Hate speech laws in Australia

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The hate speech laws in Australia give redress to someone who is the victim of discrimination, vilification or injury on grounds that differ from one jurisdiction to another. All Australian jurisdictions give redress when a person is victimised on account of skin colour, ethnicity, national origin or race. Some jurisdictions also give redress when a person is victimised on account of religion, disability, gender identity, HIV/AIDS status or sexual orientation.

Contents

Federal

The Racial Discrimination Act 1975 forbids hate speech on several grounds. The Act makes it "unlawful for a person to do an act, otherwise than in private, if: the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and the act is done because of the race, colour or national or ethnic origin of the other person, or of some or all of the people in the group." [1] An aggrieved person can lodge a complaint with the Australian Human Rights Commission. If the complaint is validated, the Commission will attempt to conciliate the matter. If the Commission cannot negotiate an agreement which is acceptable to the complainant, the complainant's only redress is through the Federal Court.

In 2002, the Federal Court applied the Act in the case of Jones v Toben. The case involved a complaint about a website which contained material that denied the Holocaust. The Federal Court ruled that the material was a violation of the Act. [2]

Section 474.17 of the Criminal Code makes it an offence to use a carriage service such as the Internet in a manner which reasonable persons would regard as menacing, harassing or offensive. 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 is merely offensive. [3] [4]

Following the controversial 2011 Eatock v Bolt decision convicting right-wing columnist Andrew Bolt of violating 18C for his newspaper columns on "fair-skinned aborigines", then-Liberal Party leader Tony Abbott campaigned on a promise to repeal 18C of the Racial Discrimination Act. In 2014, after Abbott's election as Prime Minister of Australia, then-Attorney-General George Brandis put forth a bill which would have significantly weakened 18C but not repealed it entirely. [5] [ better source needed ] The measure to weaken 18C failed, primarily due to extensive lobbying in favour of 18C from Australia's Jewish community. [6] [ better source needed ]

Human Rights and Anti-Discrimination Bill 2012

In 2012, under the Gillard government, then-Attorney-General Nicola Roxon proposed the Human Rights and Anti-Discrimination Bill 2012, which would have made it illegal to discriminate on the basis of age, breastfeeding, disability, family responsibilities, gender identity, immigrant status, industrial history, marital or relationship status, medical history, nationality or citizenship, political opinion, potential pregnancy, pregnancy, race, religion, sex, sexual orientation or social origin. Critics argued the law was too restrictive and would shift the burden of proof to the person accused of discrimination. While this proposed law was broadly supported by the Australian Human Rights Commission, many Australian human rights organisations and the Australian Greens (who opined that the proposed law did not go far enough [7] ), it was narrowly defeated in Parliament. [8]

Australian Capital Territory

The Discrimination Act 1991 is similar to the law in New South Wales.

In 2016 the law was amended to include a proscription of actions inciting hatred toward, revulsion of, serious contempt for, or severe ridicule of a person or group of people on the ground of any of the following(a) disability; (b) gender identity; (c) HIV/AIDS status; (d) race; (e) religious conviction; (f) sexuality. [9] [10] Prior to the passage of these amendments, religion in particular was not included.

New South Wales

In 1989, by an amendment to the Anti-Discrimination Act 1977, 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 group of persons on the ground of the race of the person or members of the group". [11] The amendment 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. "Homosexual vilification" is also prohibited under the Act. [12] Prosecution of the offence of serious vilification requires consent from the Attorney General of New South Wales 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. [3]

As of 1994, the Act has had various setbacks in its process to handle complaints, [13] such as complaints not being proceeded with due to the lack of evidence in cases and those pursuing the act of discrimination losing interest in their own complaint or settling out of court under non-disclosure agreements. [14] Further, due to the nature of discrimination reports in NSW, the Board receives multiple complaints stemming from a single act of vilification [13] and therefore is required to address each complaint separately, which can create dissonance between the resolutions desired by each individual or group.

In June 2018, both houses of the Parliament of New South Wales unanimously passed and the Governor of New South Wales signed an urgent bill without amendments called the Crimes Amendment (Publicly Threatening and Inciting Violence) Bill 2018 [15] to repeal the vilification laws within the Anti-Discrimination Act 1977 and replace it with criminal legislation with up to an explicit three-year term of imprisonment. [16] [17] The legislation went into effect on 13 August 2018 - by proclamation on 10 August 2018. [18]

Northern Territory

The Anti-Discrimination Act 1992 prohibits discrimination and harassment in activities associated with education, work, accommodation, services, clubs, and insurance or superannuation.

