Laws around cyber racism

Federal legislation

Serious instances of racism on the Internet may be dealt with under the Commonwealth Criminal Code. However, such cases can be difficult to prosecute, as they require strong proof that there has been an obvious intent to incite violence.

Cyber racism is classified as an act of racism under the Racial Discrimination Act 1975 (RDA). The Australian Human Rights Commission administers the RDA. The major objectives of the RDA are to:

  • promote equality before the law for all persons, regardless of their race, colour or national or ethnic origin
  • make discrimination against people on the basis of their race, colour, descent or national or ethnic origin unlawful

The Racial Hatred Act 1995 (Cth) amended the RDA by making racially motivated offensive behaviour unlawful. Details of the Racial Hatred Act are at section 18C of the RDA.

Racial hatred or vilification is behaviour using speech, images or writing in public. For example:

  • offensive racist comments or drawings in a newspaper, leaflet, website or other publication
  • making racist comments on e-forums, blogs, social networking sites
  • writing racist graffiti in a public place
  • making racist speeches at a public rally or assemblies
  • placing racist posters or stickers in a public place
  • making racist comments at sporting events to players, spectators, coaches or officials
  • making a racially abusive comment, joke, song or gesture in a public place — including shops, workplaces, parks, public transport, and schools.

For a (cyber) racist action to be considered against the law, the action would be considered under section 18C and must:

  • have taken place in a public place (the internet provides public and private spaces, depending on the particular medium used)
  • have racial content (referring to a person’s race, ethnicity, colour or origin)
  • be likely to offend (considered hurtful)

If however, the action has been taken in good faith, as part of public debates and/ or artistic endeavours, then the law may not apply (according to the principles of the Freedom of Information Act), refer to Section 18D.

State and Territory legislation

The Australian Capital Territory (ACT) Discrimination Act 1991 [PDF] was most recently amended in April 2010.

Cyber racism is unlawful in the ACT.  The Discrimination Act makes all acts of racial discrimination unlawful, with exceptions around genuine occupational employment and Club membership (section 42 and 43).

For an act of cyber racism to be considered unlawful it must be demonstrated that the act was; in a public space, carried out with the intent to cause offence or harm, and racially motivated.

Racial discrimination that occurs in areas of public life is defined by the Act at sections 7 and 8. Vilification specifics are at sections 65 – 67 and acts relating to victimisation are at section 68 of the Act.

The Human Rights Commission Act 2005 provides information about the Discrimination Act and complaint processes available at the ACT Human Rights Commission. Further information about discrimination or making a discrimination complaint can be obtained at the Human Rights Commission.

The New South Wales (NSW) Anti Discrimination Act 1977 was most recently amended in June 2010.

An act of cyber racism could be considered unlawful under this NSW Act, providing it:

  • takes place in a public area (section 20B)
  • is identified as discriminatory conduct
  • is considered a serious incitement of violence or offence towards a racial group (sections 20C, 20D)

The New South Wales Anti-Discrimination NSW Board conciliates complaints under this Act.

The Northern Territory Anti-Discrimination Act 1992 was most recently amended in 2009. Under the Act, race is defined as:

  1. the nationality, ethnic or national origin, colour, descent or ancestry of a person; and
  2. that a person is or has been an immigrant.

Race is classified as a ground for discrimination under section 20 of the Act.

There is no ground of racial vilification within the Anti-Discrimination Act 1992 and therefore an act of cyber racism could not be unlawful discrimination in this Act. Complaints would therefore need to be considered under the Federal Race Discrimination Act by the Australian Human Rights Commission.

The Queensland Anti Discrimination Act 1991  promotes equality of opportunity for everyone by safeguarding against unfair discrimination in certain areas of activities. 

The Queensland Act defines vilification (section 131A) as:

…different from discrimination. While discrimination involves unfair treatment, vilification is a public act that incites others to hate you or your group (or have serious contempt for, or severely ridicule you) because of your race or religion.

