An International Comparison of the Racial Discrimination Act 1975 (2008) Chapter 6: Racial Vilification
An International Comparison of the Racial Discrimination Act 1975
Chapter 6: Racial Vilification
6.1 Racial Vilification and Human Rights Law
6.2 Racial Hatred Law in Australia
6.3 Racial Hatred Law in Canada
6.4 Racial Hatred Law in the United Kingdom
6.5 Exceptions
6.6 Racial Hatred Law in the European Union
6.7 Constitutional Limitations on Racial Hatred Laws
6.7.1 Constitutional Limitations in the United States
6.7.2 Constitutional Limitations in Canada
6.7.3 Constitutional Limitations in Australia
6.8 Other Approaches to Racially Offensive Behaviour and the Extension of Racial Vilification Laws to Other Grounds
6.8.1 Religious Vilification
6.8.2 Racially Motivated Crime
6.8.3 Harassment
The term ‘racial vilification’ can be defined in a number of
ways. Generally, it is used to refer to offensive and abusive comments which
either express or incite serious hatred and contempt for individuals on the
grounds of their race or ethnicity. Other terms which are often used
interchangeably throughout the various jurisdictions include ‘racial
hatred’, ‘hate propaganda’ and ‘hate speech’.
This chapter will examine some of the responses to racial vilification,
focusing primarily on the attempts to restrict it through civil and criminal
legislation. In doing so, it is important to bear in mind that in many
jurisdictions legislation is not the sole response to this issue, and campaigns
to raise public awareness and promote cross-cultural relationships play at least
an equally important role in combating racial hatred.
Having looked at the legislation covering racial vilification in each of the
jurisdictions, and some of the exemptions and constitutional issues which may
limit the coverage and effect of these laws, this chapter will also examine some
of the related issues that arise with respect to racial vilification law. For
example the extent to which such laws should also deal with vilification on
non-racial grounds such as religion or sexual orientation, and the use of the
criminal law to deal with other manifestations of racial bias, such as
harassment and racially motivated crime.
6.1 Racial Vilification and International Human Rights Law
The International Convention on Civil and Political Rights (ICCPR)
states that “(a)ny advocacy of national, racial or religious hatred
that constitutes incitement to discrimination, hostility or violence shall be
prohibited by law.”[1]More
specifically, the International Convention on the Elimination of All Forms of
Racial Discrimination (ICERD) requires all signatory states to
“declare an offence punishable by law all dissemination of
ideas based on racial superiority or hatred... as well as all acts of
violence or incitement to such acts against any race or group of persons of
another colour or ethnic
origin...”.[2] While these
two treaties have been ratified by all of the countries examined in this report,
both the U.S. and Australia have made reservations with regards to this
particular issue.
The U.S. reservation to the ICERD states “(t)hat the Constitution
and laws of the United States contain extensive protections of individual
freedom of speech, expression and association. Accordingly, the United States
does not accept any obligation under this Convention, in particular under
articles 4 and 7, to restrict those rights, through the adoption of legislation
or any other measures, to the extent that they are protected by the Constitution
and laws of the United States.” [3]
In contrast, the Australian reservation to the ICERD is provisional, and
states, "(t)he Government of Australia ... declares that Australia is not at
present in a position specifically to treat as offences all the matters covered
by article 4(a) of the Convention... It is the intention of the Australian
Government, at the first suitable moment, to seek from Parliament legislation
specifically implementing the terms of article
4(a)."[4]Despite the temporary
nature of this reservation, all attempts to pass legislation fully implementing
this treaty by introducing criminal offences of racial hatred and vilification
have so far been unsuccessful.[5]
6.2 Racial Hatred Law in Australia
In 1995, the Australian government passed the Racial Hatred Act, which
added various amendments to the Racial Discrimination Act 1975 (Cth). By way of compromise, this Act made racial vilification unlawful, and
subject to the same range of civil remedies as racial discrimination, but did
not make it a criminal offence. Under the amended Racial Discrimination
Act, it is unlawful “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”.[6] While the
offensive action must be done “because of” the race, colour or
ethnic or national origin of the other person, this need not be the sole, or
even the dominant reason for the act. It is sufficient if one of the motives
behind the action is the race or colour of the
victim.[7]
In 2005 the Australian government redefined the offence of sedition,
previously believed to have fallen into disuse. The new law makes it a criminal
offence if a person “urges a group or groups (whether distinguished by
race, religion, nationality or political opinion) to use force or violence
against another group or other groups (as so
distinguished)”.[8] This new
offence may go some way towards creating a criminal offence of racial
vilification, at least in its most serious manifestation where it involves
incitement to the use of force or violence. It has, however, a number of
significant limitations. For a start, the offence of sedition applies only where “the use of the force or violence would threaten the peace, order and
good government of the Commonwealth.” This provision has been
criticised on the basis that violence against small minority groups, which are
the most vulnerable to racially directed violence, is unlikely to threaten
either the geographic integrity or the government institutions of the
Commonwealth, and thus is likely to fall outside the provisions of the
law.[9] The characterisation of this
law as a law of ‘sedition’ has also led to concern that the focus of
this law will be directed more towards the protection of the state than towards
the needs and interests of racial
minorities.[10]
6.3 Racial Hatred Laws in Canada
The Canadian Criminal Code contains a number of racial hatred
offences. It is an offence to advocate or promote genocide against a particular
race.[11] It is also an offence, by “communicating statements in a public place” to “incite(..) hatred against any identifiable group where such incitement
is likely to lead to a breach of the
peace”.[12] An
‘identifiable group’ is defined by the Act as “any section
of the public distinguished by colour, race, religion, ethnic origin or sexual
orientation.”[13] It is
also an offence to communicate statements “otherwise than in private
conversation” which “wilfully promote(..) hatred against an
identifiable group.”[14] The Supreme Court has interpreted ‘wilfully’ in this context to
require proof of either an intention to promote racial hatred, or “knowledge of the substantial certainty of such a
consequence”, thus imposing a “stringent standard of mens
rea”.[15]
In addition to these criminal offences, the Canadian Human Rights Act also declares it a ‘discriminatory practice’ to send repeated
messages over the telephone or internet which are “likely to expose a
person... to hatred or contempt” because of their race or other
proscribed grounds of
discrimination.[16] Like the
provisions of the Australian Racial Discrimination Act, this
‘discriminatory practice’ is not a criminal offence, but may be
enforced through the civil procedure established to deal with
discrimination.
