At a glance: Racial vilification under sections 18C and 18D of the Racial Discrimination Act 1975 (Cth)

Download PDF Download PDF

Download Word Download Word

What does the law say?

Section 18C of the Racial Discrimination Act makes it unlawful for someone to do an act that is reasonably likely to “offend, insult, humiliate or intimidate” someone because of their race or ethnicity.

Section 18D of the Racial Discrimination Act contains exemptions which protect freedom of speech. These ensure that artistic works, scientific debate and fair comment on matters of public interest are exempt from section 18C, providing they are said or done reasonably and in good faith.

What is the background to these laws?

Australia has obligations to implement protections against racial hatred under the International Covenant on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).

Sections 18C and 18D were introduced in response to recommendations of major inquiries including the National Inquiry into Racist Violence and the Royal Commission into Aboriginal Deaths in Custody . These inquiries found that racial hatred and vilification can cause emotional and psychological harm to their targets, and reinforce other forms of discrimination and exclusion. They found that seemingly low-level behaviour can soften the environment for more severe acts of harassment, intimidation or violence by impliedly condoning such acts.

Echoing these inquiries, the Australian Law Reform Commission published the 1992 report, Multiculturalism and the Law , which recommended the introduction of legislation to deal with racial hatred.

Balancing freedom of speech and freedom from racial vilification

The courts have consistently interpreted sections 18C and 18D as maintaining a balance between freedom of speech and freedom from racial vilification. The courts have held that for conduct to be covered by section 18C, the conduct must involve “profound and serious” effects, not “mere slights”. The courts have also found that section 18C is an appropriate measure to implement Australia's obligations to prohibit racial hatred under the ICCPR and ICERD.

While many laws restrict freedom of speech, such as laws applying to defamation, advertising and national security, section 18C fills an important gap in legal protections for those affected by racial hatred and vilification.

Racial vilification complaints made to the Australian Human Rights Commission

Complaints relating to racial vilification under the Racial Discrimination Act can be lodged with the Commission. During the 2012-2013 financial year, the Commission received a 59 per cent increase in complaints under section 18C. Fifty-three per cent of racial vilification complaints in 2012-13 were resolved at conciliation. Four per cent of complaints made under section 18C were terminated or declined for being trivial, misconceived or lacking in substance. And less than three per cent of racial hatred complaints proceeded to court.

Interested in more information? Please see the Commission's website for further information on racial vilification and discrimination.

Examples of racial vilification complaints and cases

Complaint about racial vilification on the internet The complainant, of Asian background, complained about a website which he said advocated violence against Asians. The comments on the website included: ‘Asian People Flood our city with their Asian shops with their language all over them, having their own dedicated “china town” and their own suburb ...' ‘... we understand everyone has different levels of hate for Asians and so we have ... Yellers. Their job is to Yell at the Asians with passion i.e. “YOU GOOK F**K OFF TO CHINA” and do whatever they can to show Asians they are not welcome in Australia. ... Fighters ... are there to express their anger physically by laying the Gooks out.' On receipt of the complaint, the Commission contacted the Internet Service Provider, which subsequently disabled the website as it breached the ISP's Acceptable Use Policy.

Complaint about racial vilification in the print media The complainant, of Aboriginal descent, claimed the respondent newspaper and cartoonist published a cartoon that vilified Aboriginal people. The newspaper and cartoonist said the cartoon was published in the course of a debate, was drawn and published for genuine artistic purposes and contained genuine and fair comments on an event of public interest.

During the conciliation process, the complaint resolved with an agreement that the respondents would visit the complainant's community to listen to community members' stories and teach the children how to draw cartoons.

Complaint about racial vilification in the workplace The complainant, an Aboriginal person, worked for the respondent government department as a maintenance worker, and claimed that his supervisors called him over by whistling instead of using his name, assigned him ‘bad' jobs (including lining the toilet pits after use), called him a ‘black c**t, used offensive language when speaking to him and described Aboriginal people as lazy and useless. The complainant also claimed that when he made an internal complaint, the respondent told him this was part of the work culture and that some of that ‘stuff' was ‘OK'. The complainant said he resigned due to this treatment. The respondents denied the allegations.

The complaint was resolved through a conciliation process and the respondents agreed to pay the complainant $45 000 and provide him with a statement of regret.

Court case involving consideration of Section 18C The case of Toben v Jones (2003) 129 FCR 515 was the first to apply the Racial Discrimination Act's racial vilification provisions to the internet. It involved a complaint about the Adelaide Institute website, established by the respondent, which was argued as being anti-Semitic and vilified Jews. The Adelaide Institute presented as a scholarly centre for Holocaust research.

In this case, the Federal Court of Australia found that certain documents on the website did vilify Jews for a number of reasons, including imputing that Jewish people who are offended by and challenge Holocaust denial are of limited intelligence; and that some Jewish people have exaggerated the number of Jews killed during World War II and the circumstances in which they were killed and have done so for improper purposes such as financial gain.

