ADA: Race, religion, sexuality and gender identity.
RDA: Race, colour, national or ethnic origin.
Racial vilification is not a criminal offence under the RDA.
However, serious vilification is a criminal offence under s131A ADA.
Must get the consent of the A-G or DPP to commence proceedings.
Wagga Wagga Aboriginal Action Group v Eldridge:
At an International Year of Indigenous Peoples rally, a Wagga council Alderman, Eldridge, yelled
abuse at aborigines about Native Title and other things.
He made similar comments ‘half caste radicals’ in council meetings.
Eldridge argued that the RDA was invalid, because we have a constitutional right to free speech,
which we don’t.
ELEMENT 1: State the Elements of Racial Vilification
s18C RDA: Racial vilification is:
1) An act, which is reasonably likely to offend, insult, humiliate or intimidate
another person or a group of people;
2) 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;
3) The act is done:
a) In a public place; or
b) In the sight or hearing of people in a public place; or
c) The act causes words, sounds, images or writing to be communicated to the
Sub-Element 1: ‘Reasonably Likely’ to Offend, Insult or Humiliate
The following are examples of what are not likely to offend.
Harou-Soudan v Channel 9:
Person on TV show said that French people are a bit short on personal hygiene.
Held: Dismissed as trivial.
Neal v Sunday News Auckland Newspapers:
Australians were visiting a son in NZ.
A competition in the local paper asked for the best Anti-Australian joke in the context of sport.
The Australians took offence, claiming that the jokes were racist against Australians.
Held: The jokes did not incite hatred or ill will, and did not insight contempt, they were just jokes.
Aegean Macedonian Association of Australia v Karagiannakis; Miller v Wertheim:
Both of these cases were articles or statements made within Jewish communities.
Held: These articles or statements did not insight contempt or hatred, they were just reflections of
bad feelings between the two factions of those ethnic groups, both dismissed.
During the second reading speech of the Racial Hatred Act, the A-G said that the term
‘reasonably likely’ is measured against community standards of conduct, rather than
the subjective views of the complainant.
Before Bropho’s case, people thought that it was a subjective test, the reasonable
But Bropho’s points to an objective test, a community standard.
Hagen v Trustees of the Toowoomba Sports Ground Trust:
An aboriginal found the name of the ‘Nigger’ Brown sports stand offensive.
Nigger Brown was a football player honored by naming the stand after him.
Hagan said that it was offensive to all aboriginals.
Held by Federal Court: The objective community test meant that, because the sign had been up for
40 years and no one had complained, the community didn’t find it offensive, and therefore, the
indigenous community did not find it offensive.
It was not reasonably likely to offend, no racial context.
It was not put up because of race.
Held by Full Federal Court: Agreed with Federal Court.
Held by High Court: Agreed with Federal Court.
Appeal to UN: Recommendation that the Howard Government take action to have the word
‘nigger’ removed from the sign, because at the present time, it could be considered offensive and
However, it did not happen.
It is not that easy to instruct a government, the UN has no power to enforce.
Sub-Element 2: Done Because of the Race, Colour or National or Ethnic Origin
Feghaly v Oldfield:
In an interview with a newspaper, One Nation member David Oldfield said that home based
invasions were ethnically based, Lebanese and Iranian, not Australian.
This was published in the paper.
Every republishing is a new action.
The Lebanese and Iranians complained.
Oldfield denied that he had said it.
The Commissioner accepted the interviewer’s notes as evidence.
Held: Where an act singles out ethnic groups for no reason, it was done because of race or ethnic
Ordered to publish a statement saying that he did not intend to be offensive and that he did not
believe the truth about what he said.
Creek v Cairns Post:
An article about a 2yr old aboriginal child who had been taken from her white foster parents and
returned to her aunty, Mrs. Creek, was published in a newspaper.
Along with the article was a collage of three photos.
The middle photo was a picture of the child, on one side was a picture of the foster parents in a
nice home, and on the other side was a picture of the aunty at a bush camp looking like a mess.
There was an implication that the child was better off with the good life of the foster parents.
In actual fact, Mrs Creek had a four bedroom house in Cairns.
The picture of her was from when she helped find a lost bushwalker several years earlier.
