The Racial Hatred Act: What is the racial hatred act?
This is a plain English explanation of the legislation. Click here to see the Act itself in full.
The Racial Hatred Act introduced in October 1995 amends the Racial Discrimination Act, and allows people to complain about publicly offensive or abusive behaviour based on racial hatred.
Unlawful behaviour is defined as public acts based on the race, colour, national or ethnic origin of a person or group of people which are likely to offend, insult, humiliate or intimidate.
What is a public place?
A public place is defined as any place to which the public are either invited or have access, including shops, streets, workplaces, public transport, sporting arenas and parks. The definition also includes words, sounds, images or writing communicated to the public, such as through newspapers, brochures, TV and radio programs or the Internet.
What sort of behaviour is unlawful?
'Racial hatred' is an umbrella term used to describe a range of behaviours from abuse or harassment based on race, to racially biased reporting and the use of offensive stereotypes in the media. Abuse can be verbal or written. Some examples of unlawful behaviour might include:
- writing racist graffiti in a public place
- making racist speeches at a public rally
- placing racist posters or stickers in a public place
- racist abuse in a public place
- making offensive racist comments in a publication.
What are the exemptions?
The law protects free speech by providing a number of exemptions which allow some actions if they are done 'reasonably and in good faith'. These terms are not defined in the Act, but some assistance can be found in other areas of the law, such as that of defamation and contempt. The exemptions cover:
an artistic work or performance - for example, a play in which racist attitudes are expressed by a character
a publication, discussion or debate on a matter of public interest - for example, discussing and debating public policy such as immigration, Aboriginal land rights, or affirmative action for disadvantaged groups
a fair and accurate report on a matter of public interest - for example, an accurate media report of an act of racial incitement or racially offensive conduct
a fair comment on any event or matter of public interest if the comment is an expression of a person's genuine belief - for example, a statement of opinion that an employment program aimed at a specific ethnic group be removed, in light of new research that indicates that the group is not disadvantaged in this area.
What are the implications for the media?
The new legislation acknowledges that there are legitimate public policy and social issues which need to be debated freely and fairly in the public interest and that the media has a vital role to play in that process.
The exemptions ensure that the media's right to report in the public interest in a balanced and fair way is unchanged. The term 'fair' is not defined in the Act, but some guidance can be found in the law of defamation.
A statement under scrutiny must claim to be a report of the relevant act/statement. If a racially offensive statement is adopted as a reporter's own statement, with or without attribution, the exemption does not apply. The report must relate what took place with substantial accuracy and be free from embellishment or comment that could itself amount to racial vilification.
Example: when reporting on racist statements made at a neo-Nazi rally or an anti-immigration meeting you should clearly attribute the comments or views to the person making or holding them so that it is absolutely clear they are not your views or the views of your employers.
Journalists can review and report on artistic work and performances where those works include ethnic or cultural stereotypes.
Media commentators can write or broadcast their own views, provided they state the facts on which these opinions are based, they reflect a 'genuinely held belief' and are done 'reasonably and in good faith'.
The legislation covers all aspects of Australian society and applies to people in all walks of life. However, many of the complaints brought under the Racial Hatred Act so far are against the media. Complainants are concerned about the perpetuation of negative racial stereotypes, sensationalist reporting on race issues, the use of gratuitous ethnic slurs and the citing of ethnicity when it has little or no relevance to the story.
Example: a newspaper column about a public servant's bungle cited the public servant's 'unusual' surname as relevant:
"Should we be in the least surprised that it was sent by someone called ............ to the wrong fax number?" asked the journalist in the piece.
Example: a newspaper columnist described Aboriginal spiritual belief as "manifest claptrap and arrant nonsense which any self-respecting, civilised, intelligent society would treat as balderdash". Such a comment may indeed reflect a 'genuinely held belief' but under the new law the columnist would need to state the facts on which this opinion was based, and to establish that the comments were made 'reasonably and in good faith'.
Does the new legislation affect freedom of speech and expression?
