Racial Hatred Act
The Racial Hatred Act (Cth) 1995 prohibits offensive public acts which are based on racial hatred. Offensive behaviour is unlawful if it is reasonably likely to offend, insult, humiliate or intimidate another person or a group of people and the act is done because of the race, color or national or ethnic origin of the other person or some or all of the people in the group. An act is deemed to be public if it causes words, sounds, images or writing to be communicated to the public, is done in a public place or is done in the sight or hearing of people who are in a public place. Public place includes any place to which the public access as a right or by invitation. The access may be express or implied and does not depend on an admission price being charged.
The Act protects free speech by providing several exemptions to its provisions. Acts which are done reasonably and in good faith are not unlawful if they are done:
- in the performance, exhibition or distribution of artistic work;
- in the course of any statement, publication or discussion or debate made or held for any genuine academic, artistic, scientific or any other genuine public interest purpose;
- in making or publishing a fair and accurate report of any event or matter of public interest; or
- in making or publishing a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.
An employer will be vicariously liable for the unlawful acts of an employee or agent performed in connection with their work duties, unless the employer can show that he or she took all reasonable steps to prevent the employee or agent from doing the unlawful act.
There has only been one case which covers the Act’s interpretation: Bryant v. Queensland Newspapers Pty Ltd. In this case the complainant (Mr. Bryant) sued the respondent (Queensland Newspapers) for publishing articles and letters in its weekly publication the Sunday Mail, which referred to English people as ‘Poms’ or ‘Pommies’. The complainant alleged that the use of these terms is insulting and offensive to English people.
The Race Discrimination Commissioner declined to investigate the complaint on the grounds that the act did not meet the objective standard prescribed by the Racial Hatred Act. For the act to be unlawful it had to be ‘reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate’ the person or group of people referred to. She concluded that this objective standard had not been met. Arrangements were made for a public hearing into the complaint. However, prior to this public hearing, the respondent applied to have the complaint dismissed on the grounds that it was frivolous, vexatious, misconceived, lacking in substance or relating to an act which was not unlawful under the relevant provisions of the Act.
In hearing this application, Sir Ronald Wilson, president of the Human Rights and Equal Opportunity Commission, accepted that the complainant was offended by the use of the words ‘Poms’ and ‘Pommies’ but he agreed with the Commissioner that this was not enough. He found that the offensiveness test is an objective one because of the words ‘reasonably likely’. He thought that the notion of ‘hatred’ suggested that the relevant provisions of the Act allow a fair degree of journalistic licence, including the use of flamboyant or colloquial language. Accordingly, he dismissed the complaint on the grounds that the act in question was not an unlawful act under the Act.
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