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Racial Vilification Law in Australia
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]
https://www.humanrights.gov.au/publications/racial-vilification-law-australia