Legaldate Volume 21  •  Number 3  •  July 2009

Contents
Legal Measures to Combat Racism and Xenophobia: Lessons from
Australia and Europe:..................................................................................................... 2
Racial Discrimination Protection In Australian Law – A Snapshot. .................................... 2
Introduction.................................................................................................................. 2
International Convention On The Elimination Of All Forms Of Racial Discrimination ... 2
The Racial Discrimination Act 1975 (Cth) (RDA)........................................................... 3
A Contemporary Racial Discrimination Act?.................................................................. 3
Landmark Cases............................................................................................................ 4
Recent Cases................................................................................................................ 4
Notes............................................................................................................................ 5
Secularism And Freedom Of Religion In Europe................................................................. 5
Further Reading. .......................................................................................................... 7
Notes............................................................................................................................ 7
Legal Responses To Hate Speech In Europe And Australia: A Comparison......................... 7
Introduction.................................................................................................................. 7
European Perspectives.................................................................................................. 8
Australian Perspectives. .............................................................................................. 8
Notes............................................................................................................................ 9
Just Joking: Is Racist Humour A Form Of Vilification?....................................................... 9
What Is Humour?.......................................................................................................... 9
Hate Speech................................................................................................................ 10
Why Words Can Hurt?................................................................................................ 10
Humour And Prejudice................................................................................................ 10
Privilege And Power................................................................................................... 10
Bibliography. .............................................................................................................. 10
Notes.......................................................................................................................... 11
The Northern Territory Intervention And The Racial Discrimination Act.......................... 11
Suspension Of The Racial Discrimination Act. ............................................................. 11
NTER Review.............................................................................................................. 12
Challenges To The Northern Territory Intervention. .................................................. 12
Impact On Australia’ International Standing. .............................................................. 13
Notes.......................................................................................................................... 13
Legal Snapshot................................................................................................................ 13
Contract Law, Basic Concepts, Does It Operate To Protect Consumers
And Traders?........................................................................................................... 13
What Is Contract Law?............................................................................................... 13
The Basic Concepts Of Contract Law......................................................................... 13
Does Contract Law Protect Traders And Consumers?............................................... 14
Legal Update.................................................................................................................... 14
Alternative Dispute Resolution................................................................................... 14
Mandatory Reporting.................................................................................................. 15
Duty Of Care.............................................................................................................. 15
Media Watch..................................................................................................................... 15
National Charter Of Rights Will Protect The Disadvantaged. .................................... 15
Australia’s two examples of this process have proved critics wrong........................... 15

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 Legal Measures
to Combat Racism
and Xenophobia:
Lessons from Australia and Europe
A Special Issue by Freilich Foundation
and National Europe Centre
Edited by Renata Grossi and Simon Bronitt, Australian National University

In memory of Dr Herbert Freilich (1925–2009), compassionately committed

to humanity and tackling intolerance and bigotry in all its forms.

Racial Discrimination
Protection In Australian
Law – A Snapshot By Renata Grossi
Freilich Foundation, Australian National University

Introduction ‘undertake to prohibit and to eliminate racial discrimination

This article will outline the content of the Australia’s Racial
Discrimination Act 1975 (Cth) (RDA). It will discuss its origin,
its possible future development, and show the way it has been
applied in landmark and recent cases.
International Convention On The
Elimination Of All Forms Of Racial
Discrimination
In 1965 Australia signed the International Convention on the
Elimination of all Forms of Racial Discrimination (CERD).
Article 1 defines discrimination as ‘any distinction, exclusion,
restriction or preference based on race, colour, descent, or
national or ethnic origin which has the purpose or effect of
nullifying or impairing the recognition, enjoyment or exercise, on
an equal footing, of human rights and fundamental freedoms in
the political, economic, social, cultural or any other field of public
life’. Article 1 also states that special measures designed to secure
advancement for certain groups in society who had hitherto been
discriminated against do not constitute racial discrimination.
Article 5 of the Convention imposes an obligation on states to
in all its forms and to guarantee the right of everyone, without
distinction as to race, colour, or national or ethnic origin, to
equality before the law’. Article 5 also highlights a range of
important rights which should not be impeded by discrimination
based on race. These reflect the rights which are protected by
other key United Nations (UN) human rights conventions.1
In order to fulfil the requirements of this convention the federal
parliament passed the Racial Discrimination Act 1975 (Cth)
(RDA). The High Court in Koowarta v Bjelke-Peterson2
confirmed that federal parliament could validly use its external
affairs power under the Constitution to enact the RDA.
STUDENT ACTIVITIES
1. How does the UN convention on the elimination of all forms of
racial discrimination define discrimination?
2. If a government body made a commitment to hire 10 per cent of
its staff from Indigenous background, would it be discriminating
against anyone?
3. Explain the obligation imposed on governments who have signed
and ratified CERD.
4. Identify THREE other UN conventions that protect human rights
(clue: see notes at the end of this article).

The Freilich Foundation exists for the study of, and research into, the causes, the histories and the effects of ethnic, cultural, religious
and sexual bigotry and animosity, and the exploration of how such intolerance can be combated – and co-existence promoted – by
educational and social programs. For further information see <http://www.anu.edu.au/hrc/freilich/>
THE AUSTRALIAN NATIONAL UNIVERSITY

