Australian Journal of Human Rights
In 1989 the Anti-Discrimination Act 1977 (NSW) (ADA) was amended to make racial vilification unlawful. The law says, in part, that:
It is 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.
Where vilification includes threatening physical harm towards people or their property, or inciting others to threaten such harm, it is a criminal offence. These laws were the first of their kind in Australia. The legislation was also historic because it received virtually unanimous support from members of Parliament. But there was some strong opposition to the Bill from those members of the public who saw any law which would inhibit speech or publication, as "the thin end of the wedge." These views were accommodated, to some extent, by providing exceptions for: a fair report of a public act of vilification; certain communications attracting absolute privilege; and acts done in good faith for purposes in the public interest. It is now five years since the laws were enacted. Have they been successful in protecting individuals and groups from racist hostility and violence and if so, has the equally important right of freedom of expression been unduly impaired? This paper examines these questions in the light of the experience of the Anti-Discrimination Board in administering the legislation and recent case law.
1.2 The rationale for racial vilification laws.
The primary rationale for the legislation is to protect human rights, in particular the right to live free from racist hostility and violence. The government drew from international instruments in determining how the law should be framed. Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination obliges all parties to prohibit incitement to racial hatred and dissemination of racist material. Article 20 of the International Covenant on Civil and Political Rights (ICCPR) prohibits propaganda for war and advocacy of national or religious hatred that constitutes incitement to discrimination, hostility or violence. Article 19 of the ICCPR recognises the right to freedom of expression which carries with it special duties and responsibilities and is therefore subject to certain restrictions. These restrictions include respect for the rights and reputations of others.
In administering the racial vilification provisions, the President of the Anti-Discrimination Board must apply the facts of the alleged incident to the law to determine whether the complaint discloses a contravention of the ADA. The elements of an unlawful act are that there must be:
2.2 Public Act
Vilification must be by means of a "public act". "Public act" includes:
(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material; andWhile the definition of public act may appear to be straightforward, there are many borderline situations, for example, vilification in the course of a private conversation in a public place, vilification on a person's property which is in view of the street and vilification at functions which are by invitation only. Decisions both in Australia and overseas have shed some light on these situations.
(b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia; and
(c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses 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.
2.2 Decisions on the meaning of "public act".
To constitute a public act, the person engaging in the communication, conduct or distribution must be able to foresee that the public would hear or see the act. The Supreme Court of the Northern Territory held in R. v. Ashley that within the context of the Criminal Code Act 1983 (NT) "the public" "includes all persons who would have been clearly foreseen by an ordinary person . . . to have been within the ambit of the danger created by the alleged act, because their presence in the vicinity at that time might be reasonably anticipated." Consequently a woman speaking in a loud voice to a friend in a crowded restaurant could be engaging in a public act if she could clearly foresee that she would be overheard.
In Canada, the Alberta Board of Inquiry in Kane v. Church of Jesus Christ Christian-Aryan Nations (No 3), addressed the issue of how "before the public" should be interpreted in the context of the Individual's Rights Protections Act. Section s 2(1) of that Act provides that no person shall "display before the public any notice, sign, symbol, emblem or other representation indicating discrimination on the grounds of race." In Kane, the Board found that the display of signs, flags, swastikas, and burning crosses on the private property of one of the respondents was a display "before the public," as all the displays were easily visible to passers-by.
The Board rejected the respondent's argument that it was a private function, finding that those attending constituted "the public", because the Church's invitation to the event was open-ended and the audience consisted of members of other organisations, and other unrelated individuals. The Board also relied on Jennings v. Stephens, in support of the proposition that "public" does not necessarily mean the whole public. A portion of the public is sufficient. Furthermore, the Board found that the act took place "before the public" even though it was held on private property. A similar distinction is valid in relation to the NSW racial vilification provisions because the definition includes communication to the public, not communication in a public place.
2.3 Is it appropriate that vilification be confined to public acts?
The reason for confining racial vilification to public, as distinct from private, acts is presumably to protect a person's right to privacy. In addition, the essence of the provision is "incitement" which will be more likely to occur as a result of public acts.
