Hate speech laws have existed in various forms in Australia for over two decades. Unlike other countries, such as the United States and Canada, they have not faced constitutional hurdles to their existence. The general acceptance of hate speech laws in Australia opens intellectual space for the exploration of a range of interesting questions regarding the laws’ operation, the underlying values they pursue and the context within which hate speech is occurring.

How should the regulation of hate speech be balanced against Australia’s political and cultural commitment to freedom of speech? Who are the hate speakers and how does their speech manifest? What types of hate speech are targeted by existing laws? How are these laws enforced? How can the laws be changed to improve governments’ response to hate speech?

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Sydney Morning Herald’s Photographer Andrew Meares captures the fury of the Cronulla riots.

Introduction

In February 2006, Sydney radio personality John Laws attempted to justify his description of Queer Eye for the Straight Guy host Carson Kressley as a ‘pillow-biter’ and a ‘pompous little pansy prig’ during a broadcast in 2004 by saying his comments were ‘tongue-in-cheek’ and ‘light-hearted’ (King 2006). In July 2006, the Classification Review Board refused classification of two books – Defence of the Muslim Lands and Join the Caravan – on the ground that they promoted and incited acts of terrorism (ABC News 2006a; Osbourne 2006). The same year there was a concerted attempt in Victoria to push for repeal of that State’s religious and anti-vilification laws, including a somewhat confused pledge to do so by the Liberal Party opposition (Wallace 2006). In Western Australia, the State’s newly amended criminal anti-vilification laws were tested with the prosecution of a complaint against a 15-year-old Aboriginal girl for verbally abusing a young white woman by calling her a ‘white slut’ (McDiarmid 2006; ABC News 2006b).

These disparate events are connected by their concern with speech which is considered by some to reach beyond the boundaries of that which ought to be protected in a liberal-democratic society. Debate over the extent to which freedom of speech – a cherished liberty – ought to be given priority over other, competing, interests is not a new one. However, the phenomenon of ‘hate speech’ is a particular manifestation of that debate.

‘Hate speech’ is speech or expression which is capable of instilling or inciting hatred of, or prejudice towards, a person or group of people on a specified ground including race, nationality, ethnicity, country of origin, ethno-religious identity, religion, sexuality, gender identity or gender.

The most commonly cited problems posed by hate speech laws is their apparent inconsistency with free speech principles. The problem of hate speech and its regulation is thus at the centre of a long-running debate that goes to the core commitments of a liberal-democratic society. As important as the debate is over whether hate speech laws are permissible or not on free speech grounds, the reality is that the decision has been made by the Australian people and their parliaments that hate speech warrants a legal response to minimise its harms and occurrence.

The fact that hate speech laws already exist in Australia raises intellectual space for other, arguably more interesting, questions to be asked. These include: who are the hate speakers and how does their speech manifest?; what types of hate speech are targeted by existing laws?; are there newly emerging types of hate speech which warrant a change in existing policy frameworks?; how can the laws be changed to improve governments’ response to hate speech?; and how is the context within which hate speech occurs changing? It is to these types of questions that this essay is devoted.

Hate speech and the Australian legal and political landscape

Any discussion of the controversial policy area constituted by hate speech regulation must take into account the context within which such regulation occurs. Does the legal framework protect free speech, and if so, to what extent and in what ways? How has the emergence of hate speech regulation challenged pre-existing presumptions in favour of the speech liberty?

The ‘freedom of speech’ context

In Australia, free speech has been described as a somewhat precarious freedom which has been reliant on a common law tradition and not, as in many other jurisdictions internationally, a broad and entrenched free speech protection or clearly enunciated federal statutory free speech protection in the form of a bill of rights[1]. This tradition has led scholars to describe free speech protection in Australia as ‘delicate’ (Chesterman 2000a), and ‘partial and unsatisfactory’ (Gelber 2003) in its ability to protect speech from governmental restriction.

Additionally, a doctrine of an implied constitutional freedom of political communication has been developed in the High Court since 1992 (Pearson and Polden 2011). This doctrine is limited in its application and scope. It is viewed as an implication from the form of representative and responsible government established by the Constitution and operates as a freedom from government restraint, rather than a right conferred on individuals (Gelber 2003: 23-32; Patapan 2000: 51-9; Stone 2001; Williams 2002). The implied freedom is limited to ‘political communication’, usually understood as discussions relating to matters which might bear on federal politics although the exact parameters of this term remain contested, and it includes non-verbal expression (Levy’s case 1997). However, an expression which constitutes political communication is not automatically protected speech. Governmental restrictions on speech, even political speech, are permitted where they occur as a result of a law which is reasonably appropriate and adapted to achieving another legitimate government end. The full expression of the ‘Lange test‘ in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567, states that a law must be reasonably appropriate and adapted to serve a legitimate end the fulfillment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.

In this climate, anti-vilification laws have experienced little, if any, constitutional or statutory impairment on free speech grounds. Unlike the United States, where attempts to restrict racist speech have typically fallen foul of First Amendment strictures[2], Australian anti-vilification laws have survived resistance from quarters emphasising free speech concerns (McNamara 2002). Although it has been argued that incidences of hate speech may constitute political communication as conceptualised under the implied constitutional freedom (Chesterman 2000b; Meagher 2004: 251-3), this does not render anti-vilification laws constitutionally invalid so long as the laws themselves are regarded as reasonable and appropriately adapted to a legitimate government end – such as minimising the attendant harms of vilification or discouraging its practice.