~2~
The Racial Discrimination Act 1975
(Cth) (RDA)
The RDA is the most important legal document designed to
protect Australians from racial discrimination. Every state
and territory jurisdiction has legislation which is modelled
on the RDA.
The RDA makes discrimination based on race colour, descent,
national or ethnic origin unlawful (s9). Racial discrimination
involves treating someone less favourably because of one
or more of the above factors. The RDA makes it unlawful to
discriminate both directly and indirectly. An example of direct
discrimination is to refuse to employ an Indigenous person
in a business because it would deter customers. An example
of indirect discrimination is to have a criterion which would
necessarily impact adversely upon a group of people. For
example a height requirement will impact more upon people
from certain racial backgrounds. Indirect discrimination may
be justified according to the circumstances.
The RDA prohibits discrimination in the following key contexts,
employment (s15), advertisements (s16), access to places and
facilities (s11), provision of goods and services (s13), land,
housing and accommodation (s12), right to join trade unions
(s14), rights to equality before the law (s10).
The Racial Hatred Act 1995 (Cth) amended the RDA by making
offensive behaviour based on race unlawful. Section 18C
prohibits public behaviour which offends, insults or humiliates a
person or group because of their race, colour, national or ethnic
origin. However artistic work, academic discussion, material
whose purpose is scientific, or any discussion which is considered
to be in the public interest will be exempt (s18D). Material which
is published that represents a genuine belief that it’s a fair and
accurate report and is in the public interest is also exempt.
The RDA allows racially discriminatory policies when those
policies are deemed to be positive actions designed to protect
racially disadvantaged groups. These are called ‘special
measures’ and in order to be lawful they must have the
following characteristics:
• they must provide a benefit to the group
• their sole purpose must be to secure the advancement
of the group
• they must be necessary to achieve the purpose
• they must stop once the purpose has been achieved.
~3~
Examples of special measures are; educational funds and
programs, rental assistance, employment programs and special
medical services which are aimed at Indigenous Australians.
A complaint of racial discrimination can be made to the Human
Rights Commission (HRC) for mediation and conciliation but
following Brandy v Human Rights and Equal Opportunity
Commission3 hearings can only be conducted by the Federal
Court. In 2006/07 the HRC received 376 complaints of which
195 were conciliated, 134 were terminated, 31 were withdrawn,
56 were considered trivial and vexatious and in 69 of cases
there was no reasonable prospect of conciliation. The majority
of these complaints were based upon discrimination according
to race, with ethnic origin being the second largest ground of
complaint. The largest context where discrimination was alleged
to occur was in employment. Seventy five complaints were to
do with racial hatred. The majority of these were alleged to have
occurred in the media and in the work place.4
STUDENT ACTIVITIES
5. Distinguish between direct and indirect discrimination.
6. Identify THREE areas in which the RDA prohibits discrimination.
7. Explain how the Racial Hatred Act 1995 (Cth) attempts to extend
and complement CERD.
8. Identify THREE ways in which the RDA attempts to provide
greater legal protection (special measures) for Indigenous and
other peoples.
9. Identify TWO legal institutions that can help Australians who
wish to complain about racial discrimination.
10. In what social setting are most complaints of racial discrimination
found?
A Contemporary Racial
Discrimination Act?
In April 2008 Race Discrimination Commissioner Tom
Calma issued a press release urging that the RDA remain a
contemporary piece of legislation and reflect the changing
composition of Australian society. Commissioner Calma
released a background paper which analysed the continuing
effectiveness of the RDA by comparison with legislation in
other parts of the world such as US, UK Canada and the EU.
In brief, that background paper, An International Comparison
of the Racial Discrimination Act 1975 (2008), found that in all
jurisdictions examined, except Australia, there is a provision
that allows relevant human rights bodies to initiate complaints
in cases of complex issues and systematic discrimination.5
Whilst Australia, like other jurisdictions examined, requires a
civil rather than a criminal standard of proof (i.e. on the balance
of probabilities), he also noted that proving discrimination
under federal law required compliance with a higher standard
of evidence, and that Australia was the only jurisdiction which
placed the whole burden of proof upon the plaintiff.
The question of religious vilification was also a factor which
was examined in this report. Whilst the US, UK, Canada and the
EU all have laws which prohibit discrimination and vilification
on the ground of religion, this protection only exists in Australia
at state level, and even then is not equally available in all
jurisdictions.6 For a recent study on this specific topic see the
HREOC Discussion Paper, Freedom of Religion and Belief in
the 21st Century (2008).
STUDENT ACTIVITIES
11. Identify the Race Discrimination Commissioner.
12. Why do you think we do not protect Australian citizens against
religious vilification at the federal level? (Hint: Constitution)
Landmark Cases
I have already mentioned above two important cases Koowarta
v Bjelke-Peterson and Brandy v Human Rights and Equal
Opportunity Commission. There have been a number of other
cases which have clarified the operation of the RDA. It is
worth briefly looking at them as their facts provide us with
an understanding of the way in which the act impacts upon
behaviour and policies.
Gerhardy v Brown7 challenged the notion that a non
Pitjantjatjaran needed a permit to enter land which had been
granted to the Pitjantjatjaran people under the Pitjantjantjaran
Land Rights Act 1981 (SA). Mr Brown went onto this
land without permission, when charged he argued that the
Pitjantjantjaran Land Rights Act contravened the RDA and was
therefore invalid.
Eddie Mabo 
The High Court upheld the validity of the SA act claiming
that it constituted a special measure consistent with the RDA.
All judges agreed with the concept of ‘special measures’
and the appropriateness of taking affirmative action for
Indigenous people.
Mabo v Queensland (No 1)8 questioned the validity of the
Queensland Coast Islands Declaratory Act (1985). The
Queensland Parliament passed this act when the Meriam
people commenced proceedings to have their traditional land
rights recognised under Australian law. The act extinguished
whatever rights and interests the Meriam people had under
their traditional laws. One of the questions that this case raised
was whether the Queensland act was consistent with the RDA.
The High Court confirmed that state laws should conform to
the RDA. This decision enabled the continuation of the Mabo
~4~
case and the subsequent decision in the famous case Mabo v
Queensland (No2)9 that recognised native title and extinguished
the concept of terra nullius.
Jones v Toben10 was the first case to apply the RDA’s racial
hatred provisions to the Internet. Complaints were received
about a website run by Dr Tobin of the Adelaide Institute. The
Federal Court found that certain documents on the website
vilified Jews due to the following content:
• denials that the Holocaust occurred
• denials that there were gas chambers at Auschwitz
• claims that Jewish people have exaggerated the number of
people who were killed for improper and financial gain
• claims that some Jews who opposed Holocaust deniers are
of limited intelligence.
A defence of academic opinion and good faith was not able to
be legally tested as Dr Tobin did not enter a defence, and the
site was therefore found to be in breach of the RDA and the
court ordered it to be dismantled.
STUDENT ACTIVITIES
13. Explain how Mabo v. Queensland (No 1) expanded on the idea that
state laws should conform to the RDA.
14. Explain the impact of RDA on the spread of racial hatred on the
Internet – as indicated in Jones v Toben.
Recent Cases
Silberg v The Builder’s Collective of Australia Inc [2007]
FCA 1512
The applicant, Mr Silberg, managing director of the Housing
Industry Association Limited, successfully claimed racial
vilification under section 18C of the Racial Discrimination
Act 1975 (Cth). Comments posted on a website imputed the
following:
(i) ‘that the applicant, by reason of his Jewish ethnicity, was
responsible for an unhealthy monetary focus in the activities
of The Housing Association Limited; and
(ii) ‘that the applicant was, by reason of his Jewish ethnicity,
personally avaricious and primarily motivated to make
money out of the activities of the Housing Industry
Association Limited at the expense of its membership.’
Jeremy Jones and on behalf of the executive council of
Australian Jewry v The Bible Believers Church [2007] FCA
55 – The Bible Believer’s site was found to contravene section
18C of the RDA but as the organisation had no legal entity it
could not be held accountable therefore relief was granted only
in principle.
In its discussion of defences contained in section 18D – in
particular the defence relating to academic purposes – the court
cited with approval the decision in Bropho v Human Rights
and Equal Opportunity Commission and Anor (2004) 135 CLR
105. French J held in that case that ‘An act is done reasonably
in relation to statements, publications, discussions or debates
for genuine academic, artistic or scientific purposes, if it bears
a rational relationship to those purposes. The publication of
a genuine scientific paper on that topic of genetic differences
between particular human populations might, for one reason
