In this special additional chapter of The News Manual Online, we look at vilification and racial hatred laws in Australia. While it refers directly to legislation in Australia, it might also be interesting for journalists from other countries with such laws or which are thinking of making such laws.
What is vilification?
Vibrant democracies should be able to cope with disagreements between citizens, even with people hating each other, but their parliaments often have to make laws to stop those disagreements or hatreds causing actual harm to groups or individuals.
In most democracies it is accepted morality that people should not hate other people because of things they cannot change – such as their race or colour – or, if they do, their hatred must not be allowed to impact on the lives or well-being of the people they hate.
Internationally, this principle has been promoted through the United Nations in the 1965 Convention for the Elimination of All forms of Racial Discrimination and the 1966 International Covenant on Civil and Political Rights, though many countries have still not ratified them and some that have signed up openly ignore them.
There are specific laws to combat public displays of hatred in Australia. These are usually called anti-vilification laws – where to vilify means to say or do something which debases another person. It comes from Latin meaning literally ‘to make worthless’.
Vilification laws cover hatred acted out against people because of their race, sexuality (including homosexuality and gender identity), religion, HIV/AIDS status or disability, though perhaps the best-known and most common relate to racial vilification.
Where the laws apply
There are anti-vilification laws at the federal, state and territory levels, though they are still not universal and do not cover all major forms of vilification, even racial.
However, with new technologies and a more national approach to distribution by the media, most working journalists in Australia will find their work crossing state and territory boundaries, so they must know how the laws apply in different states.
Fortunately, the laws on vilification – where they exist – are very similar throughout Australia. The following is a useful generic guide to the essentials of the laws.
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Race hate laws
Most of the racial vilification or race hatred acts define racial vilification as:
- A racist act,
- committed in public,
- which could incite serious contempt or severe ridicule of an individual or group because of race, colour, nationality, ethnic, ethno-religious or national background
Some jurisdiction also specifically ban religious vilification while others do not, either remaining silent or including it under terms such as ‘ethno-religious’.
A racist act
Racist acts could take many forms.
They could be visual, such as text in a newspaper, cartoons or slogans on a wall, or audible, such as people speaking publicly about others or broadcasting racist insults.
Many aspects of vilification laws are based on similar concepts in defamation laws.
As with defamation, it doesn’t matter whether you as a journalist commit the act or whether it is committed by someone you are interviewing, reporting on or recording at a protest rally. As publisher or broadcaster, your organisation will be responsible for spreading it. This brings us to the second aspect:
Committed in public
Words, images or signals communicated from one person only to another in a private place cannot constitute a racist act; it has to take place in public and be observed (e.g. seen or heard) by a third person. Any racist words or images broadcast on radio or television or printed in a newspaper or the Internet would automatically be assumed to do this.
Most laws also require that it be done in a public place. A group of people making racist comments on private property would not normally be unlawful, as long as it could not be observed by people outside.
The reason for this ‘third person’ requirement is obvious. A racist remark to the person himself or herself will probably be offensive but it will not damage them in other people’s eyes. As soon as other people see or hear those comments, they could harm the victim in other people’s eyes.
Causing serious harm
Most vilification legislation is not meant to ban ordinary everyday behaviour, even if it is in bad taste. Indeed, the reason may governments have not made vilification laws is because of civil liberties concerns not to restrict their citizens’ right to free speech.
However, there are always limits in civilised societies to what one person can say about another. The laws of defamation are a good example of this. Laws like defamation and vilification do not prevent freedom of thought but they do try to stop those thoughts being turned into words, images or actions which might harm another person.
The laws of both defamation and vilification require that the words, images or actions have the potential to incite serious harm to an individual. Judgment on what is serious will involve both the victim's perceptions and considerations of what is generally unacceptable to society.
Jokes about race, colour, nationality, ethnic, ethno-religious or national background will generally not be covered by vilification laws, but they might if they cause serious damage to another person. One person’s idea of what is funny is often not shared by the victim of the joke, and the laws are meant in part to protect victims.
Although the legislation was aimed at combating persecution of minorities by extreme racists, it also covers racist acts between ethnic communities.
