Racist comments have been in the news recently and it could be
useful to know just what the law says about how racist we can be
before we end up in court.
First off, make no mistake that racism and making racist
comments, no matter how trivial or joking the originator might
think they are, is an abhorrent act and should not go unpunished.
Such comments are meant to be hurtful, mean and cruel. The
intention is to belittle, divide and ridicule. There is no excuse.
The law is a different matter.
Serious racial vilification comes under section 20D of the NSW
Anti-Discrimination Act 1977, the first such law in Australia.
Basically, it depends where and how you say it. Serious racial
vilification has to be a public act, has to incite hatred, contempt
or severe ridicule on the ground of race towards someone or a group
of people and threatens physical harm to that person or the
property of that person.
There is a big proviso to this section - nobody can be
prosecuted unless the Attorney General agrees to it. So far nobody
Human rights lawyer with Stacks, Joshua Dale, recently gave
evidence on behalf of the Australian Lawyers Alliance to a
parliamentary committee looking into the working of the racial
Dale argued it was too difficult to prove an intention to
publicly incite racial hatred as it has to be accompanied by a
threat to harm person or property.
Dale argued penalties under section 20D are also inadequate - a
maximum of $5,500 fine and/or six months jail. A corporation can be
"For there to be no prosecutions under section 20D in some
24 years is tantamount to admitting there have been no occurrences
of racial vilification worthy of prosecution," the submission
"This illogical conclusion would surely be out of step with
community expectations and experiences."
Dale said there had been 29 complaints of racial vilification
referred to the Director of Public Prosecutions for criminal
prosecution - but none were advanced.
This is despite several highly controversial racist statements
made by radio shock jocks particularly before the so-called
Cronulla riots in 2005.
People who feel they have been racially vilified can make a
complaint to the Anti Discrimination Board where compensation can
be payable. This is usually for pain and suffering that can be
established as caused by racist comments. The board can order
mediations where a settlement is encouraged.
If you are caught up in racist comments either as perpetrator or
victim it would be wise to get legal advice as the law is far from
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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