or another, be insulting or offensive to a group of people.
Its discussion at a scientific conference would no doubt be
reasonable. Its presentation to a meeting convened by a racist
organisation and its use to support a view that a particular group
of persons is morally or otherwise ‘inferior’ to another by reason
of their race or ethnicity, may not be a thing reasonably done in
relation to para(b) of s18D.’ 11
STUDENT ACTIVITIES
15. As a class, or in groups, discuss the view that there are simply no
grounds on which a racial group should be discriminated against.
Refer to both academic and scientific issues as well as the concept
of positive discrimination. (You could also refer to the Northern
Territory Emergency Response)
Research
1. Locate and identify the federal government’s External Affairs
powers under the Constitution.
2. Outline the anti-discrimination laws that apply in your state.
Secularism And Freedom
Of Religion In Europe By Adam Berryman
Visiting Scholar, National Europe Centre
Australian National University
The separation of church and state has long been considered a
fundamental tenet of Western democracies, including Australia
and the United States. Its historical foundations can be found in
the Reformation’s challenge to religious authority, starting in the
16th Century, and the emerging primacy of the Enlightenment
notion of individual liberty. In simple terms, the principle
of church and state separation holds that states ought to be
constituted and governed on secular grounds – not according
to religious doctrine – allowing all citizens freedom of
religious choice.
Secularism is the application of the secular ideal, a belief
that religion has no place in public institutions and affairs.
Relegating religion to the private sphere of society does,
however, create a number challenges for states. In secular
societies, states must officially recognise the different religions
present within the state; they must provide adequate protection
for religious groups; and they must ensure that the manifestation
of one particular religious belief does not negatively impact on
other members of society.
STUDENT ACTIVITIES
1. For approximately how long have many western nations separated
church and state?
2. Define the concept of the separation of church and state.
3. Define the term secularism.
4. Explain why states must still recognise and protect various
religious institutions.
Such is the zeal with which secularism is pursued and policed
in France that it is sometimes considered almost a state religion
~5~
Notes
1
See the Universal Declaration of Human Rights, UN Convention for Civil
and Political Rights and UN Convention for Economic and Social Rights.
2
(1982) 153 CLR 168.
3
Brandy v Human Rights and Equal Opportunity Commission (1995) 183
CLR 245, this decision held that all cases which require determination and
enforcement must be taken to the Federal Court or the Federal Magistrates
Court as HREOC (now the Australian Rights Commission) lacks judicial
power.
4
See Australian Human Rights Commission Annual Reports: <http://www.
hreoc.gov.au/about/publications/annual_reports/2007_2008/index.html>
5
Download the report on the HREOC website at <http://www.hreoc.gov.au/
racial_discrimination/publications/int_comparison/index.html>
6
All states and territories except NSW and SA have relevant legislation.
7
(1985) 159 CLR 70. This case also established the test for special measures.
See the article on the Northern Territory Intervention in this edition.
8
(1988) 166 CLR 186
9
(1992) 175 CLR 1
10
[2002] FCA 1150
11
Bropho v Human Rights and Equal Opportunity Commission and Anor
(2004) 135 CLR 105 quoted in Jeremy Jones and on behalf of the executive
council of Australian Jewry v The Bible Believers Church [2007] FCA 55,
para 80.
itself, and forms a crucial aspect of national identity. In keeping
with this approach and reflecting the French Republic’s
constitutional separation of state and religion, France enacted
a new law in 2004 banning religious symbols from public
schools.1 The new law applied equally to all ‘ostentatious’
religious insignia – Jewish skullcaps, large crucifixes, etc –
regardless of the religion they represented. The law, however,
has generated much controversy due to its affect on Muslim
girls who wear the hijab, or headscarf, a number of whom have
now been suspended or expelled from French public schools.
Skull cap Crucifix Hijab
The so-called ‘headscarf affair’ stimulated intense debate
between those who see the ban as overly intrusive and
specifically targeted at Muslims, and others who see it as a
necessary means of protecting the republican secular tradition.
Even feminists were divided over the ban, with some believing
the law saved girls from an oppressive religious tradition, while
others claimed it violated their right to freely express their
own religious conviction. Muslim communities were likewise
at odds over whether the wearing of the veil was a religious
requirement, or a cultural tradition.
Legally, freedom of religion in France has been protected since
1789 in the Declaration of the Rights of Man and of the Citizen
and is also covered under Article 9 of the European Convention
on Human Rights (ECHR), signed in 1950:
‘Everyone has the right to freedom of thought, conscience
and religion; this right includes freedom to change his
religion or belief, and freedom, either alone or in community
with others and in public or private, to manifest his religion
or belief, in worship, teaching, practice and observance.
‘Freedom to manifest one’s religion or beliefs shall be subject
only to such limitations as are prescribed by law and are
necessary in a democratic society in the interests of public
safety, for the protection of public order, health or morals,
or the protection of the rights and freedoms of others.’
Article 9 was evoked to challenge a similar law in Turkey –
a majority Muslim country – where there has been a consistent
effort to secularise the state, extending to a legal prohibition
on religious symbols in public institutions, including schools,
universities and government offices. Under new legislation in
1998 Leyla Sahin, a Turkish medical student, was denied access
to lectures and exams because she was wearing a hijab. She
was subsequently suspended from Istanbul University for one
semester. She challenged this decision in the European Court of
Human Rights (ECtHR) under Article 9 (Freedom of Religion)
and Article 2 (Right to Education) of the ECHR.
The court found her exclusion from university to be lawful and
not in violation of either Article 9 or Article 2. The following is Source: Free will and testament (to free will)
a quote from the ECtHR ruling: © Josh Wodak,
PhD candidate at the Research School of Humanities.
‘It was the principle of secularism which was the paramount
consideration underlying the ban on the wearing of religious determining what is necessary in order to protect the rights and
insignia in universities. It was understandable in such a freedoms of all citizens in the pursuit of religious harmony and
context where the values of pluralism, respect for the rights tolerance between divergent ethno-religious groups.3
of others and, in particular, equality between men and Ultimately, the House of Lords took the view that a person’s
women, were being taught and applied in practice, that the right to hold a particular religious belief was absolute (i.e.
relevant authorities would consider that it ran counter to the could not be interfered with), but that a person’s right to
furtherance of such values to accept the wearing of religious manifest their religious belief was qualified (i.e. it could be
insignia, including as in the case before the Court, that interfered with if there was a justification). It was ruled that
women students covered their heads with a headscarf while in this case there were justifiable grounds for interference, in
on university premises.’2 particular to protect the other female students at the school
from being pressured into adopting a more conservative form
A similar case took place in the United Kingdom. In 2002
of religious dress.
Shabina Begum was excluded from Denbigh High School
because she refused to wear the prescribed school uniform, STUDENT ACTIVITIES
choosing instead to wear a jilbab (a long flowing gown) on
5. The above THREE cases raise an interesting dilemma – the need
religious grounds. Interestingly, 80 per cent of the students
to balance the rights of the individual and the state (on behalf of
who attend Denbigh High School are Muslims, and the school its citizens). Briefly summarise the view of the law in France,
uniform had been designed in consultation with representatives Turkey and United Kingdom.
from local Mosques. Begum claimed the jilbab was more in 6. Explain what the House of Lords (UK highest court) meant when
keeping with Islamic Sharia law and she challenged the schools it distinguished between the right to hold a religious belief as
decision to exclude her in the High Court on the grounds of right opposed to manifesting a religious belief.
to education and freedom of religion – both protected under the
UK’s Human Rights Act of 1998 which incorporated the ECHR The decisions of the ECtHR and House of Lords emphasise
into domestic law. the importance of contextual factors in drawing a line between
The House of Lords, reviewing case law of the ECtHR – individual rights and collective good. In both cases the courts
including the Sahin case – recognised that although Article 9 refused to engage on theological grounds as to what did or
sought to protect important rights, it was nonetheless did not constitute an essential aspect of religious practice, but
permissible in some contexts to restrict the freedom to in neither case were they able to objectively establish what
manifest religious belief – particularly the wearing of religious constitutes a ‘necessary’ limitation to the freedom to manifest
dress. They acknowledged that the state has a role to play in one’s religious beliefs.