6.4 Racial Hatred Laws in the United Kingdom
Racial hatred offences in the United Kingdom are contained within the Public Order Act 1986 (UK). Under this act, it is an offence to
use, display, publish, show or distribute any words, images or behaviour
(including a public broadcast or a play) which are “threatening,
abusive or insulting” and which are either intended or likely to stir
up racial hatred.[17]
While a person who uses or displays threatening or insulting words or
behaviour need not have any intention to stir up racial hatred, it is a defence
to show that he (sic) “did not intend his words or behaviour, or the
written material, to be, and was not aware that it might be, threatening,
abusive or insulting.”[18] It is therefore necessary to show that the offender was subjectively aware of
the possibility that their behaviour might be threatening, abusive or insulting,
as well as the objective fact that the behaviour in question was likely to stir
up racial hatred. In contrast, a person who publishes and distributes the words
of others (either in written form or as an audio or visual recording) must
satisfy the stricter test that “he was not aware of the content of the
material and did not suspect, and had no reason to suspect, that it was
threatening, abusive or insulting” (emphasis
added).[19] The director or
producer of a public broadcast or play, meanwhile, may be found innocent of this
offence even when they are aware of the threatening, abusive or insulting nature
of the material, as they need only show that they “did not know and had
no reason to suspect that the circumstances... would be such that racial hatred
would be likely to be stirred
up.”[20]
Offenders under the Public Order Act 1986 (UK) may be penalised by up
to seven years imprisonment, if tried on
indictment.[21] In comparison, the
maximum sentence possible under the Canadian racial vilification legislation is
two years (or five years for advocating
genocide).[22] In the United
Kingdom, the consent of the Attorney-General is required before any prosecution
for racial vilification can take
place.[23] This is also true of the
sedition offences in Australia, and the offences of wilfully promoting hatred or
advocating genocide under the Canadian
statute.[24] In contrast, the
Canadian offence of inciting hatred which is likely to lead to a breach of the
peace may be criminally prosecuted without executive consent, and the civil
provisions of both the Australian and Canadian acts may be pursued by any
individual with standing to bring a
complaint.[25]
6.5 Exceptions
Restrictions on the promotion of racial hatred and vilification are often
highly controversial, due to the limits they impose on the right to freedom of
speech. One way in which legislators have sought to balance the right to be free
from racial vilification and the right to legitimate free expression is by
excluding certain types of communication from the operation of racial
vilification laws.
One area that is commonly excluded is private communication which does not
intrude into the public sphere. Thus, the Australian legislation applies to acts
done ‘otherwise than in private’, which includes any act which “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”.[26] Similarly, the
Canadian criminal offences apply to communication which takes place “in
a public place” or “otherwise than in private
conversation”.[27] In the
United Kingdom, the act applies both in public and in private, but not “where the words or behaviour are used, or the written material is
displayed, by a person inside a dwelling and are not heard or seen except by
other persons in that or another
dwelling”.[28] It is also
a defence for the accused to show that they had no reason to suspect that their
words or behaviour could be heard or seen by a person outside of the
dwelling.[29]
Both the Australian and Canadian legislation also set out a list of specific
exceptions, designed to protect speech which is perceived as legitimate or
socially valuable. Under the Australian Racial Discrimination Act 1975 (Cth), these exemptions include:
“anything said or done reasonably and in good faith;
- in the performance, exhibition or distribution of an artistic work;
or - in the course of any statement, publication, discussion or debate made or
held for any genuine academic, artistic or scientific purpose or any other
genuine purpose in the public interest; or
- in making or publishing;
- a fair and accurate report of any event or matter of public interest;
or - 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.”[30]
- a fair and accurate report of any event or matter of public interest;
The
Canadian Criminal Code also contains exemptions, however these apply only
to the offence of wilfully promoting hatred, and not to the offence of inciting
hatred which is likely to lead to a breach of the peace, or advocating genocide.
These exemptions provide that:
“No person shall be convicted of an offence...
- if he establishes that the statements communicated were true;
- if, in good faith, the person expressed or attempted to establish by an
argument an opinion on a religious subject or an opinion based on a belief in a
religious text;
- if the statements were relevant to any subject of public interest, the
discussion of which was for the public benefit, and if on reasonable grounds he
believed them to be true; or
- if, in good faith, he intended to point out, for the purpose of removal,
matters producing or tending to produce feelings of hatred toward an
identifiable group in
Canada.”[31]
The
condition that applies to all exemptions under the Australian legislation, that
the actions concerned be both ‘done reasonably and in good faith’
contains both objective as well as subjective elements It requires an analysis
of both the objective facts and the state of mind of the accused. In contrast,
some of the Canadian exemptions may be satisfied by a purely subjective test,
such as sections b) and d), which depend purely on the honesty and integrity of
the intentions of the accused, and not on any objective question of whether such
religious arguments are reasonable, or whether the actions of the accused are
reasonably likely to be interpreted in the manner in which they are intended. In
other cases, the test is purely objective, since a person may make any statement
with malicious intent so long as the statement is factually true.