The racial hatred legislation does not constrain free speech in Australia any more than existing laws which recognise that countervailing interests take precedence over freedom of speech in some circumstances. The Act was brought in to provide legal recourse to people in the community who might be offended by serious expressions of racism. The following example aired by a West Australian radio station prior to the introduction of the legislation caused distress to members of the Aboriginal community:
" When white babies die, they turn into angels and go to heaven. When Aboriginal babies die, they turn into blowflies."
The racial hatred legislation was heatedly debated among politicians, the media and civil liberties groups before it eventually came into operation in October 1995. Much of that debate revolved around the concern that the new law might restrict freedom of expression.
These concerns were based largely on alarmist predictions which ignored the fact that, in many ways, freedom of speech is already affected by a number of laws in Australia. These laws have been part of our legislative landscape for decades, and journalists must take them into account in the course of their work. They include defamation, blasphemy, copyright, obscenity, incitement, official secrecy, contempt of court and of Parliament, censorship, and sedition. All of these laws recognise that some things are more important than freedom of speech. The Racial Hatred Act simply recognises that people have a right to live free of racial vilification and to have that right protected by law.
What is the difference between defamation and racial hatred legislation?
The law of defamation protects against harm to the reputation of individuals and corporate bodies. A group cannot sue for defamation under Australian law.
By way of contrast, a complaint can be made under racial hatred legislation by anyone from an offended group who feels insulted or humiliated by particular comments which are based on race, even if those comments were not personally directed at them.
Example: A radio presenter made disparaging remarks about a Jewish American performance artist who had recently toured Australia. In the course of the many personal attacks against her and her performances, he made derogatory statements about Jewish people, finally saying: "Hitler had the right idea".
The artist could have brought a defamation action against the broadcaster on the basis that the comments were damaging to her personal and professional reputation. She, or indeed any member of the Jewish community, could also bring a complaint under the racial hatred legislation on the basis that the comments were likely to offend, insult and humiliate Jewish people.
What happens if a complaint is brought against a journalist or a media organisation?
All federal anti-discrimination legislation is administered by the Human Rights and Equal Opportunity Commission and by state agencies on its behalf. Complaints to the Commission need to be made in writing and give clear details of the alleged breach of the legislation. The 'complainant' is the person making the complaint. The 'respondent' is the person about whom the complaint is alleged.
Once a complaint is made, the Commission will see whether it appears to be covered by the law and whether there is sufficient information to investigate it. The Race Discrimination Commissioner then inquires into the complaint on behalf of the Commission.
If it is not covered by the law and/or if an exemption applies, the Commissioner will decline the complaint. The Commissioner may also decline a complaint at any time in the inquiry if it is found to be frivolous, vexatious or lacking in substance.
When inquiring into a complaint, the Race Discrimination Commissioner may contact the person or organisation who is the subject of the complaint to get their side of the story. The Commission's investigating officer may ask for any relevant documents or interview other relevant people if appropriate.
If there appears to be substance to the complaint following the inquiry, the Commission will attempt to assist both parties to reach a mutually acceptable agreement. This process is called 'conciliation' and is informal and confidential. The whole process is cost free to both parties and privacy is respected. A conciliated agreement might include an apology, financial compensation or the introduction of new policies or training programs to prevent the behaviour occurring again.
A recent example of a conciliated outcome: two prominent community members from an ethno-religious background complained that racially offensive references were twice made about them in a metropolitan newspaper. Based on legal advice, the two lodged a complaint under the racial hatred provisions. The Race Discrimination Commssioner wrote to the newspaper outlining the allegations. Upon receipt of the Commissioner's letter, the newspaper management immediately entered into direct negotiations with the complainants. This resulted in the newspaper's publication of an apology. The newspaper also agreed to pay all legal expenses incurred by the complainants.
Where an agreement cannot be reached, the complaint may be referred to public hearing. Only 3% of all complaints lodged are referred to public hearing. This is a more formal process before a Hearing Commissioner and both sides may have legal representation.
Representatives of the media are allowed to attend and report on the hearing.
If a complaint is upheld at the hearing, the Commission will make a determination, though the matter may have to be pursued in the Federal Court for enforcement. From March 1997, it is anticipated that the law will change and matters that are not conciliated will be referred straight to the Federal Court.