~6~
European states thus face an ongoing challenge in balancing
the principle of secularism religious freedom, while providing
adequate protection against discrimination on religious grounds.
Unfortunately, legislation to protect religious minorities is
notoriously difficult to enact: we can legislate against hate
speech, religious vilification and blasphemy, but does that mean
we cannot criticise a religion? What about freedom of speech?
The recent rise in Anti-Semitism and Islamophobia in Europe
suggests these will remain pressing concerns for European
societies for some time to come.4
STUDENT ACTIVITIES
7. Do you think the bans on religious symbols in European schools
violate Article 9 of the ECHR?
8. Do these restrictions target one group – Muslims – more than
others, and if so, can they be considered somewhat discriminatory?
9. How has your college or school addressed the issue of religious
symbols? Does it comply with the approach taken in Europe?
Legal Responses
To Hate Speech In
Europe And Australia:
A Comparison By Christopher Patz
National Europe Centre Inter
College of Law, Australian National University
Introduction
There has been a recent proliferation of racist activity at both
national and international levels leading to a consensus that
racial vilification, or hate speech, requires a legal response.
Some have argued that racial vilification is an attitudinal
problem and that legislation is inappropriate.1 However,
there are a number of important rationales for criminalising
racial vilification. These are that the law plays both an
instrumental and symbolic role in influencing societal behavior.
Instrumentally, the law can change social behavior through
sanctioning certain types of conduct; it acts as a deterrence.
Symbolically, by making a public statement condemning racial
vilification, the law can gradually persuade society that racial
vilification is morally wrong and reduce its social acceptability.2
Is it necessary, however, to enact new and specific hate speech
laws, instead of relying on existing general laws such as those
regarding offensive language, assault or defamation? To treat
a specifically motivated crime, such as hate speech, under
general provisions obscures the true nature of the crime. As a
consequence, the message of the law and its impact on society
is diluted, namely that racism and hate speech per se is socially
unacceptable.
The task of constructing a legal response to hate speech in
a democratic system involves the balancing of two separate,
potentially conflicting rights. Those rights are:
~7~
Further Reading
John Bowen, Why the French don’t like Headscarves: Islam, the State, and
Public Space, Princeton University Press 2007
Tariq Modood, Multiculturalism, Polity Press 2007
Olivier Roy, Secularism Confronts Islam, Columbia University Press, 2007
Notes
1
Law 2004–228 of 15 March 2004 – for an analysis of this law in English
see: <http://www.brookings.edu/fp/cusf/analysis/vaisse20040229.pdf>
2
Leyla Sahin v Turkey (Application no 44774/98–19 June 2004). For the
full ECHR judgment see: <http://www.echr.coe.int/Eng/Press/2004/June/
ChamberjudgmentsSahinandTekin.htm>
3
Begum, R v Denbigh High School [2006] UKHL 15 House of Lords: For
the full UKHL judgment see: <http://www.parliament.the-stationery-office.
com/pa/ld200506/ldjudgmt/jd060322/begum-2.htm >
4
According to the European Network against Racism, Anti-Semitism and
Islamophobia have increased markedly in recent years with discriminatory
behaviour across a range of areas (for example, housing and employment),
acts of violent intolerance such as vandalism on Synagogues and Mosques,
and direct personal assaults on Jews and Muslims.
• the right of a person to be free from incitement to
discrimination on grounds of race, religion or national
origins
• the right to freedom of expression.
STUDENT ACTIVITIES
1. Explain how the criminal law can play ‘both an instrumental
and symbolic role in influencing societal behaviour.’
2. Explain why hate speech laws should be treated separately
from more general criminal law.
3. What are the two rights which must be balanced when
constructing hate speech laws?
The first right has also been expressed as a public policy; the
need to protect society from the civil unrest and disorder incited
by hate speech. The second right is one of the world’s most
widely accepted rights, found in almost all democracies of the
world. In Australia, however, these rights are not protected in a
constitutional bill of rights, though the High Court has found the
right to freedom of political communication is implied by the
‘democratic nature’ of the Australian Constitution.3 Some states
(namely the Australian Capital Territory and Victoria) do have
an express right to freedom of expression via their respective
human rights acts.4 Freedom of expression is so important
because it supports an individual’s proper participation in a
working democracy; people need to communicate the social and
political issues facing their societies, as well as their personal
opinions on those issues. However, freedom of expression
is not an absolute right and limitations on the grounds that
certain types of speech are harmful, offensive or cause damage
are permitted. Some historic examples are laws prohibiting
obscenity, blackmail and defamation.
STUDENT ACTIVITIES
4. How does Australia protect its citizens’ right to freedom of
expression? How does this compare with some states such as
Victoria, and the ACT?
5. Why is freedom of expression not an absolute right?
European Perspectives
The European response to hate speech is determined largely by
the legal framework in the European Convention on Human
Rights (ECHR).5 Article 10(1) guarantees the right to freedom of
expression whilst Article 10(2) permits certain legal limitations
that are necessary in a democratic society, such as those in the
interests of national security, for the prevention of disorder or
crime and for the protection of the rights of others. A similar
construction is found in the International Covenant on Civil and
Political Rights (ICCPR), to which Australia is also a party.6
Article 19 provides the right to freedom of expression whilst
Article 20(1) contains a limitation – the specific prohibition
on the advocacy of national, racial or religious hatred that
constitutes incitement to discrimination, hostility or violence.7
It is important to note that the European Court of Human Rights
(ECtHR)8 has held that the right to freedom of expression also
extends to ‘information or ideas’ that ‘offend, shock and disturb’
because the values of pluralism, tolerance and broadmindedness
are essential to a democratic society.9 The ECtHR resolves
this dilemma through requiring that every limitation placed on
the right to freedom of expression must be proportionate to
the legitimate aim pursued.10 The doctrine of proportionality
means that governments cannot unreasonably restrict freedom
of expression in the pursuit of a legitimate aim or policy,
such as preventing discrimination or civil disorder. This is the
fundamental approach to balancing freedom of speech with
other legitimate aims of government, and was adopted by the
Australian High Court in ACTV v NSW.11
Given the congruency in approaches, it is possible that
Australian courts will look to decisions of the ECtHR or the
UN Human Rights Committee (HRC) in order to help them
develop the common law when creating limitations on freedom
of speech. The possibility of referring to international law in
order to develop the common law was pronounced by the High
Court in the important cases of Mabo v Queensland12
and Dietrich v The Queen.13
The ECtHR has only directly considered the issue of racist
speech in one case, Jersild v. Denmark.14 In that case, a journalist
conducted a television interview with a known group of racist
youths, ‘the Greenjackets’, in which they made racist comments
about black people. The youths were convicted under Danish law
