There's been quite a bit of debate recently about the finer
points of law relating to racial vilification. It remains to be
seen whether the government goes ahead with its proposed
legislation to amend the Racial Discrimination Act and make it
legally permissible to offend people by spouting racist comments.
Attorney General George Brandis told parliament: "People do
have a right to be bigots. In a free country, people do have rights
to say things that other people find offensive or insulting or
To cement this thinking into law the government wants to change
Section 18C of the Racial Discrimination Act. The Act has been
around for 39 years and states it is "unlawful" for a
person to commit an act in public that is reasonably likely to
"offend, insult, humiliate or intimidate another person or
group of people", and that the act is done because of the
"race, colour or national or ethnic origin of the other person
or of some or all of the people in the group"
But what does the term "unlawful" mean? Is it the same
as criminal? If I do something that is unlawful am I committing a
crime? Is abusing someone for their race a crime? Well,
technically, it's not. No criminal sanctions are attached to
the Act and nothing in the Act makes any form of vilification a
One of Australia's leading legal experts in the this field,
the director of law reform and social justice at Australian
National University, Professor Simon Rice, told the ABC's Fact
"Unlawful conduct is not illegal conduct.
'Unlawful' is conduct prohibited by law, an
'offence' is also conduct prohibited by law but at a more
serious or higher level. There is a fundamental procedural
difference – unlawful acts are pursued by the person or
entity who is aggrieved, and illegal acts are pursued by the police
in order to punish the perpetrator. For unlawful conduct the harmed
person seeks a personal remedy like compensation; for illegal
conduct the perpetrator is punished."
But if someone is found to have contravened Section 18C and
ordered by a court to remove offending material such as from a
website and refuses to do so, they can be in criminal contempt of
court. This occurred with a person who posted anti-Jewish
propaganda and refused to take it down. He ended up serving three
months in jail – not for the racist comments, but for
refusing to obey a court order.
Which shows the law provides more than one way to skin a
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