She claimed vilification based on race.
Held: It looked as though Mrs Creek would be offering less favorable conditions, and a reasonable
aboriginal would be insulted, based on a comparison of lifestyle.
Nevertheless, Mrs Creek failed to prove that the publication was because of race, the paper was
just careless in its choice of photograph.
She had to prove a causal connection between her race and the photographs.
Sub-Element 3: In a Public Place
Anderson v Thompson:
The Complainant was called racist names in the stairwell of a block of flats.
Held: A public place.
R v D and E Marinkovic:
A racist note was placed on the front door of a flat.
Even though you needed access to get into the complex and it was only open to residents, it was
held to be a public place.
Burns v Dye:
In a block of flats, Burns was called gay names, graffiti was put on his door, abuse was shouted at
him, faeces was left at his front door and his lock was super glued shut.
Held: A public place, even though only a small section of the public.
It was capable of being overheard, even if no one was there.
It doesn’t need to be heard, just capable of being heard.
Jones v Toben:
Toben published material on the internet, which was sponsored by the Adelaide Institute, ranting
and raving and vilifying Jews.
He said that the holocaust didn’t exist.
In court, Toben just continued to rant and rave.
Held: The internet is a public place.
McMahon v Bowman:
There was two neighbors.
On one side was McMahon, who was an aboriginal with a Fijian wife.
Their child hit a ball over the fence.
Their neighbor said ‘come and get your ball, you black bastard, you are all the f..ing same’.
McMahon said okay, but when he got next door, the neighbor said ‘get off my property, you black
McMahon said that his child wanted to appoligise, but the neighbor kept making racist comments
and a fight broke out on the front lawn.
Held: The legislation doesn’t cover things said in private, however, because this was in the front
yard, and close to the road, which is public.
It doesn’t have to be heard, it just has to have the potential of being heard.
If it happened in the backyard, it would probably have been considered private.
ELEMENT 2: State The Effect of an Apology
McGlade v HREOC:
Senator Lightfoot was interviewed by a reporter from the Financial Review, and asked should
aboriginal culture be taught in schools?
He replied ‘no, aboriginal people in their native state are the most primitive people on earth, if you
want to pick up some aspects of the aboriginal culture which are valid in the 21 st century, that
aren’t abhorrent, that don’t have some of those sexual practices hidden in them, id be happy to
listen to them’.
This was published in the Financial Review, and republished in the Western Australian.
After pressure from the Liberal Party, he appoligised in the Senate, and said ‘I refer to a statement
that I made earlier today, I wish to unreservedly appoligise to any Australian who may have been
given offence by the remarks I made’.
‘I regard all Australians, irrespective of their race or background, to be completely equal, entitled
to equality of treatment without discrimination of any kind, any views to the contrary whish I may
have expressed in the past, I no longer hold’.
‘I respect the aboriginal people of Australia and support practical measures to address their
‘I wish to make it clear that I did not intentionally wish to give offence to anybody’.
The Human Rights commission refused to consider it, saying that it was no longer valid because
of the apology.
Federal Court held: No evidence that the Senator had changed his opinion, despite his apology.
HREOC was wrong to dismiss the case, the apology only mitigates the damages.
The statement was reasonably likely to offend.
Lightfoot argued that it wasn’t him who caused the words to be published.
Held: In an interview, which you have chosen not to give it off the record, it is reasonable to think
that it will be repeated in the media.
Lightfoot claimed public interest exemption, that hearing that aboriginals were primitive was in
the public interest.
Held: To be in the public interest, it must be said in good faith, here not said in good faith.
Order that Lightfoot pay McGlade’s legal costs and it was held that the comments amounted to
ELEMENT 3: State the Definition of Racial Vilification in the ADA (Qld)
s124A(1) ADA: Vilification on the grounds of race, religion, sexuality or gender
identity, it is unlawful to incite or encourage vilification.
ELEMENT 4: Racial Vilification Exemptions
The exemptions in s18D RDA and s124(2) ADA are similar.
Bropho v HREOC:
In WA, there was dissention among some aboriginal groups as to who was going to go to England
to bring back the head of an aboriginal man taken in the 19 th century and put in a museum.
