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Racial Vilification and Section 18C

The Racial Discrimination Act 1975 prohibits discrimination on the basis of race in a variety of contexts. The act, which was passed by the Whitlam government in 1975, was amended in 1995 and Section 18C introduced. Section 18C makes it unlawful to do an act in public that is likely to offend, insult or humiliate a person or group of people on the basis of their race, colour, nationality and ethnicity.

The introduction of Section 18C was controversial and the provision has continued to cause controversy. Opponents of the provision say that it unreasonably curtails freedom of speech, while supporters say it is necessary to discourage racial vilification and promote a society free of racism.

What constitutes a breach of Section 18C?

Section 18C does not cover acts done in private. It also does not cover acts done ‘reasonably and in good faith’ for the purposes of artistic, academic, scientific or other public interest pursuits.

For an act to fall within Section 18C it must have ‘profound and serious effects, not to be likened to mere slights.’

Instances where claims under 18C have been upheld by courts include:

  • Distribution of material denying the Holocaust and claiming that Jews who asserted its truth were of low intelligence or motivated by financial gain;
  • A Ugandan worker being called a ‘black c**t’ and ‘f**cking black lazy bastard’ by a senior colleague in his workplace;
  • Comments published on an online news article about three Aboriginal children who had been killed in a car crash, which stated ‘I would use these scum as landfill’ and ‘let them all fight and kill each other.’

Breaches of 18C are not criminal offences, but civil wrongs.

How do I bring an action under Section 18C?

If you think you have been the victim of an act that falls under 18C, the first step to take is to report this to the Human Rights Commission (HRC). The HRC will refer the matter to conciliation in an attempt to resolve the dispute, for example by obtaining an apology and/or a retraction.  The vast majority of complaints made under Section 18C are resolved through conciliation.

If your claim cannot be resolved through conciliation, you can take it to court. If a court finds that a breach of Section 18C is made out, it can award monetary damages, which are assessed based on economic and non-economic loss.

Racial discrimination at work

Section 15 of the Racial Discrimination Act makes it unlawful for an employer to discriminate against an employee on the basis of their race. This includes refusing to hire someone, refusing to hire them on the same terms as others or treating them less favourably because of their race.

When a person is subjected to conduct within the meaning of Section 18C and the vilification occurs during the course of their employment, the employer may be found to be vicariously liable for the act of its employee under Section 18E. Where an employer is found to be vicariously liable for an act committed in breach of 18C, both it and the individual who committed the act are liable.

The liability of an employer for an act of one of its employees can be negated by the employer showing that it took reasonable steps to avoid the unlawful act occurring. What constitutes reasonable steps depends on the size and nature of the business and will be determined on a case by case basis.

Attempts to change 18C

During 2017, backbenchers pushed for the Section 18C to be repealed, arguing that the provision was too broad and undermined the right to free speech. The government wanted to change the words ‘offend, insult, or humiliate’ to ‘harass’. It also wanted to introduce a test requiring the act to breach the standards of ‘a reasonable member of the Australian community’. Supporters of the changes argued that people should not have the right not to be offended or insulted and that other liberal democracies do not have laws against hate speech as stringent as this one. Opponents of the changes said they were unnecessary and would cause uncertainty about the operation of Section 18C.

The motion was defeated and the section remained unchanged.

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