The United Kingdom legislation contains only one exemption, which is much
narrower than those discussed above, and applies only to ‘fair and
accurate reports’ of parliamentary or judicial
proceedings.[32] At the same time,
the Human Rights Act 1998 (UK) imposes an obligation on British courts to
interpret the legislation, where possible, to be compatible with the European
Convention for the Protection of Human Rights and Fundamental
Freedoms.[33] This Convention,
which includes the right to freedom of expression, imposes some limitations on
the extent to which racial vilification can be regulated, and will be discussed
further below.
6.6 Racial Hatred Law in the European Union
The European Union is currently in the process of formulating a Framework
Decision which will require all member states to meet a minimum standard with
regard to the proscription of racial hatred and vilification. In April 2007,
after six years of negotiations, the Council of E.U. Justice Ministers reached
an agreement as to the text of this Framework Decision, however it has yet to be
formally adopted, and it remains unclear if any major changes will be made
before it becomes law.
If adopted in its current form, the Framework Decision will require all E.U.
states to penalise “publicly inciting to violence or hatred directed
against a group of persons or a member of such a group defined by reference to
race, colour, religion, descent or national or ethnic
origin”.[34] They will
also be required to create an offence of “publicly condoning, denying
or grossly trivializing crimes of genocide, crimes against humanity and war
crimes... directed against a group of persons... defined by reference to race,
colour, religion, descent or national or ethnic origin when the conduct is
carried out in a manner likely to incite to violence or hatred against such a
group...”.[35] A similar
offence will apply in relation to the denial or trivialisation of crimes defined
by the Nuremburg Tribunal.[36] There
is an exception, however, which provides that states may elect not to punish
conduct which falls within the definitions above unless it is either “carried out in a manner likely to disturb public order” or “threatening, abusive and
insulting”.[37]
Under the terms of the Framework Decision states will also be obliged to
ensure that the maximum sentence for the offences above is at least 1-3 years
imprisonment, and to ensure that any ‘racial and xenophobic
motivation’ is taken into account as an aggravating factor for other
criminal offences.[38]
The Decision lays out a framework for criminalizing the aiding, abetting and
instigating of such offences, and for ensuring that legal persons may be held
liable for actions carried out on their
behalf.[39] It also requires states
to put in place mechanisms to ensure that investigation and prosecution is “not dependent on the report or accusation made by the
victim”, in order to ensure that the law protects those who are
vulnerable and unable to complain on their own
behalf.[40]
While there are no specific exceptions, such as those which appear in the
Australian and Canadian acts, the Framework Decision states that it “shall not have the effect of modifying the obligation to respect
fundamental rights and fundamental legal principles, including the freedom of
expression and association, as enshrined in Article 6 of the Treaty establishing
the European Union”.[41] This article incorporates the rights declared in the European Convention for
the Protection of Human Rights and Fundamental Freedoms, including article
10:
- “Everyone has the right to freedom of expression. This right shall
include freedom to hold opinions and to receive and impart information and ideas
without interference by public authority and regardless of frontiers... - The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions
or penalties as are prescribed by law and are necessary in a democratic society,
in the interests of national security, territorial integrity or public safety,
for the prevention of disorder or crime, for the protection of health or morals,
for the protection of the reputation or rights of others, for preventing the
disclosure of information received in confidence, or for maintaining the
authority and impartiality of the
judiciary."[42]
In
applying this article to cases involving racial and religious vilification laws,
the European Court of Human Rights has held that “there can be
no doubt that concrete expressions constituting hate speech, which may be
insulting to particular individuals or groups, are not protected by Article 10
of the Convention”.[43] This interpretation is reinforced by article 17 of the Convention, which states
that “(n)othing in this Convention may be interpreted as implying for
any State, group or person any right to engage in any activity or perform any
act aimed at the destruction of any of the rights and freedoms set forth
herein...” (including the right to freedom from
discrimination).[44]
At the same time, states may only place limits on hate speech which are
proportionate to the harm suffered and “necessary in a democratic
society.”[45] Thus, for
instance, the Court has found a Danish law that criminalised not only the making
of racially abusive statements, but the act of reporting such statements in a
non-supportive manner in a television news program, to be
‘unnecessary’ and thus invalid under article
10.[46] In other cases, the Court
has found that the law itself may be valid, but the application in a particular
case may contravene the convention. In Gunduz v Turkey, for example, the
Court found that insulting and derogatory remarks about the Turkish secular
state made by the accused were insufficiently serious to be classified as
‘hate speech’ and justify a conviction for religious
vilification.[47]
6.7 Constitutional Limitations on Racial Hatred Laws
In addition to appearing in the European Convention for the Protection of
Human Rights and Fundamental Freedoms, the right to freedom of expression is
also entrenched in both the U.S. Constitution and the Canadian Charter
of Human Rights and
Freedoms.[48] Even in Australia,
where the Constitution contains few express rights, the High Court has found an
implied right to freedom of political communication based on the democratic
nature of the political system.[49] In these jurisdictions, as in the European Union, these constitutional norms
have been used to challenge hate speech legislation, with varying degrees of
success.
