Discrimination based on religion and religious vilification in Australian States and Territories
Summary
All Australian States and Territories make race discrimination unlawful and include ethnicity or ethnic origin in the definition of 'race'. Each has taken a different approach to religious discrimination. All Australian States and the ACT (but not the Northern Territory) also make some race hate speech or publications (or both) unlawful. Again the approach to hate speech based on religion varies.
This information is important and relevant because many if not most victims of religious discrimination or vilification will be able to make a complaint under the law in their State or Territory and do not need to rely on the federal RDA.
What
is discrimination?
Discrimination occurs when, because of race or religious conviction, a
person is treated less favourably than a person similarly situated but
of another race or religion would be treated. The States and Territories
protect people from discrimination in employment, education, access to
accommodation, access to public places and facilities, trade union membership,
club membership (with some exceptions for private clubs) and provision
of goods and services.
Note that, to protect the freedom of religion, religious institutions are permitted to discriminate in favour of co-adherents in employment in religious roles.
Discrimination under the RDA offers a broader protection than State and Territory law as it applies to all human rights. Click here for more information on the RDA.
Discrimination because of religion is unlawful in the ACT, Queensland, Northern Territory, Tasmania, Victoria and Western Australia. Discrimination because of ethno-religious background is unlawful in NSW. South Australian anti-discrimination law does not cover religion.
What
is vilification?
Vilification is described and defined differently across Australia. The
most common definition is shared by NSW, South Australia, the ACT, Queensland,
Tasmania and Victoria and it is defined as inciting racial hatred. Serious
vilification is a criminal offence, except in Tasmania. Serious vilification
occurs when the incitement is accompanied by threats of physical violence.
Vilification based on religion is only unlawful in Queensland, Tasmania and Victoria.
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.
Incitement does not have to be proved under the RDA: click here for more information. There are no criminal penalties in federal law specifically for racial vilification or inciting racial hatred.
Every jurisdiction which makes vilification unlawful also protects certain types of speech or publications, even when they would otherwise be unlawful, in the interests of freedom of expression. Exemptions cover acts, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter. Fair reporting of racial vilification by other people is also protected.
Vilification based on religion is unlawful in Queensland, Tasmania and Victoria.
State by State overview
ACT Human Rights Office: Discrimination in education, employment, accommodation, clubs, goods and services and requests for information because of race (which includes colour, descent, ethnic or national origin and nationality) or religious conviction is unlawful. Racial vilification is also unlawful.
Anti-Discrimination Board of NSW: Discrimination in education, employment, the provision of goods and services, accommodation and registered clubs because of race (which includes colour, nationality, descent, ethnic origin and ethno-religious origin) is unlawful. Racial vilification is also covered. Vilification based on religion is not covered.
Examples
In two cases the NSW Administrative Decisions Tribunal has pointed out that, even if a complainant is a member of an ethno-religious group, that will not necessarily mean the discrimination occurred 'on the ground of' ethno-religious origin. If the sole reason for the discrimination was religion, then the Act does not apply.
In the first case the father of two Jewish pupils complained that Easter and Christmas preparations and celebrations at their school amounted to ethno-religious discrimination. Judaism is an ethno-religion but in this case the Tribunal rejected the father's argument that the Act would protect his children against actions offending the religious aspects of their race. The Tribunal found his complaint was based on religious discrimination which is not covered by the Act. A v Department of School Education [1999] NSWADT 120.
In the second case, a prisoner complained that he was denied Halal food in a privately run prison although Jewish inmates received Kosher food. At first the Tribunal found that a Halal diet is a religious requirement and denial would only be religious discrimination which is not covered by the NSW Act. The Appeal Panel directed the Tribunal to reconsider the case. On this occasion the Tribunal redefined the term 'ethno-religious origin' and concluded that it requires "a strong association between a person's or a group's nationality or ethnicity, culture, history and his or her religious beliefs and practices. The prisoner was then invited to provide additional evidence of this link or association. We are still awaiting the final outcome of this case. Khan v Department of Correction Services and Australasian Correctional Management [2002] NSWADT 13.
Case of race discrimination in employment - Muslim woman from Egypt
Anti-Discrimination Commission NT: Discrimination in education, employment, accommodation, goods and services, clubs and insurance and superannuation because of race (which includes colour, nationality, ethnic or national origin, descent, ancestry and being or having been an immigrant) or religious belief or activity is unlawful. Racial and religious vilification are not covered.
Anti-Discrimination Commission Queensland: Discrimination in education, employment, goods and services, superannuation, insurance, land, accommodation, clubs, administration of Queensland laws and programs and local government members because of race (which includes colour, nationality, national origin, descent, ancestry, ethnic origin and ethnicity) or religion is unlawful. Racial and religious vilification are also unlawful.
Example
Mr Deen complained that Mr Lamb's election pamphlet incited hatred and serious contempt towards Muslims. One imputation was that Muslims were obliged, in obedience to the Koran, to disobey secular governments. This imputation was then used in support of the proposition: "let's not foolishly allow in [to Australia] people who are unable to obey our laws".
The Tribunal found that the pamphlet did incite hatred and contempt for Muslims. However, as it was made for the purposes of a federal election campaign, it was covered by the exception which permits public acts done reasonably and in good faith for a purpose in the public interest. The Tribunal held, "it is manifestly in the public interest that candidates' views on issues affecting the electorate be known". Deen v Lamb [2001] QADT 20.
Equal Opportunity Commission South Australia: Discrimination in education, employment, goods and services, accommodation, disposal of land, superannuation, clubs and associations and conferral of qualifications because of race (which means skin colour, nationality, country of origin or ancestry) is unlawful. Racial vilification is also unlawful in South Australia. Discrimination and vilification because of religion are not covered.
Anti-Discrimination Commission Tasmania: Discrimination in education, employment, accommodation, goods and services, clubs and insurance and superannuation because of religious belief or affiliation, religious activity or race (which includes colour, nationality, ethnic or national origin, descent or ancestry, and that a person is or has been an immigrant) is unlawful. Incitement of hatred by a public act based on race, religious belief or affiliation is also unlawful.
Equal Opportunity Commission Victoria: Discrimination in employment, goods and services, housing, education and local government because of race (includes colour, nationality, national origin, descent, ancestry, ethnic origin, ethnicity) or religious belief or activity is unlawful. Racial and religious vilification are also unlawful.
Example
The City of Monee Valley applied for an exemption from the Equal Opportunity Act prohibition on sex discrimination to enable it to open its public swimming pool for women only for two hours each week. Only in these circumstances could the area's substantial population of Muslim women enjoy the pool at all. The exemption was granted. City of Monee Valley [1999] VCAT 655.
A similar case was Paramount Health & Fitness Club [2000] VCAT 410.
Equal Opportunity Commission Western Australia:Discrimination in education, employment, access to places and vehicles, provision of goods and services, accommodation and land, and clubs because of race (which includes colour, descent, ethnic or national origin and nationality) or religious conviction is unlawful. Vilification is not unlawful under the WA Equal Opportunity Act. However, written and pictorial materials amounting to racial harassment or incitement to racial hatred are covered by WA criminal law.
