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Racial Vilification Laws: the Bolt Case from a State Perspective by Gareth Griffith

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Racial Vilification Laws: the Bolt Case from a State Perspective by Gareth Griffith October 2011 e-brief 14/2011 Racial vilification laws: the Bolt case from a State perspective by Gareth Griffith 1 Introduction that she was not really Aboriginal, On 28 September 2011 Justice that she had identified as Aboriginal Bromberg handed down his judgment for career, political or financial gain, and that in so doing she had in Eatock v Bolt [2011] FCA 1103 (the deprived more worthy "genuine" Bolt case). Journalist Andrew Bolt was Aborigines access to assistance. In found to have contravened s 18C of October, Ms Eatock was joined in the Commonwealth Racial her action by eight others also Discrimination Act 1975. named in the articles.3 The judgement has given rise to 2 Vilification laws in Australia considerable debate. For George With the exception of the Northern Brandis, the federal Shadow Attorney- Territory, all Australian jurisdictions General, one consequence is that: "it have introduced racial vilification laws. is clear that freedom of political In the States and the ACT, this is in expression in Australia is subject to a addition to a range of other vilification 1 significant new constraint". laws, as set out in the table below.4 Conversely, David Marr wrote in the immediate aftermath of the judgment; ACT NSW Qld SA Tas Vic WA "Freedom of speech is not at stake Race √+ √+ √+ √+ √ √+ √- here. Judge Mordecai Bromberg is not Homo- √+ √+ √+ √ telling the media what we can say or sexuality/ where we can poke our noses. He's Sexual 2 Orientation/ attacking lousy journalism". Sexuality Trans- √+ √+ √+ sexuality/ The broad facts behind the case were Gender set out by Karl Quinn, writing in the Identity SMH: Religion √+ √ √+ HIV/AIDS √+ √+ Disability √ Ms [Pat] Eatock initiated her claim that Bolt had committed a breach of Key the Racial Discrimination Act last √+ Unlawful conduct; criminal conduct if September. She claimed that two serious. articles he wrote for the Herald Sun √ Unlawful conduct only – the subject of and two blogs published on the complaint. paper's website, in 2009, implied √- Criminal conduct only. Page 1 of 10 NSW Parliamentary Library Research Service 3 Racial Vilification Laws in Australia Section 18B is a deeming provision The current racial vilification laws in which provides that if one reason for Australia are set out in the following the doing of an act was "the race, table:5 colour or national or ethnic origin of a person", then for the purposes of Part Statute Key In 11A, that will be deemed to be the sections force reason for which the act was done, NSW Anti- 20C-20D 1989 Discrimination Act "whether or not it is the dominant 1977 reason or a substantial reason for ACT Discrimination Act 66-67 1991 doing the act". 1991 C'th Racial 18C-18D 1995 Discrimination Act Guidance as to what is meant by 1975 "otherwise than in private" is provided SA Racial Vilification 3-6 1996 by s 18C(2). Most relevant to the Bolt Act 1996 Civil Liability Act 73 case, an act is taken not to be done in 1936 private if it "causes words, sounds, Tas Anti- 19 1998 images or writing to be communicated Discrimination Act 1998 to the public". Qld Anti- 124A 2001 Discrimination Act 131A According to the Australian Human 1991 Vic Racial and 7-12 2002 Rights Commission: Religious 24-25 Tolerance Act The complainant is responsible for 2001 proving that the act was done in WA Criminal Code 77-80H 1990 1913 (revised public, that it was done because of 2004) his or her ethnicity and that it was reasonably likely to offend, insult, 4 Commonwealth racial humiliate or intimidate a reasonable vilification law person of that ethnicity. Twenty years after the Act was first Exemptions are provided under s 18D. passed, Part 11A headed "Prohibition In particular, s 18D(c) provides that s of offensive behaviour based on racial 18C does not render unlawful anything hatred" was inserted into the said or done "reasonably and in good Commonwealth Racial Discrimination faith" in making or publishing: Act 1975. (i) a fair and accurate report of any Section 18C(1) makes it unlawful for a event or matter of public interest; or person to do an act "otherwise than in (ii) a fair comment on any event or private", if: matter of public interest if the comment is an expression of a (a) The act is reasonably likely, in genuine belief held by the person all the circumstances, to making the comment. offend, insult, humiliate, or intimidate another person or a In respect to this exemption, the group of people; and Australian Human Rights Commission (b) the act is done because of comments that it gives the media race, colour or national or "considerable scope" by permitting ethnic origin of the other "fair and accurate