended
Section 317(1)(a) (being the first provision so designated) is
amended by inserting after "60 years" --
"
or the offence is committed in circumstances of racial
25 aggravation
".
page 8
Criminal Code Amendment (Racial Vilification) Bill 2004
s. 9
9. Section 317A amended
Section 317A(a) (being the second provision so designated) is
amended by inserting after "60 years" --
"
5 or the offence is committed in circumstances of racial
aggravation
".
10. Section 338B amended
(1) Section 338B(a) is amended by inserting after "years" --
10 "
or, if the offence is committed in circumstances of
racial aggravation, to imprisonment for 14 years
".
(2) Section 338B(b) is amended as follows:
15 (a) by deleting "any other case" and inserting instead --
" the case of any other threat ";
(b) by inserting after "years" --
"
or, if the offence is committed in circumstances of
20 racial aggravation, to imprisonment for 6 years
".
11. Section 444 amended
(1) Section 444(a) (being the first provision so designated) is
amended by inserting after "years" --
25 "
or, if the offence is committed in circumstances of
racial aggravation, to imprisonment for 20 years
".
page 9
Criminal Code Amendment (Racial Vilification) Bill 2004
s. 12
(2) Section 444(b) (being the first provision so designated) is
amended as follows:
(a) by deleting "in any other case" and inserting instead --
"
5 if the property is not destroyed or damaged by
fire
";
(b) by inserting after "years" --
"
10 or, if the offence is committed in circumstances
of racial aggravation, to imprisonment for
14 years
".
12. Section 597A replaced
15 Section 597A is repealed and the following section is inserted
instead --
"
597A. Incitement to racial animosity or racist harassment;
alternative verdicts
20 (1) Upon an indictment charging a person with an offence
under section 77 the person may be convicted of an
offence under section 78, 80A or 80B.
(2) Upon an indictment charging a person with an offence
under section 78 or 80A the person may be convicted
25 of an offence under the other of those sections or under
section 80B.
(3) Upon an indictment charging a person with an offence
under section 79 the person may be convicted of an
offence under section 80, 80C or 80D.
page 10
Criminal Code Amendment (Racial Vilification) Bill 2004
s. 12
(4) Upon an indictment charging a person with an offence
under section 80 or 80C the person may be convicted
of an offence under the other of those sections or under
section 80D.
5 ".
page 11
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