Thursday 12 December 2013

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

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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 [2013] FCCA 79 (19 April 2013)
Barnes v Northern Territory Police & Anor [2013] FCCA 30 (15 April 2013)
Ejueyitsi v Commissioner Of Police (Western Australia) [2013] FMCA 120 (5 March 2013)
Li v Chief of Army [2013] FCAFC 20 (26 February 2013)
Kanapathy on behalf of Rajandran Kanapath y v in de Braekt (No. 3) [2012] FMCA 1213 (21 December 2012)
Ibrahim v Australian Dental Council [2012] FMCA 612 (20 September 2012)
Sidhu v Raptis [2012] FMCA 338 (9 May 2012)
Clarke v Nationwide News Pty Ltd trading as The Sunday Times (No 2) [2012] FCA 990 (4 April 2012)
Clarke v Nationwide News Pty Ltd trading as The Sunday Times [2012] FCA 307 (27 March 2012)
Li v Chief of Army [2012] ADFDAT 1 (16 March 2012)
Haile-Michael v Konstantinidis (No 2) [2012] FCA 167 (1 March 2012)
Haile-Michael v Konstantinidis [2012] FCA 108 (14 February 2012)
Eatock v Bolt (No 2) [2011] FCA 1180 (19 October 2011)
Eatock v Bolt [2011] FCA 1103 (28 September 2011)
Noble v Baldwin & Anor (No.2) [2011] FMCA 700 (8 September 2011)
APS Group (Placements) Pty Ltd v O’ Loughlin [2011] FWA 5230; [2011] FWAFB 5230 (8 August 2011)
Noble v Baldwin & Anor [2011] FMCA 283 (28 April 2011)
Portuguese Cultural & Welfare Centre Inc v AMCA [2011] FMCA 144 (18 March 2011)
Vaenuku v Terrigal Trojans Rugby Club Inc & Anor [2010] FMCA 701 (14 September 2010)
Clarke v West Australian Newspapers Ltd [2010] FMCA 502 (20 July 2010)
Toben v Jones [2009] FCAFC 104 (13 August 2009)
Dunne v Noonan [2009] FMCA 362 (22 April 2009)
Jones v Toben (Corrigendum Dated 20 April 2009) [2009] Fca 354 (16 April 2009)
Campbell v Kirstenfeldt [2008] FMCA 1356 (30 September 2008)
Grigor-Scott v Jones [2008] FCAFC 14 (28 February 2008)
Silberberg v The Builders Collective of Australia Inc. [2007] FCA 1512 (2 October 2007)
Bursac v Pazpinis [2007] FMCA 382 (12 March 2007)
Lina Obieta v New South Wales Department of Educationand Training and Ors [2007] FCA 86 (7 February 2007)
Jeremy Jones, and on behalf of the Executive Council of Australian Jewry v The Bible Believers Church [2007] FCA 55 (2 February 2007)
Catch The Fire Ministries Inc And Others v Islamic Council Of Victoria Inc. (2006) 235 ALR 750 (Victorian case which references section 18C of the Racial Discrimination Act)
Gama v Qantas Airways Ltd (No.2) [2006] FMCA 1767 (8 December 2006)
Cox v Becker [2006] FCA 1670 (5 December 2006)
Cox v Said & Ors [2006] FMCA 1300 (17 August 2006)
San v Dirluck Pty Ltd & Anor (No.2) [2005] FMCA 846 (14 June 2005)
San v Dirluck Pty Ltd & Anor [2005] FMCA 750 (9 June 2005)
Nicholson v State of Victoria [2005] FMCA 258 (10 March 2005)
Bropho v HREOC & Anor [2005] HCATrans 9 (4 February 2005)
Kelly-Country v Beers (2004) 207 ALR 421; (2004) 181 FLR 352
Zheng v Beamish [2004] FCA 512 (29 April 2004)
Zheng v Beamish [2004] FMCA 61 (19 February 2004)
Beamish v Zheng [2004] FMCA 60 (19 February 2004)
Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16 (6 February 2004)
Toben v Jones [2003] FCAFC 137 (27 June 2003)
Miller v Wertheim & Anor S226/2002 [2003] HCATrans 807 (20 June 2003)
Firew v Busways Trust & Ors [2003] FMCA 193 (16 May 2003)
McLeod v Power [2003] FMCA 2 (14 January 2003)
Bropho v Human Rights & Equal Opportunity Commission [2002] FCA 1510 (4 December 2002)
McGlade v Lightfoot [2002] FCA 1457 (26 November 2002)
Batzialas v Tony Davies Motors [2002] FMCA 243 (16 October 2002)
