Race Discrimination Unit, HREOC, October 2002
This paper outlines what constitutes racial hatred under the Racial Discrimination Act 1975 and provides an overview of the complaints process of the Human Rights and Equal Opportunity Commission (HREOC). It also briefly outlines two cases of significance to the regulation of race hate on the Internet: Jones v Toben  and Dow Jones Company Inc v Gutnick.  The relevant state and territory provisions on racial vilification, including criminal sanctions, are also outlined.
Since the introduction of provisions dealing with racial hatred in 1995,  the Racial Discrimination Act makes it unlawful to insult, humiliate, offend or intimidate another person or group in public on the basis of their race. Specifically, the Act states:
A variety of acts can constitute racial hatred, including speaking, singing and making gestures in public, as well as drawings, images, and written publications such as newspapers, leaflets and websites.
There are three essential components of this unlawful conduct:
These elements are considered individually below. It should be noted that some public acts are exempt from the provisions. The exemptions are outlined later in this section.
1) The act is done "otherwise than in private"
The legislation requires that the act be done "otherwise than in private". Words, sounds, images or writing communicated to the public are acts done 'otherwise than in private'.  As the Internet is one means by which words, sounds, images and writing are communicated to the public, the legislation clearly applies to this medium. In addition, any act done in a public place or within sight or hearing of people who are in a public place is an act done 'otherwise than in private'.  A public place is defined by the Act as "any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission".  Consequently, in addition to the Internet, the legislation applies to behaviour in shops, pubs, streets, talkback radio, workplaces, public transport, sporting arenas and parks.
Conversely, if the act happens in private, for example, as part of a private telephone conversation or in a private place, such as a person's home, it is not unlawful. 
2) The act is reasonably likely to offend, insult, humiliate or intimidate
The victim's perspective is the measure of whether an act is likely to offend, insult, humiliate or intimidate. For example, if derogatory comments are made against Indigenous people, the central question to ask is whether those comments are likely to offend or intimidate an Indigenous person or group, not whether they have this effect upon a non-Indigenous person.
At the same time, the victim's response to the words or image must be reasonable. That is, the "yardstick should not be a person peculiarly susceptible to being roused to enmity, nor one who takes an irrational or extremist view of relations among racial groups."  This is called the 'reasonable victim' test.  The 'reasonable victim' test allows the standards of the dominant class to be challenged by ensuring cultural sensitivity when deciding the types of comments that are considered offensive. 
3) The act is done because of the race, colour or national or ethnic origin of the group
The conduct must be racially-based in order for it to be covered by the legislation. There might be several reasons for an offensive communication and, in such cases, it is only necessary that one of these reasons be race, colour or national or ethnic origin. 
To protect freedom of expression, the legislation sets out certain circumstances in which the prohibition will not apply, providing the person has acted reasonably and in good faith. First, if the communication is part of an artistic work it is not unlawful. Also excepted are academic and scientific works and debates or comments on matters of public interest. This permits a range of public policy issues to be debated such as multiculturalism, native title and so on. The media are given considerable scope in a third exception which permits fair and accurate reporting on any matter of public interest. This last exception enables the media to report on public issues, such as racial incitement or racially offensive conduct. It also allows editorial opinions and the like, providing they are published without malice.
Offensive racially-based material is permitted in these fields provided the person communicating the material has acted "reasonably and in good faith". Good faith generally means that there is no improper motive, such as malice. A lack of good faith can be shown by a deliberate intention to mislead or by a culpably reckless and callous indifference to the offense or denigration caused by the communication. Carelessness or indifference is usually not sufficient to show a lack of good faith. Because of considerations of freedom of speech, wide latitude is generally permitted when determining what is reasonable.
At the time the legislation was introduced in 1995, the Government explained that, "It is not the intention to prohibit a person from stating in public what may be considered generally to be an extreme view, so long as the person making the statement does so reasonably and in good faith and genuinely believes what he or she is saying." 
