- Internal Code :
- Subject Code : LLW2010
- University : Victoria University
- Subject Name : Law
Privacy and Media Law
Australia has legislation pertaining to racial conflicts. Australia has a duty to legislate regarding racial vilification as it is a signatory to the CERD and the ICCPR. Anti-vilification laws in Australia are governed by anti-discrimination legislation. However, the legislation is only one of the instruments used to combat racial vilification[1]. The Racial Discrimination Act 1975 makes it illegal for an individual to insult, offend, demean or harass another person by means of a political demonstration on the basis of race, color, or ethnic or national origin. Unless 'acted fairly and in good faith for scholarly, artistic, research or scientific work or for other reasons of the public interest, involving conversation or debate about and disclosure of any act or issue,' such laws will make public activities spreading hate against others because of their context illegal. Vilification laws encourage those from communities that feel hurt, threatened, or embarrassed by specific remarks to lodge a lawsuit, even though such remarks were not directly aimed at them, unlike defamation laws that protect the right to maintain a decent name for persons and corporate bodies. Additionally, each territory and state does not enact laws against identical ways of vilification, anti-vilification laws are not uniformly applied at the state and territorial level. For instance, in conjunction with racial vilification laws, Queensland and Victoria have specifically enforced anti-religious vilification laws, whereas South Australia has failed to enforce such laws. The government of NSW has taken an alternate path by integrating faith into the ethnic-religion concept. In the Middle-Eastern Presence situation, the legal question surrounding anti-vilification legislation is controversial. It has been believed that people of Middle Eastern appearance and culture are Islamists after the attacks on the World Trade Centre on September 11th, 2001. As a consequence, it is difficult to determine whether a person's race, religion, neither or both is the cause for the vilifying conduct. Hence, the current rules are frequently insufficient to cope with the scope of the problem under these situations. A relevant court case[2] of ethnic vilification concerning Middle Eastern citizens and Muslims. Sydney Lebanese lawmaker Keysar Trad filed a lawsuit under anti-discrimination legislation about Jones' airborne remarks before the 2005 Cronulla riots. In 2009, the Administrative Decisions Tribunal ruled that broadcast on a radio show "incited hate, extreme disdain and serious mockery of Lebanese Muslims." Subsequently, both on television and on paper, the tribunal ordered Jones to apologize for labeling "vermin" Muslim people who "infest our coasts" and "abuse" and "plunder" our nation, and Trad was found liable to pay $10,000. If there is proof of a racial offense, there is no public interest in exposing the accused's personal category. Crime isn't focused on race and faith. Anyone from different cultures may be the perpetrator and victim. The portrayal of the media reporting of the ethnicities and religious origin of the accused could violate the ethical code of journalism and violate anti-vilification legislation. However, unless there is proof of the link, there is no public interest protection in this case. Such media reporting is further shown to be driven by gain and duplicitous political goals. Finally, ethical philosophies do not explain this action. In the end, the freedom of the press to publish and seek benefit shall not affect anyone[3].
Relevant provisions of Part IIA
Offensive action based on racial hatred is forbidden by Part IIA of the Racial Discrimination
Act of 1975.
Certain provisions of Part IIA are as stated below:
The 18B justification for such an act is set out in Section 18B of the Statute.
If:
- an act is committed for 2 or more reasons, and (a) the act is committed for 2 or more
reasons;
(b) the ethnicity, color or national or ethnic heritage of an individual is one of the reasons
18C Offensive actions due to gender, color, or national or religious heritage
(1) It is illegal for an act to be committed by a person other than in private if:
(a) actions are equally likely to insult, offend, humiliate or harass another person or a group
of people under all circumstances; and
(b) the act is committed on the grounds of the ethnicity, color, or national or ethnic heritage
of the other person or of any or more of the persons in the community.
(2) For the purposes of subsection ( 1), an act shall be found not to have been committed to
private if:
(a) allows to be conveyed to the public through words, sounds, pictures or writing; or
(b) is done in a public place; or
(c) is performed in the presence or sight of others who are in a public location.
18D Exemptions
Section 18C does not make anything said and done reasonably and in good faith unlawful:
- in the output, exhibition or circulation of an artistic work; or
- in any statement, publication, discussion or debate made or held for any genuine scholarly, artistic or scientific reason or any other genuine public interest reason; or in the context of some statement, publication, discussion or debate made or kept for some genuine cultural, artistic or scientific purpose or for some other genuine public interest purpose; or
- in the making or in the publication of:
- i) a fair and reliable report of some public interest incident or matter; or,
(ii) a legitimate comment on some case or matter of public concern if the statement is an indication of a true opinion held by the person making the comment,
An amendment to the Australian Racial Discrimination Act 1975 (Cth) was introduced in 1995 to add laws limiting racial vilification. These reforms have been generally celebrated as representing the progressive culture of Australia and highlighting the damage that can be done by expression or racial overtones. Although Australia's past is largely a welcoming and mostly very prosperous multicultural society, there are many instances in which Australia really hasn't managed well with racial problems and discriminatory attitudes and practices have been seen in parts of the population[4].