for making statements that insulted or degraded a group of people
on the basis of their race, colour, national or ethnic origin. The
journalist was also convicted for aiding and abetting the youths.
In his defence the journalist alleged a violation of Article 10, his
right to freedom of expression. The ECtHR agreed. It considered
~8~
that the interview had addressed an issue of some public interest,
acknowledging that race can be a legitimate topic of social
and political discussion. Furthermore, the role of the press in
a democracy as a major contributor to public discussion was
considered important and necessary. Subsequently the penalties
imposed on the journalist were found to be unnecessary. The
means employed by the State of Denmark were disproportionate
to the aims of protecting the reputation and rights of others and
maintaining civil order. The ECtHR also based its decision on the
finding that ‘taken as a whole, the [television program] could not
objectively have appeared to have as its purpose the propagation
of racist ideas and views.’15 This implies that what is required for
attracting liability for hate speech is an intention to spread racist
ideas and views. In this case, the program intended to facilitate
public discussion; aimed at a well-informed audience and also
contained a number of counter-balancing elements. As we shall
see, the intent element is also used in Australian state jurisdictions
as an important device for restricting criminal liability to only
those really serious cases of hate speech.
STUDENT ACTIVITIES
6. Identify ONE international convention, to which Australia is a
party, which has attempted to balance the right to expression with
the right of protection against racial hatred.
7. Define the term doctrine of proportionality.
8. In what way can Australian courts use decisions made by the
ECtHR and the UN HCR to develop common law here?
9. Explain how Jersild v. Denmark illustrates the challenge of
applying the doctrine of proportionality.
10. How is the term intention used by the European Court of Human
Rights?
Australian Perspectives
In Australia, responses to hate speech have been enacted at
both a commonwealth and state level. At the federal level,
the Commonwealth Parliament attempted to pass legislation
implementing its international obligations under the Convention
on the Elimination of all forms of Racial Discrimination
(CERD) in the mid 90s.16 However, early drafts of the Racial
Hatred Act 1995 (Cth) attracted strong opposition on the
grounds that it would unreasonably restrict freedom of speech.
It was heavily amended in the Senate, with the result that
hate speech was made unlawful, but not a criminal offence.
There were also very broad exemptions for acts said or done
‘reasonably and in good faith’; for artistic purposes; in the
course of academic debate and for any other genuine purpose in
the public interest (to list but a few).
The federal approach to hate speech has been heavily criticised
for being ‘symbolic’ rather than substantive protection.
Legislation enacted by state parliaments however, has been
better received. Most states (South Australia, ACT, Queensland
and Victoria) have hate speech legislation, largely following the
model contained in the Anti-Discrimination (Racial Vilification)
Amendment Act 1989 (NSW). The common factor of these
offence provisions is the requirement of proof of intent in order
to attract criminal liability. The crime of racial vilification is
generally defined as ‘a public act, to incite hatred towards,
serious contempt for, or severe ridicule of, a person or group of
persons on the grounds of race’.17
The doing of such a ‘public act’ will only constitute a crime if it of actually promoting social acceptance and harmony in
is done with the relevant intent to cause the harm that occurs as a contemporary society.
result. Australian courts have similarly used the element of intent
(as illustrated by the ECtHR in Jersild v. Denmark above) to STUDENT ACTIVITIES
limit the scope of the offence. The inclusion of an intent element 11. How is the crime of racial vilification generally defined in
serves to counteract the so-called chilling effect that hate speech Australian state legislation?
laws can have on freedom of speech. The threat of legal sanction 12. Explain how the term intent attempts to bridge the divide between
combined with uncertainty amongst citizens about the scope freedom of expression and the right to be free from racial
of the laws can cause people to engage in self-censorship. As a vilification.
result otherwise valuable contributions to public debate are lost.
Notes
Requiring proof of intention beyond reasonable doubt means that 1
For example, I Freckelton ‘Censorship and Vilification Legislation’ (1994)
even speech that negligently, accidentally or recklessly causes the 1 AJHR 327.
2
B White ‘The Case for Criminal and Civil Sanctions in Queensland’s Racial
relevant harm will not attract criminal liability. This is reviewed Vilification Legislation’ (1997) 13 QUTILJ. 242.
in another article in this issue exploring whether (unintentionally 3
Australian Capital Television Pty Ltd and New South Wales v
harmful) racist jokes should be criminalised.18 Commonwealth [1992] HCA 45; (1992) 177 CLR 106.
4
Human Rights Act 2004 (ACT), Charter of Human Rights and
In Western Australia, the hate speech offence requires that the Responsibilities Act 2006 (VIC).
speech creates ‘animosity towards’ and ‘harasses’ the victim. 5
Full text available at: <http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-
DC13-4318-B457-5C9014916D7A/0/EnglishAnglais.pdf>
These core terms are quite broad and open-ended, particularly 6
Full text available at: <http://www2.ohchr.org/English/law/ccpr.htm>
for a criminal offence. Consequently the Western Australia 7
The Human Rights Committee applied these provisions in considering
Parliament made it a requirement that the Attorney-General must the validity of French holocaust denial legislation in Faurisson v France
Communication No 550/1993.
consent before a prosecution can commence. This is to prevent 8
For a review of the European Convention on Human Rights and the
criminal prosecution in ‘cases in which a provision technically European Court of Human Rights see J. Krebs The European Convention
has the potential to catch circumstances that are beyond the on Human Rights and its Relationship to the European Union vol. 10
no 3 July 2007.
intention of the legislation.’19 This approach highlights the largely 9
Handyside v. United Kingdom, Series A, No 24; 1 European Human Rights
symbolic effect of the law; prosecutions will only be pursued in Record (EHRR) 737 (1979-80).
serious cases, whilst still criminalising hate speech provides a
10
Above.
11
Australian Capital Television Pty Ltd and New South Wales v
strong deterrent message to the community. Commonwealth [1992] HCA 45; (1992) 177 CLR 106.
In both Europe and Australia laws have been formulated that 12
Mabo v. Queensland [No 2] (1992) 175 CLR.
13
Dietrich v R (1992) 177 CLR 292.
seek to balance the right of freedom of expression with the 14
Jersild v. Denmark, Series A, No A289 (1995).
policy of protecting victims from racial vilification. The clear 15
Jersild v. Denmark, Series A, No A289 (1995). 35.
symbolic effect, whilst significant and important, should not be 16
Full text available at: <http://www.unhchr.ch/html/menu3/b/9.htm>
viewed as the only means for deterring racist conduct. Public 17
D Meagher, ‘So Far no good: The regulatory failure of criminal racial
vilification laws in Australia’ (2006) 17 PLR 209. 211.
prosecutors need to exhibit a willingness to use the laws in those 18
Sen Raj, ‘Just Joking: is racist humour a form of vilification?’
serious instances warranting prosecution. Such willingness 19
See Western Australia, Parliamentary Debates, legislative Assembly
is necessary if these laws are to achieve their desired effect 18 August 2004, p 1560 (Geoffrey Gallop, Premier).