6.7.1 Constitutional Limitations in the United States
The right to freedom of expression is most strictly interpreted in the United
States. As Neir emphasises: “Few countries in the world provide as
great a protection to free speech, and consequently racist speech, as the United
States”.[50] This
protection stems from the first amendment to the U.S. Constitution, which
states that: “Congress shall make no law... abridging the freedom of
speech.” While the courts have held that this right is not absolute,
and certain limitations on speech may validly be imposed by government, the
extent and nature of such permissible limitations is much narrower under U.S.
constitutional law than under the laws of many other states.
In the case of Chaplinsky v New Hampshire, the United States Supreme
Court recognised an area of speech described as ‘fighting words’
which could be validly subject to government regulation. These, the court held,
were words which “by their very utterance, inflict injury or tend to
incite an immediate breach of the peace”. Such words did not receive
the same degree of constitutional protection as other speech since “such utterances are no essential part of any exposition of ideas, and
are of such slight social value as a step to truth that any benefit that may be
derived from them is clearly outweighed by the social interest in order and
morality.”[51]
Based on this theory of ‘fighting words’, it might be possible to
infer that narrowly drafted racial vilification laws, which focus solely on
speech that ‘tends to incite an immediate breach of the peace’,
might be constitutionally legitimate. This assumption was overturned, however,
in the landmark case of R.A.V. v St Paul. In this case, the Supreme Court
considered state legislation which made it an offence to “place(..) on
public or private property a symbol, object, appellation, characterization or
graffiti, including, but not limited to, a burning cross or Nazi swastika, which
one knows or has reasonable grounds to know arouses anger, alarm or resentment
in others on the basis of race, color, creed, religion or
gender”.[52] The majority
of the court accepted that the legislation could be restrictively interpreted to
apply only to ‘fighting words’ which aroused ‘anger, alarm or
resentment’, and to exclude conduct which caused merely
‘offence’ or ‘hurt feelings’. They went on to find,
however, that while the government may have constitutional authority to regulate
the use of ‘fighting words’ in general, it “may not
regulate use based on hostility--or favoritism--towards the underlying message
expressed”. Thus, while it would be valid for the legislature to ban
the use of all communications which ‘arouse anger, alarm or
resentment’, to ban only the subset of those communications which express
racial hatred invalidly targets speech on the basis of its expressive content,
and is thus
unconstitutional.[53]
In a strong dissent (on this point), Justice Stevens made the argument that,
since it was accepted that the government could elect to ban only the most
severe and damaging examples of ‘fighting words’, it was legitimate
for the state to target racial hatred on the ‘reasonable and
realistic’ assumption that it causes “more severe harm to both
the target and to society than other
threats”.[54] This
argument appears to have gained further support from the majority in the case of Virginia v Black, which ruled that a state could specifically ban cross
burning with the intent to intimidate, rather than intimidation more generally, “because burning a cross is a particularly
virulent form of
intimidation.”[55]
While in some ways this is not a settled area of law, as indicated by the
somewhat conflicting cases of Black and R.A.V. cited above, both
cases support the premise that it is unconstitutional for the U.S. government to
regulate speech on the basis of the opinion and ideology expressed. It is thus
not possible in the United States to fulfill the ICERD requirement to prohibit
the dissemination of “ideas based on racial superiority or
hatred” since these ideas, along with all other ideological
viewpoints, are constitutionally protected.
While racist speech and the expression of racist ideas are protected, even in
circumstances where they may cause hurt or offence, it is important to emphasise
that racist actions, such as discrimination or racial motivated crime, do not
receive the same protection, even when it may be argued that such conduct is
‘expressive’ of the same ideas of racial supremacy and hatred. The
Supreme Court has upheld the constitutional validity of statutes which make
racial bias an aggravating factor when linked to crimes such as assault or
property damage.[56] It is also
constitutionally valid for the federal government to create specific offences
which apply to racially motivated violence and
threats.[57] While these offences do
not strictly target racial vilification, since they apply to acts that go beyond
the expression of racist ideology and offensive speech, they will be considered
in more detail later in this chapter along with other legislative responses to
racially motivated crime (see 6.8.2).
6.7.2 Constitutional Limitations in Canada
Racial hatred legislation has also been subject to constitutional challenge
in Canada, based on the Charter right to “freedom of thought, belief,
opinion and
expression”.[58] In R v
Keegstra, the Supreme Court considered s319(2) of the Canadian Criminal
Code, which prohibits the wilful promoting of racial
hatred.[59] The majority of the
court found that this clause did infringe on the right to freedom of expression,
but that it was saved by clause 1 of the Charter, which states that Charter
rights may be “subject only to such reasonable limits prescribed by law
as can be demonstrably justified in a free and democratic
society”.[60] In this
case, the Canadian Court also came to the conclusion that hate propaganda was “only tenuously connected with the values underlying the guarantee of
freedom of
expression”.[61] Based on
this view, which acknowledged a hierarchy of more and less constitutionally
valuable speech, the Court then went to find that “(p)arliament's
objective of preventing the harm caused by hate propaganda is of sufficient
importance to warrant overriding a constitutional
freedom.”[62]
6.7.3 Constitutional Limitations in Australia
In Australia, the right to freedom of expression is implied and not
expressed, and is limited to what is required for the effective operation of the
democratic system of government provided for under the
Constitution.[63] The test to
establish constitutional invalidity is set out in Lange v Australian
Broadcasting Corporation:
"... First, does the law effectively burden freedom of communication about
government or political matters either in its terms, operation or effect?
