Hate speech laws in Australia
Encyclopedia
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 race. Some jurisdictions give redress when a person is victimised on account of colour, ethnic origin
, religion
, disability
, or sexual orientation
.
, 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.”
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
or through the Federal Magistrates Service.
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.
Section 85ZE of the Crimes Act 1914
makes it an offence to use the Internet
to disseminate material intentionally that results in a person being menaced or harassed
. This offence includes material communicated by email. 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.
's Anti-Discrimination Act 1998 prohibits anyone from inciting hatred. The Act says:
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 on the grounds of race. 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. Prosecution of the offence of serious vilification requires consent from the Attorney-General 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.
'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 Anti-Discrimination 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.
put into effect its Racial and Religious Tolerance Act 2001 which makes religious vilification as well as racial vilification unlawful. Section 8(1) of the Act states:
Section 11 of the Act provides this concession in favour of freedom of expression:
In 2004, the Islamic Council of Victoria
laid a complaint under the Act about the preaching by two Christian
pastors. One pastor, a man who had fled Pakistan
when a charge of blasphemy
was made against him there, was Daniel Scot. The other pastor was Danny Nalliah
. Scot and Nalliah made controversial remarks about Islam
at a seminar.
On 17 December 2004, the Victorian Civil and Administrative Tribunal
, in the person of Judge Michael Higgins, determined that the pastors had violated the Act. The judge sentenced them to print an apology—drafted by the judge—on their website, in their newsletter, and in eight advertisements appearing in two newspapers.
The pastors appealed. The Supreme Court of Victoria
overturned the Tribunal's decision. The Court said the Tribunal had no business “attempt[ing] to assess the theological propriety of what was asserted at the Seminar.”
The Court directed a re-hearing before a different judge.
The pastors and the Islamic Council of Victoria prevented a re-hearing by resolving their conflict through mediation
on 22 June 2007.
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.
Hate speech
Hate speech is, outside the law, any communication that disparages a person or a group on the basis of some characteristic such as race, color, ethnicity, gender, sexual orientation, nationality, religion, or other characteristic....
laws in Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
give redress to someone who is the victim of discrimination
Discrimination
Discrimination is the prejudicial treatment of an individual based on their membership in a certain group or category. It involves the actual behaviors towards groups such as excluding or restricting members of one group from opportunities that are available to another group. The term began to be...
, vilification, or injury
Injury
-By cause:*Traumatic injury, a body wound or shock produced by sudden physical injury, as from violence or accident*Other injuries from external physical causes, such as radiation injury, burn injury or frostbite*Injury from infection...
on grounds that differ from one jurisdiction to another. All Australian jurisdictions give redress when a person is victimised on account of race. Some jurisdictions give redress when a person is victimised on account of colour, ethnic origin
Ethnic group
An ethnic group is a group of people whose members identify with each other, through a common heritage, often consisting of a common language, a common culture and/or an ideology that stresses common ancestry or endogamy...
, religion
Religion
Religion is a collection of cultural systems, belief systems, and worldviews that establishes symbols that relate humanity to spirituality and, sometimes, to moral values. Many religions have narratives, symbols, traditions and sacred histories that are intended to give meaning to life or to...
, disability
Disability
A disability may be physical, cognitive, mental, sensory, emotional, developmental or some combination of these.Many people would rather be referred to as a person with a disability instead of handicapped...
, or sexual orientation
Sexual orientation
Sexual orientation describes a pattern of emotional, romantic, or sexual attractions to the opposite sex, the same sex, both, or neither, and the genders that accompany them. By the convention of organized researchers, these attractions are subsumed under heterosexuality, homosexuality,...
.
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, insultInsult
An insult is an expression, statement which is considered degrading and offensive. Insults may be intentional or accidental...
, 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.”
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
Federal Court of Australia
The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law , along with some summary criminal matters. Cases are heard at first instance by single Judges...
or through the Federal Magistrates Service.
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
Holocaust denial
Holocaust denial is the act of denying the genocide of Jews in World War II, usually referred to as the Holocaust. The key claims of Holocaust denial are: the German Nazi government had no official policy or intention of exterminating Jews, Nazi authorities did not use extermination camps and gas...
the Holocaust
The Holocaust
The Holocaust , also known as the Shoah , was the genocide of approximately six million European Jews and millions of others during World War II, a programme of systematic state-sponsored murder by Nazi...
. The Federal Court ruled that the material was a violation of the Act.
Section 85ZE of the Crimes Act 1914
Crimes Act 1914
The Crimes Act 1914 is a piece of Federal legislation in Australia. Pursuant to the Australian Constitution it prevails in any conflict with State laws dealing with the subject of crime....
makes it an offence to use the Internet
Internet
The Internet is a global system of interconnected computer networks that use the standard Internet protocol suite to serve billions of users worldwide...
to disseminate material intentionally that results in a person being menaced or harassed
Harassment
Harassment covers a wide range of behaviors of an offensive nature. It is commonly understood as behaviour intended to disturb or upset, and it is characteristically repetitive. In the legal sense, it is intentional behaviour which is found threatening or disturbing...
. This offence includes material communicated by email. 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.
Tasmania
Section 19 of TasmaniaTasmania
Tasmania is an Australian island and state. It is south of the continent, separated by Bass Strait. The state includes the island of Tasmania—the 26th largest island in the world—and the surrounding islands. The state has a population of 507,626 , of whom almost half reside in the greater Hobart...
's Anti-Discrimination Act 1998 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.