Thus, anti-vilification laws in Australia are highly unlikely to infringe on the constitutionally secured implied freedom of political expression. Although the High Court has yet to decide on the constitutionality of hate speech laws, respondents’ attempts to rely on the freedom in lower courts have failed. In particular, see Catch the Fire Ministries case (2006). Moreover, it is a relatively clearly established principle in the Australian context that principles of freedom of expression do not extend to the protection of vilificatory comments since the right to ‘engage in a robust discussion’[3] is not an untrammelled or an absolute right. In this context, the debate in Australia no longer primarily takes the form of regarding anti-vilification laws in and of themselves as an invalid infringement on freedom of speech. Of course, some commentators, still do position the debate in this way (see for example Savage 2006); however, in the current political climate moves to repeal such laws altogether are in the writer’s view extremely unlikely to find traction.

This aspect of the Australian legal context sets it somewhat apart from many other jurisdictions with which we share legal and political traditions. Most other jurisdictions protect free speech in more explicit terms. In the United States, this protection is robust enough to prevent many speech-restricting policies, even those beneficently intended, from being enacted. In Canada, the protection enunciated in the Charter of Rights and Freedoms s 2(b) is qualified by reasonable limits but nevertheless still explicitly enunciated. Even in the United Kingdom, the jurisdiction from which many of our common law traditions were inherited, the passage of the Human Rights Act 1998, which incorporated art 10 of the European Convention on Human Rights into domestic law, enunciated the importance of freedom of speech explicitly.

The consensus in Australia that anti-vilification laws ought not to be rendered vulnerable by a too strongly protective, explicit free speech protection provides a constructive landscape within which more nuanced questions can be discussed. This moves the debate into more philosophically and empirically interesting territory than the standard ‘do hate speech laws impermissibly infringe on the free speech principle’ aspect of the debate.

The Australian regulatory landscape: a State/Territory overview

The aims of anti-vilification regulation are to:

  • impose minimum standards of acceptable speech; and
  • strike a balance between the right to a dignified and peaceful existence free from racist harassment and vilification and the right to freedom of speech (Regulation of the Media 2012).

In Australia, from a journalistic perspective, there are three source of anti-vilification regulation:

  • Self regulation – Codes of Practice (broadcasting), Reporting Guidelines (print)
  • State-based anti-vilification legislation
  • Commonwealth anti-vilification legislation (Regulation of the Media 2012).

This combination of self regulation of the media, together with both State-based and Commonwealth anti-vilification legislation that applies to everyone makes hate speech an area where there is a “complex mosaic of laws” (Power 2012).

Surveying this complex regulatory landscape allows for an examination of some of the questions posed earlier. In particular, what types of hate speech are targeted by existing laws can be assessed and who the hate speakers are and how their speech is manifested should come through from decisions by the regulators in this area.

Self regulation of the media industry

At the self regulatory level in the Australian newspaper industry, the Australian Press Council (APC) has made a special effort to educate newspapers and journalists on the reporting of ethnic issues. One of its key Reporting Guidelines, issued in September 2001, focuses on the reporting of race (Australian Press Council 2001).

More generally, the Australian Press Council’s General Statement of Principles, General Principle 8 states:

“General Principle 8: Gratuitous emphasis on characteristics

Publications should not place any gratuitous emphasis on the race, religion, nationality, colour, country of origin, gender, sexual orientation, marital status, disability, illness, or age of an individual or group. Where it is relevant and in the public interest, publications may report and express opinions in these areas.”

Along with the APC’s Statement of Privacy Principles, the General Statement of Principles is applied by the Australian Press Council when providing advice or adjudicating on individual complaints.

An examination of some of the adjudications of the Australian Press Council, available digitally from 1976 onwards as a special project at the Australasian Legal Information Institute (AustLii), is instructive in how the Council has approached complaints related to vilification of some kind. Using the keyword searches of “vilification” and “racial” across the APC adjudications database yields some interesting decisions.

Case study: “the park people” of Cairns

Adjudication No. 802 (August 1995) [1995] APC 32

The Australian Press Council dismissed a complaint by the Tharpuntoo Legal Service Aboriginal Corporation that an article and two editorials in The Cairns Post were racist, discriminatory, inflammatory, wrong in some facts and, taken together, breached 8 of the Council’s 12 principles.

All three items dealt with a confidential agreement between Cairns City Council and the Tharpuntoo Legal Service (of Cairns) brokered by the Human Rights and Equal Opportunity Commission. Under this agreement an apology was made by the City Council to 24 homeless Aboriginals who had been living in Cairns Esplanade and parks and were bussed back to their Lockhart River area in May 1994 after months of controversy about law and order problems and the people’s presence on the Esplanade.

The Council believed the editorials were the major issue. These claimed no apology should have been agreed to, full terms of the agreement should have been made public, and that no compensation ought to be considered.

The issue of “the park people” – a Cairns Post term the Press Council did not agree was derogatory, as claimed by the Tharpuntoo Legal Service – was one that the complaint file showed to have stirred Cairns people greatly in recent times.

Analysis showed that while the editorials may or may not have had inaccuracies — the Press Council was in no position to judge beyond saying that if they existed the inaccuracies were minor — the writing was vigorous, thoughtful and pushed a legitimate point of view, even if occasionally that was done extravagantly or flamboyantly.

As it had in earlier judgments (Notably in Adjudication no. 569), the Press Council reaffirmed a newspaper has a clear right to express forthright editorial opinions.

The two editorials, while easily seen as capable of giving offence to some readers, contained no material that went beyond the paper’s right to make value judgments and to express its opinions boldly. No breach of Council principles was found to have occurred.

The Council said it believed it was important to note that editorials cannot be called racist or discriminatory simply because they deal with, and take a strong position on, controversial matters in which the main players indisputably are Aborigines.