Who is liable?
As with the law of defamation, any person who is involved in the publication or broadcasting of racially offensive material is potentially liable. In publishing or broadcasting the material, the relevant media organisation has engaged in an act that "causes words, sounds to be communicated to the public" which is "reasonably likely to offend" on the basis of race.
In the case of an offensive newspaper article, complaints may be lodged against the writer, publisher, printer and proprietor. Similarly, radio and television stations are also liable for the broadcast of any racially offensive statements, regardless of who makes the statements. Thus, unless it is able to establish one of the exemptions, a radio station is potentially liable for the broadcast of racially offensive statements made by announcers, interviewees, or by any member of the public participating in a talkback session, regardless of whether the interviewer endorses the remark.
Are the penalties for racial hatred criminal or civil?
As with the other parts of the RDA, civil penalties are available if a complaint is upheld against someone whose behaviour is found to be in breach of the racial hatred provisions.
Why have a national law?
The Racial Hatred Act is not the first legislation of its kind in Australia, but it is the first law with national application. In 1989, NSW became the first Australian jurisdiction to pass legislation which makes racial vilification unlawful. It was followed by the ACT in 1991.
A national law allows for greater consistency in application and gives all Australians equal protection under the law.
Many countries have laws against racial hatred - including Canada, the UK, New Zealand, Belgium, Austria, Denmark, Norway, Sweden, the Netherlands, Italy, Germany and France.
Why does the Racial Hatred Act need to apply to the media when there are other complaint mechanisms for people who have a grievance against journalists and media organisations?
There are no uniform regulatory standards governing the media in Australia. Existing forms of media regulation do not provide either accessible or adequate redress for racial vilification. For instance, the only sanction that the Australian Press Council can impose for a breach of the standards in its Charter is the publication of an adjudication. Codes of practice governing radio and television broadcasting cover only the most severe instances of racial vilification and do not provide any significant form of redress to the complainant.
Some responses to common misconceptions about the racial hatred legislation:
"The law enforces the idea that there are two classes of Australians by applying only to vilification of minority groups"
The legislation applies to everyone. All racial and ethnic groups are treated in the same manner under the law. For example, in its first year of operation, people of Jewish, French, Arabic, Aboriginal, Chinese, German and Anglo background among others, have brought complaints under the law.
Similarly, within the media context, complaints have been received against both "mainstream" media outlets and ethnic media outlets.
"The Racial Hatred Act is an instrument of 'political correctness' "
The legislation is not aimed at common prejudice, foolish remarks, or merely distasteful comments. It is not the Commission's role to dictate what is socially polite. This is demonstrated by the fact that the Act has not stifled public debate on a range of race related issues in its first twelve months of operation.
The legislation is aimed at stemming grievous, offensive and abusive behaviour which occurs publicly.
"The law will not change the views of racists. The only way to combat racism is through long term community education and debate, not through legislation"
It is true that, on its own, legislation will not abolish racist attitudes.
But combined with sustained public education, legislation can help to bring about attitudinal change. This has been demonstrated in relation to sexual harassment, where legislation and education have helped draw a clearer line between what is acceptable and unacceptable behaviour.
The NSW Department of Education has said that its efforts to combat racism in schools were helped because the NSW racial vilification law set both a community and a legal standard.
"People shouldn't be punished for their beliefs. Racism is based on strongly held beliefs which, for better or worse, people should be entitled to hold"
The 1991 National Inquiry into Racist Violence found that many Indigenous people and people of non-English speaking background live with the constant fear of violence and harassment because they are 'different'.
The beliefs which people hold in private are their own business and the law does not apply to them. However, if those views are brought into the public arena in a way which offends, humiliates or intimidates others, there is recourse under the law. The legislation is one step in helping to eliminate the fear and violence felt by many people in Australia's ethnic and Indigenous communities.
"You won't be able to tell racist jokes or indulge in private conversations"
It is highly unlikely that racist jokes told in comedy performances at entertainment venues would fall within the ambit of the legislation.
Conversations which occur 'privately' are unlikely to be covered because the law only applies to public acts.