This sort of hatred can show up in a number of ways including hate speeches, leaflets, graffiti, websites, public abuse or media remarks.

Cyber racism would be classified as vilification under section 131A and is therefore illegal so long as:

  • the offence occurs in a public space
  • it  encourages others to threaten/ hate or strongly react against the abused
Racial vilification is behaviour in a public place that incites hatred, serious contempt or ridicule of a person or group of people, because of their race. A person’s race includes their colour, country of birth, ancestry, ethnic origin or nationality. It is unlawful under the South Australia Racial Vilification Act 1996 (SA) [RTF] to vilify people because of their race by threatening to harm them or their property, or urging others to do so. Fines apply. People who believe they have been vilified can report to police or sue for damages under the Civil Liability Act 1936 (SA), meaning that it is possible to take cases directly to court (unlike other jurisdictions). Private remarks, light-hearted jokes, artistic works, or fair reports on racial conduct, are not unlawful racial vilification.  For racial vilification to be unlawful, it must occur in public.

Under the Tasmanian Anti-Discrimination Act 1998 (the Act) cyber racism could be covered by:

  1. Inciting hatred section 19(a)
    A person, by a public act, must not incite hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons on the ground of race.  Public act is defined in s3 to include any form of communication to the public, any conduct observable by the public, or the distribution or dissemination of any matter to the public.If a person or a member of a group of people believes that a website or other online material is inciting hatred towards, serious contempt for or severe ridicule of them on the ground of race they can lodge a complaint.
  2. Discrimination on the basis of race in the area of the provision of facilities, goods and services section 14
    A person must not treat another person on the basis of a prescribed attribute less favourably than a person without the prescribed attribute.  Race is a prescribed attribute defined at section 16(a) of the Act.

The Act requires that discrimination occur in a particular area of activity covered by section 22, one is the provision of facilities, goods and services [s22(1)(c)].  If a person felt they had been treated less favourably while engaged in an activity in connection with the provision of facilities, goods and services online, they can lodge a complaint to Equal Opportunity Tasmania, the office of the Anti-Discrimination Commissioner.

Racial Vilification in Victoria is covered by the Racial and Religious Tolerance Act 2001. The Victorian Equal Opportunity and Human Rights Commission investigates complaints under this Act.

Under the Racial and Religious Tolerance Act 2001 an act of cyber racism could be considered racial vilification if:

  • it is in the public domain (unless an exception under S. 11 is established that the conduct was engaged in reasonably and in good faith; S 12 – private conduct)
  • considered racial vilification as defined by the Act (S.7 also specifically includes the use of the internet or email to publish or transmit statement or other material and may occur in or outside Victoria)
  • motive is irrelevant (S. 9)

If the cyber racism occurs in the areas of employment, provision of goods and services, education, accommodation, disposal of land, clubs, sport or local government it may be grounds for a complaint of unlawful discrimination based on race under the Victorian Equal Opportunity Act 2010 [PDF]:

  • in an area of public life protected
  • because of race (S. 6 (i))

It is unlawful under the Equal Opportunity Act 1984 to harass a person because of their race.

Under the Equal Opportunity Act race includes colour, descent, ethnic or national origin or nationality and may comprise two or more distinct races.

The Act makes it unlawful to racially harass a person in certain areas of public life and these areas include:

  • Employment – it is unlawful to racially harass an employee, a co-worker, a potential employee or employer, commission agent or contract worker.
  • Education – it is unlawful for an employee of an educational institution to racially harass a student or potential student of that institution
  • Accommodation – it is unlawful for a person who, as principal or agent, has control over accommodation or the letting of that accommodation, to racially harass a person.

There is no ground of racial vilification within the Equal Opportunity Act 1984 and therefore an act of cyber racism could not be unlawful discrimination in this West Australian Act. Complaints would therefore need to be considered under the Federal Race Discrimination Act by the Australian Human Rights Commission.