Case study: “Asian gangs”

Adjudication No. 1195 (May 2003) [2003] APC 11

The Australian Press Council dismissed a complaint against The West Australian newspaper over a series of news reports following the death of a 21-year-old in a brawl between two gangs in a Perth entertainment area night club.

The paper several times referred to the rival groups, the M’Bros and the Spider Boys, as “Asian gangs”. The complainant, the president of the Unity Party of WA, agreed that the gangs were, indeed, predominantly of Asian origin. “It is a fact that these ‘Asian gangs’ are either Chinese or Vietnamese,” says the complainant, but he went on to charge that the use of the word Asian “invites racial vilification and racial hatred.”

The paper said that it had some sympathy with the feelings of the party president, Eddie Hwang, but disagreed with his view that relevant facts about issues of public importance should be suppressed to spare them.

The Press Council acknowledged the difficulty of news reports dealing with the misdeeds of groups who can readily be identified by reference to their ethnic or national origin. One of its principles states that such identification should not be used “unless the fact is relevant”.

In this case the existence of the problem of the M’Bros and Spider Boys gangs had been accepted by the WA Government and police. Police Minister Michelle Roberts and Police Commissioner Barry Matthews had both used the term “Asian gangs” to describe youths who had indulged in extreme violence.

The Press Council accepted that both the WA Government and the Police sought to avoid the use of the label “Asian”, but that did not remove the reality nor the need to reveal it where necessary. The Asian link, whether Vietnamese or Chinese, was relevant in the reports cited.

Case study: “Battie” 

Adjudication No. 1431 (July 2009) [2009] APC 18

The Australian Press Council dismissed a complaint by Alistair Kerr against an article published in The Sydney Morning Herald‘s gossip column PS and on its website, smh.com.au, on February 21, 2009.

The article made several assertions about the financial affairs of Mr Kerr and his partner, who now calls himself Lord Leitrim. Lord Leitrim had previously claimed to be Lord Andrew Battenberg, and is an undischarged bankrupt in Australia. He was originally known as Andrew Lee.

Mr Kerr complained that references in the article to Lord Leitrim, aka Lord Battenberg, as “Battie”, represented homophobic vilification of his partner. He asserted “anyone familiar with Gangsta Rap (ie. anyone under 50, and many over that age) will know that ‘Battie’ is a pidgin term of abuse for a gay man who plays the passive sexual role”.

The Council accepted that the newspaper used the abbreviation as a word play on the title Battenberg, without a sexual connotation.

Overall, the Australian Press Council adjudications show that issues such as any gratuitous emphasis on the race or country of origin of an individual or group have been contested quite frequently and that homosexual vilification complaints have been addressed.

Still in the self regulation sphere, the Australian Communications and Media Authority (ACMA) is responsible for the regulation of the broadcast media. Under the Broadcasting Services Act 1992, the various broadcasting industry sectors set their own programming guidelines in the form of codes of practice. This system is explained on the ACMA’s website http://www.acma.gov.au>. It has registered codes of practice for all broadcasting sectors other than the ABC and SBS, which have their own codes that are notified to the ACMA. The codes are:

– Commercial TV Code www.freetv.com.au

– Commercial Radio Code www.acma.gov.au/webwr/aba/contentreg/codes/radio/documents/commercial_radio-codes_and_guidelines_5sept2011.pdf

– ABC Code www.abc.net.au/corp/pubs/charter.htm and  http://www.abc.net.au/corp/pubs/documents/codeofpractice2011.pdf

– SBS Code www.sbs.com.au/sbscorporate and http://media.sbs.com.au/home/upload_media/site_20_rand_2138311027_sbscodesofpractice2010.pdf

ACMA has powers to investigate code complaints, including those relating to vilification. Each of the codes of practice contains provisions “proscribing”, or denouncing, vilification.

For example, the Commercial Television Industry Code of Practice provides:

“Proscribed Material

1.9       A licensee may not broadcast a program, program promotion, station identification or community service announcement which is likely, in all the circumstances, to:

1.9.5     seriously offend the cultural sensitivities of Aboriginal and Torres Strait Islander people or of ethnic groups or racial groups in the Australian community;

1.9.6     provoke or perpetuate intense dislike, serious contempt or severe ridicule against a person or group of persons on the grounds of age, colour, gender, national or ethnic origin, disability, race, religion or sexual preference.” (Emphasis added)

The Commercial Radio Code similarly states:

“Proscribed Matter

1.1   A licensee must not broadcast a program which, in all of the circumstances:

(a) is likely to incite, encourage or present for its own sake violence or brutality;

(e) is likely to incite hatred against, or serious  contempt for, or severe ridicule of, any person or group of persons because of age, ethnicity, nationality, race, gender, sexual preferences, religion, transgender status or disability.” (Emphasis added)

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Alan Jones
Photo: Andrew Quilty

Case study: Cronulla riots

The world’s media chronicled the ugly side of Australia’s race relations in December 2005, when angry mobs in southern Sydney staged a protest then set upon youths of Middle Eastern appearance in an episode that became known as the ‘Cronulla riots’[4].

The role of the media in the lead-up to the riots, particularly that of talkback radio host Alan Jones, was questioned by the ABC’s Media Watch program in its 20 February 2006 edition (Media Watch 2006). Jones had already been vocal about Muslims and people of Lebanese origin, as evidenced by his comments earlier in 2005 which are featured in the Alan Jones case 2 (2009).

In the week before the Cronulla riots, Jones described two people who were accused of assaulting some lifeguards as ‘Middle Eastern grubs’ and two days later continued with:

“My suggestion is to invite one of the biker gangs to be present in numbers at Cronulla railway station when these Lebanese thugs arrive. It would be worth the price of admission to watch these cowards scurry back onto the train for the return trip to their lairs… Australians old and new shouldn’t have to put up with this scum.”