2.4 The meaning of "incite".
Both the civil and criminal provisions against racial vilification require incitement. It is unlawful "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." When the Anti-Discrimination (Racial Vilification) Amendment Bill 1989 (NSW) was first introduced into Parliament it contained the words "promote or express", but was later amended to impose a higher standard by substituting the word "incite." In Harou-Sourdon v. TCN Channel Nine Pty. Limited, the EOT looked to the plain meaning of "incite", quoting the definition in the Macquarie Concise Dictionary as "to urge on; stimulate or prompt to action".
2.5 Must there be actual incitement?
During parliamentary debate on the Bill in 1989, the Hon Mr AS Aquilina made the point that the words "to incite" imply that it must be proved that a person was actually incited to hate as a result of the public act. However the EOT in Harou-Sourdon did not appear to interpret the words in that way. It quoted with approval the Australian Broadcasting Tribunal's decision in the Inquiry into Broadcasts by Ron Casey which decided that the test of whether incitement had occurred was an objective one based on a hypothetical listener or viewer. The issue of whether a person must actually be incited to hatred has been clarified in the Federal Government's proposed laws against racial vilification. The Racial Discrimination Legislation Amendment Bill 1992 (Cth) which was introduced on 16 December 1992, states that it is unlawful for a person to do an act that is likely in all the circumstances, to stir up hatred, serious contempt or severe ridicule against people on the ground of their race. An amendment to the New South Wales racial vilification provisions to add "likely in all the circumstances" to incite, would clarify this point.
2.6 Who must be incited to hate?
Is the hypothetical listener or viewer a reasonable person, or a person who is likely to be swayed by racist arguments? The EOT in Harou-Sourdon supported the following quote from the Ron Casey decision
The yardstick should not be a person peculiarly susceptible to being roused to enmity, nor one who takes an irrational or extremist view of the relations among racial groups. The hypothetical listener should in the Tribunal's view, be described as an ordinary, reasonable person not immune from susceptibility to incitement, nor holding racially prejudiced views.
In contrast, the Canadian Human Rights Tribunal held in Nealy v. Johnston that in assessing the impact of an allegedly vilifying message upon recipients, the test to be used is not the objective one of
. . . the reasonable listener, but whether there is anybody, even the most malevolent or unthinking person, who might be inspired to treat the targets with hatred or contempt.
This is a more realistic test than the one quoted by the EOT in Harou-Sourdon because if a person does not hold racially prejudiced views, presumably he or she could not, in any circumstances, be incited to hate others on the ground of their race.
2.7 Is intention to incite necessary?
While the use of the word "incite" in both the civil and criminal provisions suggests that they should be interpreted in the same manner, the then Attorney General, the Hon John Dowd, made it clear in the Second Reading Speech introducing the amendments that whereas the criminal provisions required intent to be proved, the civil provisions did not. In support of such a distinction the Canadian Supreme Court in Canada v. Taylor, interpreted s 13(1) of the Canadian Human Rights Act S.C. 1976-77 (CHRA), which restricts the communication of certain telephone messages, as a strict liability offence. The Supreme Court rejected the argument that the absence of the need for intent in that provision makes it a serious impairment of the right to freedom of expression. The Court emphasised that the objective of the CHRA can only be achieved by ignoring intent because the purpose of the provision is not to punish wrongdoing but to prevent discriminatory behaviour.
2.8 Hatred, serious contempt or severe ridicule
In assessing the meaning of "hatred", "serious contempt" and "severe ridicule", the EOT in Harou-Sourdon again looked to the Macquarie Concise Dictionary to find the plain meaning of those words. "Hatred" was defined as "the feeling of one who hates; intense dislike; detestation"; "contempt" as "the feeling with which one regards anything considered mean, vile or worthless; the state of being despised; dishonour; disgrace"; and "ridicule" as "words or actions intended to excite contemptuous laughter at a person or thing; derision". The EOT emphasised that "contempt" and "ridicule" were to be read in the context of the intensifying adjectives before them namely, "serious" and "severe".
