Hate Crime and Vilification Law: Developments - The University of ...

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(b) which incites (c) hatred towards, serious contempt for, or severe ridicule of a person or group of persons 2 (d) on the ground of the race or homosexuality or HIV/AIDS infection or transgender identity of the person or group (“the prohibited grounds”). It is a complete defence to a complaint made under the civil provisions that the act complained of falls within subsection (2) of the relevant section, that is that the act was either a fair report of a public act, or a communication in respect of which a defence of absolute privilege would apply in defamation proceedings or a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter. If the four elements required to establish a complaint are proved, the onus shifts to the respondent to establish one or more of the defences. This is no simple task, particularly if the respondent must also prove that he or she acted “reasonably and in good faith”, as is usually the case. I am attaching some statistics produced by the ADB breaking down vilification complaints it received in the financial years 2006-2007, 2007-2008, 2008-2009. The statistics are of some, but limited, utility. The ADB received more than 1100 complaints under the ADA in each of the last three financial years, but only 2% or 3% in each year were complaints of vilification. The relatively small number of complaints of vilification might be due to the fact that many, if not most, complaints of racial vilification are directed to the Australian Human Rights Commission under the Federal legislation, which does not address other forms of vilification. According to information on the Commission’s website, “[d]uring 2005-06, the Commission received 259 complaints under the Racial Discrimination Act (this includes complaints lodged under the racial hatred provisions). Employment, the provision of services and racial hatred were the main areas of complaint”. (See http://www.hreoc.gov.au/about/media/speeches/race/2007/addressing_racism_in_australia.html accessed on 17 August 2009). The majority of vilification complaints to the ADB over the last three financial years were of racial vilification. Homosexual vilification came second. The number of complaints of transgender and HIV vilification was very small. Of course not every incident of vilification is the subject of a complaint to the ADB or the Commission and the number of complaints is therefore not a reliable guide to the incidence of vilification in New South Wales or elsewhere. But one can safely conclude that complaints to the ADA, unlike those made to the Commission, are only infrequently about vilification. Yet complaints of vilification are usually among the most contentious of the complaints received by the ADB. In two of the three years under review, none of those complaints was resolved through conciliation. In the other year, only 3 out of 27, or 11%, were successfully conciliated. Most vilification complaints ended up being declined, withdrawn or abandoned. This might perhaps indicate that they lacked merit or, alternatively, that they were well-founded but the complainants were unwilling to put themselves through the legal process. The next largest group of complainants, on the other hand, were those who fought out their complaints in the ADT. Regrettably I was not able to get statistics about the success and failure rates of complaints of vilification that are litigated in the ADT; the remedies sought; or the reasons for the failure of litigated complaints that are unsuccessful. The high rate of discontinuance of vilification complaints and the fact that most complaints of racial vilification in New South Wales appear to be made under Federal legislation raise a question about the efficacy of the legislative scheme in New South Wales. Is it simply too difficult to pursue even a well-founded complaint of vilification to a successful conclusion under the ADA? A review of the NSW civil provisions might provide some answers. I will begin by considering each element in turn.
(a) Public act 3 The expression “public act” is defined in Sections 20B, 38R, 29ZS and 49ZXA of the ADA. The expression extends to “any form of communication to the public”, “any conduct...observable by the public” and “the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons” on one of the prohibited grounds. The word “public” is not defined in the legislation. The jurisprudence in this and other areas of the law and other jurisdictions suggests that courts are inclined to give a broad interpretation to the word “public” and to exclude from its scope only those circumstances that might be characterized as purely domestic, for example, a conversation in a private home that cannot be overheard. This leads to the fundamental question of whether a public element should be included at all as one of the elements of serious vilification. On one view, the harms of vilification are at least as real in circumstances where the vilifier and the victim are alone together as they are where the victim is not present and the vilification is directed to a large audience. The contrary view is that the legislation is directed at addressing a social rather than a personal harm and the social harm arises only when the vilification occurs in a public context. Another question arises out of the development of communications technology. Section 20B was enacted in 1989. The other three sections, all enacted subsequently, essentially replicate section 20B. In 1989, the internet had not developed into the widely used, publicly accessible medium that it has since become. A very large volume of material is now published on the internet and may be accessed generally by any member of the public, usually without the necessity for any payment. Under Part IIA of the RDA, a vilificatory act is unlawful only if it is done “otherwise than in private”. The case law has established that placing material on the internet that is freely available and not password protected is an act done “otherwise than in private”: Jones v. Toben [2002] FCA 1150 (17 September 2002) (para.75) and Toben v. Jones [2003] FCAF 137 (27 June 2003). As was determined by the High Court of Australia in Dow Jones v Gutnick (2002) 210 CLR 575; [2002] HCA 56, in relation to the net, publication is not a single event located by reference only to the publisher's conduct. It occurs each time a reader downloads the material. Amending the definitions of “public act” in the ADA so as to incorporate this jurisprudence would bring the anti-vilification provisions of the ADA into the internet age and in line with the judicial interpretation of the equivalent provisions of Part IIA of the RDA. (b) Incites The word “incite” is not defined in either the civil provisions or the criminal provisions of the ADA. Cases that have arisen out of the civil provisions (and analogous provisions in other jurisdictions outside NSW) have defined the expression to mean “to urge on, stimulate or prompt to action”. This is based on the Macquarie Dictionary definition of the word “incite”. The Oxford Dictionary definition includes “stir up, animate”. It therefore seems reasonably clear that the concept of incitement involves stimulating others to do something or to feel something. This allows for the possibility that incitement may occur when the feelings of others are aroused, even if they do not act on those feelings. Both the civil provisions and the criminal provisions of the ADA focus on the stirring up of feelings (i.e. “hatred”, “serious contempt”, “severe ridicule”) and, in the case of the criminal provisions, on the means used to do so, rather than on any consequential action that may be taken or threatened, or the effect on the victims.
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