A Cody and M NawazBY ANNA CODY AND MARIA NAWAZ

The long-running debate over whether section 18C of the Racial Discrimination Act 1975 (Cth) (the Act) should be repealed or amended seems set to continue. The government has asked the Parliamentary Joint Committee on Human Rights to inquire and report on whether the racial vilification provision imposes unreasonable restrictions on freedom of speech. This follows a Federal Circuit Court decision to dismiss a complaint against three QUT students who had been accused of posting vilifying comments on social media after being denied access to an Indigenous student computer lab. The Court found that the complaint did not have reasonable prospects of success. Debate had earlier been ignited by former Prime Minister John Howard’s categorisation of a now infamous Bill Leak cartoon – which depicts an Aboriginal father, holding a beer can, forgetting his son’s name – as a “brilliant perspective cartoon”. Howard further commented that the Australian Human Rights Commission’s (AHRC) investigation into a complaint about the cartoon was ‘a terrible assault on free speech’. This complaint has now been dropped, and the investigation concluded.

Opponents of section 18C, a group that includes most Coalition senators, argue that its current harm threshold is too low and is a threat to freedom of speech. However, in Kingsford Legal Centre’s experience advising and representing clients who complain of vilification, we have found that the protections offered by section 18C are limited, and do not pose a genuine threat to freedom of speech.

What the Act says

Section 18C of the Act provides that it is unlawful to do an act ‘otherwise than in private’ if:

  • The act is reasonably likely to offend, insult, humiliate or intimidate another person or 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 the people in the group.

The Section 18C threshold therefore requires that the act be done in public, be subject to an objective (“reasonably likely”) test in relation to the harm caused, and be done because of the race of the other person. Section 18D of the Act contains broad free speech exemptions to section 18C. It provides that conduct that is offensive, insulting, humiliating or intimidating on the basis of race will not be unlawful if it is done ‘reasonably and in good faith’ for a genuine academic, artistic, scientific or public interest purpose. Any fair and accurate reporting or commenting on an act or statement done for one of these purposes is also exempt. In effect, the exemptions in section 18D place stringent limits on what conduct constitutes racial vilification.

It is important to note that a breach of section 18C is not a criminal offence – the Act provides for civil rather than criminal law remedies. As such, if a person is found to have breached section 18C, they are not subject to a fine or imprisonment. The Court can order civil remedies, including a declaration that the person has engaged in unlawful conduct, reinstate the employment of the applicant (in a complaint arising from an employment relationship), redress to the complainant for any loss or damage, and payment of compensation.

Why we need racial vilification laws

Arguments that racial vilification laws need to be amended or repealed tend to reflect the dominant cultural perspective of White Australia and fail to recognise the prevalence of racial vilification and racism in Australia. The Challenging Racism Project found that 1 in 5 Australians surveyed had experienced race hate speech, and 1 in 20 had been attacked because of their race. The project also found that 40% of race hate speech occurred in a public place, such as on public transport.

Being subject to racial vilification can cause great psychological and social harm to individuals and minority groups, and threatens a cohesive multicultural society. Racial vilification is often a precursor to racially motivated violence and exclusion, and racial vilification laws act as a deterrent to such conduct. As Justice Bromberg stated in Eatock v Bolt [2011] FCA 1103:

The essence of racial vilification is that it encourages disrespect of others because of their association with the racial group to whom they belong. That kind of stigmatisation and its insidious potential to spread and grow from prejudice to discrimination, from prejudice to violence, or from prejudice to social exclusion, is at the fundamental core of racial vilification.

There is broad public support for racial vilification laws, with 88% of respondents to a Fairfax- Nielsen poll conducted in April 2014 saying it should be unlawful to offend, insult or humiliate someone because of their race. Section 18C thus reflects widely held community perceptions that racial vilification is unacceptable behaviour in modern Australian society. Victims of racial vilification often have a limited voice in public debate, and section 18C provides an avenue to allow them to hold respondents to account for their unlawful actions.

Balancing rights – freedom of speech and freedom from racial vilification

Recent political comments on section 18C frame it as an attack on free speech. However, this argument ignores the tendency of the law to curtail free speech in other areas, such as defamation, sexual harassment and limits on offensive language. As provided in Article 19 of the International Covenant on Civil and Political Rights, freedom of speech is not an absolute right, and may be restricted where necessary to respect others’ rights.

Section 18C seeks to balance the competing rights of freedom of speech and freedom from discrimination and racial vilification. The objective test required by section 18C, combined with the availability of broad exemptions in section 18D, provide adequate safeguards for freedom of speech, and an appropriate balancing of the right to be free from racial vilification.