In Harou-Sourdon a complaint was brought by a Frenchman against TCN Channel Nine Pty Limited for broadcasting comments on a television programme, "Robbo's World To-night", hosted by Clive Robertson. During the show Mr Robertson referred to the broadcast by a French television network of the trial, execution and burial of the former Romanian leader, Nicholas Ceaucescu, and commented that
"I thought the French had class. I knew they weren't too good on personal hygiene, but I thought at least they had class."
In assessing whether this comment incited hatred, severe contempt or serious ridicule the EOT took into account a number of factors including that
The Tribunal noted that the court in a New Zealand case, Neale v. Sunday News Auckland Newspaper Publications declined to find that several anti-Australian jokes in a New Zealand newspaper prompted "ill-will", "contempt" and "ridicule", within the Race Relations Act 1971 (NZ), which sets a lower threshold than the ADA.
2.9 Definition of "race"
The ADA was amended with effect from 8 August 1994 to include "ethno-religious origin" and "descent" in the definition of "race". Race is now defined as including "colour, nationality, descent and ethnic, ethno-religious or national origin". There is no further definition of any of these terms in the ADA, consequently the President must rely on the common law to determine their meaning.
Even prior to the amendments, the EOT had confirmed in Phillips v Aboriginal Legal Service, that being Jewish is being "of a certain race" for the purposes of the race discrimination provisions of the ADA. The EOT rejected a biological test of race based on genetic inheritance. Instead it relied on the New Zealand Court of Appeal's decision in King-Ansell v. Police that Jews form a group with common ethnic origins within the Race Relations Act 1971 (NZ) and the decision of the House of Lords in Mandla v. Dowell-Lee, that the Sikh community is an ethnic group. The test the House of Lords set down in that case has been relied on repeatedly in subsequent cases. According to the House of Lords, for a group to constitute an "ethnic group" for the purposes of the legislation in question, it had to regard itself and be regarded by others, as a distinct community by virtue of certain characteristics, two of which are essential. First it had to have "a long shared history, of which the group was conscious as distinguishing it from other groups, and the memory of which it kept alive" and second it had to have "a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance."
The Court of Appeal in Commission for Racial Equality v. Dutton, also relying extensively on the language of Mandla, found Gypsies to be a racial group within the definition of the Race Relations Act 1976 (UK). Although the Court found that Gypsies no longer possess what can be considered a common "racial stock", the long-shared history (700 years) and common geographical origin of Gypsies, along with their distinct customs and common dialect led the Court to the conclusion that Gypsies are a racial group.
In contrast, the Employment Appeal Tribunal in Crown Suppliers (PSA) v. Dawkins declined to recognise Rastifarians as a "racial group" with "ethnic origins" within in the meaning of the Race Relations Act 1976 (UK). The Tribunal found that Rastifarians were a religious cult. They did not meet the two essential characteristics for ethnic groups laid out in Mandla because 60 years was not a sufficiently long period of time to be in existence and the cultural tradition of Rastifarians was not distinct enough from the rest of the Afro-Caribbean community to render them a separate group.
There has been no decisions on the question of whether Muslims comprise an ethnic or ethno-religious group. However, in his Second Reading Speech introducing the ethno-religious amendment, the Attorney-General, the Hon Mr J P Hannaford said
The effect of the latter amendment is to clarify that ethno-religious groups, such as Jews, Muslims and Sikhs have access to the racial vilification and discrimination provisions of the Act.
The Attorney General also made the point that the amendment was not intended to allow groups to complain of religious vilification. The task of distinguishing between vilification on the ground of a person's ethno-religious, as distinct from their religious, origins will not always be easy. For example, the President of the Anti-Discrimination Board has received several complaints by Jews in relation to publications which use the Bible to bring Jews into disrepute. This kind of publication could well be characterised as religious as distinct from ethno-religious vilification. One way of overcoming this difficulty is to extend vilification to cover religion in accordance with the ICCPR which prohibits advocating national or religious hatred that constitutes incitement to discrimination, hostility or violence.
