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Racial Vilification Law in Australia

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Racial Vilification Law in Australia

Race Discrimination Unit, HREOC, October 2002

Contents

1. Racial
Hatred Defined

2. Complaints to the Human Rights and Equal Opportunity
Commission

3. Relevant Federal Cases
4. Other Criminal and Civil Legislation on Racial Vilification

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
[1] and Dow
Jones Company Inc v Gutnick
. [2] The relevant
state and territory provisions on racial vilification, including criminal
sanctions, are also outlined.

1. Racial Hatred Defined

Since the introduction
of provisions dealing with racial hatred in 1995, [3] 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:

It is unlawful
for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely in all the circumstances to offend,
insult, humiliate or intimidate another person or group of people,
and
(b) the act is done because of the race, colour or national or ethnic
origin of the other person or some or all of the people in the group.
[4]

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:

1) The act must
be done in public;
2) It must be reasonably likely to offend, insult, humiliate or intimidate
the people against whom it is directed; and
3) It must be done because of the race, colour or national or ethnic
origin of the group against whom it is directed.

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'. [5] 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'. [6] 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". [7] 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. [8]

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." [9] This is called
the 'reasonable victim' test. [10] 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. [11]

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. [12]

Exemptions

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." [13]

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.

2. Complaints to the Human
Rights and Equal Opportunity Commission

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. [14]

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. [15] 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 [16]; 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, [17] 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.

3. Relevant Federal Cases

The only Australian
case to date dealing specifically with racial hatred on the Internet is Jones
v Toben
, [18] decided in September 2002. The
other important case recently heard in Australia is Dow
Jones & Company Inc v Gutnick
[19] 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. [20]

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. [21] 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
. [22] 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". [23] This jurisdiction was preferred to those American locations where the
material had been uploaded [24] and edited. [25]

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.

4. Other Criminal and Civil
Legislation on Racial Vilification

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. [26]

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. [27] 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. [28] 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 [29] and the ACT [30] 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, [31] Victoria [32] and
Tasmania [33] outlaw both racial and religious
vilification. Tasmania [34] 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. [35] 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. [36] There have been no prosecutions to date.

The following map
summarises the relevant provisions in the states and territories.

Map: Racial Vilification Laws Across Australia

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. [37] This offence includes material communicated by email. [38] 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. [39] 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. [40] 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. [41] The 'geographical
reach' of the state legislation may extend to people and companies operating
overseas who communicate racially vilificatory material. [42]

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. [43] 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. [44] 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.


Endnotes

1.[2002]
FCA 1150.
2. [2002] HCA 56 (10 December 2002.)
3.Racial Hatred Act 1995.
4.Racial Discrimination Act 1975, s.18C(1). Note
the legislation does not cover religion.
5.Racial Discrimination Act 1975, s18C(2)(a).
6.Racial Discrimination Act 1975, s.18C(2)(b).
7.Racial Discrimination Act 1975, s.18C(3).
8. In some circumstances a 'private' conversation - at
work for example - may amount to racial discrimination.
9. Australian Broadcasting Tribunal, Inquiry into Broadcasts
by Ron Casey
(1989) 3 BR 351 at 357 as cited by G Innes AM (Inquiry
Commissioner), Corunna v West Australian Newspapers (2001) EOC
93-146 at 8.4.
10. Corunna v West Australian Newspapers (2001)
EOC 93-146 at 8.4.
11. Saku Akmeemana and Melinda Jones, "Fighting
Racial Hatred" in Racial Discrimination Act 1975: A Review,
(Race Discrimination Commissioner, Commonwealth of Australia, 1995) 129
at p.168.
12. Racial Discrimination Act 1975, s.18B.
13. Explanatory Memorandum.
14. Administrative provisions of complaints are also
set out in the Human Rights and Equal Opportunity Commission Act 1986 (Cth).
15. Since April 2000 conciliation is undertaken by the
Commission's President rather than, as previously, the Race Discrimination
Commissioner.
16. The racial vilification provisions were in force
for only eight months in this reporting year.
17. In FY 2000-01 this became the highest category of
racial vilification complaints.
18. [2002] FCA 1150.
19. [2002]
HCA 56 (10 December 2002.).
20. When the Commission still had the function of hearing
unconciliated complaints in a tribunal mode. This function was removed
in April 2000.
21. Specifically Dr Toben was imprisoned for the offences
of criminal defamation, several counts of disparaging the memory of the
dead and of inciting the populace: Greg Taylor, "Casting the Net
Too Widely: Racial Hatred on the Internet", Criminal Law Journal,
October 2001, p. 262.
22.
[2002] HCA 56 (10 December 2002).
23. Dow
Jones & Company Inc v Gutnick [2002] HCA 56 (10 December 2002), Kirby
J at 165. See also Gleeson CJ, McHugh, Gummow and Hayne JJ, at 44, Kirby
J at 145 and Callinan J at 184 for confirmation of the principle that,
in defamation law, jurisdiction is determined by where the damage to reputation
occurs.
24. In this case the State of New Jersey.
25. New York.
26.
Although racial "harassment" is prohibited by the civil law
provisions of the Anti-Discrimination Act (NT) - see section 20(1)(b).
The NT Criminal Code creates offences such as making threats (s.200) which
may be applicable in certain circumstances.
27. Anti-Discrimination Act 1977 (NSW) s.20C.
28. Anti-Discrimination Act 1977 (NSW) s.20D.
Also see ss.38T, 49ZTA and 49ZXC for other vilification offences.
29.Racial Vilification Act 1996 (SA).
30. Discrimination Act 1991 (ACT), ss.66 and 67.
31. Anti-Discrimination Amendment Act 2001 (Qld),
ss.124A 131A.
32. Racial and Religious Tolerance Act 2001 (Vic),
s.7.
33. Anti-Discrimination Act 1998 (Tas) s.19.
34. Anti-Discrimination Act 1998 (Tas) s.19.
35. Criminal Code 1913 (WA), ss.76-80.
36. Gelber.
K, "Speaking Back: The Free Speech versus hate speech debate",
J. Benjamin's Pub. Co., Amsterdam, 2002. Appendix.
37.
Section 85ZE of the Crimes Act 1914 (Cth).
38. Ibid.
39. See R v Rae (1998) 45 NSWLR 546.
40. Greg Taylor, "Casting the Net Too Widely: Racial
Hatred on the Internet", Criminal Law Journal, Volume 25,
October 2001, pp.260-275 at p.268.
41. This application of state criminal law regarding
racial vilification is argued by Greg Taylor, op.cit, pp.260-275. See
particularly p. 269 for the author's conclusions regarding the application
of the WA criminal legislation to those who 'cause an Internet site to
be available in Western Australia' (that is, ISPs). This needs to be weighed
of course against the provisions of the clause 91, Schedule 5, Broadcasting
Services Act 1992
.
42. Greg Taylor, op.cit
43. Ibid, p.272.
44. David Fraser, Senior Lecturer in Law, Sydney University, Making Cyber Hate a Crime, Sydney Morning Herald online at smh.com.au/news,
24 April 2001.