It is worth mentioning here that there are in some countries laws which straddle the boundaries between defamation and vilification. For example, more than a dozen European countries have laws banning denial of the Holocaust. Germany's Holocaust denial legislation, for instance, prohibits "defamation of the dead" but is more similar to vilification laws in that it applies to Jews as a group rather than identified individuals.
In October 2008, German authorities sought the extradition from Britain of Australian Gerald Fredrick Töben, alleging he published material on the internet 'of an anti-Semitic and/or revisionist nature' that denies, approves of or plays down the mass murder of millions of Jews at the hands of the Nazis during the Second World War.
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Under most laws, complaints can only be made by a member of the race or ethnic community which has been vilified or by organisations or individuals – such as lawyers - representing them. The oversight authority will not normally accept complaints from individuals or organisations which do not specifically represent people of the group being vilified.
Federally, complaints are made to the Human Rights and Equal Opportunities Commission (HREOC), the NSW Act is administered by the Anti-Discrimination Board while in Victoria the legislation is overseen by Victorian Equal Opportunities Commission. Similar conditions apply under other state and territory laws.
Under federal law, vilification is an unlawful but not a criminal act, so it cannot be prosecuted by police, only investigated and determined by HREOC. In some states it exists as both a civil complaint and a criminal offence while in others it will only be treated as a criminal offence if extremely serious.
This rather piecemeal situation has arisen partly because vilification legislation in Australia usually has two main functions: to educate people about living in harmony and to take action against offenders if education does not succeed.
The boards or commissions therefore first try to bring the offender and their victims together to reach a better understanding. If conciliation does not work, the matter can be referred to a higher body. In NSW, this is to the Equal Opportunities Tribunal, which has the power to impose damages or order apologies. Complaints under the Federal act are referred to the Federal Court.
In cases where threats of physical harm have been made or where serious vilification is a criminal offence, the matter may be referred to the Attorney General, who can then decide to prosecute as a criminal offence. In Victoria, for example, serious offences may be prosecuted by the Office of the Director of Public Prosecutions.
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When a complaint about vilification is made, the oversight authority – such as HREOC under the federal Racial Hatred Act – will investigate the matter and try to resolve the issues between the two parties – the people who made the vilification and those who complained about it. In the first instance this conciliation process might involve a meeting and, if both sides are happy, result in an agreed formal apology. In the case of the media, it may also result in a published or broadcast correction and apology.
If the parties cannot agree, in some states the oversight authority may make a determination, choosing which side is correct and what should be the outcome, such as publishing a correction and apology, education or changing a workplace behaviour..
Under the federal law, if a complaint cannot be resolved by conciliation, the Commissioner may terminate the process and the complainant can then seek permission to take their case to the Federal Court for a determination and – if the complaint is upheld – whatever corrective measure the court may decide.
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The legislation does not outlaw all incidents involving racial hatred. There are a number of occasions when it is permissible to repeat or report racial vilification. There are some situations when vilification is permitted. These usually include:
- A fair report of an act of vilification. This protects journalists reporting acts of vilification, though you must beware that you do not seem to endorse the act, otherwise that itself may become vilification.
- An act done reasonably and in good faith for academic, artistic, scientific or research purposes in the public interest. These are a similar protections to those provided for matters such as defamation and are meant to protect people’s reasonable rights to free speech.
- Material in parliamentary, court or tribunal proceedings or other government inquiries. This is a protection provided by privilege and is necessary in a democratic system where laws are meant to be made and implemented in an open and transparent way.
All the normal rules of ethical journalism should be applied when covering issues which might be racial vilification. Reporters should clearly identify the person making the remarks – or displaying the image – so it is clear they are not the views of the media organisation.
The media can publish reviews of matters – books, movies, websites etc - which contain vilification but the reviewer must state the facts on which their opinions are based. The reviews must reflect the reviewer’s genuinely held belief and it must be done reasonably and in good faith.
For more information
For more information, there is a simple Guide to the Racial Hatred Act can be found on the HREOC website.
HREOC also provides links to the websites of other state and territory bodies responsible for implementing their own vilification and discrimination laws.
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