Burden of proof
The complainant is responsible for proving that the act was done in public, that it was done because of his or her race and that it was reasonably likely to offend, insult, humiliate or intimidate a reasonable person of that race. The respondent must establish that the act is covered by one of the exceptions and that it was done reasonably and in good faith.
Victims of racial hatred are entitled to seek redress through a conciliation-based complaint mechanism of the Human Rights and Equal Opportunity Commission. Complaints are investigated according to the provisions of the Racial Discrimination Act just described. 
Only an 'aggrieved person' may lodge a complaint. In the case of the racial hatred provisions, an aggrieved person is someone from the group targeted by the behaviour who is offended, insulted, humiliated or intimidated because of his or her race.
Provided the complaint is not lacking in substance and is covered by the Act, the Commission will attempt to conciliate the matter.  Conciliation involves the Commission working with both parties to negotiate an agreement which is mutually acceptable. Complaints which cannot be conciliated will be terminated, at which point the complainant may pursue the matter in the Federal Court or Federal Magistrates Service.
The Commission cannot deal with a complaint unless a named respondent is identified. This is an important factor to consider with regard to the Internet, where publications are often posted anonymously and where provisions to enable the identification of site creators are currently inadequate.
Racial hatred complaints received by the Human Rights and Equal Opportunity Commission since the introduction of the racial hatred amendment are as follows: 1995-96 - 63 ; 1996-97 -186; 1997-98 - 94; 1998-99 - 86; 1999-00 - 75; 2000-01 - 145. The most common types of racial hatred complaints were about the media,  neighbourhood disputes, employment, personal conflict and public debate. To date, there have been very few complaints about racial hatred on the Internet. Equally, there is very little public education regarding the entitlement of Internet users to complain to the Commission (or other regulators) about racist Internet content. And until recent pronouncements by the Federal Court (see below), there had been some uncertainty as to whether and how the Racial Discrimination Act would be applied to the Internet. As public education develops in this area, IT sectoral awareness increases and Internet usage continues to expand, the Commission and other regulators may expect to receive increasing numbers of complaints about racial vilification on the Internet.
The only Australian case to date dealing specifically with racial hatred on the Internet is Jones v Toben,  decided in September 2002. The other important case recently heard in Australia is Dow Jones & Company Inc v Gutnick  although this case does not involve the specific issue of racial hatred on the Internet.
In the case of Jones v Toben the Federal Court found that a website that denied the Holocaust and vilified Jewish people was unlawful under Racial Discrimination Act 1975. The material posted on the Internet by Dr Fredrick Toben cast doubt on the Holocaust, suggested that homicidal gas chambers at Auschwitz were unlikely and that some Jewish people, for improper purposes including financial gain, had exaggerated the number of Jews killed during World War II. In 2000, the Human Rights and Equal Opportunity Commission had found the material to be in breach of the Racial Discrimination Act. The complainant, President of the Executive Council of Australian Jewry, Mr Jeremy Jones, then applied to the Federal Court to enforce HREOC's determination. 
Federal Court Justice Branson stated she was "satisfied that it is more probable than not that the material would engender in Jewish Australians a sense of being treated contemptuously, disrespectfully and offensively". She ordered the respondent, Dr Toben, to remove offensive material from the World Wide Web.
In 2000 Dr Toben had been imprisoned in Germany for publishing similar material on his Australian Internet site. The German Supreme Court found that material breached German law.  Neither Dr Toben's Australian citizenship nor the fact that he created the site in Australia protected him from German jurisdiction. The central concern for the German Court was the material's accessibility to German citizens. This background illustrates the reconfiguration of the traditional reach of domestic jurisdiction in the global context of the Internet.
The question of which jurisdiction applies to Internet content has recently been considered by the Australian High Court in the case of Dow Jones & Company Inc v Gutnick.  In this case, the Court found that defamation laws in the Australian state of Victoria applied to material that was posted on the Internet by a server based in America. The case established that "those who publish defamatory material on the Internet are answerable before the courts of any nation where the damage to reputation has occurred".  This jurisdiction was preferred to those American locations where the material had been uploaded  and edited. 
