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HATE SPEECH AND RACIAL VILIFICATION LAWS IN AUSTRALIA
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- Racial Hatred Act
- State Racial Vilification Laws
HATE SPEECH AND RACIAL VILIFICATION LAWS IN AUSTRALIAHate Speech vs. Free Speech5 The idea of free speech has always been highly valued in Australia society. Although, Australia has no Bill of Rights and until recently could not be said to have any constitutionally guaranteed right to freedom of speech, the principle of free speech existed as a ‘silent principle’ of common law, albeit at the mercy of parliamentary sovereignty.8 Recent decisions of the High Court have found a constitutionally implied right to freedom of speech at least in the area of political and public affairs.9 The scope of this new implied right and the common law principle is not clear, and consequently much debate surrounded the introduction of the Commonwealth racial hatred legislation in 1995. Australia has a variety of hate speech laws. The Racial Hatred Act is the only racial vilification law with national application. The states of New South Wales, Western Australia, South Australia and the Australian Capital Territory have also enacted racial vilification laws.10 The NSW Act is the oldest, having been enacted in 1989. The other Acts are more recent, having all been enacted in the 1990s.
Racial Hatred Act6 The Racial Hatred Act (Cth) 1995 prohibits offensive public acts which are based on racial hatred. Offensive behaviour is unlawful if it is reasonably likely to offend, insult, humiliate or intimidate another person or a group of people and the act is done because of the race, color or national or ethnic origin of the other person or some or all of the people in the group. An act is deemed to be public if it causes words, sounds, images or writing to be communicated to the public, is done in a public place or is done in the sight or hearing of people who are in a public place. Public place includes any place to which the public access as a right or by invitation. The access may be express or implied and does not depend on an admission price being charged. The Act protects free speech by providing several exemptions to its provisions. Acts which are done reasonably and in good faith are not unlawful if they are done:
An employer will be vicariously liable for the unlawful acts of an employee or agent performed in connection with their work duties, unless the employer can show that he or she took all reasonable steps to prevent the employee or agent from doing the unlawful act. There has only been one case which covers the Act’s interpretation: Bryant v. Queensland Newspapers Pty Ltd.11 In this case the complainant (Mr. Bryant) sued the respondent (Queensland Newspapers) for publishing articles and letters in its weekly publication the Sunday Mail, which referred to English people as ‘Poms’ or ‘Pommies’. The complainant alleged that the use of these terms is insulting and offensive to English people. The Race Discrimination Commissioner declined to investigate the complaint on the grounds that the act did not meet the objective standard prescribed by the Racial Hatred Act. For the act to be unlawful it had to be ‘reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate’ the person or group of people referred to. She concluded that this objective standard had not been met. Arrangements were made for an public hearing into the complaint. However, prior to this public hearing, the respondent applied to have the complaint dismissed on the grounds that it was frivolous, vexatious, misconceived, lacking in substance or relating to an act which was not unlawful under the relevant provisions of the Act. In hearing this application, Sir Ronald Wilson, president of the Human Rights and Equal Opportunity Commission, accepted that the complainant was offended by the use of the words ‘Poms’ and ‘Pommies’ but he agreed with the Commissioner that this was not enough. He found that the offensiveness test is an objective one because of the words ‘reasonably likely’. He thought that the notion of ‘hatred’ suggested that the relevant provisions of the Act allow a fair degree of journalistic licence, including the use of flamboyant or colloquial language. Accordingly, he dismissed the complaint on the grounds that the act in question was not an unlawful act under the Act. State Racial Vilification Laws7 The State vilification laws are virtually identical.12 They make it unlawful for a person by a public act to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group, by either threatening physical harm to the person or members of the groups or to property of the person or members of the group, or by inciting others to do the same. There is no case law dealing with state racial vilification laws. Bibliography 8 Flahvin, Can Legislation Prohibiting Hate Speech be Justified in Light of Free Speech Principles? 18 UNSWLJ 327 (1995). Human Rights and Equal Opportunity Commission, What is the Racial Hatred Act? (1996). Sadurski, ‘Racial Vilification, Psychic Harm, and Affirmative Action’ in Campbell & Sadurski, Freedom of Communication (1994). Sadurski, Offending with Impunity: Racial Vilification and Freedom of Speech 14 SydLR 163 (1992). Download 0.7 Mb. Share with your friends:
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