"Descent" is a ground of discrimination under the Racial Discrimination Act 1975 (Cth). It was added to the definition of race in the ADA partly to ensure consistency between the State and Federal legislation. The Federal Court has determined in Northern Land Council v. Olney that "local descent group," as it applies to Aborigines in a land claim dispute, should include the instances of patrilineal descent, patrifiliation and matrifiliation among the claimants. The Court qualified that definition by stating that ". . . the principle of descent should be interpreted not solely in a biological sense" because persons not claiming biological affiliation may be adopted into and become part of the group. The principle of descent will be "one that is recognised as applying in respect of the particular group," and may vary from time to time. In the light of this decision, the addition of "descent" to the definition of "race" could mean that Aborigines from one descent group could lodge a complaint against Aborigines from another descent group.
There are exceptions from the racial vilification provisions for:
3.2 Fair report of a public act
This exception enables the media and others to convey the details of a public act of vilification to the general public without exposing themselves to the risk of breaching the ADA. In the context of a similar exception to allegations of defamation, courts have taken the view that the report must accurately express what took place.
Errors may occur; but if they are such as not substantially to alter the impression that the reader would have received had he been present . . . the protection is not lost.
3.3 Absolute privilege defence
The kinds of public acts which would attract this defence include parliamentary debate or testimony, parliamentary papers and certain matters relating to the Ombudsman, the Privacy Committee, the Law Reform Commission and the Anti-Discrimination Board.
3.4 Purposes in the public interest
This exception allows for freedom of expression where it involves discussion or debate about matters that are in the public interest. It is necessary because unlike the United States and Canada, neither New South Wales, nor Australia, has any specific constitutional laws guaranteeing freedom of expression. The United States Supreme Court has struck down an anti-hate crime provision which made it an offence to place any symbol, object, or graffiti on public or private property with the knowledge that it would arouse anger or resentment in others on the basis of race, colour, religion or gender. The Supreme Court found that the provision was too broad and unnecessarily infringed upon the right to free speech embodied in the First Amendment to the United States Constitution.
In Canada freedom of expression has not been given such a high priority. The Canadian Charter of Rights and Freedoms guarantees freedom of expression. However, section 1 of the Charter states that
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits proscribed by laws as can be demonstrably justified in a free and democratic society.
Section 13(1) of Canadian Human Rights Act states that it is unlawful for a person or group of persons to communicate or cause to be communicated telephonically matter that is "likely to expose a person or persons to hatred or contempt by reason of the fact that that person or persons are identifiable on the basis of a prohibited ground of discrimination." The Supreme Court of Canada has decided that although this provision is in breach of the section of the Charter which guarantees freedom of expression it is not an unjustifiable limit. The Court determined that hate propaganda is a pressing and substantial concern which undermines the self-worth of certain groups and erodes tolerance within society. The Act satisfied a three part proportionality test that there
Parliamentary debate on the racial vilification provisions identified a number of mechanisms for protecting the right to live free from racist hostility and violence, including the provision of an accessible and inexpensive means of redress.
The law allows individuals or representative bodies to lodge a complaint of racial vilification with the President of the Anti-Discrimination Board. The President of the Board does not have the power to investigate an incident of racial vilification unless a formal complaint is lodged. If the complaint discloses a contravention of the racial vilification provisions, the President must investigate and, if appropriate, attempt to conciliate the complaint. The President acts independently in assisting the parties to reach a mutually agreeable resolution of the complaint. If agreement cannot be reached, the President may refer the matter to the Equal Opportunity Tribunal (EOT) for a hearing. If a matter is referred to the EOT, the normal rule is that each party pays his or her own costs.
2.2 The Board's experience with civil complaints.
A total of 442 written complaints of racial vilification were lodged from 1 October 1989 until 31 July 1994. Nearly half of these complaints were against the media. Of these, the majority were against the print media, then television and radio. The next most common respondent was neighbours. Those lodging complaints came from a wide variety of racial groups including Arabs, Muslims, Jews, the Irish, Greeks, Aborigines and Torres Strait Islanders. Of the 94 complaints finalised in the 1993/94 financial year 14 were outside the Board's jurisdiction, 17 were declined, 48 were not proceeded with, 14 were conciliated and 1 was referred to the EOT for hearing.