Just Joking: Is Racist

Humour A Form Of
Vilification? By Senthorun Sunil Raj
Law Student, University of Sydney and Freilich Foundation
ANU Summer Scholar 2008/2009

It is debatable whether racist humour is vilification or What Is Humour?

hate speech. New South Wales legislation (s20 C of Anti
Joking is a way of negotiating ‘serious’ ideas in a format that
Discrimination Act 1977) defines ‘hate speech’ as a public
encourages collective laughter and social solidarity. Humour
act which ‘expresses hatred, serious contempt for or severe
offers a mode of engagement that touches topics which are
ridicule of …’ a particular person or group on the basis of race
not necessarily acceptable in serious communication. It avoids
or ethnicity.1 Given the express definition, hate speech is often
being recognised as the ‘real’ because it is understood as a form
understood to be ‘overt’ or self-evident. Humour, however, is
of ‘play’ or triviality and becomes a social exchange between
more difficult to categorise as hate speech. For example, what
individuals (Mulkay 1988: 82).
is the effect of telling racist jokes, and how do they change our
conceptions of ‘public hatred’ in relation to hate speech?

~9~
Hate Speech
‘Hate’ is defined as a ‘set of emotions or feelings which
involves extreme ill will towards another person or group of
persons (Kazak v John Fairfax Publications Limited (2000)
NSWADT). Katherine Gelber points out that hate speech is
understood in terms of its ‘abusive, threatening or insulting’
features. Yet, such a characterisation proves limiting when
racist discourses are subtle in particular acts of speech or
representation. In challenging the legislative limitations,
Gelber advocates a policy which seeks to understand hate
speech as a mode of address in which ‘discrimination is
enacted in the utterance’ (2002: 91).
STUDENT ACTIVITIES
1. How does the NSW Anti-Discrimination Act 1977 define hate
speech?
2. Suggest why Katherine Gelber feels that hate speech should be
defined more widely than ‘abusive, threatening or insulting’
words?
Why Words Can Hurt?
Gelber’s analysis leads us to question what makes words
powerful and hurtful. Perhaps we need to think about how
words, which are uttered with the intention of being derisive
or insulting, operate by attempting to single out the subject’s
race as the basis of the taunt. If we extend the analysis, we
can observe that words that are discriminatory are not always
intended as such by the speaker, but discrimination is reflected
in the interpretation of the listener (Mason 2002a: 96). Whether
a statement is vilifying is specific to a time and place.
Humour And Prejudice
When we think about jokes, we often imagine laughter, triviality
or light-hearted play. However, it is important to consider how
humour also expresses ideas as much as it expresses particular
qualities. Michael Mulkay argues that jokes offer a means of
divulging particular forms of racialised information without the
teller or the responder having to acknowledge or recognise that
public exchange (1988: 124).
Consider the following:
‘What is the worst thing you can call a black person,
starting with N and ending with R – Neighbour.’
Whilst the derogatory nature of the joke seems clear, the
effect of how it marks particular audiences is not. Much of
the ‘joke work’ here is left to the listener. How we identify
what is ‘black’ and what qualities we ascribe to ‘neighbour’
are dependant upon our contexts. Particular ideas are divulged
through humour without having to be explicitly acknowledged.
That is, the unsaid word is ‘nigger’, which is left to the
audience to interpolate. Black people become marked as
threatening strangers, who should not be allowed to occupy
‘our’ safe home space. The listener may ascribe particular
prejudices in order to mark this strangeness (black people are
criminal, dangerous, over sexualised) in order to understand
why it would be terrible for them to be your neighbours. Even
if this particular joke seems ‘unreal’ or ‘over the top’, it can
~ 10 ~
incite particular internalised phobias or anxieties for those
who identify as black: feeling shame over their ‘unwelcome’
identities. Moreover, it can incite hatred towards those who
do not identify as black: being ‘black’ is both threatening
and a source of ridicule.
STUDENT ACTIVITIES
3. Discuss the impact of the joke provided above – who might
find it funny? Does it therefore constitute race hatred speech?
Privilege And Power
Racist humour also brings to the fore notions of privilege.
Culturally, whether someone finds something funny is partly
dependent on their sex and race. Jokes reproduce particular
bigoted or privileged ideas about racial difference. Certain
jokes, such as the ‘good start’ ones, present the violation (or
hateful scenario) prior to the ‘normal’ explanation of the event.
For example:
‘What do you call a group of black people chained
to the bottom of a rock – a good start.’
If we analyse the above joke, we can identify that words
may embody a physical and moral character (Bergson 1911:
115). The above joke presupposes knowledge of black people
as marginalised or repulsive. The joke when spoken by a
white (racist) person presents the history of black
marginalisation, vilification and murder. If spoken by a black
person, the utterance brings forth a different (though not
necessarily opposed) history: it may be used to appropriate
or subvert the stereotype of that marginalisation or oppression
(Billig 2005: 34). Hatred (in the ‘good start’ joke) and
irritation (in the stereotyping jokes) may occupy the same joke
form, but the force (emotional impulse) behind the joke has
very different meanings and emotions associated. We need
to be careful to differentiate between the tones and structure
of each joke in order to determine the ‘hateful’ or ridiculing
character which they embody.
Racist humour is particularly problematic. Jokes about one’s
race or ethnicity may be uttered in a mode which we think of
as trivial or not serious, but the ways in which they mark us is
much more troubling. By engaging the prejudicial stereotypes
we perpetrate a kind of violence. Perhaps not violence in a
physical sense; but it perpetrates violence in a social way by
continuing to mark people as strange, repulsive and dangerous.
It is important then to understand that humour is an area of
uncertainty and it can trouble minority groups or produce
experiences of hate depending upon the jokes that are spoken.
STUDENT ACTIVITIES
4. Why does the author believe that some jokes ‘perpetrate violence
in a social way’?
5. Discuss the difficulties associated with the enforcement of racial
hatred legislation in a comedy setting.
Bibliography
Anti Discrimination Act 1977 (NSW), s20C and s49ZT
Bergson, H. Laughter: An Essay on the Meaning of the Comic. London:
Macmillan and Co., 1911.
Billig, M. ‘Comic Racism and Violence’. In Lockyer, S. and Pickering, M.
Beyond a Joke: The Limits of Humour. Hampshire: Macmillan Press, 2005.
Mason, G. The Spectacle of Violence: Homophobia, gender and knowledge.
London and New York: Routledge, 2002.
Mason, G. ‘The Reconstruction of Hate Language’. In Gelber, K. and Stone, A.
Hate Speech and Freedom of Speech in Australia. Sydney: The Federation
Press, 2007.
Mulkay, M. On Humour: Its Nature and Its Place in Modern Society. Oxford:
Polity Press, 1988.
Zizek, S. Violence. London: Profile Books, 2008.
The Northern Territory
Intervention And
The Racial
Discrimination Act By Renata Grossi
Freilich Foundation, Australian National University
In August 2007 the Hon Mal Brough MP, then minister for
families, community services and indigenous affairs and the
minister assisting the prime minister for Indigenous affairs,
introduced into the House of Representatives five bills which
together constituted an emergency response by the federal
government to deal with the problems of sexual abuse of
children, alcohol and drug abuse, pornography and gambling
amongst the Indigenous peoples of the Northern Territory. It
became known as the Northern Territory Emergency Response
(NTER). Concern over the sexual abuse of Indigenous children
was paramount in the mind of the minister following the release
of a report earlier in the year commissioned by the Northern
Territory government entitled Little Children are Sacred. The
legality of the federal government’s intervention relied upon its
territories power under the Constitution.
Patrick Dodson
~ 11 ~
Notes
1
Hate speech legislation varies both on a national and state level and the
forms of vilification which are prohibited shift between states. Whilst the
categories shift, the legal tests (as stated in the NSW legislation) are very
similar. Commonwealth legislation covers racial and sexuality vilification
in the Discrimination Act 1991, sections 65–67. In Queensland, vilification
on the basis of gender identity and religion is also legislated in the Anti-
Discrimination Act 1991 section 124A. South Australia has a specific Racial
Vilification Act 1996. Victoria legislates against hate speech under its Racial
and Religious Tolerance Act 2001, sections 7 and 8. In Western Australia,
hate speech offences are contained in the Criminal Code Act Compilation
Act, chapter XI.
The package of legislation introduced a number of radical
measures covering health, education, welfare reform, law
and order, employment and land ownership. Some of the
measures included:
• quarantining welfare payments to ensure they were spent
on essential items such as food and clothing
• tying welfare payments to children’s school attendance
• compulsory health checks for children
• change to community education programs to an income
management and employment program
• acquisition of five year leases over land which included
community living areas and town camps in order to
improve living conditions
• enforcement through recruitment of inter-state police and
armed services.
STUDENT ACTIVITIES
1. Explain the reasons that may have been given by the
Hon Mal Brough MP for the 2007 Northern Territory Emergency
Response.
2. Identify SIX areas covered by the package of legislation introduced.
3. State THREE broad measures introduced by the legislation.
Suspension Of The Racial
Discrimination Act
Whilst the federal government has power to make special
laws for the territories (ACT and NT) which go beyond its
legislative competence outlined in the Constitution, legally the
NTER stumbled over compliance with the terms of the Race
Discrimination Act 1975 (RDA). This intervention was clearly
based on race – it only applied to Indigenous Australians in
the Northern Territory, rather than all disadvantaged Australians.
To overcome this problem the Federal government simply
suspended the operation of the RDA and other relevant
NT anti-discrimination legislation.
Graeme Mundine, the head of the body concerned with
Indigenous issues set up by the National Council of Churches
in Australia commented that ‘any legislation that can only exist
if the Racial Discrimination Act is amended has fundamental
flaws’.1 Justice Kirby in his last decision on the High Court
also warned about of the dangers ‘in enacting special laws
that target people of a particular race and disadvantage their
rights to liberty, property and other entitlements by reference
to that criterion’.2
The Law Council of Australia called for a change in the
government policy so that the intervention conforms to the
operation of the RDA. President of the Council, Ross Ray QC,
said that ‘the Law Council had condemned the suspension of the