Queensland

Queensland's Anti-Discrimination Act 1991 and amendments create laws that are similar to Tasmania's. In 2001, the Islamic Council of Queensland brought the first action under the Act for victimisation on account of religion. The Islamic Council complained that the respondent Mr. Lamb, a candidate in a federal election, had expressed some unfavourable opinions about Muslims in an electioneering pamphlet. Walter Sofronoff, for the Anti-Discrimination Tribunal, dismissed the action on the ground that Mr. Lamb did not intend to incite hatred or contempt but rather wanted to let the electors know his opinions on political matters. [19]

South Australia

The Racial Vilification Act 1996 is similar to the law in New South Wales. In 2002, the Attorney-General's Department released a discussion paper entitled "Proposal for a new law against religious discrimination and vilification". Following many objections, no legislation was enacted.

Tasmania

The Anti-Discrimination Act 1998 prohibits "any conduct which offends, humiliates, intimidates, insults or ridicules another person" on the basis of attributes including race, sexual orientation, religion, gender identity and disability. [20]

Section 19 of the Act prohibits anyone from inciting hatred. The Act says:

A person, by a public act, must not incite hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons on the ground of –
(a) the race of the person or any member of the group; or
(b) any disability of the person or any member of the group; or
(c) the sexual orientation or lawful sexual activity of the person or any member of the group; or
(d) the religious belief or affiliation or religious activity of the person or any member of the group.

Victoria

The Racial and Religious Tolerance Act 2001 makes behaviour that incites or encourages hatred, serious contempt, revulsion or severe ridicule against another person or group of people, because of their race or religion, unlawful in Victoria. The Act went into effect on 1 January 2002. The Act also prohibits racist graffiti, racist posters, racist stickers, racist comments made in a publication, including the Internet and email, statements at a meeting or at a public rally. The Act explicitly applies to public behaviour, not personal beliefs or thoughts. [21]

Western Australia

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. Penalties range between six months and two years imprisonment. 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. In 2004, the Criminal Code Amendment (Racial Vilification) Act 2004 was passed, making racial vilification punishable by 14 years imprisonment. [22] [23]

Related Research Articles

A hate crime is crime where a perpetrator targets a victim because of their physical appearance or perceived membership of a certain social group.

<span class="mw-page-title-main">Religious intolerance</span> Intolerance of anothers religious beliefs or practices

Religious intolerance is intolerance of another's religious beliefs, practices, faith or lack thereof.

Blasphemous libel was originally an offence under the common law of England. Today, it is an offence under the common law of Northern Ireland, but has been abolished in England and Wales, and repealed in Canada and New Zealand. It is a form of criminal libel that consists of the publication of material which exposes the Christian religion to scurrility, vilification, ridicule, and contempt, with material that must have the tendency to shock and outrage the feelings of Christians.

<span class="mw-page-title-main">Racial Discrimination Act 1975</span>

The Racial Discrimination Act 1975(Cth) is an Act of the Australian Parliament, which was enacted on 11 June 1975 and passed by the Whitlam government. The Act makes racial discrimination in certain contexts unlawful in Australia, and also overrides state and territory legislation to the extent of any inconsistency.

Human rights in Australia have largely been developed by the democratically elected Australian Parliament through laws in specific contexts and safeguarded by such institutions as the independent judiciary and the High Court, which implement common law, the Australian Constitution, and various other laws of Australia and its states and territories. Australia also has an independent statutory human rights body, the Australian Human Rights Commission, which investigates and conciliates complaints, and more generally promotes human rights through education, discussion and reporting.

<span class="mw-page-title-main">Anti-discrimination law</span> Legislation designed to prevent discrimination against particular groups of people

Anti-discrimination law or non-discrimination law refers to legislation designed to prevent discrimination against particular groups of people; these groups are often referred to as protected groups or protected classes. Anti-discrimination laws vary by jurisdiction with regard to the types of discrimination that are prohibited, and also the groups that are protected by that legislation. Commonly, these types of legislation are designed to prevent discrimination in employment, housing, education, and other areas of social life, such as public accommodations. Anti-discrimination law may include protections for groups based on sex, age, race, ethnicity, nationality, disability, mental illness or ability, sexual orientation, gender, gender identity/expression, sex characteristics, religion, creed, or individual political opinions.