Court case involving consideration of Section 18D The Kelly-Country v Beers & Anor [2004] FMCA 336 (21 May 2004) case involved a complaint about a comedian's performances, where the comedian, under the name ‘King Billy Cokebottle', purports to be an Aboriginal person, performing a comedy monologue. The comedian was not Aboriginal. The performances were on video and audio tape, and available for public purchase. It was alleged that Aboriginal people were portrayed as rude, stupid, unable to speak English properly, dirty, always drunk or drinking and swearing, among other things. It was also alleged that matters involving aspects of sacred tribal activities were referred to in performances, which could only be discussed by and in the presence of initiated male Aboriginal people.

The Federal Magistrates Court of Australia noted the acts and tapes were ‘impolite and offensive' to many groups within Australia, but just because they were offensive or insulting did not mean they were unlawful under the Racial Discrimination Act. The Court noted the performances and tapes were comedic in intention, and were not to be taken literally or seriously and had no overt political context. The Court found the performances fell within the term ‘artistic work', as found the exemption in section 18D.

List of cases dealing with section 18C of the Racial Discrimination Act

Vergara v Living and Leisure Australia Ltd [2013] FCA 775 (8 August 2013) Butler v Clemesha [2013] FCCA 722 (11 July 2013) Hamlin v The University Of Queensland [ 2013] FCCA 406 (31 May 2013) Burns v Media Options Group Pty Ltd & Ors 3] FCCA 79 (19 April 2013) Barnes v Northern Territory Police & Anor CCA 30 (15 April 2013) Ejue Ejueyitsi v Commissioner Of Police (Western Australia) MCA 120 (5 March 2013) Li v Li v Chief of Army CAFC 20 (26 February 2013) Kana Kanapathy on behalf of Rajandran Kanapath y v in de Braekt (No. 3) FMCA 1213 (21 December 2012) Ibra Ibrahim v Australian Dental Council MCA 612 (20 September 2012) Sidh Sidhu v Raptis MCA 338 (9 May 2012) Clar Clarke v Nationwide News Pty Ltd trading as The Sunday Times (No 2) CA 990 (4 April 2012) Clar Clarke v Nationwide News Pty Ltd trading as The Sunday Times CA 307 (27 March 2012) Li v Li v Chief of Army DFDAT 1 (16 March 2012) Hail Haile-Michael v Konstantinidis (No 2) CA 167 (1 March 2012) Hail Haile-Michael v Konstantinidis CA 108 (14 February 2012) Eato Eatock v Bolt (No 2) CA 1180 (19 October 2011) Eato Eatock v Bolt CA 1103 (28 September 2011) Nobl Noble v Baldwin & Anor (No.2) 700 (8 September 2011) APS Grou APS Group (Placements) Pty Ltd v O' Loughlin 230; [2011] FWAFB 5230 (8 August 2011) Noble v Noble v Baldwin & Anor (28 April 2011) Portuguese C Portuguese Cultural & Welfare Centre Inc v AMCA March 2011) Vaenuku v Terrig Vaenuku v Terrigal Trojans Rugby Club Inc & Anor ember 2010) Clarke v West Austra Clarke v West Australian Newspapers Ltd 2010) Toben v Jones [ Toben v Jones ust 2009) Dunne v Noonan Dunne v Noonan l 2009) Jones v Toben (Corri Jones v Toben (Corrigendum Dated 20 April 2009) 2009) Campbell v Kirstenfe Campbell v Kirstenfeldt tember 2008) Grigor-Scott v Jones Grigor-Scott v Jones uary 2008) Silberberg v The Bui Silberberg v The Builders Collective of Australia Inc. ber 2007) Bursac v Pazpinis Bursac v Pazpinis h 2007) Lina Obieta v New So Lina Obieta v New South Wales Department of Educationand Training and Ors y 2007) Jeremy Jones, and on Jeremy Jones, and on behalf of the Executive Council of Australian Jewry v The Bible Believers Church y 2007) Catch The Fire Minis Catch The Fire Ministries Inc And Others v Islamic Council Of Victoria Inc. orian case which references section 18C of the Racial Discrimination Act) Gama v Qantas Airway Gama v Qantas Airways Ltd (No.2) ember 2006) Cox v Becker [2 Cox v Becker mber 2006) Cox v Said & Ors Cox v Said & Ors 2006) San v Dirluck Pty Ltd & San v Dirluck Pty Ltd & Anor (No.2) em>San v Dirluck Pty Ltd & Anor San v Dirluck Pty Ltd & Anor cholson v State of Victoria Nicholson v State of Victoria Bropho v HREOC & Anor [2005 Bropho v HREOC & Anor Kelly-Country v Beers (2004) 20 Kelly-Country