Second, if the law effectively burdens that freedom, is the law reasonably
appropriate and adapted to serve a legitimate end the fulfilment of which is
compatible with the maintenance of the constitutionally prescribed system of
representative and responsible
government...?"[64]
In Jones v Scully, the Federal Court acknowledged that the Racial
Discrimination Act 1975 (Cth) could in some circumstances burden the
freedom of communication about political or government matters, but nonetheless
found it to be constitutionally valid, as it satisfied the requirements of the
second part of the test in Lange. The court held that the Racial
Discrimination Act was reasonably appropriate and adapted to achieving the
legitimate end of eliminating racial discrimination, and that “the
constitutionally prescribed system of government does not require an unqualified
freedom to publish offensive matter or perform offensive acts that are based on
race”.[65]
6.8 Other Approaches to Racially Offensive Behaviour and the Extension of
Racial Vilification Law to Other Grounds
While not directly relating to the prohibition of racial vilification, it is
important to mention several issues which often arise in the same context. These
are, the extension of racial vilification laws to cover other grounds, such as
religion or sexual orientation, and the use of racial bias as an aggravating
factor when imposing sentence for other crimes, such as assault or damage to
property. Finally, this chapter will examine other offences which are being used
to combat racially motivated offensive conduct, such as the offence of racial
harassment.
One key controversy which has often surfaced with regards to racial
vilification laws is the extent to which they should be extended to protect
individuals from vilification on other grounds, such as religion. Protection
from religious vilification has frequently been controversial, due principally
to that fact that while religion, like race, is a personal characteristic, which
may be used as a basis for vilification and discrimination, it is also a set of
beliefs which may be open to challenge and debate in a free and multicultural
society.
In response to this difficulty, each of the four jurisdictions (excluding the
United States, which has neither race nor religious vilification laws, for
reasons set out above) has taken a different approach. In Canada, the relevant
sections of the Criminal Code apply equally to vilification on the
grounds of race, religion and (since 2004) sexual
orientation.[66] In the United
Kingdom, in contrast, racial vilification laws have not previously been applied
to religious vilification. In 2006, the Racial and Religious Hatred Act introduced new offences of religious vilification, which commenced operation in
October 2007.[67] Although these new
laws are based on the existing racial hatred legislation, they provide
significantly lesser protection for religious vilification. Most notably, the
religious vilification laws apply only when the offender intends to stir up
religious hatred by their actions, and not when it is merely a likely
consequence. They are also limited to prohibiting ‘threatening’
words or behaviour, and not those that are ‘abusive and
insulting’.[68] In addition,
the act specifically creates an exception for “discussion, criticism or
expressions of antipathy, dislike, ridicule, insult or abuse of particular
religions or the beliefs or practices of their adherents, or of any other belief
system or the beliefs or practices of its adherents, or proselytising or urging
adherents of a different religion or belief system to cease practising their
religion or belief
system.”[69] This broad
exemption is designed to permit criticism, even unpleasant and offensive
criticism, of religious beliefs, while making it unlawful to incite hatred
against individual adherents of that religion.
At first glance, the proposed Framework Decision for the European Union
appears to require member states to provide equal minimum protections against
racial and religious hatred.[70] Religion, however, is curiously defined by the Decision, which states that “the reference to religion is intended to cover, at least, conduct which
is a pretext for directing acts against a group of persons or a member of such a
group defined by reference to race, colour, descent, or national or ethnic
origin.”[71] This
‘compromise position’ appears to give little protection to groups
who are victimised on the basis of religion alone, and do not belong to a
recognised racial or ethnic minority.
The Australian federal legislation does not protect individuals from
vilification on the grounds of religion, except in so far as the act is done for
a mixture of racial and religious motives, in which case (as noted above), race
need not be the sole or dominant reason for the
act.[72] Some religious communities,
such as Jews or Sikhs, may also be protected under federal law on the basis that
they constitute a ‘race’ or ‘ethnic group’ with shared
cultural history and geographic origins. However other religious groups such as
Christians or Muslims, which encompass a diverse range of cultural and ethnic
backgrounds, are unlikely to fall within this
definition.[73] Some state
jurisdictions in Australia provide protection from religious vilification,
however in many states there remains no relevant law covering this
area.[74]
6.8.2 Racially Motivated Crime
Another issue which often arises in the context of racial vilification is how
the state should respond when racial hatred goes beyond words, and is expressed
in criminal acts of violence, assault, property damage and public disorder.
Crimes such as these are generally prohibited regardless of the motivation of
the offender, however many jurisdictions have elected to acknowledge the
particular harm caused by racially motivated crimes, which affect not only the
individual victim, but the targeted group as a whole. This can be done by either
creating a separate category of racially motivated offences, or taking racial
bias into account as an aggravated factor in sentencing.