The head was of a man called Yaygan, who was like an indigenous Ned Kelly.
The English museum promised to give the head back, the elders were to go and get it.
There was dissention in the groups as to who’s ancestor he was, and who should go.
This was the subject of a lot of comment in the press over several weeks.
A cartoon with an indigenous man talking to a group of indigenous children about Yaygan and his
head, saying ‘Crikey, give me a warm beer in a Pommy pub any day’.
The cartoon implied that the aboriginals were from Jamaica and that they get drunk.
Indigenous people took offence.
Full Federal Court held: Reasonably likely to offend, and was about race.
The cartoonist had run it by the newspaper manager, who gave it the okay.
French J and the majority said: It doesn’t have to refer directly to race, so long as it is done
because of race.
However, there are exemptions.
Has it been done reasonably and in good faith?
Reasonably means that it is not out of proportion to its purpose.
The purpose of a political cartoon is to incite political discussion.
Held: Reasonable, not out of proportion.
Good faith: Did the person believe in the honesty and truth of what they were saying?
Did they take steps to minimize the offence?
Was it honest, even though exaggerated?
This has to be tested both subjectively and objectively.
Subjectively: Did the cartoonist do it in good faith?: Yes.
Objectively: What would the reasonable person think?: Cartoons by their very nature are
exaggerated. Sometimes they are unjust, but that doesn’t make them in bad faith.
Held: Done reasonably and in good faith, it wasn’t dishonest, it wasn’t done recklessly or
s18D(a) RDA: Cartoon is an art work.
s18D(b) RDA: It was in the course of a discussion and debate of public interest in the context of
the previous publications.
However, it wasn’t a fair report under s18D(c) RDA.
Sub-Element 1: Exemptions in s18D RDA (Cth)
s18D: Done reasonably and in good faith:
a) In the performance, exhibition or distribution of an artistic work;
b) 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;
c) In making or publishing a fair and accurate report of any event or matter of public
ii. 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.
Done Reasonably and in Good Faith: Bropho v HREOC
Reasonably: Not out of proportion to its purpose.
In Good Faith: The test requires both a subjective (the respondent) and an objective
(the reasonable person) test:
No dishonesty, malice, fraud.
Not done recklessly or carelessly.
Artistic work cant be separated into parts, must look at the whole picture.
Must look at a publication in the context of other articles, etc. about the issue by the
Dissenting, Lee J: Reasonableness must be judged against the harm it could cause.
Sub-Element 2: Exemptions Elsewhere
Not in the RDA, so for Cth, must look to s 16 Parliamentary Privileges Act 1987
(Cth); s49 Constitution; and Art 9 Bill of Rights 1688 (England).
Absolute parliamentary privilege.
For Queensland: s124A(2)(b)&(c) ADA (Qld).
Also, there is a Constitutionally implied right to free speech.
s124A(2)(c) ADA (Qld): A public act done reasonably and in good faith in the context
of public discussion and debate in the run up to the election.
Deen v Lamb:
Lamb was a Federal election candidate who distributed a pamphlet throughout his electorate,
which expresses his views on the Islamic faith, using quotations from the Koran to support his
view that Muslim people would not obey the laws of Australia, but would obey the laws of Islam.
This was two months after September 11.
The pamphlet said that Australia should not accept Muslim immigrants and refugees, and that all
Muslims are linked to Osama Bin Laden.
It said that all Muslims are dangerous and would not stop at murder.
He unfavorably compared the Koran to the Bible.
Lamb argued a constitutional right to free speech, which was accepted.
Deen, the chairman of the Islamic council, complained, asking for an injunction to stop the
distribution of the pamphlets.
It was a public act.
By community standards, the comments were about race or religion.
And they would incite hatred or vilification.
s134(3) ADA: Where there is vilification, a relevant entity may complain.
The Islamic council was a body who purported to promote the interest of the group.
Held: Yes, a public act, and it was vilification, it linked Muslims to murderers.
However, it fell under the s124A(2)(c) ADA public discussion exemption.
He had a recognized right to free speech.
Some people in the electorate might want to know Lamb’s opinion on these matters.
Lamb acted in good faith.
It was not done to stir up hatred, but to attract votes.
Held: No vilification.