On ensuing days, Jones agreed with listeners who called for violent retribution against youths of Lebanese origin, all the subject of an inquiry by the Australian Communication and Media Authority (ACMA) after three complaints (Media Watch 2006).

Throughout the week, Jones had read on air letters and emails from listeners that claimed that Middle Eastern visitors to Cronulla were dangerous. One letter read by Jones said: “These Middle Eastern people must be treated with a big stick; it’s the only thing they fear, they don’t fear fines and they laugh at the courts.”

On 10 April 2007 ACMA formally found that Jones’ comments had breached 2GB’s radio licence and the ‘Commercial Radio Codes of Practice’ (2004) on three separate occasions, as ‘likely to incite, encourage or present for its own sake violence or brutality,’ prohibited under clause 1.3(a) of the radio code, and materials ‘likely to  incite or perpetuate hatred against or vilify’ those of Lebanese and Middle Eastern background on the basis of their ‘ethnicity’ prohibited under clause 1.3(e) (ACMA 2007).

This case study is very important to a discussion of hate speech and anti vilification regulation since it demonstrates that in a period in Australia’s history when racial tensions were high, a talk back radio announcer, Alan Jones, was at the centre of the debate, behaving in a manner found by the broadcast media regulator to have vilified people of Lebanese and Middle Eastern background and incited hatred. As to who are the hate speakers, this case clearly shows it to be Alan Jones.

State-based anti-vilification legislation

Turning from self regulation of the media to anti-vilification legislation, 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.

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 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.

Since this time, anti-vilification laws have become an accepted and normal part of the Australian anti-discrimination policy framework. In every State and Territory[5], and federally[6], anti-vilification laws exist. The existence of these laws establishes that in Australia governments and communities view hate speech as an unacceptable form of expression which warrants government intervention to minimise its harms and/or occurrence. These laws prohibit vilification on several grounds. The primary ground is race, although in some jurisdictions some religious groups such as Jews or Sikhs have been considered to be protected under this category. New South Wales legislation includes the term ‘ethno-religious’ in its racial anti vilification legislation to convey this intention (Gelber 2005: 862-3). Only three jurisdictions (Qld, Tas and Vic) expressly include religion as a protected category under anti-vilification laws. Other specified grounds include sexuality (or homosexuality), disability, gender (or gender identity), HIV/AIDS status and transgender status.

Jurisdiction Race/ethnicity Religion Gender HIV/AIDS Transgender/gender identity Sexuality Homosexuality Disability
Federal              
New South Wales        
Queensland        
South Australia              
Tasmania      
Victoria            
Western Australia              
Australian Capital Territory        

* Table from ‘Common express grounds for complaint under Australian anti-vilification laws’ in Gelber K and Stone A, 2007, Hate speech and freedom of speech in Australia, November 2007, Federation Press.

The forms and penalties that these laws take differ considerably. Federally, and in Tasmania, only civil provisions have been enacted, whereas in Western Australia only criminal provisions are in force. In all other States and the Australian Capital Territory, both civil and criminal provisions apply.

Case study: Alan Jones case 1 (2000)

Western Aboriginal Legal Service Ltd v Jones and radio 2UE Sydney Pty Ltd [2000] NSWADT 102 (31 July 2000).

Sydney talkback radio host Alan Jones went to air in 1995 with commentary on a discrimination case that had been decided in favour of a Dubbo woman:

“…an Aboriginal woman went into a real estate agency in Dubbo last year, and wanted to rent a property and was told there weren’t any. And then the Aboriginal woman sent a white friend of hers in to ask for a property and she got one. So the Aboriginal woman argued discrimination and she got an award of six thousand dollars. Now I think that’s a joke.”

The Western Aboriginal Legal Service Ltd complained on behalf of Aboriginal people to the Anti-Discrimination Board and, after five years of procedural delays and equal opportunity hearings, the case came before the NSW Administrative Decision Tribunal’s Equal Opportunities Division. The case centred on the wording of the racial vilification provisions of the NSW Anti-Discrimination Act 1977, mainly ss 20B and 20C, dealing with the definition of a ‘public act’ and the unlawfulness of racial vilification respectively.

The key finding of the Tribunal was that listeners who heard the segment of the broadcast would have associated the Aboriginality of the woman with the derogatory remarks Jones was making about her. Jones was found to have committed a public act (the broadcast) inciting the ordinary, reasonable listener to feel serious contempt for or sever ridicule for Aboriginal people in NSW on the ground of their race.

An award of damages was not available as a remedy because the legal service’s complaint was representative one only, so the Tribunal ordered that Jones broadcast an apology and send a letter of apology to the complainant.

Jones was fined $10,000 for a subsequent instance of racial vilification against Lebanese Muslims in 2009 (Alan Jones case 2, 2009), discussed following.

Case study: Alan Jones case 2 (2009)

Trad v Jones & anor (No. 3) [2009] NSWADT 318, Administrative Decisions Tribunal (21 December 2009).

For a number of days in April 2005, popular radio “talk-back” broadcaster and commentator, Alan Jones, made observations, expressed opinions and read letters and emails from listeners on his 2GB morning radio show which, taken as a whole, Mr Keyser Trad alleged constituted unlawful vilification of Muslims, Lebanese Muslims, Lebanese people and others.