Racial Discrimination Act from the outset of the intervention
and had consistently called for all protections against racial
discrimination laws to be reinstated’.3 He said that all actions
taken under the intervention should be subject to race
discrimination laws.
A number of other organisations have called for the RDA to
be reinstated, amongst them; Amnesty International, Oxfam
and Australians for Native Title and Reconciliation. Amnesty
International’s Indigenous rights coordinator in Australia said
that taking away people’s rights was never a good solution,
‘racial discrimination does not improve the lives of children’.4
This view is also shared among many prominent Australians.
Patrick Dodson has described the intervention as ‘crude, racist
and poorly considered’.5 ACT Human Rights Commissioner,
Helen Watchirs, reminded her audience in a speech in 2008 that
it was racially discriminatory measures aimed at improving
the lives of Indigenous Australians which led to the Stolen
Generations and all of the disadvantage and harm that we
now know came with it.6
STUDENT ACTIVITIES
4. Explain why the NTER failed to comply with the Racial
Discrimination Act 1975 Cth and how the government
overcame this.
5. Identify TWO persons and TWO international organisations
who disagreed with this action.
6. Explain, in particular, why Helen Watchirs believes that setting
aside the RDA can lead to harm for Indigenous people.
NTER Review
In June 2008 the Rudd Government established a NTER Review
Board to conduct an independent review of the intervention.
The Board reported in October 2008. It concluded that ‘the
situation in remote communities and town camps was – and
remains – sufficiently acute to be described as a national
emergency. The NTER should continue’.7 Just as importantly
the report also said that the positive potential of the intervention
had been dampened by the manner in which it has been
introduced and that in order to succeed the relationship between
Indigenous people and the governments of Australia had to be
reset. The review committee said that ‘the relationship must be
recalibrated to the principle of racial equality and respect for
the human rights of all Australian citizens’.8
The current minister for families, housing, community services
and Indigenous Affairs, Jenny Macklin, has announced that
~ 12 ~
the NTER will continue in its current form for the next twelve
months but after that revised measures will be introduced which
will reformulate the policy so that it conforms with the RDA.
The intervention policy will therefore be considered as
a ‘special measure’ consistent with the RDA.
In Gerhardy v Brown9 Justice Brennan laid out the requirements
for special measures as follows:
• a special measure must confer a benefit on some or all
members of a class
• membership of that class is based on race, colour, descent,
or national or ethnic origin
• the special measure is the sole purpose of securing adequate
advancement of the beneficiaries so that they may enjoy
equal human rights and fundamental freedoms
• the special measure must not lead to separate rights for
different groups beyond the time required to achieve the
desired outcome.
STUDENT ACTIVITIES
7. What did the NTER Review Board conclude in 2008? (Read
text carefully – there is a big difference between supporting an
intervention and liking the way in which it is operating).
8. Explain how the NTER will use the decision made in
Gerhardy v. Brown (1985).
Challenges To The Northern Territory
Intervention
The Northern Territory Intervention was challenged in the
High Court in the case of Wurridjal v The Commonwealth of
Australia.10 This case challenged the legality of the federal
government’s compulsory five year leases on land over which
Indigenous people claimed a spiritual connection. The challenge
was unsuccessful. This case did not deal with the suspension of
the RDA, but as we saw above at least one judge, Justice Kirby,
was cautious about the justice of a law which could only operate
when the RDA was suspended.
As a domestic challenge on the grounds of racial discrimination
is not possible a challenge is planned at an international level.
The Prescribed Area People’s Alliance (PAPA) has plans to
lodge a complaint to the United Nations Committee on the
Elimination of Racial Discrimination (CERD) in March 2009.
PAPA is working on a submission that argues that the NTER
does not constitute a ‘special measure’ permitted under the
CERD because the measures have not improved the lives of
women and children. Some of the arguments that will be used to
substantiate this are that:
• no consultation, or inadequate consultation with the relevant
communities has taken place over the imposition of the
emergency response
• the system is creating extra layers of bureaucracy which
has made meeting the demands of daily life such as travel,
health care, food, payment of bills etc. more difficult
• the system is creating segregated service delivery for
example in supermarkets where there are separate
Indigenous people only queues for people using the
‘basics card’.11
Impact On Australia’ International
Standing
The CERD Committee has the power to issue early warning
measures and urgent procedures. Should it do so, Australia will
join the ranks of Ethiopia, Belize, Nicaragua, Philippines, Brazil
and Peru. Whilst it is unlikely that CERD Committee will take
this drastic step, we know that Australia’s record in relation to
our Indigenous population is compromised. This year a UN
Special Rapporteur on human rights and fundamental freedoms
of Indigenous people is planning a formal visit to Australia
where the NTER will certainly be a focus.
Speculation has also arisen as to the effect that the NTER will
have on Australia’s relationship with US President Barack
Obama. In a recent opinion piece Claire Smith speculated that
whilst there was much agreement between Kevin Rudd and
Barack Obama, the issue of race might well ‘ruin the promise
of a beautiful friendship’.12
STUDENT ACTIVITIES
9. Explain why PAPA believes that the NTER does not constitute a
‘special measure’.
10. What is PAPA doing about it?
11. What did the Wurrudjal People do about the NTER?
12. Outline TWO ways in which the international community could
put pressure on the Australian Government to reinstate all of the
terms of the RDA.
Research
1. Investigate and report on the nature and purpose of the UN
Declaration on the Rights of Indigenous Peoples. How will
recent endorsement of this Declaration impact on the rights
of Indigenous people living in the Northern Territory?
Legal Snapshot By Chris Field
Western Australian Ombudsman
Contract Law, Basic Concepts,
Does It Operate To Protect
Consumers And Traders?
What Is Contract Law?
Contracts are about promises – a promise by one party to
do something and a promise by another to do something in
return. Perhaps the best way to understand contract law is by
example. If you order a book from a bookstore, contract law
will ensure that you keep your promise (to pay for the book)
and the bookstore keeps its promise (to provide you with
the book). Contract law regulates how people make promises,
how promises are enforced and whether such promises are fair.
The law of contract cannot be found in any one place.
Rather, contract law is a combination of law made by courts,
government legislation and regulations as well as regulations
made by businesses themselves (often called self-regulation).
~ 13 ~
Notes
1
<htpp:www.ncca.org.au/media releases/081001> ‘The Northern Territory
Intervention is a Shame Job’
2
Justice Kirby in Wurridjal v The Commonwealth of Australia [2009] HCA
2 para 204. This case challenged the creation of leases over land where
Indigenous Australians claim a spiritual connection.
3
Law Council media release ‘Reinstate Racial Discrimination Act in
NT, Law Council Urges’, 14-oct-08 <http://www.lawcouncil.asn.
au/media/news-article.cfm?article=F95F65FB-1E4F-17FA-D272-
F2A30D7A9495&cat=Media%20Release.>
4
Amnesty International Call for Racial Discrimination Act to be reinstated
18 Sept 2008 <www.amnesty.org.au/news/comments/17387/>
5
Patrick Dodson ‘Dodson on the Intervention: crude, racist and poorly
considered’ November 2008 www.crickey.com.au
6
Helen Watchirs Human Rights and Discrimination Commissioner speech
given at the Australian National University 30th July 2008 <http://www.hrc.
act.gov.au/assets/docs/ReconciliACT%20ANU%20July%202008.doc>
7
Report of the NTER Review Board October 2008 <http://www.nterreview.
gov.au/docs/report_nter_review/execsumm.htm>
8
Report of the NTER Review Board October 2008 <http://www.nterreview.
gov.au/docs/report_nter_review/execsumm.htm>
9
Gerhardy v Brown (1985) 159 CLR 70
Wurridjal v The Commonwealth of Australia [2009] HCA 2
10
11
George Newhouse NT intervention: Indigenous Australians take their
case to the UN Monday 27th Aug 2008 <www.Crikey.com.au>. The
effectiveness of the Intervention is a moot point. See Chris Graham NT
Intervention: we’re actually getting somewhere 20/06/08 <www.Crickey.
com.au> and compare with Rachael Siewart The Intervention, One Year On
June 2008, http://newmatilda.com
12
Claire Smith Could Racial Discrimination Ruin the Promise of a Beautiful
Relationship? <www.abc.net.au/news/stories/2009/02/02/2479644.htm>
The Basic Concepts Of Contract Law
The basic concepts of contract law are reasonably simple.
Contracts can generally be in writing or oral (although
some contracts can only be made in writing). Contracts
generally commence with an offer to do something. This is
often followed by negotiations about the offer which in turn
is followed by acceptance of the offer. Finally, the agreed
terms are put into writing. Contracts usually involve a form
of payment that lawyers refer to as consideration. Generally,
if both parties to the contract carry out their promises the
contract ends.
It is important to remember, however, that while it is
convenient to describe contract law as a process of offer,
negotiation of price and terms, acceptance, and putting
those negotiations into writing, a very significant amount
of contracting does not occur this way. We enter into oral
contracts every day, largely without thinking about doing so.
Standard-form contracts, with all of the terms of the contract
provided by the trader (generally on a ‘take it or leave it’ basis),
are a very common part of any modern economy. Standard
form contracts limit the capacity of consumers to negotiate
individual terms of contracts. But this type of contract is very
important. If each contract was individually negotiated between
the trader and consumer the costs would be astronomical –
costs that would need to be paid by the consumer.
Much of what we know as contract law actually exists to deal
with things that have gone wrong with contracts. Contract
law provides an extensive series of rules to deal with such
things as:
• who can and cannot enter a contract (for example, minors)
• deciding what the intentions of the parties were when
they entered into the contract, and what the terms of the
contract were
• factors that might affect whether a contract is valid
(for example, if one of the parties to the contract
misrepresented an important term of the contract)
• how contracts can be breached and how breaches are
dealt with
• how contracts are terminated and what remedies that
might arise from termination.
Does Contract Law Protect Traders And Consumers?
There are two legal cornerstones of any modern, market-
based economy like Australia. The first is the rule of law
