The legal response to racist Facebook posts about Nova Peris highlights the shortcomings of Australian hate speech laws, says PhD (Laws) student, Brooke Murphy.
FOLLOWING A racist tirade on Facebook against Labor senator Nova Peris, Chris Nelson was arrested and charged with using a carriage service to cause offence. The Facebook posts in question stated that Ms Peris was a
‘... black c***’
‘... go back to the bush and suck on witchity [sic] grubs.’
Nelson claims that his Facebook account was hacked and he did not write the offensive posts.
Alarmingly, the crime of using a carriage service to cause offence does not specifically deal with racial vilification. This means that no distinction is made between ordinary harassment and conduct which is evidence of systemic racism in our society.
Is racial vilification unlawful in Australia?
Australia has disregarded international moves towards criminalising hate speech. Article 4 of the International Convention on All Forms of Racial Discrimination (CERD) requires States to criminalise the
‘... dissemination of ideas based on racial superiority or hatred.’
Article 20 of the International Covenant on Civil and Political Rights (ICCPR) requires States to prohibit promotion of national, racial or religious hatred that incites discrimination, hostility and violence.
During ratification of the ICCPR and CERD, Australia made reservations to Article 4 and Article 20. Australia justified this move on the grounds of criminal punishment being both disproportionate to the harm caused by hate speech and a risk to freedom of speech. Due to these reservations, Commonwealth laws do not make racial vilification a criminal offence.
"White Australia has to get used to the term racial vilification" Aboriginal actor Jack Charles refused taxi twice. https://t.co/JAmwjucpEG— ECO_SEAN (@ECO_Sean_UK) October 31, 2015
State and Commonwealth racial vilification laws reflect the competing policies of free speech, privacy and protecting people from racially motivated hostility. Section 18C of the Racial Discrimination Act 1975 (Cth) (RDA) stipulates that conduct which is likely to offend, insult, humiliate or intimidate a person or people because of race, colour or national or ethnic origin is unlawful. This prohibition is limited to acts that are not done in private. The threshold imposed by this provision is low — it is easy to find examples of language that offends or insults people on the basis of race.
Section 20C the Anti-Discrimination Act 1977 (NSW) (ADA) also makes racial vilification a civil wrong. This provision commands a higher threshold than the Commonwealth legislation, requiring a public act done to incite hatred towards, serious contempt for, or severe ridicule of a person or group of persons on the ground of the race of the person or members of the group. Both of these provisions are subject to a range of defences. Under section 20D of the ADA, an act of vilification is criminal if a person publicly, by threatening physical harm or inciting others to threaten physical harm on the ground of race:
‘... incite[s] hatred towards, serious contempt for, or severe ridicule of, a person or group of persons.’
The offensive posts from Mr Nelson’s Facebook page are at the higher end of the scale of conduct rendered unlawful by the RDA, and meet the relevant threshold to attract civil liability under the ADA. However, the cruel, hateful language of the posts is not enough to offend against the criminal prohibition on racial vilification as they do not contain any direct threat or attempt to incite physical harm.
Does hate speech need to be criminalised?
Section 20D acts as a compelling deterrent against racial hostility but this deterrent effect is restricted to racial vilification involving violence. While political discussions with racist undertones must be free to compete in the liberal marketplace of ideas, messages of hatred have no place in 21C Australia. Hate speech does not always involve direct threats, but hatred is often a “precursor to violence”.
There have not been any prosecutions under section 20D. Racial vilification civil liability provisions can only be enforced once individual victims bring complaints to the Australian Human Rights Commission. McNamara and Gelber have criticised this approach for placing a heavy enforcement burden on victims.
Between 1990 and 2010, 4000 formal complaints were lodged in Australia under racial vilification laws. During the same period, police made a staggering 12,000 convictions for offensive language or conduct in a public place. Criminalising certain types of hate speech would align the seriousness of racially vilifying conduct with likelihood of enforcement.
So Andrew Bolt was found to have breached 18C on this issue now it's a legitimate concern?. go figure pic.twitter.com/YwCZB9xD8M— NJL DELCON (@ANTI_ALP) March 6, 2016
Despite parliamentary recommendations to improve the ADA, little has been done to instigate change. Recently, NSW’s Shadow Attorney General Paul Lynch has introduced a private members bill to parliament, which proposes to move the offence of “hate speech” into the Crimes Act 1900 (NSW). The bill also proposes that hate speech be allowed to be investigated by police.
While criminal prosecutions of hate speech will be infrequent under any regulatory approach, the symbolic function of criminal sanctions against hate speech should not be underestimated or ignored. The existence of laws against hate speech allows targets of racial vilification to feel less vulnerable to hostile actions and language.
Should Australia follow the Canadian approach to hate speech?
In Australian Capital Television Pty Ltd v Commonwealth, the High Court referred to Canadian case law to support the implication of freedom of political communication into the Constitution. The principle of “freedom of expression” that is enshrined in the Canadian Charter is a similar concept to the right to freedom of political communication.
Interestingly, Canadian law goes to greater lengths to criminalise hate speech without impinging on freedom of speech.
Section 319(2) of the Criminal Code (Canada) makes it an indictable offence to
‘... communicate statements, other than in private conversation [which] wilfully promotes hatred against any identifiable group.’
The defences outlined in section 319(3) are similar to the defences outlined in section 20D of the ADA.
Canada seeks prison time for "anti-transgender" hate speech
The Canadian case of R v Keegstra provides support for a similar prohibition on hate speech to be held constitutionally valid in Australia. The Canadian Supreme Court decided that section 319(2) does limit freedom of expression, but it is a reasonable limit in a democratic society. The majority of the court were influenced by international treaties, such as the ICCPR and the CERD, and acknowledged that the suppression of racial hatred would reduce harm to targeted groups and individuals.
The Canadian approach to criminalising hate speech balances the right to freedom of political communication with the rights of people to not be targets of racially motivated hostility. Expanding section 20D to include “inciting hatred” would be an adequate method of addressing the hate speech through legislation.
Adopting the Canadian approach would not suppress the discussion of racially charged political issues, such as treatment of asylum seekers. Rather, the law would act as a punishment and deterrent for public incitement to hate an individual or group of people on racial grounds.
In light of the Federal Government’s attempts to repeal section 18C of the RDA in 2014, it is clear that adding further criminal sanctions to hate speech is not on the cards in Australia’s short-term future. Future state and Commonwealth governments must consider Australia’s commitment to the international community, and recognise that a racial hatred cannot be tolerated in Australia’s multicultural society.
Brooke Murphy's PhD focuses on the potential for fiduciary law to address non-economic interests, such as sexual autonomy.
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License
Surprise, surprise Chris Nelson, Gosford chiropractor who racially abused Nova Peris on FB...is a member of Liberal Party @TurnbullMalcolm— Denise Allen (@denniallen) May 30, 2016
Canada Moves To Implement Transgender Hate Speech laws, Offering 2 years jail time to those criticizing gender flu… https://t.co/RcEYS1RWdV— قاسم ☪ xnɐɟopınƃ (@guidofaux) June 2, 2016
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