Mr Trad alleged that segments of the broadcasts made by Mr Jones on 26, 27, 28 and 29 April incited listeners of the programs to hatred towards, or serious contempt for, amongst others, members of the Lebanese Muslim community living in New South Wales and that the broadcaster, Mr Jones, and the owner of the radio station, Harbour Radio Pty Ltd, thereby breached s 20C(1) of the Anti-Discrimination Act 1977 (NSW).
The Tribunal accepted that talk-back radio derives its entertainment value from the fact that broadcasters such as Mr Jones are highly opinionated and that their opinions are expressed vigorously. It accepted that debate and discussion about current affairs are the bread-and-butter of talk-back radio. It accepted that talk-back broadcasters are advocates for causes, often of a populist nature.

Notwithstanding the peculiar qualities of talk-back radio, the Tribunal concluded that the broadcast in question by Mr Jones had the tendency or capacity to incite the ordinary, reasonable listener to hatred of, or serious contempt for, Lebanese Muslims and Lebanese males.

The Tribunal said it was difficult to think of a metaphor more calculated to arouse fear and loathing in a listener’s mind than to endorse a letter describing Lebanese Muslims (as Mr Jones insisted they were) as “vermin” who “in their vast numbers” were raping, pillaging and plundering the generous land that had offered them succour.

The Tribunal found that the broadcast in question not only conveyed the impression that Mr Jones held the Lebanese Muslim community and Lebanese males in deep contempt but also was capable of inciting the ordinary reasonable listener to feel serious contempt for both groups.

Jones was ordered to pay damages in the sum of $10,000. The Tribunal said an apology was  an appropriate order, notwithstanding the passage of time. Mr Trad had proposed a form of apology.

Case study: Kazak’s case (2000)

In this case the Australian Financial Review was found to have contravened the racial vilification provisions of the NSW Anti-Discrimination Act 1977 by saying ‘the Palestinians cannot be trusted in the peace process’ and ‘the Palestinians remain vicious thugs’[7].

A public interest defence was not available because the publication was not reasonable or published in good faith, despite an Australian Press Council adjudication on the same article (Adjudication no. 1016), which found the article ‘was certainly vituperative but it was published as a clearly marked opinion piece.’

The decision was set aside on appeal (Kazak’s case, 2002) on the basis that the ordinary reasonable reader would not understand the article as an attack on the Palestinian people on the ground of their race, as opposed to an attack on the political leadership of Palestine on the ground of their intransigence and inconsistency in international politics, that is, on the ground of their conduct. It was held, in any event, the public interest defence would have been made out.

Case study: Homosexual Vilification – Burns v Radio 2UE, Laws and Price

Gay case (2004) and Laws case (2007)

In 2004, and again in 2007, activist Gary Burns took action in NSW under the anti-vilification provisions of the Anti-Discrimination Act 1977 (NSW). In the first case (Gay case 2004), involving a broadcast on radio 2UE Sydney, the complaint was sustained. Steve Price’s references to ‘grubby activities’ and ‘poofs’ verged ‘on the contemptuous’, while John Laws’ references to the homosexual couple as ‘a couple of old poofs’ and ‘a couple of young poofs’ were found capable of inciting severe ridicule am among ordinary reasonable listeners[8].

In ruling that the conduct was not reasonable, the tribunal noted that both Price and Laws were experienced journalists who were broadcasting under the ‘Commercial Radio Codes of Practice and Guidelines’, which contained similar anti-vilification provisions to the Anti-Discrimination Act 1977 (NSW).

A second complaint in 2007 over remarks by Laws in 2004 which included calling the host of Queer Eye for the Straight Guy, a ‘pompous little pansy’, a ‘pillow-biting pompous little prig’ and a ‘precious little pansy’, were held to have vilified homosexuals, but to have done so within the good faith and public interest exception in s 49ZT(2) of the NSW Anti-Discrimination Act (Laws case 2007).

Commentators have pointed out that the second Laws decision is difficult to reconcile with the earlier case[9].

Overall, these case studies of actions taken under state-based legislation highlight a definite pattern of hate speakers being “shock jock” radio journalists, such as Alan Jones (a repeat offender), John Laws and Steve Price. Targets are Aboriginal people, homosexuals, the Lebanese Muslim community and Lebanese males.

Commonwealth anti-vilification legislation

The relevant Commonwealth anti-vilification legislation is the Racial Discrimination Act 1975 (Cth), which, at Part II, has broad prohibitions on racial discrimination in most walks of life. 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.”

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.

Section 85ZE of the Crimes Act 1914 (Cth) 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.

Case study: The Holocaust case

In 2002, the Federal Court applied the Racial Discrimination Act 1975 (Cth) in the landmark 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.

Prominent Australian historical revisionist, founder and director of the Adelaide Institute Dr Frederick Toben published material to the institute’s website casting doubt that the Holocaust – the murder of hundreds and thousands of Jewish people in gas chambers during the Second World War – actually happened, and claiming some Jewish people had exaggerated facts about it for financial gain. The president of the Executive Council of Australian Jewry, Mr Jeremy Jones, won a finding in the Human Rights and Equal Opportunity Commission that the publication breached Part II of the Racial Discrimination Act 1975. He applied to the Federal Court asking that the commission’s determination be enforced. Toben was subsequently found guilty of contempt, and sentenced to three months’ imprisonment: an appeal was unsuccessful (Toben v Jones 2009).

Dr Toben had already been imprisoned in Germany in 2000 under strict defamation laws for publishing similar material on the Internet.

Federal Court Justice Branson ordered the offending material be taken off the website and issued an order that similar material not be posted there again.

