Damon Mcknight
Australia has several laws in place to address hatred and hate speech, with varying degrees of stringency across different states. While there is no single, comprehensive federal law that specifically bans hatred, various pieces of legislation aim to prevent and punish discriminatory and hateful acts. The Racial and Religious Tolerance Act 2001 in Victoria, for instance, prohibits behaviour that incites hatred, contempt, revulsion, or severe ridicule based on race or religion. Similarly, New South Wales' Anti-Discrimination Act 1977, amended in 1989, criminalises incitement of hatred or contempt on the grounds of race. Queensland and Tasmania also have similar anti-discrimination laws, and the Australian Human Rights Commission plays a role in addressing complaints related to offensive and discriminatory acts. While a comprehensive Human Rights and Anti-Discrimination Bill was proposed in 2012, it was narrowly defeated in Parliament, highlighting the ongoing debate and complexities surrounding the legal response to hatred in Australia.
| Characteristics | Values |
|---|---|
| Hate speech laws | The Racial and Religious Tolerance Act 2001 makes behaviour that incites hatred, contempt, revulsion or ridicule based on race or religion unlawful in Victoria. Similar laws exist in other states. |
| Discrimination laws | The Discrimination Act 1991 and state-level Anti-Discrimination Acts prohibit discrimination based on various grounds, including race, religion, and sexual orientation. |
| Media and game ratings | All media is rated by the Australian Classification Board (ACB), with ratings enforced by law. Games and media that do not meet the ratings board requirements are banned. |
| Enforcement | The Australian Human Rights Commission handles complaints about hate speech and discrimination, with redress available through the Federal Court. |
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What You'll Learn
The Human Rights and Anti-Discrimination Bill 2012
In 2012, the Gillard government, led by then-Attorney General Nicola Roxon, proposed the Human Rights and Anti-Discrimination Bill. This bill aimed to make it illegal to discriminate based on various factors, including age, disability, gender identity, race, religion, sex, and sexual orientation. The proposed law was supported by the Australian Human Rights Commission and several human rights organisations but faced criticism for being too restrictive. Ultimately, it was narrowly defeated in Parliament.
Similarly, the Anti-Discrimination Act 1977 in New South Wales, amended in 1989, made it unlawful to incite hatred or serious contempt based on race. This amendment set a precedent by criminalising incitement to hatred and including "homosexual vilification" as a prohibited offence. While these laws provided some protection against hate speech and discrimination, they did not cover all bases, highlighting the need for more comprehensive federal legislation.
Queensland's Anti-Discrimination Act 1991 and Tasmania's equivalent legislation demonstrate the varying approaches to addressing discrimination across Australia's states and territories. In 2001, the Islamic Council of Queensland brought an action under the Act, alleging that a federal election candidate, Mr Lamb, had expressed unfavourable opinions about Muslims in an election pamphlet. However, the Anti-Discrimination Tribunal dismissed the action, finding that Mr Lamb intended to share his political opinions rather than incite hatred.
While the Human Rights and Anti-Discrimination Bill 2012 did not become law, it sparked important conversations about the need for comprehensive anti-discrimination legislation in Australia. The Equal Rights Trust (ERT), along with Australian equality advocates, expressed disappointment when the government decided not to table the bill before the federal election in September 2013. Instead, the government proposed the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013, which addressed discrimination based on sexual orientation, gender identity, and intersex status. While this bill filled a specific gap in protection for LGBTI persons, the ERT and other advocates urged political parties to remain committed to introducing more comprehensive anti-discrimination legislation.
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The Racial and Religious Tolerance Act 2001
The Act prohibits racist graffiti, posters, stickers, comments made in a publication (including the internet and email), and statements at a meeting or public rally. It explicitly applies to public behaviour rather than personal beliefs or thoughts. The Act also covers vilifying conduct in the street, at community events, or in the media.
The Racial and Religious Tolerance Act acknowledges that racial and religious vilification diminishes dignity and a sense of self-worth and belonging to the community. Vilification also reduces the ability for people to fully participate in all aspects of society as equals. As such, the Act attempts to balance the right to freedom of expression with racial and religious tolerance by ensuring that freedom of speech does not vilify.
The Act provides avenues for people to resolve complaints and outlines the Victorian Equal Opportunity and Human Rights Commission's role in dispute resolution. The Commission provides a free dispute resolution service to help people resolve their complaints of racial and religious vilification and victimisation. It may also intervene in cases or appear as amicus curiae to assist a court or tribunal considering equal opportunity issues.