Cases involving consideration of Section 18C
The first one to adapt the racial vilification clauses of the Racial Discrimination Act to the web was the case of[5]. It included a statement raised by the respondent about the website of the Adelaide Institute, which was alleged to be anti-Semitic and derided Jews.
In this case, the Federal Court of Australia ruled that, for a variety of causes, certain records on the internet vilified Jews, including claiming that Jewish people who are insulted by Holocaust denial are of low intellect; and that certain Jewish people have inflated the variety of Jews dead during World War II and the conditions in which they were killed and did not a proper purpose like a financial gain.
In[6] (27 March 2012)
The Judge ruled that, under section 18C of the Racial Discrimination Act 1975 (Cth) (RDA), national media, the publisher of The Sunday Times newspaper in Perth, was responsible for remarks made by readers underneath articles in the online edition of the issue, which led to racial vilification.
The Court made claims of wrongdoing and ordered Nationwide News to delete the remarks from its site and give the claimant $15,600 in costs.
Case of the Court which requires consideration of Section 18D
The case[7] involved a lawsuit regarding the works of a comic, where the comic claimed to be an Aboriginal person, delivering a comedy monologue, under the name 'King Billy Cokebottle'. The humorist was not Aboriginal. The shows were available for public purchasing and were on film and audiotape It was claimed that, among other things, Aboriginal people were depicted as disrespectful, ignorant, unable to properly speak English, filthy, often intoxicated, or drinking and screaming. In performances, which could only be addressed by and in the presence of initiated male Aboriginal persons, matters concerning elements of traditional tribal rituals were often claimed to be alluded to.
The Australian Federal Magistrates Court stated that the actions and tapes were 'impolite and disrespectful' to several communities within Australia, but that did not indicate that they were illegal under the Racial Discrimination Act only because they were rude or derogatory. The Court acknowledged that the presentations and tapes were deliberately satirical and could not be taken literally or seriously and did not have an explicit political background. As contained in the exception in section 18D, the Court contained the performances fall under the word 'artistic work'.
In light of the above, it can be concluded that the provisions of the Racial Discrimination Act, 1975 has provided reasonable restriction to the media to report the issue in a manner without targeting any race or community. Media is generally called the fourth pillar of democracy and they must report with utmost responsibility without hurting the feelings of any ethnic, social group, or any race. The Racial Discrimination Act, 1975 certainly restricts media from publishing things that are inconsistent with the statute but also protects the media by way of providing exemptions under Section 18D. Section 18D (c) (i) empowers the Media to report issues that are of public interest and such reporting doesn’t attract the provisions of Section 18C. Therefore, if the media genuinely reports on issues related to race then they cannot be held responsible under the provisions of Section 18C as they are performing their professional duties for the benefit of public interest.
Bibliography for Privacy and Media Law
Legislation:
Racial Discrimination Act, 1975
Case Laws:
Clarke v Nationwide News Pty Ltd trading as The Sunday Times [2012] FCA 307
Kelly-Country v Breweries & Anor [2004] FMCA 336
Toben v Jones (2003) 129 FCR 515
Trad v Jones (No. 3) [2009] NSWADT 318
References:
Gray, Anthony, ‘Racial vilification and freedom of speech in Australia and elsewhere” (2012) 41(2) Common Law World Review 167
Meagher, Dan, ‘So far so good?: A critical evaluation of racial vilification laws in Australia’(2004) 32(2) Federal Law Review 225
Nurrahmi, Febri, ‘Ethnic and Religious Crime in Australian Media: Sensationalism versus Public Interest’ (2019) 292 Aceh Global Conference 255
[1] Dan Meagher, ‘So far so good?: A critical evaluation of racial vilification laws in Australia’ (2004) 32(2) Federal Law Review 225
[2] Trad v Jones (No. 3) [2009] NSW ADT 318
[3] Febri Nurrahmi, ‘Ethnic and Religious Crime in Australian Media: Sensationalism versus Public Interest’ (2019) 292 Aceh Global Conference 255
[4] Anthony Gray, ‘Racial vilification and freedom of speech in Australia and elsewhere” (2012) 41(2) Common Law World Review 167
[5] Toben v Jones (2003) 129 FCR 515
[6] Clarke v Nationwide News Pty Ltd trading as The Sunday Times [2012] FCA 307
[7] Kelly-Country v Breweries & Anor[2004] FMCA 336
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