Both the Gutnick case and the approach of the German Supreme Court regarding Dr Toben affirm the application of domestic jurisdiction to Internet content created overseas. The application of the Racial Discrimination Act or state anti-vilification laws to overseas content has not been tested.
All Australian states and the ACT have racial discrimination legislation in many ways similar to the federal Racial Discrimination Act. Their approaches to racial vilification and other conduct based on race hate are not uniform. This section provides only a brief overview of the relevant provisions. Only the NT has no racial vilification provisions at all. 
In 1989, New South Wales became the first state to make it unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of a person or groups on the grounds of race.  The 1989 amendment to the Anti-Discrimination Act 1977 also created a criminal offence for inciting hatred, contempt or severe ridicule towards a person or group on the grounds of race by threatening physical harm (towards people or their property) or inciting others to threaten such harm.  Prosecution of the offence of serious vilification requires consent from the Attorney-General and carries a maximum penalty of a $10,000 fine or 6 months imprisonment for an individual - $100,000 for a corporation. An offence has not yet been prosecuted under this law.
South Australia  and the ACT  have anti-vilification laws that essentially mirror the New South Wales legislation. These states, as well as Queensland and Victoria, have both civil and criminal laws dealing with racial vilification. Queensland,  Victoria  and Tasmania  outlaw both racial and religious vilification. Tasmania  also covers both racial and religious vilification but imposes no criminal penalties.
Unlike other jurisdictions, Western Australian law imposes criminal but not civil sanctions against racial vilification. In Western Australia, the Criminal Code was amended in 1989 to criminalise the possession, publication and display of written or pictorial material that is threatening or abusive with the intention of inciting racial hatred or of harassing a racial group.  Penalties range between 6 months and two years imprisonment. It is noteworthy that the Western Australian legislation only addresses written or pictorial information - not verbal comments. The emphasis on written material arose in direct response to the racist poster campaigns of the Australian Nationalist Movement in the late 1980s and early 1990s.  There have been no prosecutions to date.
The following map summarises the relevant provisions in the states and territories.
At the federal level, it is an offence to use the Internet intentionally to disseminate material that results in a person being menaced or harassed.  This offence includes material communicated by email.  Federal criminal law, therefore, is available to address racial vilification where the element of threat or harassment is also present, although it does not apply to material that merely causes offence.
To establish racial vilification of a criminal nature, it is usually necessary to establish a high level of harassment or potential threat. While the distribution of offensive material may form one end of the continuum of behaviours prohibited under state criminal law, generally, incitement to violence, threats to person or property, and so on, are required in order for state or federal criminal provisions to apply.  To this extent then, the state criminal laws against serious racial vilification extend the same legal protection against threats, violence, and so on, as other criminal law protections in Australia. The key difference is that the states and the ACT listed above have made race a specific element of the offence.
It has been argued that the criminal provisions in the ACT, NSW, South Australia, Western Australia and Victoria apply to the publication of race hate material anywhere on the Internet if the material can be accessed in the state jurisdiction concerned.  Thus, the authors of such material and, in some cases, the hosts or Internet service providers that 'publish' it, may be subject to criminal penalties no matter where they are located in the world.  The 'geographical reach' of the state legislation may extend to people and companies operating overseas who communicate racially vilificatory material. 
Such an application of domestically enacted legislation to Internet users and service-providers around the world has been criticized as undermining the principle of state sovereignty and democracy - the right of states to legislate according to the will of their own citizens.  The issue is debatable, however, with at least one expert concluding it would be difficult to apply state legislation to offending websites created outside the state concerned.  Moreover, state criminal provisions against vilification have rarely, if ever, been prosecuted, despite being enacted some time ago. This fact, in combination with the commonly acknowledged difficulties of regulating the Internet, illustrate that this concern is premature at best.