The role of the Australian Human Rights Commission (AHRC)

The AHRC has come under sustained criticism for its role in investigating complaints of racial vilification. For example, the AHRC has been accused of trashing the names of complainants by accepting complaints of racial vilification, and of bias in relation to the Bill Leak cartoon in The Australian. And, after the Federal Circuit Court dismissed the complaint against the QUT students, Prime Minister Malcolm Turnbull criticised the AHRC for ‘bringing’ the case against them. These criticisms of the AHRC are misguided. The AHRC cannot initiate an investigation without an individual having first made a complaint. And it is statutorily obliged to accept and investigate complaints of racial vilification if the complaint appears to fall within the Act. The AHRC can hold a conciliation conference between the parties, but does not have the power to make any binding decision on whether section 18C has been breached.

Racial vilification laws are not frequently used

The number of racial vilification complaints being made to the AHRC is relatively low. In 2014-2015, the AHRC received 116 complaints of racial vilification, representing only 4.8% of the total number of discrimination complaints lodged with the AHRC that year.

If a matter does not settle at a conference at the AHRC, the applicant may pursue it in the Federal Circuit Court or Federal Court. At the court stage, the onus of proof is on the applicant to show that the conduct did occur. Over the 20-year period since the racial vilification protections were enacted, they have not been heavily litigated, with fewer than 100 cases going to court over this period. The Courts have consistently interpreted the protections in s 18C from a public interest perspective, in line with the objects of the Act. The courts have held that to amount to racial vilification, the conduct complained of must have “profound and serious effects, not to be likened to mere slights”. The conduct complained of is objectively assessed from the perspective of an ordinary, reasonable person from the targeted racial group. In Eatock v Bolt, Justice Bromberg stated:

Section [18C(1)] is at least primarily directed to serve public and not private purposes… That suggests that the section is concerned with consequences it regards as more serious than mere personal hurt, harm or fear. It seems to me that s 18C is concerned with mischief that extends to the public dimension. A mischief that is not merely injurious to the individual, but is injurious to the public interest and relevantly, the public’s interest in a socially cohesive society…

 Limits of racial vilification protections in practice

The protections in section 18C set a high threshold, which results in many experiences of race hate not falling within the protection of the law as currently drafted. The examples below are drawn from people we have seen at Kingsford Legal Centre. In each case we had to advise that they had no legal claim of racial vilification.

Presumed race is not protected

Sally was on a bus on her way home from work one evening. When she got on the bus, a passenger yelled at her, saying “get off the bus, or I’ll make you go back to Japan, you fucking Jap”. Sally is Chinese, not Japanese.

The Act prohibits offensive behaviour based on a person’s race, but does not provide protection if the offender incorrectly presumes the race, colour, national or ethnic origin of the victim.

Vilification that occurs in private is not protected

Ian is Aboriginal. Ian worked in retail as a sales assistant. A new manager, Brian, started, and seemed to take an instant dislike to Ian. One day in the back storeroom, Brian pushed Ian against the wall, called him a “black cunt” and said he “should be on welfare or in prison like the rest of his kind”. Nobody else witnessed this conversation. We advised Brian that as the act had not occurred in public, he was unable to bring a complaint under section 18C.

Section 18C of the Act only protects against acts done in a public place. Often, our clients are subject to racial hatred, but because it occurs in private, they cannot complain of racial vilification.

Religious vilification is not unlawful

Zeinab is Muslim and wears the hijab. One day, while waiting in line at a café, a fellow customer starting yelling at her. The customer said “go back to your country terrorist”. When Zeinab went back to the café the following week, the same customer was there and yelled at her again, saying “If you love Islam … I’ll fucking show you”, calling Zeinab a “fucking murderer”, saying “maybe you have a knife to kill me because Muslims kill people”, and telling Zeinab to “fuck off”. Zeinab was very intimidated and shaken by this incident and reported it to the police. We advised Zeinab that she was unable to take action under section 18C, as it doesn’t protect Muslims against religious vilification.

Section 18C protects against vilification done because of race, colour or national or ethnic origin. As such, only religious groups that are found by the court to be a recognised ‘racial’ group are covered. Members of ethnoreligious groups, such as persons of the Jewish faith, can use section 18C to complain about anti-Semitic comments or conduct. However, persons of other faiths that are not ethnoreligious groups, such as Christians, Muslims and Hindus, are not afforded any protection against vilification by national anti-discrimination laws.

Conclusion

Based on our experience at Kingsford Legal Centre, we believe that section 18C as currently drafted strikes an appropriate balance between the competing rights of freedom of speech and freedom from discrimination, and is a necessary and justifiable limitation on freedom of speech. The existence of section 18C acts as a clear deterrent to racial vilification. We would support the extension of racial vilification protections to cover instances of vilification on the grounds of presumed race and religious vilification. Repealing or diluting racial vilification protections will provide a license to people to engage in race hate speech, and goes against community values.

(All case studies have been de-identified to protect client confidentiality.)

Associate Professor Anna Cody is the Director of Kingsford Legal Centre.

Maria Nawaz is a Solicitor/Clinical Supervisor at Kingsford Legal Centre, specialising in employment and discrimination law.

Suggested citation:  Anna Cody and Maria Nawaz  ‘Racial Vilification: experiences from the frontline‘ on AUSPUBLAW (14 November 2016) <https://auspublaw/2016/11/racial-vilification/>