In its forthcoming Framework Directive, the European Union will require every
member state to “take the necessary measures to ensure that racist and
xenophobic motivation is considered an aggravating factor, or, alternatively
that such motivation may be taken into consideration by the courts in the
determination of
penalties.”[75] The
Framework Decision also emphasises that decisions to prosecute offences
involving racism or xenophobia should not be “dependent on reports or
accusations made by victims, who are often particularly vulnerable and reluctant
to initiate legal
proceedings.”[76]
In the United Kingdom, the new European Union policy is unlikely to require
any major legislative change, since British law already contains a number of
special provisions regarding hate crimes. The Crime and Disorder Act 1998 (UK) has created a special category of ‘racially aggravated
offences’, which include assault, criminal damage, and public order
offences “motivated (wholly or partly) by hostility towards members of
a racial group based on their membership of that
group”.[77] For all other
offences, the Criminal Justice Act 2003 (UK) requires the court to impose
a higher penalty where it can be shown that an offence was motivated by
hostility towards persons of a particular racial group, or by the presumed
sexual orientation or disability of the
victim.[78] Similarly, the Canadian
and United States Courts are obliged to take into account prejudicial motivation
of the offender as an aggravating factor when imposing sentence, regardless of
whether such prejudice is based on race, religion, gender, disability or sexual
orientation.[79]
The United States has also enacted a number of federal offences which apply
specifically to racially motivated crimes. It is an offence, for instance, to
use force or the threat of force to ‘injure, intimidate or interfere
with’ a person of a particular race because they are undertaking certain
federally protected activities, such as attending school, applying for
employment or serving as a
juror.[80] The Local Law
Enforcement Hate Crimes Prevention Act, currently awaiting approval by the
U.S. Senate, will, if passed, create further federal offences of “wilfully caus(ing) bodily injury... through use of fire, a firearm, or an
explosive or incendiary device” to a person because of their actual or
perceived race, colour or religion, and will no longer require evidence that the
victim was undertaking a ‘federally protected activity’ at the
time.[81] This Act will also
authorise the federal authorities to make grants and otherwise provide
assistance to local bodies responsible for the investigation and prosecution of
violent hate crime, providing access to greater federal resources in order to
ensure that such crimes are effectively dealt
with.[82]
In contrast to the other four jurisdictions, Australian federal law does not
specifically address racially motivated crime, either as a separate category of
offence, or as an aggravating factor with the potential to lead to a higher
sentence. Even within the state and territory jurisdictions, which deal with the
bulk of criminal offences in Australia, only New South Wales and the Northern
Territory specifically include racial hatred as an aggravating
factor.[83]
The creation of a specific federal offence of racial violence was recommended
by HREOC’s National Inquiry into Racist Violence in
1991,[84] and by the Australian
Law Reform Commission in
1992,[85] but these recommendations
have so far not been implemented.
Another recent development in modern race-discrimination law has been the
development of the offence of racial harassment. Harassment has been defined in
the European Union Directive as “unwanted conduct related to racial or
ethnic origin (which) takes place with the purpose or effect of violating the
dignity of a person and of creating an intimidating, hostile, degrading,
humiliating or offensive
environment.”[86] To some
extent, harassment may cover elements of both racial vilification and racially
motivated criminal offences, since it may involve both offensive comments and
displays of racism and actions such as low level assault or property damage. It
is also unique, however, in that it acknowledges the cumulative impact of a
number of different events, rather than assessing each incident in
isolation.
Under Canadian law, harassment is a ‘discriminatory practice’
subject to the same civil penalties as racial discrimination. The Canadian
Human Rights Act makes it unlawful “to harass an individual on a
prohibited ground of discrimination” in a number of different fields,
including the provision of goods and services, access to public facilities and
commercial or residential accommodation and in matters related to
employment.[87] The Canadian
Human Rights Commission defines as harassment “any behaviour that
demeans, humiliates, or embarrasses a person, and that a reasonable person
should have known would be
unwelcome.”[88]
In the United Kingdom, racial harassment is both unlawful under the
race-discrimination regime, and a criminal offence. In 2003, changes to the Race Relations Act were implemented which made racial harassment unlawful in
the areas covered by the European Union
directive.[89] The statutory
definition of harassment closely follows the Directive, defining it as “unwanted conduct [on the grounds of race or ethnic or national
origins] which has the purpose or effect of violating that other
person’s dignity, or creating an intimidating, hostile, degrading,
humiliating or offensive environment for
him”.[90] It notes,
however, that “(c)onduct shall be regarded as having... [the
effects above] only if, having regard to all the circumstances, including in
particular the perception of that other person, it should reasonably be
considered as having that
effect.”[91]
Racially aggravated harassment is also prescribed by the Crime and
Disorders Act 1998 (UK).[92] Under this act, it is a criminal offence for a person to pursue a course of
conduct (which must involve at least two separate occasions) which he “knows or ought to know” amounts to harassment of another
person, and which is motivated by racial hostility. It is also an offence, for
racially motivated reasons, “to cause(..) another to fear, on at least
two occasions, that violence will be used against him... if he knows or ought to
know that his course of conduct will cause the other so to fear on each of those
occasions”.[93] Although
these are criminal offences, with potential penalties of up to 2 years
imprisonment for racial harassment, and up to 7 years for causing fear of
violence, they do not require proof of intent or subjective knowledge. It is
sufficient if a reasonable person in possession of the same information as the
accused would know that his conduct amounts to harassment or would cause another
person to fear violence.[94]
While there is no equivalent offence in Australian federal law, racial
harassment is an offence under the state laws of Western Australia. The Equal
Opportunity Act 1984 (WA) makes racial harassment unlawful when it
occurs in the context of employment, education or in relation to
accommodation.[95] Intentional
harassment is also a criminal offence under the Western Australian Criminal
Code.[96]
[1]International Convention on
Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS
171, Article 20(2) (entered into force generally 23 March
1976).
[2] International
Convention on the Elimination of All Forms of Racial Discrimination, opened
for signature 21 December 1965, 660 UNTS 195, art 4 (a) (entered into force
generally 4 January 1969).
[3]http://www.ohchr.org/english/countries/ratification/2.htm#reservations (accessed 7/10/07).
