Racial Villification and Australian Law

Racial and religious villification in Australia has again become a hot bed issue with recent attacks (28 October 2013) on four men and a woman by a group of eight males in Bondi in what was allegedly an anti-Semitic attack.

Racial and religious tolerance laws have been enacted around the world, increasingly so in recent years. Sometimes they are called 'hatred' laws or 'vilification' laws. Most countries that have introduced such laws have only introduced racial hatred laws, instead of covering religious villification as well.

The Content of Racial Villification Laws

Since the introduction of provisions dealing with racial hatred in 1995, the Racial Discrimination Act 1975 (CTH) makes it unlawful to insult, humiliate, offend or intimidate another person or group in public on the basis of their race.

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.

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.

New South Wales: Anti-Discrimination Act 1977

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. 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.

In New South Wales racial discrimination is unlawful in the areas of education, employment, the provision of goods and services, accommodation and registered clubs. For the purposes of the New South Wales Act, "race" includes colour, nationality, descent, and ethnic, ethno-religious and national origin. The Act also makes it unlawful to discriminate against a person on the ground that the person has a relative or associate who is of a particular race.

South Australia: Equal Opportunity Act 1984 and Racial Villification Act 1996

South Australia has anti-vilification laws that essentially mirror the New South Wales legislation - racial discrimination is unlawful in the areas of education, employment, goods and services, accommodation, disposal of land, superannuation, clubs and associations and conferral of qualifications. Under the South Australian Act, "race" means skin colour, nationality, country of origin and ancestry. The South Australian Act also makes it unlawful to discriminate against a person on the ground that the person has a relative or associate who is of a particular race.

Australian Capital Territory: Discrimination Act 1991

ACT has anti-vilification laws that also essentially mirror the New South Wales legislation - racial discrimination is unlawful in the areas of education, employment, accommodation, clubs, goods and services and request for information. Under the Australian Capital Territory Act, "race" includes colour, descent ethnic or national origin and nationality. The Act also makes it unlawful to discriminate against a person on the ground that the person has a relative or associate who is of a particular race.

Queensland: Anti-Discrimination Act 1991

In Queensland, racial discrimination is unlawful in the areas of education, employment, goods and services, superannuation, insurance, land, accommodation, clubs, administration of Queensland laws and programs and local government members.

For the purposes of the Queensland Act, "race" includes colour, nationality or national origin, descent or ancestry, and ethnic origin or ethnicity. The Queensland Act also makes it unlawful to discriminate against a person on the ground that the person has a relative or associate who is of a particular race.

In 2001, the enactment of the Anti-Discrimination Amendment Act made racial and religious vilification unlawful. Racial and religious vilification under the Queensland Act is any public act which incites hatred towards, serious contempt for or severe ridicule of a person or group of persons because of their race or religion.

Northern Territory: Anti-Discrimination Act 1992

In the Northern Territory, racial discrimination is unlawful in the areas of education, employment, accommodation, goods and services, clubs and insurance and superannuation. For the purposes of the Northern Territory Act, "race" includes colour, nationality, ethnic or national origin, descent or ancestry, and that a person is or has been an immigrant. The Northern Territory Act also makes it unlawful to discriminate against a person on the ground that the person has a relative or associate who is of a particular race.

Victoria: Equal Opportunity Act 1995 and Racial and Religious Tolerance Act 2001

In Victoria, racial discrimination is unlawful in the areas of education, employment, goods and services, accommodation and land, sport and local government.

For the purposes of the Victorian Act, "race" includes colour, nationality or national origin, descent, ancestry, and ethnic origin or ethnicity. The Act also makes it unlawful to discriminate against a person on the ground that the person has a relative or associate who is of a particular race.

Racial and religious vilification are also unlawful in Victoria. The most serious forms of racial and religious vilification are a criminal offence.

Tasmania: Anti-Discrimination Act 1998

The Tasmanian Act covers discrimination on the ground of "race". It applies to discrimination and prohibited conduct in employment, education and training, the provision of facilities, goods and services, accommodation, membership and activities of clubs.

For the purposes of the Tasmanian Act, "race" includes colour, nationality, descent, ethnic, ethno-religious or national origin and the status of being or having been an immigrant.

The Tasmanian Act also contains strong inciting hatred provisions. Section 19 says that 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 a number of grounds including race, religious belief or affiliation or religious activity. The Act applies to inciting hatred in the areas defined for discrimination and prohibited conduct as well as in any other area or in connection with any other activity.

Western Australia: Equal Opportunity Act 1984 and Criminal Code Act

Unlike other jurisdictions, Western Australian law imposes criminal but not civil sanctions against racial vilification.

In Western Australia, racial discrimination is unlawful in the areas of education, employment, access to places and vehicles, provision of goods and services, accommodation and land, and clubs. The Western Australian Act also has specific provisions making racial harassment unlawful in the areas of employment, education and accommodation.

Under the Western Australian Act, "race" includes colour, descent, ethnic or national origin and nationality. The Western Australian Act also makes it unlawful to discriminate against a person on the ground that the person has a relative or associate who is of a particular race.

Racial vilification is not dealt with under the Equal Opportunity Act, but the Criminal Code makes racial harassment and incitement to racial hatred a criminal offence. The offences are specific to possession of racial material, publication of racial material for display to harass a racial group or to incite racial hatred.

Effect of Anti-Semitic Attacks

Australia's Race Discrimination Commissioner has condemned the attack saying it was a reminder that racial vilification could "escalate into racial violence".

Federal MP for Wentworth Malcolm Turnbull, whose electorate encompasses Bondi, said

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Racial Villification Law in Australia - HREOC Paper

Victoria Legal Aid Website

Racism No Way Website

Racism Exists in Australia

Bondi attack: 'Racial vilification can escalate into racial violence'

Protecting Against Racial or Religious Villification