Jones v Toben (includes explanatory memorandum) [2002] FCA 1150 (17 September 2002)
Jones v Scully [2002] FCA 1080 (2 September 2002)
McGlade v Lightfoot [2002] FCA 752 (13 June 2002)
Miller v Wertheim [2002] FCAFC 156 (27 May 2002)
Charan v Commonwealth Insurance Ltd (2002) EOC 93-220; [2002] FMCA 50
Hagan v Trustees of the Toowoomba Sports Ground Trust B17/2001 [2002] HCATrans 132 (19 March 2002)
Chambers v Darley [2002] FMCA 3 (20 December 2001)
Horman v Distribution Group [2001] FMCA 52 (19 December 2001)
Beling v Stapels [2001] FMCA 135 (10 December 2001)
Chau v Oreanda & ors [2001] FMCA 114 (16 November 2001)
Miller v Wertheim & anor. [2001] FMCA 103 (14 November 2001)
Creek v Cairns Post Pty Ltd [2001] FCA 1150 (20 August 2001)
Creek v Cairns Post Pty Ltd [2001] FCA 1007 (31 July 2001)
Williams v Tandanya Cultural Centre & Ors [2001] FMCA 46 (23 July 2001)
Wanjurri v Southern Cross Broadcasting (Aus) Ltd [2001] HREOCA 2 (7 May 2001)
Nyungar Circle of Elders v West Australian Newspapers Ltd [2001] HREOCA 1 (12 April 2001)
Gibbs v Wanganeen [2001] FMCA 14 (6 March 2001)
Hagan v Trustees of the Toowoomba Sports Ground Trust FCA [2001] FCA 123 (23 February 2001)
Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 (10 November 2000)
McGlade v Human Rights & Equal Opportunity Commission [2000] FCA 1477 (18 October 2000)
McMahon v Bowman [2000] FMCA 3 (13 October 2000)
Jones v Toben [2000] HREOCA 39 (5 October 2000)
Hobart Hebrew Congregation v Scully [2000] HREOCA 38 (21 September 2000)
Australian Macedonian Human Rights Committee (Inc) v State of Victoria [2000] HREOCA 52 (8 September 2000)
State of Victoria v Macedonian Teachers Association of Vic Inc. (2000) 21(11) Leg Rep SL2a (Primarily concerns s9 of Racial Discrimination Act 1975)
Hearne v Dennis [2000] HREOCA 20 (24 May 2000)
Feghaly v Oldfield [2000] HREOCA 16 (19 April 2000)
D'Oliveira v The Australian Democrats [2000] HREOCA 11 (23 March 2000)
Walsh v Hanson [2000] HREOCA 8 (2 March 2000)
State of Victoria v Macedonian Teachers Association of Victoria Inc. (1999) 91 FCR 47; (1999) 56 ALD 333; [1999] FCA 1287; BC9905952 (Primarily concerns s9 of Racial Discrimination Act 1975)
Bryl v Anna Kovacevic And: Louis Nowra and Melbourne Theatre Company [1999] HREOCA 11 (21 June 1999)
Kweifio-Okai v Royal Melbourne Institute of Technology [1999] FCA 534 (30 April 1999)
Jacobs v Fardig [1999] HREOCA 9 (27 April 1999)
McGlade v Lightfoot [1999] HREOCA 1 (21 January 1999)
Macedonian Teachers Association of Victoria Inc v Human Rights & Equal Opportunity Commission & Anor [1998] FCA 1650 (21 December 1998) (Primarily concerns s9 of Racial Discrimination Act 1975)
De La Mare v Special Broadcasting Service [1998] HREOCA 26 (18 August 1998)
Shron v Telstra Corporation Ltd [1998] HREOCA 24 (10 July 1998)
Shaikh v Campbell & Nivona Pty Ltd [1998] HREOCA 13 (24 April 1998)
Executive Council of Australian Jewry & Anor v Olga Scully & Anor [1998] FCA 66 (13 February 1998)
Australian Macedonian Human Rights Committee (Inc) v Victoria [1998] HREOCA 1 (8 January 1998) (Primarily concerns s9 of Racial Discrimination Act 1975)
Francis Nnamdi Elekwachi v Human Rights and Equal Opportunity Commission [1997] FCA 1183 (3 November 1997)
Executive Council of Australian Jewry v Olga Scully [1997] HREOCA 59 (21 October 1997)
Combined Housing Organisation Ltd, Ipswich Regional Atsic for Legal Services, Thompson and Fisher v Hanson [1997] HREOCA 58 (16 October 1997)
Rugema v Gadsten Pty Ltd & Derkes [1997] HREOCA 34 (26 June 1997)
Bryant v Queensland Newspaper Pty Ltd [1997] HREOCA 23 (15 May 1997)