[4]http://www.ohchr.org/english/countries/ratification/2.htm#reservations (accessed 7/10/07).
[5] See Concluding Observations of the Committee on the Elimination of Racial
Discrimination: Australia, UN Doc CERD/C/AUS/CO/14 (14 April 2005),
paragraph 12;“The Committee notes that Australia has not withdrawn its
reservation to article 4 (a) of the Convention. It notes with concern that the
Commonwealth, the State of Tasmania and the Northern Territory have no
legislation criminalizing serious acts of racial hatred or incitement to racial
hatred.”
[6]Racial
Discrimination Act 1975 (Cth) s
18C.
[7]Racial Discrimination
Act 1975 (Cth) s 18B.
[8]Criminal Code Act 1995 (Cth) s
80.2(5).
[9] Australian Law Reform
Commission, ‘Fighting Words: A Review of Sedition Laws in Australia’
(2006) ALRC Report 104, s 10.61 and generally Chapter
10.
[10] Australian Law Reform
Commission, ‘Fighting Words: A Review of Sedition Laws in Australia’
(2006) ALRC Report 104, s
10.47.
[11]Criminal Code,
RS 1985, c. C-46 s 318.
[12]Criminal Code, RS 1985, c. C-46 s
319(1).
[13]Criminal
Code, RS 1985, c. C-46 Code s
319(7).
[14]Criminal
Code, RS 1985, c. C-46 s
319(2).
[15] Dickson C.J. and
Wilson, L'Heureux-Dubé and Gonthier JJ, R. v Keegstra, [1990] 3
SCR 697.
[16]Canadian Human
Rights Act, RS 1985, c. H-6 s
13(1).
[17] See Public Order
Act 1986 (U.K.) c 64 ss 17-22. Note that the Act also covers the presenting
or directing of a public performance of a play, the public showing of a
recording and the broadcasting of a program service. It also makes it offence to
possess offensive material for the purpose of making it public (s23).
[18]Public Order Act
1986 (U.K.) c 64 s
18(5).
[19]Public Order Act
1986 (U.K.) c 64 ss 19(2) and
21(3).
[20]Public Order Act
1986 (U.K.) c 64 ss 20(2)(c) and
22(5)(b).
[21]Public Order
Act 1986 (U.K.) c 64 s
27(3).
[22] Criminal Code,
RS 1985, c. C-46 ss 318(1), 319(1) and
319(2).
[23]Public Order Act
1986 (U.K.) c 64 s
27(1).
[24]Criminal Code Act 1995 (Cth) s 80.5A, Criminal Code, RS 1985, c. C-46 s 318(3)
and s 319(6).
[25] For a
discussion of standing requirements, see Chapter
2.
[26]Racial Discrimination
Act 1975 (Cth) s 18C(2).
[27]Criminal Code, RS 1985, c. C-46 s
319.
[28]Public Order Act
1986 (U.K.) c 64 s
18(2).
[29]Public Order Act
1986 (U.K.) c 64 s
18(4).
[30]Racial
Discrimination Act 1975 (Cth) s
18D.
[31]Criminal Code,
RS 1985, c. C-46 s 319(3).
[32]Public Order Act 1986 (UK) c 64 s 26. Note that a much broader exemption
applies in the area of religious vilification, which is discussed below at
6.8.1.
[33]Human Rights Act
1998 (UK) c 42 s 3.
[34] Council of the European Union, ‘Proposal for a Council Framework Decision
on combating racism and xenophobia’, 8544/07 DROIPEN 34 (Brussels, 17
April 2007), annex 1, art 1(a)
http://register.consilium.europa.eu/pdf/en/07/st08/st08544.en07.pdf (accessed 30/8/07).
[35] Ibid art
1(c).
[36] Ibid art
1(d).
[37] Ibid art
1a.
[38] Ibid art 3(2) and art
4.
[39] Ibid art 2 and art
5-6.
[40] Ibid art
9.
[41] Ibid art
7.
[42]Convention for the
Protection of Human Rights and Fundamental Freedoms, opened for signature 4
November 1950, CETS 5 (entered into force 3 September 1953), art
10.
[43]Gunduz v Turkey (2003) Eur Court HR 35071/97 at para
41.
[44] See Convention for
the Protection of Human Rights and Fundamental Freedoms, opened for
signature 4 November 1950, CETS 5 (entered into force 3 September 1953), arts
17 and 14.
[45]Convention for
the Protection of Human Rights and Fundamental Freedoms, opened for
signature 4 November 1950, CETS 5 (entered into force 3 September 1953), art
10.
[46]Jersild v Denmark (1994) Eur Court HR
15890/89.
[47]Gunduz v
Turkey (2003) Eur Court HR
35071/97.
[48] U.S. Constitution,
amend I and Canadian Charter of Rights and Freedoms, Schedule B Constitution Act 1982 (UK) cl
2(b).
[49] For further: Griffiths
L ‘The Implied Freedom of Political Communication: The State of the Law
Post Coleman and Mulholland’ (2005) 12 James Cook University Law Review 93.
[50] Neir C L,
‘Racial Hatred: A Comparative Analysis of the Hate Crime Laws of the
United States and Germany’ (1994-95) 13 Dickinson Journal of International
Law 241 at 265.
[51]Chaplinsky v. New Hampshire (1942) 315 U.S. 568 at
572.
[52]RAV v City of St
Paul 505 U.S. 377
(1992).
[53] Scalia J (writing
for the majority) in RAV v City of St Paul 505 U.S. 377
(1992).