<span class="mw-page-title-main">Racial and Religious Hatred Act 2006</span> United Kingdom legislation

The Racial and Religious Hatred Act 2006 is an Act of the Parliament of the United Kingdom which creates an offence in England and Wales of inciting hatred against a person on the grounds of their religion. The Act was the Labour Government's third attempt to bring in this offence: provisions were originally included as part of the Anti-Terrorism, Crime and Security Bill in 2001, but were dropped after objections from the House of Lords. The measure was again brought forward as part of the Serious Organised Crime and Police Bill in 2004-5, but was again dropped in order to get the body of that Bill passed before the 2005 general election.

Volksverhetzung, in English "incitement to hatred", "incitement of popular hatred", "incitement of the masses", or "instigation of the people", is a concept in German criminal law that refers to incitement to hatred against segments of the population and refers to calls for violent or arbitrary measures against them, including assaults against the human dignity of others by insulting, maliciously maligning, or defaming segments of the population.

Incitement to ethnic or racial hatred is a crime under the laws of several countries.

The Racial and Religious Tolerance Act 2001 is an Act of the Parliament of Victoria, Australia, that makes behaviour that incites or encourages hatred, serious contempt, revulsion or severe ridicule against another person or group of people, because of their race or religion, unlawful in Victoria. The Act was passed during the premiership of Steve Bracks and went into effect on 1 January 2002.

Racial Vilification Act 1996 is the short title of the Act to prohibit certain conduct involving vilification of people on the ground of race. It is a part of the legislation in South Australia, assented to 12 December 1996. The act amends the Wrongs Act 1936.

<i>Anti-Discrimination Act 1977</i> Australian statute relating to discrimination

The New South Wales Anti-Discrimination Act 1977 is an Act of the NSW Parliament, relating to discrimination in employment, the public education system, delivery of goods and services, and other services such as banking, health care, property and night clubs.

<span class="mw-page-title-main">Legality of Holocaust denial</span>

Between 1941 and 1945, the government of Nazi Germany perpetrated the Holocaust: a large-scale industrialised genocide in which approximately six million Jews were systematically murdered throughout German-occupied Europe. Since World War II, several countries have criminalised Holocaust denial—the assertion by antisemites that the genocide was fabricated or has been exaggerated. Currently, 17 European countries, along with Israel and Canada, have laws in place that cover Holocaust denial as a punishable offence. Many countries also have broader laws that criminalise genocide denial as a whole, including that of the Holocaust. Among the countries that have banned Holocaust denial, Russia, Austria, Germany, Hungary, Poland, and Romania have also banned Nazi symbols. Additionally, any expression of genocide justification is also a criminal offence in several countries, as is any attempt to portray Nazism in a positive light.

<span class="mw-page-title-main">Freedom of speech by country</span>

Freedom of speech is the concept of the inherent human right to voice one's opinion publicly without fear of censorship or punishment. "Speech" is not limited to public speaking and is generally taken to include other forms of expression. The right is preserved in the United Nations Universal Declaration of Human Rights and is granted formal recognition by the laws of most nations. Nonetheless, the degree to which the right is upheld in practice varies greatly from one nation to another. In many nations, particularly those with authoritarian forms of government, overt government censorship is enforced. Censorship has also been claimed to occur in other forms and there are different approaches to issues such as hate speech, obscenity, and defamation laws.

Blasphemy is not a criminal offence under Australian federal law, but the de jure situation varies at state and territory level; it is currently not enforced in any Australian jurisdiction. The offences of blasphemy and blasphemous libel in English common law were carried over to the Australian colonies and "received" into state law following Federation in 1901. The common-law offences have been abolished totally in Queensland and Western Australia, when those jurisdictions adopted criminal codes that superseded the common law. In South Australia, Victoria, and the Northern Territory the situation is ambiguous, as the local criminal codes do not mention blasphemy but also did not specifically abolish the common-law offences. In New South Wales and Tasmania, the criminal codes do include an offence of blasphemy or blasphemous libel, but the relevant sections are not enforced and generally regarded as obsolete.

<span class="mw-page-title-main">Hate speech laws in Canada</span> Canadian laws relating to hate speech

Hate speech laws in Canada include provisions in the federal Criminal Code, as well as statutory provisions relating to hate publications in three provinces and one territory.

Racism on the Internet sometimes also referred to as cyber-racism and more broadly considered as an online hate crime or an internet hate crime consists of racist rhetoric or bullying that is distributed through computer-mediated means and includes some or all of the following characteristics: ideas of racial uniqueness, racist attitudes towards specific social categories, racist stereotypes, hate-speech, nationalism and common destiny, racial supremacy, superiority and separation, conceptions of racial otherness, and anti-establishment world-view. Racism online can have the same effects as offensive remarks made face-to-face.