Under the Act, it is also against the law to victimise someone who has made a complaint of racial or religious vilification. The Act includes exceptions for private conduct and certain public conduct engaged in "reasonably and in good faith", including art, performance, statements, published works, discussions, or debates in the public interest, and fair and accurate reports in the media.
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The Anti-Discrimination Act 1977
The Act makes it unlawful for a person to discriminate against another person on the grounds of race, including treating them less favourably or segregating them from persons of a different race. It also prohibits inciting hatred, serious contempt, or severe ridicule towards a person or group based on race. The Act was amended in 1989 to include criminal sanctions for inciting hatred, with a maximum penalty of a $10,000 fine or 6 months imprisonment for individuals.
The Act also addresses discrimination related to transgender individuals. It is unlawful for a council member of a local government area to discriminate against another member on transgender grounds. Additionally, it is unlawful for an industrial organization to discriminate on transgender grounds in terms of membership or access to benefits. The Act also allows for the exclusion of individuals of one sex from participating in certain sporting activities, but not in coaching, administration, or prescribed sporting activities.
In 2018, the New South Wales government repealed the 1989 vilification laws within the Act and replaced them with criminal legislation, introducing an explicit term of imprisonment within the Crimes Act 1900. In 2023, the government announced a review of the nearly 50-year-old Anti-Discrimination Act 1977, to be undertaken by the NSW Law Reform Commission.
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The Racial Vilification Act 1996
In Australia, hatred is not entirely banned, but there are laws in place that address hate speech and discrimination. One notable legislation is the Racial Vilification Act 1996, which specifically targets conduct involving the vilification of individuals based on their race. This Act is in place in South Australia and is similar to the law in New South Wales.
The Act makes it unlawful for an individual, through their actions, to offend, insult, humiliate, or intimidate another person or group based on their race, colour, or national or ethnic origin. If an individual feels aggrieved by such conduct, they can lodge a complaint with the Australian Human Rights Commission. If the complaint is validated, the Commission will attempt to resolve the matter through conciliation. If an agreement cannot be reached, the complainant can seek redress through the Federal Court.
It is important to note that the Racial Vilification Act 1996 is not the only legislation in Australia addressing hate speech and discrimination. Other laws, such as the Racial Discrimination Act 1975 and state-specific legislation, also play a role in prohibiting and addressing these issues.
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The Australian Classification Board
Following legislative changes enacted in the Commonwealth Classification Act 1995, it became known as the Classification Board. The ACB is made up of a director, a deputy director, three other board members, and temporary board members, all appointed by the government for three- or four-year terms. The ACB is located in Sydney.
The ACB does not directly censor material by ordering cuts or changes. However, it can effectively censor media by refusing classification, thereby making the media illegal for hire, exhibition, and importation into Australia. The classification system has several levels of "restricted" categories, prohibiting the sale, exhibition, or use of some materials to those under a prescribed age. Some films, such as those made for educational purposes, are exempt from classification under certain conditions.
Film festivals and institutions may apply to the ACB for an exemption from classification for the purpose of screening at a particular film festival or event. The ACB also classifies material submitted by the police, the Australian Customs and Border Protection Service, and the Australian Communications and Media Authority. The board does not classify live performances, audio CDs, and television shows.
Television is regulated by the Australian Communications and Media Authority, and film classification also applies to Internet streaming services. In 2019, Netflix was allowed to self-regulate film and television classification on its streaming platform, allowing the company to rank content between G and R 18+.
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Frequently asked questions
Hatred is not explicitly banned in Australia, but there are laws in place that prohibit behaviour that incites or encourages hatred, serious contempt, revulsion, or severe ridicule against another person or group of people based on their race or religion.
The consequences of inciting hatred in Australia can vary depending on the specific circumstances and the state in which the incident occurs. For example, in New South Wales, the offence of serious vilification carries a maximum penalty of a $10,000 fine or 6 months imprisonment for an individual, and a $100,000 fine for a corporation.
The laws prohibiting incitement of hatred in Australia generally apply to public behaviour and do not restrict personal beliefs or thoughts. Additionally, the right to freedom of speech is considered when dealing with cases involving hatred or discrimination.
One notable example is the case of Jones v Toben in 2002, where the Federal Court ruled that a website containing material denying the Holocaust violated the Racial and Religious Tolerance Act. Another example is a case brought forward by the Islamic Council of Queensland in 2001, alleging that a federal election candidate, Mr. Lamb, had expressed unfavourable opinions about Muslims in an election pamphlet. However, this case was dismissed as it was determined that Mr. Lamb intended to share his political opinions rather than incite hatred.