Case study: Bolt case

In September 2010, nine individuals commenced legal proceedings in the Federal Court against Bolt and the Herald Sun over two separate posts on Bolt’s blog. The nine sued over posts titled “It’s so hip to be black“, “White is the New Black” and “White Fellas in the Black“. The articles suggested it was fashionable for “fair-skinned people” of diverse ancestry to choose Aboriginal racial identity for the purposes of political and career clout. The applicants claimed the posts breached the Racial Discrimination Act. They sought an apology, legal costs, and a gag on republishing the articles and blogs, and “other relief as the court deems fit”. They did not seek damages.

Bolt wrote that ”white Aborigines” were ”people who, out of their multi-stranded but largely European genealogy, decide to identify with the thinnest of all those strands, and the one that’s contributed least to their looks” (Kissane 2011).

On 28 September 2011 Bolt was found to have contravened s 18C of the Racial Discrimination Act 1975 (Cth). Section 18C provides:

“Offensive behaviour because of race, colour or national or ethnic origin

(1)  It is unlawful for a person to do an act, otherwise than in private, if:

(a)  the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b)  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. ”

“I am satisfied that fair-skinned Aboriginal people (or some of them) were reasonably likely … to have been offended, insulted, humiliated or intimidated by the imputations conveyed by the newspaper articles,” Justice Bromberg said to a packed courtroom in Melbourne.

“This is a terrible day for free speech in this country”, Bolt said, after the decision was handed down.

These two case studies, the Holocaust case and the Bolt case, show that extremist comments that have the potential to be blatantly offensive to a racial group run the risk of breaching this Commonwealth legislation. Journalists going about their normal business of reportage will normally be protected by the public interest exemptions to the legislation in s 18D, but Bolt’s case was a test of the balance between free speech and protection from offence. This time, Justice Bromberg came down in favour of racial tolerance.

Conclusion

In Australia, currently a formal commitment to combat hate speech has been expressed at State/Territory and federal levels, and this commitment ought not to be taken for granted. For it is always possible that the “understandings we take for granted today may be overturned tomorrow”[10].

It is undeniable that hate speech continues to manifest. Examples such as much of the language heard during the Cronulla race riots in December 2005 in which disputes between local residents of Anglo heritage and would-be beachgoers of Middle eastern descent spiralled in several days of violent clashes characterised by assaults, expressions of white pride and virulently racist expressions are a significant case in point. The Cronulla events were not isolated. In 2003, the NSW Anti-Discrimination Board released a report which argued that debates in the media about the war on terror, asylym seekers and crime had led to a ‘damaging environment of anti-Arabic and anti-Muslim sentiment’ (NSW ADB 2003). A HREOC report in 2004 also noted that levels of discrimination and intimidation amongst Islamic communities had increased since 11 September 2001 (HREOC 2004: ch 2).

For those that believe that measures designed to combat hate speech ought to be defended, it is important therefore that the terms of the debate be understood as well as possible.

WEBSITES

Australian Communications and Media Authority (ACMA) www.acma.gov.au

Broadcasting industry Codes of Practice:

–Commercial TV Code www.freetv.com.au

–Commercial Radio Code www.acma.gov.au/webwr/aba/contentreg/codes/radio/documents/commercial_radio-codes_and_guidelines_5sept2011.pdf

–ABC Code www.abc.net.au/corp/pubs/charter.htm and  http://www.abc.net.au/corp/pubs/documents/codeofpractice2011.pdf

–SBS Code www.sbs.com.au/sbscorporate and http://media.sbs.com.au/home/upload_media/site_20_rand_2138311027_sbscodesofpractice2010.pdf

Australian Press Council, Guideline: Reporting of ‘race’ (September 2001),

http://www.presscouncil.org.au/document-search/guideline-reporting-of-race/?LocatorGroupID=662&LocatorFormID=677&FromSearch=1

Australian Press Council, General Statement of Principles, August 2011

http://www.presscouncil.org.au/uploads/52321/ufiles/APC_General_Statement_of_Principles.pdf 

Australian Press Council adjudications 1976-

http://www.austlii.edu.au/au/other/APC/

Article 19 of the International Covenant on Civil and Political Rights, Office of the United Nations High Commissioner for Human Rights, adopted and opened for signature, ratification and accession by UN General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976.

Article 20 of the International Covenant on Civil and Political Rights, Office of the United Nations High Commissioner for Human Rights, adopted and opened for signature, ratification and accession by UN General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976.

Convention on the Elimination of All Forms of Racial Discrimination (ICERD), Article 2.1 and Article 4.

Australian Human Rights Commission, Racial Discrimination http://www.hreoc.gov.au/racial_discrimination/index.html

Australian Human Rights Commission, Cyber Racism http://www.hreoc.gov.au/racial_discrimination/publications/cyberracism_factsheet.html

REFERENCES

AAP, 2004, ‘Laws and price to appeal homophobia ruling’, Sydney Morning Herald, November 22, 2004, <http://www.smh.com.au/news/TV–Radio/Laws-and-Price-to-appeal-homophobia-ruling/2004/11/22/1100972314082.html>.

AAP, 2004, ‘Anti-gay complaints against Laws and Price upheld’, Sydney Morning Herald, November 22, 2004, <http://www.smh.com.au/news/National/Antigay-complaints-against-Laws-and-Price-upheld/2004/11/22/1100972299925.html>.

ABC News, 2006a, ‘Books Banned for Inciting Holy War, Terrorism’, ABC News online,  http://www.abc.net.au/news/2006-07-11/books-banned-for-inciting-holy-war-terrorism/1798334>.

ABC News, 2006b, ‘Aboriginal Girl Faces Racial Vilification Charges’, ABC News online, http://www.abc.net.au/pm/content/2006/s1704349.htm>.