<span class="mw-page-title-main">International Convention on the Elimination of All Forms of Racial Discrimination</span> 1969 United Nations human rights instrument

The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) is a United Nations convention. A third-generation human rights instrument, the Convention commits its members to the elimination of racial discrimination and the promotion of understanding among all races. The Convention also requires its parties to criminalize hate speech and criminalize membership in racist organizations.

Section 18C of the Racial Discrimination Act 1975, deals with offensive behaviour "because of race, colour or national or ethnic origin" in Australia. It is a section of the Racial Discrimination Act 1975, which was passed by the Australian Parliament during the term of the Whitlam government and makes racial discrimination unlawful in Australia. Section 18C was added by the Keating government in 1995. The Section has been controversial and subject to much debate.

Hate speech is public speech that expresses hate or encourages violence towards a person or group based on something such as race, religion, sex, or sexual orientation. Hate speech is "usually thought to include communications of animosity or disparagement of an individual or a group on account of a group characteristic such as race, colour, national origin, sex, disability, religion, or sexual orientation".

References

  1. ↑ "RACIAL DISCRIMINATION ACT 1975 - SECT 18C - Offensive behaviour because of race, colour or national or ethnic origin". www.austlii.edu.au.
  2. ↑ "Australia and New Zealand - OpenNet Initiative". opennet.net.
  3. 1 2 "Race Discrimination". www.hreoc.gov.au.
  4. ↑ "CRIMINAL CODE ACT 1995 - SCHEDULE The Criminal Code". AustLII.
  5. ↑ Turnbull, Malcolm (27 March 2014). "What do you think about changes to the Racial Discrimination Act - exposure draft seeks consultation". Malcolm Turnbull official website. Retrieved 19 April 2024.
  6. ↑ JTA (6 August 2014). "Australian Jews block change in local race-hate laws". The Times of Israel . Retrieved 19 April 2024.
  7. ↑ "Roxon defends her anti-discrimination bill". The Sydney Morning Herald . 20 November 2012. Retrieved 20 April 2024.
  8. ↑ Daniel Hurst (30 March 2013). "Discrimination laws go back to the drawing board". The Sydney Morning Herald . Retrieved 20 April 2024.
  9. ↑ "Discrimination Amendment Act 2016" (PDF). .legislation.act.gov.au. A2016-49. Archived from the original (PDF) on 10 October 2016.
  10. ↑ "ACT Parliament Passes Religious Vilification Laws".
  11. ↑ "s 20c Anti-Discrimination Act 1977 (NSW)".
  12. ↑ Homosexual vilification. Australia. NSW Anti-Discrimination Act.
  13. 1 2 Hennessy, Nancy; Smith, Paula (1994). "Have We Got it Right? NSW Racial Vilification Laws Five Years on". Australian Journal of Human Rights. 1: 249–264. doi:10.1080/1323238X.1994.11910914.
  14. ↑ Mugford, Jane (Editor). 'Alternative Dispute Resolution'. ISBN   0642111316. Australian Institute of Criminology .
  15. ↑ "Error" (PDF).
  16. ↑ "Crimes Amendment (Publicly Threatening and Inciting Violence) Bill 2018".
  17. ↑ Community Relations Division, freecall 1800 685 449; Justice, NSW Department of. "New laws to target incitement of violence". www.justice.nsw.gov.au.{{cite web}}: CS1 maint: numeric names: authors list (link)
  18. ↑ Hurley, David (8 August 2018). "Commencement Proclamation under the Crimes Amendment (Publicly Threatening and Inciting Violence) Act 2018 No 32" (PDF). legislation.nsw.gov.au.
  19. ↑ "Deen v. Lamb (2001) QADT 20 (8 November 2001)".
  20. ↑ Anti-Discrimination Act 1998 - Section 17
  21. ↑ "The Racial and Religious Tolerance Act". Victorian Equal Opportunity and Human Rights Commission. Melbourne. 2001. Retrieved 22 July 2018.
  22. ↑ "Criminal Code Amendment (Racial Vilification) Act 2004 - 00-00-02". Archived from the original on 22 October 2016. Retrieved 4 March 2016.
  23. ↑ "Criminal Code Act Compilation Act 1913 17-l0-00 XML". Archived from the original on 19 December 2015. Retrieved 4 March 2016.
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