v Beers em>Zheng v Beamish [2004] FCA 512 Zheng v Beamish v Beamish [2004] FMCA 61 Zheng v Beamish amish v Zheng [2004] FMCA 60 Beamish v Zheng opho v Human Rights & Equal Opport Bropho v Human Rights & Equal Opportunity Commission v Jones [2003] FCAFC 137 (27 Toben v Jones Wertheim & Anor S226/2002 Miller v Wertheim & Anor S226/2002 usways Trust & Ors [2003] FMCA Firew v Busways Trust & Ors em>[2003] FMCA 2 (14 January 20 McLeod v Power ights & Equal Opportunity Commis Bropho v Human Rights & Equal Opportunity Commission t [2002] FCA 1457 (26 Novembe McGlade v Lightfoot Davies Motors [2002] FMCA 243 Batzialas v Tony Davies Motors ludes explanatory memorandum) Jones v Toben (includes explanatory memorandum) /em>[2002] FCA 1080 (2 September 200 Jones v Scully ot [2002] FCA 752 (13 June 200 McGlade v Lightfoot >[2002] FCAFC 156 (27 May 2002 Miller v Wertheim Insurance Ltd (2002) EOC Charan v Commonwealth Insurance Ltd f the Toowoomba Sports Ground Trus Hagan v Trustees of the Toowoomba Sports Ground Trust B17/2001 y [2002] FMCA 3 (20 December 20 Chambers v Darley on Group [2001] FMCA 52 (19 Horman v Distribution Group /em>[2001] FMCA 135 (10 December 2 Beling v Stapels ors [2001] FMCA 114 (16 Novemb Chau v Oreanda & ors nor. [2001] FMCA 103 (14 Novem Miller v Wertheim & anor. Ltd [2001] FCA 1150 (20 August Creek v Cairns Post Pty Ltd [2001] FCA 1007 (31 July 20 Creek v Cairns Post Pty Ltd Centre & Ors [2001] FMCA 4 Williams v Tandanya Cultural Centre & Ors ting (Aus) Ltd [2001] HRE Wanjurri v Southern Cross Broadcasting (Aus) Ltd tralian Newspapers Ltd [ Nyungar Circle of Elders v West Australian Newspapers Ltd CA 14 (6 March 2001) Hagan v Gibbs v Wanganeen Sports Ground Trust FCA [ Hagan v Trustees of the Toowoomba Sports Ground Trust FCA mba Sports Ground Trust [2000 Hagan v Trustees of the Toowoomba Sports Ground Trust l Opportunity Commission [2000 McGlade v Human Rights & Equal Opportunity Commission 3 (13 October 2000) Jones v To McMahon v Bowman (5 October 2000) Hobart Hebr Jones v Toben y [2000] HREOCA 38 (21 Septem Hobart Hebrew Congregation v Scully hts Committee (Inc) v State of Victor Australian Macedonian Human Rights Committee (Inc) v State of Victoria Teachers Association of Vic Inc. State of Victoria v Macedonian Teachers Association of Vic Inc. ion Act 1975) Hearne v Dennis [2000] HREOCA 20 (24 May 2000) Feghaly v Ol Hearne v Dennis 16 (19 April 2000) D'Olive Feghaly v Oldfield ts [2000] HREOCA 11 (23 Marc D'Oliveira v The Australian Democrats (2 March 2000) State of Vict Walsh v Hanson ers Association of Victoria Inc. State of Victoria v Macedonian Teachers Association of Victoria Inc. ily concerns s9 of Racial Discrimination Act 1975) Bryl v Anna Kovacevic And: Louis Nowra and Melbourne Theatre Company Bryl v Anna Kovacevic And: Louis Nowra and Melbourne Theatre Company itute of Technology [1999] F Kweifio-Okai v Royal Melbourne Institute of Technology (27 April 1999) McGlade v L Jacobs v Fardig OCA 1 (21 January 1999) Maced McGlade v Lightfoot f Victoria Inc v Human Rights & Equ Macedonian Teachers Association of Victoria Inc v Human Rights & Equal Opportunity Commission & Anor ion Act 1975) De La Mare v Special Broadcasting Service [1998] HREOCA 26 (18 August 1 De La Mare v Special Broadcasting Service ] HREOCA 24 (10 July 1998) Sha Shron v Telstra Corporation Ltd 8] HREOCA 13 (24 April 1998) Shaikh v Campbell & Nivona Pty Ltd Olga Scully & Anor [1998] FC Executive Council of Australian Jewry & Anor v Olga Scully & Anor ctoria [1998] HREOCA 1 (8 Ja Australian Macedonian Human Rights Committee (Inc) v Victoria em>Francis Nnamdi Elekwachi v Human Rights and Equal Opportunity Commission [1997] FCA Francis Nnamdi Elekwachi v Human Rights and Equal Opportunity Commission /em>[1997] HREOCA 59 (21 October 19 Executive Council of Australian Jewry v Olga Scully tsic for Legal Services, Thompson a Combined Housing Organisation Ltd, Ipswich Regional Atsic for Legal Services, Thompson and Fisher v Hanson 34 (26 June 1997) Bryant v Quee Rugema v Gadsten Pty Ltd & Derkes (15 May 1997) Bryant v Queensland Newspaper Pty Ltd [1997] HREOCA 23 (15 May 1997)