[54] Stevens J RAV v
City of St Paul 505 U.S. 377 (1992); see also the dissent (on this point) of
White J.
[55]Virginia v Black
et. al., 538 U.S. 343 (2003). Note, however, that the court specifically
made reference to the fact that ‘cross burning’ need not require
racial motive, and is therefore not specifically targeting a particular
‘ideology’ of racial hatred. This analysis seems somewhat
contradictory, however, since it may be argued that it is primarily the racial
history of cross burning, and its use in this context, which has made it such a
‘virulent form’ of
intimidation.
[56]Wisconsin v
Mitchell (92-515), 508 U.S. 47
(1993).
[57] See e.g. 18 USC
§§ 241-245.
[58]Canadian Charter of Rights and Freedoms, Schedule B Constitution Act
1982 (U.K.) cl 2(b).
[59]R v Keegstra, [1990] 3 S.C.R.
697.
[60]Canadian Charter of
Rights and Freedoms, Schedule B Constitution Act 1982 (U.K.) cl
1.
[61]R v Keegstra,
[1990] 3 S.C.R. 697.
[62] Dickson
C.J. and Wilson, L'Heureux-Dubé and Gonthier JJ, R v Keegstra,
[1990] 3 S.C.R. 697.
[63] Jones v Scully [2002] FCA 1080 (2 September 2002) at
235.
[64]Lange v Australian
Broadcasting Corportation (1997) 189 CLR 520 at
567-568.
[65]Jones v
Scully [2002] FCA 1080 (2 September 2002) at
239.
[66] Criminal Code,
RS 1985, c. C-46 ss 318-320.
[67]Racial and Religious Hatred Act 2006 (UK) c
1.
[68] Public Order Act
1986 (UK) c 64 ss
29A-29F.
[69]Public Order Act
1986 (UK) c 64 s 29J.
[70] See: Council of the European Union, ‘Proposal for a Council Framework
Decision on combating racism and xenophobia’, 8544/07 DROIPEN 34
(Brussels, 17 April 2007), art 1(1)(a), which requires states to punish
“publicly inciting to violence or hatred directed against a group of
persons or a member of such group defined by reference to race, colour,
religion, descent or national or ethnic origin.”
http://register.consilium.europa.eu/pdf/en/07/st08/st08544.en07.pdf (accessed 30/8/07).
[71]Ibid, art
1(1)(b).
[72]Racial
Discrimination Act 1975 (Cth) s
18B.
[73] See further the
discussion in: Human Rights and Equal Opportunity Commission Isma –
Listen: National consultations on eliminating prejudice against Arab and Muslim
Australians (2004) at
1.3.1.3.
[74] Queensland,
Victoria and Tasmania currently have laws prohibiting religious vilification,
while the remaining states of NSW, Western Australia, South Australia and the
Territories do not. Ibid at
1.3.2.4.
[75] Council of the
European Union, ‘Proposal for a Council Framework Decision on combating
racism and xenophobia’, 8544/07 DROIPEN 34 (Brussels, 17 April 2007),
annex 1, art 4
http://register.consilium.europa.eu/pdf/en/07/st08/st08544.en07.pdf (accessed 30/8/07).
[76] Ibid cl
8.
[77]Crime and Disorder Act
1998 (U.K.) c 37 ss
28-31.
[78]Criminal Justice
Act 2003 c 44 ss
145-146.
[79] 18 USC Appx § 3A1.1; Criminal
Code, RS 1985, c. C-46 s
718.2.
[80] 18 USC
§
245.
[81] Local Law Enforcement
Hate Crimes Prevention Act of 2007 H.R. 1592 (110th U.S. Congress:
2007-2008) s 6.
[82] Ibid s
3.
[83] See: Sentencing Act
1995 (NT) s 6A(e) “the offence was motivated by hate against a group
of people”; and Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A
(2)(h) “the offence was motivated by hatred for or prejudice against a
group of people to which the offender believed the victim belonged (such as
people of a particular religion, racial or ethnic origin, language, sexual
orientation or age, or having a particular
disability)”.
[84] Moss I,
‘The Report of the National Inquiry into Racist Violence’ (1991)
49(2) Aboriginal Law Bulletin 16.
[85] Australian Law Reform
Commission, ‘Multiculturalism and the Law’ (1992) ALRC 57 at
7.33.
[86]Council Directive
2000/43/EC of 29 June 2000 implementing the principle of equal treatment between
persons irrespective or racial or ethnic origin [2000] OJ L180/22, art
2(3).
[87]Canadian Human
Rights Act, RS 1985, c. H-6 s
14.
[88] Canadian Human Rights
Commission, Anti-Harassment Policies for the Workplace: An Employer’s
Guide (2006) at 1.2.
[89] For
a discussion of grounds which the UK government considers are not covered by the
directive, see above 3.1.
[90]Race Relations Act 1976 (UK) c 74 s 3A
(1).
[91]Race Relations Act
1976 (UK) c 74 s 3A (2).
[92]Crime and Disorder Act 1998 (UK) c 37, s
32.
[93]Protection from
Harassment Act 1997 (UK) c 40, s 4 (1); as referenced by the Crime and
Disorder Act 1998 (UK) c 37, s
32.
[94]Protection from
Harassment Act 1997 (UK) c 40, ss 1(2) and 4(2) as referenced by the Crime and Disorder Act 1998 (UK) c 37, s
32.
[95]Equal Opportunity Act
1984 (WA) ss 49A-49C.
[96] Criminal Code (WA) ss 79-80.