Of the complaints which were within the Board's jurisdiction and were not declined as lacking in substance, just over two-thirds (48 out of 67) were not proceeded with. Some of the reasons complainants do not proceed with their complaints are
4.4 Advantages of the complaint handling process.
The complaint handling process has the advantages of being confidential, free of charge and of addressing the particular needs of individuals and representative bodies. The statistics for the 1993/94 financial year also demonstrate that it operates as a filtering process, which would otherwise be performed by legal advisers.
The rationale for maintaining confidentiality in the complaint handling procedures is to encourage both parties to talk freely about ways in which the complaint could be resolved. Confidentiality also encourages others who know the circumstances of the complaint to come forward. Although complaints are handled confidentially they can be used to provide the basis for further education by
Although it has many advantages, the complaint handling process also has several limitations
4.6 Some possible solutions.
4.6.1 Class actions. A respondent should not be in a position where, having resolved a complaint to the satisfaction of one individual or group, he or she is then subject to multiple complaints from people who want different outcomes. One way of overcoming the problem of multiple complainants is for the ADA to be amended so that the person who first lodges the complaint, or an agreed representative, can run the complaint as a class action.
4.6.2 Self-initiation of complaints. The second problem, that the President cannot investigate any alleged act of racial vilification unless a formal complaint has been lodged, could be overcome by allowing the President to investigate possible acts of racial vilification without the need for a formal complaint. Amending the ADA in this way would further the objectives of the provisions and is therefore in the public interest. However, there could be a perceived conflict of interest with the President's existing conciliation function. The President would take the place of the complainant and attempt to resolve the complaint by persuading the respondent to change its policies or practices, publish an apology or make amends in other ways. However, the President's recommendation would not be legally binding on the respondent.
The offence of serious racial vilification occurs where a person racially vilifies another person by means which include
(a) threatening physical harm towards, or towards any property of, the person or group of persons; orWhere actual violence occurs, the matter can be dealt with under the Crimes Act 1900 (NSW). After investigating a racial vilification complaint, if the President considers an offence may have been committed he must refer it to the Attorney General within 28 days of receiving the complaint. The consent of the Attorney General is required before the offence can be prosecuted. Once a complaint which raises questions of serious racial vilification has been referred to the Attorney-General, the President must advise the complainant of his or her rights to have the civil aspects of the complaint referred to the Tribunal.
(b) inciting others to threaten physical harm towards, or towards any property of, the person or group of persons.
Three matters have been referred to the Attorney General by the President for prosecution. On each occasion the Attorney General has decided not to prosecute.
Penalties for criminal racial vilification have recently been increased from $1,000 to $5,000 for individuals. Imprisonment for 6 months is an alternative sanction. The $10,000 penalty for corporations has not been changed.
5.2 Some possible improvements to the criminal offences.
There are some persuasive arguments for making the offence of serious racial vilification part of the Crimes Act 1900 (NSW). Locating the offence within that Act would
The Equal Opportunity Tribunal can award
6.2 What principles are applied in awarding damages?
Tribunal decisions in relation to damages have generally been based on the same policy and objectives underlying awards of damages at common law. The main objective is to restore a complainant as far as is reasonably possible to the position that he or she would have been in had the vilification not occurred. This involves awarding both special damages, for quantifiable economic loss, and general damages for injury to feelings and loss of enjoyment of life.