New South Wales
In 1989, by an amendment to the Anti-Discrimination Act 1977, New South WalesNew South Wales
New South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. 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 on the grounds of race. 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. Prosecution of the offence of serious vilification requires consent from the Attorney-General and carries a maximum penalty of a $10,000 fine or 6 months imprisonment
Incarceration
Incarceration is the detention of a person in prison, typically as punishment for a crime .People are most commonly incarcerated upon suspicion or conviction of committing a crime, and different jurisdictions have differing laws governing the function of incarceration within a larger system of...
for an individual—$100,000 for a corporation. An offence has not yet been prosecuted under this law.
Queensland
QueenslandQueensland
Queensland is a state of Australia, occupying the north-eastern section of the mainland continent. It is bordered by the Northern Territory, South Australia and New South Wales to the west, south-west and south respectively. To the east, Queensland is bordered by the Coral Sea and Pacific Ocean...
'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 Anti-Discrimination Act for victimisation on account of religion. The Islamic Council
Australian Federation of Islamic Councils
The Australian Federation of Islamic Councils was founded in 1964 as an umbrella group for various Islamic groups or councils, and is considered Australia's most important Islamic organisation. The mission of AFIC is to provide service to the community in a manner that is in accordance with the...
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.
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 6 months and two years imprisonment. It is noteworthy that 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. There have been no prosecutions to date.Victoria
On 1 January 2002, VictoriaVictoria (Australia)
Victoria is the second most populous state in Australia. Geographically the smallest mainland state, Victoria is bordered by New South Wales, South Australia, and Tasmania on Boundary Islet to the north, west and south respectively....
put into effect its Racial and Religious Tolerance Act 2001 which makes religious vilification as well as racial vilification unlawful. Section 8(1) of the Act states:
-
- A person must not, on the ground of the religious belief or activity of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.
- Note: "engage in conduct" includes use of the internet or e-mail to publish or transmit statements or other material.
Section 11 of the Act provides this concession in favour of freedom of expression:
-
- A person does not contravene section 7 or 8 if the person establishes that the person's conduct was engaged in reasonably and in good faith—
- (a) in the performance, exhibition or distribution of an artistic work; or
- (b) in the course of any statement, publication, discussion or debate made or held, or any other conduct engaged in, for—
- (i) any genuine academic, artistic, religious or scientific purpose; or
- (ii) any purpose that is in the public interest; or
- (c) in making or publishing a fair and accurate report of any event or matter of public interest.
- A person does not contravene section 7 or 8 if the person establishes that the person's conduct was engaged in reasonably and in good faith—
In 2004, the Islamic Council of Victoria
Australian Federation of Islamic Councils
The Australian Federation of Islamic Councils was founded in 1964 as an umbrella group for various Islamic groups or councils, and is considered Australia's most important Islamic organisation. The mission of AFIC is to provide service to the community in a manner that is in accordance with the...
laid a complaint under the Act about the preaching by two Christian
Christian
A Christian is a person who adheres to Christianity, an Abrahamic, monotheistic religion based on the life and teachings of Jesus of Nazareth as recorded in the Canonical gospels and the letters of the New Testament...
pastors. One pastor, a man who had fled Pakistan
Pakistan
Pakistan , officially the Islamic Republic of Pakistan is a sovereign state in South Asia. It has a coastline along the Arabian Sea and the Gulf of Oman in the south and is bordered by Afghanistan and Iran in the west, India in the east and China in the far northeast. In the north, Tajikistan...
when a charge of blasphemy
Blasphemy
Blasphemy is irreverence towards religious or holy persons or things. Some countries have laws to punish blasphemy, while others have laws to give recourse to those who are offended by blasphemy...
was made against him there, was Daniel Scot. The other pastor was Danny Nalliah
Danny Nalliah
Danny Nalliah is an Australian Christian evangelist pastor and young earth creationist. He is the leader of Rise Up Australia, a prayer organisation, and the President of Catch the Fire Ministries. Danny Nalliah successfully defended a law suit commenced by the Islamic Council of Victoria under...
. Scot and Nalliah made controversial remarks about Islam
Islam
Islam . The most common are and . : Arabic pronunciation varies regionally. The first vowel ranges from ~~. The second vowel ranges from ~~~...
at a seminar.
On 17 December 2004, the Victorian Civil and Administrative Tribunal
Victorian Civil and Administrative Tribunal
The Victorian Civil and Administrative Tribunal is a government agency in the state of Victoria, Australia. The name is pronounced 'vee-cat'...
, in the person of Judge Michael Higgins, determined that the pastors had violated the Act. The judge sentenced them to print an apology—drafted by the judge—on their website, in their newsletter, and in eight advertisements appearing in two newspapers.
The pastors appealed. The Supreme Court of Victoria
Supreme Court of Victoria
The Supreme Court of Victoria is the superior court for the State of Victoria, Australia. It was founded in 1852, and is a superior court of common law and equity, with unlimited jurisdiction within the state...
overturned the Tribunal's decision. The Court said the Tribunal had no business “attempt[ing] to assess the theological propriety of what was asserted at the Seminar.”
The Court directed a re-hearing before a different judge.
The pastors and the Islamic Council of Victoria prevented a re-hearing by resolving their conflict through mediation
Mediation
Mediation, as used in law, is a form of alternative dispute resolution , a way of resolving disputes between two or more parties. A third party, the mediator, assists the parties to negotiate their own settlement...
on 22 June 2007.
South Australia
The Racial Vilification Act 1996Racial Vilification Act 1996
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 December 12, 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.