ABC News, 2011, “Bolt defends articles in discrimination case”, 29 March 2011, <http://www.abc.net.au/news/2011-03-29/angry-bolt-rejects-eugenics-claim/2638910?section=justin>.

Australian Communications and Media Authority (ACMA), 2007, Breakfast with Alan Jones broadcast by 2GB on 5, 6, 7, 8 and 9 December 2005. Investigation Report No. 1485. <http://www.acma.gov.au/webwr/_assets/main/lib101068/2gb%20-%20report%201485.pdf>, Retrieved 21 May 2012.

Australian Press Council, Adjudication No. 802 (August 1995) [1995] APC 32, <http://www.austlii.edu.au/au/other/APC/1995/32.html>, Accessed 25 May 2012.

Australian Press Council, Adjudication No. 802 (August 1995) [1995] APC 32, <http://www.austlii.edu.au/au/other/APC/1995/32.html>, Accessed 25 May 2012.

Australian Press Council, Adjudication No .1431 (July 2009) [2009] APC 18, <http://www.austlii.edu.au/au/other/APC/2009/18.html>, Accessed 25 May 2012.

Chesterman M, 2000a, Freedom of Speech in Australian Law: A Delicate Plant?, Ashgate, Aldershot.

Chesterman M, 2000b, ‘When is the Communication political?’, 14(2) Legislative Studies 5.

“freedom of speech” Australian Law Dictionary. .© Oxford University Press 2010. Australian Law Dictionary: (e-reference edition). Oxford University Press. University of Technology, Sydney. 25 May 2012 http://www.oxford-auslawdictionary.com/entry?entry=t317.e1467

Gelber K and Stone A, 2007, Hate speech and freedom of speech in Australia, November 2007, Federation Press.

Gelber K, 2003, ‘Pedestrian Malls, Local Government and Free Speech Policy in Australia’, 22(2) Policy and Society: Journal of Public, Foreign and Global Policy 23.

Human Rights and Equal Opportunity Commission, 2005, Annual Report 2005-2005: Racial Discrimination Act – Complaints Received by Ground.

King D, 2006, ‘Pillow-Biter Comment Just an Attempt at Humour, says Laws’, The Australian, 17 February, p 1.

Kissane K, 2010,“Case against Bolt to test racial identity, free-speech limits”. The Age, 30 September, <http://www.theage.com.au/victoria/case-against-bolt-to-test-racial-identity-freespeech-limits-20100929-15xg8.html/>.

McDiarmid N, 2006, ‘No precedent for First Racial Vilification Trial for WA’, Courier-Mail, 3 August, p 6.

McNamara, L, 2002, Regulating Racism: Racial Vilification Laws in Australia, Sydney Institute of Criminology Monograph Series No 16, Sydney.

Media Watch, 20 February 2006, ‘Jones and Cronulla’, ABC, http://www.abc.net.au/mediawatch/transcripts/s1574690.htm>.

Nguyen K, 2007, ‘Jones ‘incited’ Cronulla violence on air’, The Age, April 11, 2007, <http://www.theage.com.au/news/national/jones-incited-cronulla-violence-on-air/2007/04/10/1175971098057.html>.

Nicholls S and Jensen E, 2009, ‘Jones hearing gets curiouser’, Sydney Morning Herald, May 12, 2009, <http://www.smh.com.au/news/entertainment/tv–radio/jones-hearing-gets-curiouser/2009/05/12/1241893959337.html>.

New South Wales Anti-Discrimination Board, 2003, Race for the Headlines: Racism and Media Discourse, Executive Summary.

Patapan H, 2000, Judging Democracy: The New Politics of the High Court of Australia, Cambridge University Press, Melbourne.

Pearson M and Polden M, 2011, The Journalist’s Guide to Media Law, 4th edition, Allen & Unwin.

Power L, 2012, ‘Hate Speech and Racial Vilification’ Lecture, 22 May 2012.

Quinn K, 2011, ‘Andrew Bolt – Herald Sun columnist guilty of race discrimination” The Age, 28 September 2011, <http://www.theage.com.au/victoria/bolt-guilty-of-race-discrimination-20110928-1kw8c.html>.

Regulation of the Media, 2012, ‘Hate Speech and Racial Vilification’ Lecture, 22 May 2012.

Osbourne P, 2006, ‘”Terror books” off the shelves’, Courier-Mail, 12 July, p 25.

Savage R, 2006, Repeal this law with its Fundamental Flaws’, Herald Sun, 11 May, p 1.

Stone A, 2001, ‘Rights, Personal Rights and Freedoms: the Nature of the Freedom of Political Communication’ 25 Melbourne University Law Review 374.

Wallace, R, 2006, ‘Jewish Fury at Baillieu Stance’, The Australian, 11 August, p 1.

Welch D, 2007, ‘Jones loses vilification hearing’, The Age, 10 April, <http://www.theage.com.au/news/people/jones-loses-vilification-hearing/2007/04/10/1175971071879.html>.

Williams G, 2002, Human Rights Under the Australian Constitution, Oxford University Press, Melbourne.

Wikipedia, ‘Hate speech laws in Australia’, <http://en.wikipedia.org/wiki/Hate_speech_laws_in_Australia>, Retrieved 21 May 2012.

Wikipedia, ‘Andrew Bolt’, <http://en.wikipedia.org/wiki/Andrew_Bolt>, Retrieved 21 May 2012.

Wikipedia, ‘Hate speech laws in the United Kingdom’, <http://en.wikipedia.org/wiki/Hate_speech_laws_in_the_United_Kingdom>, Retrieved 21 May 2012.

Wikipedia, ‘Freedom of speech’, <http://en.wikipedia.org/wiki/Freedom_of_speech>, Retrieved 21 May 2012.

