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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. In 1995, a controversial provision was introduced into the Act, making it unlawful to do an act in public that is likely to offend, insult or humiliate a person or group of people based on their race, colour, nationality or ethnicity. This page outlines the effect of section 18C and the criticisms of it.
What constitutes a breach of Section 18C?
Section 18C makes it unlawful to do an act in public if:
- the act is reasonably likely to offend, insult, humiliate or intimidate a person or group of people; and
- the act is done because of the race, colour, nationality or ethnic group of the other person or group.
An act is done in public if it is done in a public place, if it is done within the sight or hearing of the public or if it causes words, sounds, images or writing to be communicated to the public.
The tort created by section 18C 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.’
Breaches of section 18C
Some instances where claims under 18C have been upheld by courts are listed below.
- 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 to try to resolve the dispute, for example by obtaining an apology and/or a retraction. Most 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 covered by 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, there was a push for section 18C to be repealed, with critics of the provision arguing that it was too broad and undermined the right to free speech. The government proposed to change the words ‘offend, insult, or humiliate’ to ‘harass’ and 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 the freedom of individuals should not be curtailed because other people are offended or insulted and that other liberal democracies did not have laws against hate speech as stringent as this one.
Opponents of the proposed changes said that the protection offered by section 18C was important. They argued that the proposed changes 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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