(that simply means that there is a system of known rules
that govern how society operates). The second is contract
law. Contract law protects traders by giving them certainty
about the rules that regulate how they are allowed to
undertake their trade. This certainty is vital for traders
to have the confidence to compete with other traders and
Legal Update By Beth Wilson
Health Services Commissioner. Victoria
Alternative Dispute Resolution
Victoria’s Law Reform Committee in May 2009 released
its Inquiry into Alternative Dispute Resolution (ADR) and
restorative justice which has national implications. The
Report defines ADR as, ‘an umbrella term in which the ADR
practitioner considers and appraises the dispute and provides
advice about the facts of the dispute, the law and, in some
cases, possible or desirable outcomes and how that may be
achieved. Advisory processes include a mini-trial and an early
neutral evaluation’. Restorative justice is defined as ‘a process
whereby parties with a stake in a specific offence collectively
resolve how to deal with the aftermath of the offence and its
implications for the future’.
~ 14 ~
invest in new staff, new equipment and new products and
services. Contract law also protects traders by ensuring that
the contracts they enter into will be enforced by the courts.
Without contract law, our economy would soon come to
a halt as traders would have no way of knowing whether
promises consumers make to pay for their goods and
services would be honoured.
Similarly, contract law works to protect consumers.
Consumers can be confident that if a trader has promised
them something the trader will need to deliver on that
promise. Modern contract law provides for an extensive
array of consumer protections. Courts, using contract law
principles, have long protected certain consumers by not
enforcing contracts (or parts of contracts). These principles
have also worked to prevent traders misrepresenting or
misleading consumers, taking advantage of consumer
mistakes or enforcing contracts made under duress.
In more recent times, courts have developed such
principles as unconscionability that protect certain
vulnerable consumers. Many of these principles,
particularly unconscionability and misleading conduct,
have become important laws of the parliament. In 2009, the
Commonwealth Government announced laws that will further
protect consumers by making certain terms of contracts
unfair. Such ‘unfair contract terms’ laws will operate to
protect consumers.
When considering contract law as a tool of consumer
protection it is useful to keep in mind that protection does
not necessarily come without cost. For example, measures in
contracts to ensure that they are fair may increase the costs
of goods or services that are supplied under those contracts,
or potentially reduce competition among traders, which also
comes at a cost to the consumer.
In his foreword the Chair of the Committee notes: ‘ADR
and restorative justice have emerged in recent decades as
two ways to deal with civil disputes and criminal offences
outside the courtroom. They are dynamic and innovative
fields powered by the combined efforts of community
organisations, universities, industries, courts and tribunals,
and government at federal and state levels.’ The executive
summary notes that ADR is a term used to describe
processes through which people resolve disputes with
the help of a third person, rather than asking a court or
tribunal to decide the case for them. Restorative justice
focuses on repairing harm caused by an offence and
encouraging offenders to take responsibility for their
actions. Together ADR and restorative justice are an
important, evolving and alternative means of dealing
with civil claims and criminal offences.
Included in the 78 recommendations is that the National
Alternative Dispute Resolution Agency Council should work
with government and ADR providers to develop agreed
performance measures and consistent data and reporting
systems.
Mandatory Reporting
Health service providers including doctors are deeply
concerned by a Northern Territory law which obliges them to
report any person under the age of 16 whom they know to be
sexually active. Under the Care and Protection of Children Act
health workers face up to $20,000 fines if they do not report.
They say the law is unworkable, undermines the trust between
health worker and patient and will prevent young people
accessing sexual health services. Writing in Australian Doctor
Media Watch By Margaret Beazer
National Charter Of Rights Will
Protect The Disadvantaged
The Age, June, 8 2009, Philip Lynch
Australia’s two examples of this process have proved
critics wrong
Critics of a national charter of rights have recently shifted
their line of attack. Dire predictions of floods of litigation,
get-out-of-jail-free cards, rampant individualism and the
end of democracy have been replaced with attacks on the
constitutionality of a human rights act and the role of the
Australian Human Rights Commission.
This tactical change is necessary because, after four years of
the ACT Human Rights Act and three years of the Victorian
Charter of Rights and Responsibilities, their original claims
have been proved profoundly wrong.
Far from a tidal wave, the flow of cases has been barely a
trickle. The view that charters of rights create a lawyers’
picnic is unsubstantiated; of the few Victorian charter cases
that have been determined, the vast majority have been run
pro bono for the homeless, people with mental illness and
people with disability.
Neither the Victorian charter nor the ACT HRA has emerged
as a ‘get-out-of-jail-free card’. Carl Williams’ attempt to delay
his criminal prosecution because his ‘lawyer of choice’ was
not available was quickly dismissed. So too was a doctor’s
reliance on the presumption of innocence in contesting his
de-registration following charges of rape.
~ 15 ~
(15/5/2009) Dr Terri Foran notes: ‘Stupid laws deserve to be
challenged and I encourage all practitioners in the Northern
Territory to effectively lobby your politicians on this one. The
health of so many young Australians depends on it.’
Duty Of Care
Six High Court of Australia judges have decided that the
police do not have a duty of care to intervene to prevent
suicides in all cases. A Victorian woman sued two police
officers who, she believed, were responsible for her husband’s
death by suicide. The court ruled the law does not oblige a
person to rescue another from harm unless the person appeared
to be mentally ill. The High Court ruling was a reversal of
an earlier Court of Appeal decision that police should have
intervened when they found the man in his car with a vacuum
hose attached to the exhaust. The man assured the police he
would be alright but committed suicide later that day.
To date, the impact of the Victorian charter and the ACT HRA
in the courtroom has been negligible. Far from being a failure,
that is how it should be. Outside the courtroom, however,
these laws are used to address disadvantage and promote
dignity; a fact conveniently ignored by national charter of
rights critics.
You won’t have read, for example, that the Victorian charter
prevented the eviction of a single mother and her kids from
public housing into homelessness, or that it assisted an elderly
woman with brain injury to get access to critical medical
assistance. Or that it helped a woman with cerebral palsy and
children with autism to obtain support services.
These are common-sense decisions in real-life cases, which
show how charters of rights can and do improve lives and
promote values such as freedom, respect, dignity and a fair
go. The latest line of attack (Bob Carr, Opinion 5/6) is really
a re-hash of the argument that a charter of rights would usurp
parliamentary sovereignty. Whether by neglect or design, this
particular argument makes several false assertions.
Carr would have us believe that the popularly endorsed model
of a national charter of rights would ‘give the Australian
Human Rights Commission a role in effectively striking
down laws’. It does nothing of the sort. The dominant
model does three fundamental things. First, it requires that
parliament scrutinise the compatibility of legislation with
human rights before enactment, thereby improving the
quality of laws. Second, it requires that public authorities
give proper consideration to human rights, thereby improving
public service delivery and outcomes. Third, it requires
that courts interpret and apply laws compatibly with human
rights, thereby giving effect to parliament’s intent and our
international obligations.
The model merely gives the Australian Human Rights
Commission the responsibility to notify parliament if it
appears that a law is incompatible with human rights.
Parliament can respond to such a notification as it sees fit,
amending, repealing or leaving the law untouched. Section
36(5) of the Victorian charter, on which the dominant
model is closely based, is unambiguous: ‘A declaration of
inconsistent interpretation does not affect in any way the
validity, operation or enforcement of the statutory provision.’
This model retains parliamentary sovereignty. It also
recognises that human rights are not trump cards. Far from
promoting a culture of individualism, the Victorian charter
and ACT HRA explicitly recognise that human rights must be
balanced with other considerations, such as national security,
public health and public order. They recognise that human
rights are deeply communitarian ‘necessary in a diverse,
democratic, inclusive and participatory society’.
Carr also invokes the recent passage of the Victorian Abortion
Law Reform Act, taking issue with section eight, which
relevantly requires that doctors and nurses with conscientious
objections nevertheless ‘perform an abortion in an emergency
where necessary to preserve the life of the pregnant woman’.
In a position surely at odds with his insistence on unfettered
parliamentary sovereignty, Carr suggests that the Victorian
charter should have prevented the passage of this law and that
it should be open to doctors and nurses to rely on the charter
to challenge the provision (presumably in a court!). While the
Abortion Act may have benefited from greater parliamentary
scrutiny of its human rights implications, this episode does
highlight that neither the Victorian charter nor the ACT HRA
has shifted legislative power to the judiciary.
The evidence is clear: an Australian charter of rights could
improve public services, promote more responsive and
accountable government, and address disadvantage.
Bring it on.
Philip Lynch is director of the Human
Rights Law Resource Centre.
Philip Lynch has granted permission
to reproduce this article
STUDENT ACTIVITIES
1 What problems were predicted for Victoria and the ACT after
the passing of their human rights acts?
2 ‘The view that charters of rights create a lawyers’ picnic is
unsubstantiated.’ Explain why the writer thinks this is the case.
Include an example in your explanation.
3 How have the existing human rights laws been used to address
disadvantage and promote dignity?
4 How would a Commonwealth human rights act, using the most
popular model (referred to as the dominant model), be used to
protect human rights?
5 If this model were used, could a law that is found to be
inconsistent with the human rights act still be operable?
Explain.
6 Do you think a Commonwealth charter of human rights would
shift legislative power to the judiciary? Discuss.

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