CASES CITED

Alan Jones case 1 (2000). Western Aboriginal Legal Service Ltd v Jones and radio 2UE Sydney Pty Ltd [2000] NSWADT 102 (31 July 2000).

Alan Jones case 2 (2009). Trad v Jones & anor (No. 3) [2009] NSWADT 318, Administrative Decisions Tribunal (21 December 2009), http://www.lawlink.nsw.gov.au/adtjudgments/2009nswadt.nsf/f1a6baff573a075dca256862002912ec/5e78e4a70e578ee4ca25768f00169e3b?OpenDocument>, Retrieved 21 May 2012.

Bolt case (2011). Eatock v Bolt [2011] FCA 1103 (28 September 2011), http://www.austlii.edu.au/au/cases/cth/FCA/2011/1103.html>, Accessed 25 May 2012.

Catch the Fire Ministries case (2004). Islamic Council of Victoria v Catch the Fire Ministries Inc [2004] VCAT 2510 at [10], < http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2004/2510.html>, and Islamic Council of Victoria v Catch the Fire Ministries Inc (Anti Discrimination – Remedy) [2005] VCAT 1159 (22 June 2005), http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2005/1159.html>, Accessed 25 May 2012.

Gay case (2004). Burns v Radio 2UE Sydney [2004] NSWADT 267, http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWADT/2004/267.html>, Accessed 25 May 2012.

The Holocaust cases. Jones v Toben [2002] FCA 1150, Toben v Jones [2003] FCAFC 137 (27 June 2003) and Toben v Jones [2009] FCAFC 104 (13 August 2009).

Kazak’s cases. Kazak v John Fairfax Publications Ltd [2000] NSWADT 77 and John Fairfax Publications Ltd v Kazak (EOD) [2002] NSWADTAP 35 (25 October 2002).

Lange’s case (1997). Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, <http://www.austlii.edu.au/au/cases/cth/HCA/1997/25.html>, Accessed 25 May 2012.

Laws case (2007). Administrative Decisions Tribunal Equal Opportunity Division (No 2) [2007] NSWADT 47.

Levy’s case (2007). Levy v Victoria (1997) 189 CLR 579.

LEGISLATION

Anti-Discrimination Act 1977 (NSW)      http://www.austlii.edu.au/au/legis/nsw/consol_act/aa1977204/

Racial Discrimination Act 1975 (Cth)

http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/

BIBLIOGRAPHY

Flahvin A, 1995, “Can legislation prohibiting hate speech be justified in light of free speech principles?”, (1995) 18(2) University of New South Wales Law Journal 327.

Johns L, 1995, “Racial Vilification and ICERD in Australia”, (April 1995) 2(1) Murdoch University Law E-Journal.

Kinney, T A, 2008, “Hate Speech and Ethnophaulisms”. The International Encyclopedia of Communication. Blackwell Reference Online. doi:10.1111/b.9781405131995.2008.x. http://www.blackwellreference.com/public/tocnode?id=g9781405131995_chunk_g978140513199513_ss4-1>, Retrieved 21 May 2012.

Mahoney K, 1994, “Hate Vilification Legislation and Freedom of Expression: Where is the Balance?”, (1994) 1(1) Australian Journal of Human Rights 353.

Marr D, 1999, “Equal rights, not gay rights”, Sydney Morning Herald, 30 January 1999.

McNamara L, “A profile of racial vilification complaints lodged with the New South Wales Anti-Discrimination Board”, (1997) 2 International Journal of Discrimination and the Law 349.

Nockleby J T, 2000, “Hate Speech,” in Encyclopedia of the American Constitution.  Ed. Leonard W. Levy and Kenneth L. Karst. Vol. 3. 2nd ed. Detroit: Macmillan Reference USA, 2000. p. 1277-1279.

Urofsky M, 1995, “The law of hate speech”, (Spring 1995) 15(1) Communication Law Bulletin 13.

Puddephatt A, 2005, Freedom of Expression, The essentials of Human Rights, Hodder Arnold, 2005, pg.128

 


[1] More recently, emerging State/Territory charters of rights have begun to change this landscape.

[2] See for example REV v City of St Paul 505 US 377 (1992); Skokie v Nationalist Socialist Party 373 NE 2d 21 (1978).

[3] Islamic Council of Victoria v Catch the Fire Ministries Inc [2004] VCAT 2510 at [10].

[4] Pearson and Polden M, 2011, The Journalist’s Guide to Media Law, 4th edition, Allen & Unwin, pp 330-331.

[5] Anti-Discrimination Act 1977 (NSW) ss 20B-20D, 38R-38T, 49ZS-49ZTA, 49ZXA-49ZXC; Anti-Discrimination Act 1991 (Qld) ss 124A, 1321A; Racial Vilification Act 1996 (SA); Anti-Discrimination Act 1998 (Tas) ss 17(1), 19; Racial and  Religious Tolerance Act 2001 (Vic); Anti-Discrimination Act 1992 (NT); Discrimination Act 1991 (ACT); Criminal Code (WA) ss 76-80H (as amended in 2004).

[6] Racial Discrimination Act 1975 (Cth) ss 18B-18F.

[7] Pearson and Polden M, 2011, The Journalist’s Guide to Media Law, 4th edition, Allen & Unwin.

[8] Pearson and Polden M, 2011, The Journalist’s Guide to Media Law, 4th edition, Allen & Unwin.

[9] Ibid, p 339.

[10] Gelber K and Stone A, 2007, Hate speech and freedom of speech in Australia, November 2007, Federation Press, p 16.

Linda Daniele

MA (Journalism) candidate, UTS

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