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

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The legislation does not make it clear whether proof of incitement requires evidence that others
have in fact been incited. In certain cases that have come before the Courts, those accused of
incitement have sought to argue that the concept of incitement encompasses both the act of the
alleged inciter and the reaction of those who have been incited. They have contended that proof is
required that other people have actually been incited.
However, the Courts have not accepted that contention. The case law establishes that
“incitement” can be proved even in the absence of evidence that other people have in fact been
roused to hatred (or to acting upon that hatred). Rather, the test is whether a hypothetical
audience of reasonable people who are neither immune from, nor particularly susceptible to,
feelings of hatred on one of the prohibited grounds would be incited.
An alternative approach would be to abandon the terminology of incitement altogether in favour of
some other test. I discuss this in more detail in the section headed “The Criminal Provisions”.
(c) Hatred, serious contempt or severe ridicule
Anti-vilification legislation in other States in Australia has replicated the formulation “hatred
towards, serious contempt for, or severe ridicule of” that appears in the ADA. Federally, Part IIA of
the Racial Discrimination Act employs the expression “hatred” only. Examples of both formulations
can be found in analogous legislative provisions in other countries. Little seems to turn on the
distinction, even though “serious contempt” and “severe ridicule” are arguably less stringent criteria
than “hatred”.
The interpretation of these words does not seem to have presented courts in Australia or overseas
with undue difficulty. The plain dictionary definition of these words entails something in the nature
of intense or active dislike. That definition excludes much material that would widely be regarded
as innocuous. For example, humour based on ethnic or homosexual stereotypes, considered in
context, can often be accepted as light-hearted and even, in a uniquely Australian way,
affectionate. It would clearly fall outside the operation of the criminal (and civil) provisions.
Western Australia’s legislation has expanded the scope of the behaviour that is prohibited to
include behaviour whose effect is “to threaten [or] seriously and substantially abuse” others on a
prohibited ground. But these formulations are used in the context of a Criminal Code proscribing
criminal conduct and do not sit comfortably with legislative provisions which impose civil
prohibitions.
(d) The Prohibited Grounds
Neither the civil provisions nor the criminal provisions of the ADA apply unless there has been a
public act of incitement to hatred of a person or group on one of four grounds, namely:
(i) Race
(ii) Homosexuality
(iii) HIV/Aids infection; or
(iv) Transgender identity (ie being a transgender person).
“Race” is defined in s.4 of the ADA as including “colour, nationality, descent and ethnic, ethnoreligious
or national origin”. This broad definition is declaratory of the case law on the meaning of
“race” as it has developed both in Australia and overseas. However, vilification solely on the
ground of religion would fall outside the prohibitions contained in the ADA.
The existing prohibited grounds therefore afford protection against vilification only to some groups.
These groups appear to have been selected on the basis of a well-recorded history of their
members being victims of hatred. A question arises whether the prohibited grounds should be