reporting on any person or of some or all of the matter of public interest". The people in the group. Page 2 of 10 E-Brief Racial vilification laws: the Bolt case from a State perspective exception is said to allow "editorial including discussion or debate about opinions and the like, providing they and expositions of any act or matter. are published without malice". It is further explained that: By s 20D, the 1989 amendment also created a criminal offence for inciting The respondent is responsible for hatred, contempt or severe ridicule establishing that the act is covered towards a person or group on the by one of the exceptions and that it grounds of race by threatening was done reasonably and in good physical harm (towards people or their faith. property) or inciting others to threaten such harm.7 With the impact on Under s 18E employers may be held freedom of speech in mind, Dan vicariously liable for acts done by their Meagher has observed that: employees or agents; while s 18F provides for the concurrent operation Criminal liability is attracted only with of State and Territory laws. Part 11A the presence of an aggravating does not therefore purport to "cover factor – the threat to do violence to the field" in respect to racial vilification person or property or inciting law in Australia. another to do so.8 5 Racial vilification laws in the Prosecution of the offence of serious States and Territories vilification requires consent from the Attorney-General. An offence has not NSW: In 1989 NSW became the first 9 State to introduce racial vilification yet been prosecuted under this law. laws, by the insertion of Part 2, Division 3A (ss 20B-20D) into the Anti- This is the "NSW model", as it has Discrimination Act 1977. Section been called, which is followed with certain variations in most other States 20C(1) makes it unlawful for a person: 10 and the ACT. by a public act, to incite hatred towards, serious contempt for, or Victoria: In broad terms s 7 ("Racial severe ridicule of, a person or group vilification unlawful") and s 24 of persons on the ground of the race ("Offence of serious racial vilification") of the person or members of the under Victoria's Racial and Religious group. Tolerance Act 2001 follow the "NSW model". One difference is that, The word "race" is defined broadly whereas the NSW legislation requires under the Act to include "colour, that the prohibited conduct must nationality, descent and ethnic, ethno- involve a "public act", the Victorian religious or national origin".6 approach is to create an exemption for "private conduct". Thus, conduct which Various exemptions are created under would otherwise amount to vilification s 20C(2). In particular, by s 20C(2)(a) is exempted from liability only if the and (c) respectively, nothing in s defendant can establish, on objective 20C(1) renders unlawful "a fair report grounds, that it was intended to be of a public act" or: private. a public act, done reasonably and in By s 7(1), a person is prohibited from good faith, for academic, artistic, engaging in certain conduct – that, on scientific or research purposes or for the ground of race, "incites hatred other purposes in the public interest, against, serious contempt for, or Page 3 of 10 NSW Parliamentary Library Research Service revulsion or severe ridicule of" a Criminal Code are set out in ss 77- person or class of persons. The 80H. phrase "engage in conduct" is defined to include a single or a series of acts 6 The Commonwealth and occurring "in or outside Victoria". A States/Territories laws note to the legislation adds that the compared phrase also includes "use of the As outlined by Neil Rees, Katherine internet or e-mail to publish or transmit Kindsay and Simon Rice in Australian statements or other material". anti-discrimination law: text, cases and materials, at least three issues of Tasmania: Both racial and religious difference arise for interpretation vilification is covered under s 19 of the between the Commonwealth and State Anti-Discrimination Act 1998. This is a models: civil provision only, with no criminal 11 penalties imposed. The impact of the conduct in question; Western Australia: Conversely, in WA The perspective from which that only criminal racial vilification conduct is viewed and the provisions apply, introduced originally impact assessed; and in 1990 and amended in 2004. Writing The causal link between the of the original 1990 provisions, the respondent's conduct and the Tasmanian Law Reform Institute race of the target person or commented: group.13 The first set of provisions, 6.1 The impact of the conduct in introduced in 1990, was specifically drafted to address the activities of question the Australian Nationalist Movement Different language is used to describe (ANM), a neo-Nazi organisation led the requisite impact of the relevant by Jack Van Tongeren.
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