Guide to the Racial Hatred Act
The Racial Hatred Act, introduced in October 1995, extends the coverage of the RDA so that people can complain to the Australian Human Rights Commission about racially offensive or abusive behaviour. It aims to strike a balance between two valued rights: the right to communicate freely and the right to live free from vilification.
The Act covers public acts which are:
- done, in whole or in part, because of the race, colour, or national or ethnic origin of a person or group AND
- reasonably likely in all the circumstances to offend, insult, humiliate or intimidate that person or group.
The Act makes these acts unlawful UNLESS one of the exceptions applies. The following are not unlawful if "done reasonably and in good faith":
- an artistic work or performance (for example, a play where racist attitudes are expressed by a character)
- an academic publication, discussion or debate (for example, discussing and debating public policy such as immigration, multiculturalism or affirmative action for migrants)
- a fair and accurate report on a matter of public interest (for example, a fair report in the media of an act of racial incitement or racially offensive conduct)
- a fair comment if the comment is an expression of a person's genuine belief.
Burden of proof
The complainant is responsible for proving that the act was done in public, that it was done because of his or her ethnicity and that it was reasonably likely to offend, insult, humiliate or intimidate a reasonable person of that ethnicity.
The respondent is responsible for establishing that the act is covered by one of the exceptions and that it was done reasonably and in good faith.
The act must have occurred either within sight and hearing of other people or in a place to which the general public is invited or has access. If the act happened in a private telephone conversation or in a private place, such as a person's home, it is not unlawful. Acts covered include speaking, singing and making gestures in public as well as drawings and written publications such as newspapers, leaflets and websites.
Remarks disparaging Aboriginal people and using racial epithets were shouted by the respondent from his front verandah to his Aboriginal neighbour. The magistrate noted that passersby could have heard them. The respondent was ordered to pay $1,500 in compensation as well as the complainant's legal costs (McMahon v Bowman, Federal Magistrates Court, 13 October 2000,  FMC 3).
Offend, insult, humiliate or intimidate
The act must be reasonably likely to 'offend, insult, humiliate or intimidate'.
At a workshop organised by the local Council of which both parties were members, the respondent suggested a 'solution' to an issue in the Aboriginal community was to "shoot them". The complainant, an Aboriginal councillor, and two Council staff were present and gave evidence that the comment was not made flippantly. HREOC Inquiry Commissioner Innes said: "Suggesting that a particular group of people … should be shot is simply offensive. It is made more so when such a suggestion is made by the holder of a public officer who has no doubt sworn an oath to appropriately serve all of the people in the ward which he represents [including the Aboriginal community referred to]." The respondent was ordered to pay $1,000 compensation to the complainant (Jacobs v Fardig, 27 April 1999).
More than mere slights are required. Trivial impacts are not unlawful, but fall within a 'margin of tolerance'.
Newspaper letters and articles which referred to English people as "Poms" or "Pommies" did not meet the threshold for racial hatred. HREOC President Sir Ronald Wilson said: "I can imagine, albeit with some difficulty, that the words complained of in this case could be unlawful in the context of an article which was plainly malicious or scurrilous, designed to foster hatred or antipathy in the reader." The words on their own, however, were not sufficiently offensive to the reasonable person (Bryant v Queensland Newspapers, 15 May 1997).
On the other hand, complaints about two newspaper articles blaming English tourists for littering a local beach and headed "Filthy Poms" and "Poms fill the summer of our discontent" were accepted as complaints and settled through conciliation by the Commission when the newspapers published apologies.
Exception in 'good faith'
This means the act must have been done without spite, ill-will or any other improper motive. Lack of good faith in the context of artistic expression will only be established by "something approaching a deliberate intent to mislead or, if it is reasonably foreseeable that a particular racial or national group will be humiliated or denigrated by publication, at least a culpably reckless and callous indifference in that regard" according to the Commission Inquiry Commissioner Johnston (Bryl and Kovacevic v Nowra and Melbourne Theatre Company, 21 June 1999).
Complainants offended by a comedy set against the backdrop of the siege of Sarajevo and genocide in Bosnia-Herzegovina, argued the playwright should have been required to exercise diligence and care, through his research, to ensure he understood the truth of the situation. HREOC Inquiry Commissioner Johnston disagreed saying: "The problem, as I see it, is that to intrude into such matters as the state of knowledge or extent of research of the playwright comes close to an attempt to direct the way the playwright exercises his or her artistic insights … As I understand the import of section 18D [on exceptions], it is not intended as a charter for governmental bodies like the Commission to draw up standards or a rule book laying down what is acceptable in the way an artistic work is produced, or how it is reproduced in performance" (Bryl and Kovacevic v Nowra and Melbourne Theatre Company, 21 June 1999).
Fredrick Toben was ordered to remove material on the Holocaust from the Adelaide Institute’s website. Although Toben claimed the material was a genuine examination of the historical record, HREOC Inquiry Commissioner McEvoy found that it was unpersuasive as such and that its main purpose was to humiliate and denigrate Jewish people (Jones and Members of the Executive Council of Australian Jewry v Fredrick Toben on behalf of the Adelaide Institute, 5 October 2000).
Exception 'done reasonably'
This is an objective test. Whether or not the publisher, speaker or artist thought the act was reasonable, it is the ordinary person whose assessment is relevant. The context of the act or publication, community standards of morality and ethics and the impact on the community, on the targeted person or group and on race relations generally are all relevant.
It has been noted that "the suppression of political expression would be justified on only extreme grounds" (Walsh et al v Hanson and One Nation, the Commission Inquiry Commissioner Nader, 2 March 2000, unreported).
In finding that the book Pauline Hanson the Truth and comments about it to journalists by One Nation leaders were not unlawful, HREOC Inquiry Commissioner Nader said: "… the statements of the respondents must be regarded as done reasonably and in good faith for a genuine purpose in the public interest, namely in the course of a political debate concerning the fairness of the distribution of social welfare payments in the Australian community" (Walsh et al v Hanson and One Nation, HREOC Inquiry Commissioner Nader, 2 March 2000, unreported).
Taking action against racial hatred
A complaint to the Commission
If you believe you have been the victim of an unlawful act as defined in this fact sheet you may be able to lodge a complaint with the Australian Human Rights Commission. For further information on lodging a complaint please refer to the Complaints Information section. No fee is charged for receiving, investigating or handing a complaint.
You may also have other options such as:
- a complaint to your local State or Territory anti-discrimination and equal opportunity agencies. Click here to access further contact details.
- a complaint to the Australian Press Council about newspaper and magazine publications (1800 025 712)
- a complaint to the Australian Advertising Standards Council regarding advertisements (02) 9233 8874)
- a complaint to the Australian Broadcasting Authority about material on TV, radio or the Internet (02) 9334 7700)
- a complaint to the Australian Electoral Commission about election advertising (13 2326).