6.3 What factors would the Tribunal take into account in awarding damages?
Factors which the Tribunal would probably take into account in assessing damages include
No empirical data has been collected which would demonstrate whether racial vilification laws have been successful in protecting individuals and groups from racist hostility and violence. However, the legislation has certainly provided a focal point for the Anti-Discrimination Board to carry out education strategies designed to alert the media and others to the existence of the law and its rationale. These education strategies would not be nearly as effective without the civil and criminal sanctions of the racial vilification provisions to back them up. While case law in Australia and overseas has helped clarify the meaning of many of the elements of racial vilification, there are still shortcomings with the current provisions. This paper suggests a number of amendments, in particular to
Freedom of expression is not an absolute right. A balance must be struck between that right and other conflicting rights. In Canada the Charter of Rights and Freedoms provides that freedom of expression is only impaired to the extent that it can be demonstrably justified in a free and democratic society. In order to demonstrate that justification the Supreme Court of Canada has devised a three part proportionality test. Applying the elements of this test to the New South Wales racial vilification provisions reveals that
[*]Nancy Hennessy is the Senior Legal Officer on the Anti-Discrimination Board. Paula Smith is a law student from Columbia University, New York)
 Anti-Discrimination (Racial Vilification) Act 1989 (NSW)
 ADA s 20C(1)
 ADA s 20D
 New South Wales, Parliamentary Debates, 4 May 1989, 36
 ADA s 20C(2)
 The views expressed in this paper are those of the authors.
 New South Wales, Parliamentary Debates, 4 May 1989, 3
 ADA s 90, 91
 Harou-Sourdon v TCN Channel 9 Pty Ltd (1994) EOC 92-604
 ADA s 20B
  NTSC 19; 77 NTR 27, 30
 (1992) 18 CHRR 268
  1 All ER 409 (CA)
 International Covenant on Civil and Political Rights, Article 17
 ADA s 20C(1)
 (1994) EOC 92-604
 New South Wales, Parliamentary Debates, 10 May 1989, 50
 (1989) 3BR 351
 The Bill is not likely to be re-introduced in its original form because extensive consultations have taken place in the meantime.
 Inquiry into Broadcasts by Ron Casey (1989) 3BR 351, 357
 (1989) 10 CHRR 6450, 6470
 New South Wales, Parliamentary Debates, 4 May 1989, 9
 (1992) 13 CHRR 435
 Harou-Sourdon v TCN Channel Nine Pty Limited, 1994 EOC 92-604
 (1985) EOC 92-130
 Anti-Discrimination (Amendment) Act 1994
 (1993) EOC 92-502
 (1979) 2 NZLR 531
  UKHL 7;  1 All ER 1062, 1069
 Mandla v. Dowell-Lee  UKHL 7;  1 All ER 1062, 1070
  EWCA Civ 17; (1989) IRLR 8
 (1991) IRLR 327
 New South Wales, Parliamentary Debates, 4 May 1994, 1827
 ICCPR, Art 20
  FCA 69; (1992) 34 FCR 470
 Northern Land Council v. Olney  FCA 69; (1992) 34 FCR 470, 485
 ADA s 29C(1)
 Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376, 380
 However, see Australian Capital Television Pty Ltd v Commonwealth  HCA 45; (1992) 108 ALR 577 and Nationwide News Pty Ltd v Wills  HCA 46; (1992) 108 ALR 681
 R.A.V. v City of St. Paul 112 SC 2538 (1992)
 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act 1982, being Schedule B of the Canada Act 1982 (UK) 1982 s 2(b)
 Canada v Taylor (1991) 13 CHRR 435
 New South Wales, Parliamentary Debates, 4 May 1989, 3
 ADA s 88(1A)
 ADA s 89
 ADA s 94
 ADA s 114
 Crimes Act 1900 (NSW) s 562B
 Class actions are available for racial discrimination complaints under the Racial Discrimination Act 1975 (Cth) s 25L
 ADA s 89(B)(1)(2)&(3)
 ADA s 20D(2)
 ADA s 89B(4)
 Anti-Discrimination (Amendment) Act 1994
 Human Rights and Equal Opportunity Commission (1991) Report of the National Inquiry into Racist Violence in Australia, Part 2, Australian Government Publishing Service, Canberra.
 Even if more than one complaint of racial vilification is lodged, the Tribunal cannot order a respondent to pay more than a total of $40,000 in respect of one public act: ADA s 113(3)
 ADA s 113(2)
 ADA s 113(3)
 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act 1982, being Schedule B of the Canada Act 1982 (UK) 1982 s 1
 Canada v Taylor (1991) 13 CHRR 435