An International Comparison of the Racial Discrimination Act 1975
Chapter 6: Racial Vilification
6.1 Racial Vilification and Human Rights Law
6.2 Racial Hatred Law in Australia
6.3 Racial Hatred Law in Canada
6.4 Racial Hatred Law in the United Kingdom
6.5 Exceptions
6.6 Racial Hatred Law in the European Union
6.7 Constitutional Limitations on Racial Hatred Laws
6.7.1 Constitutional Limitations in the United States
6.7.2 Constitutional Limitations in Canada
6.7.3 Constitutional Limitations in Australia
6.8 Other Approaches to Racially Offensive Behaviour and the Extension of Racial Vilification Laws to Other Grounds
6.8.1 Religious Vilification
6.8.2 Racially Motivated Crime
6.8.3 Harassment
The term ‘racial vilification’ can be defined in a number of ways. Generally, it is used to refer to offensive and abusive comments which either express or incite serious hatred and contempt for individuals on the grounds of their race or ethnicity. Other terms which are often used interchangeably throughout the various jurisdictions include ‘racial hatred’, ‘hate propaganda’ and ‘hate speech’.
This chapter will examine some of the responses to racial vilification, focusing primarily on the attempts to restrict it through civil and criminal legislation. In doing so, it is important to bear in mind that in many jurisdictions legislation is not the sole response to this issue, and campaigns to raise public awareness and promote cross-cultural relationships play at least an equally important role in combating racial hatred.
Having looked at the legislation covering racial vilification in each of the jurisdictions, and some of the exemptions and constitutional issues which may limit the coverage and effect of these laws, this chapter will also examine some of the related issues that arise with respect to racial vilification law. For example the extent to which such laws should also deal with vilification on non-racial grounds such as religion or sexual orientation, and the use of the criminal law to deal with other manifestations of racial bias, such as harassment and racially motivated crime.
6.1 Racial Vilification and International Human Rights Law
The International Convention on Civil and Political Rights (ICCPR) states that “(a)ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”[1] More specifically, the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) requires all signatory states to “declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred... as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin...”.[2] While these two treaties have been ratified by all of the countries examined in this report, both the U.S. and Australia have made reservations with regards to this particular issue.
The U.S. reservation to the ICERD states “(t)hat the Constitution and laws of the United States contain extensive protections of individual freedom of speech, expression and association. Accordingly, the United States does not accept any obligation under this Convention, in particular under articles 4 and 7, to restrict those rights, through the adoption of legislation or any other measures, to the extent that they are protected by the Constitution and laws of the United States.” [3]
In contrast, the Australian reservation to the ICERD is provisional, and states, "(t)he Government of Australia ... declares that Australia is not at present in a position specifically to treat as offences all the matters covered by article 4(a) of the Convention... It is the intention of the Australian Government, at the first suitable moment, to seek from Parliament legislation specifically implementing the terms of article 4(a)."[4] Despite the temporary nature of this reservation, all attempts to pass legislation fully implementing this treaty by introducing criminal offences of racial hatred and vilification have so far been unsuccessful.[5]
6.2 Racial Hatred Law in Australia
In 1995, the Australian government passed the Racial Hatred Act, which added various amendments to the Racial Discrimination Act 1975 (Cth). By way of compromise, this Act made racial vilification unlawful, and subject to the same range of civil remedies as racial discrimination, but did not make it a criminal offence. Under the amended Racial Discrimination Act, it is unlawful “to do an act, otherwise than in private, if the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people” and “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”.[6] While the offensive action must be done “because of” the race, colour or ethnic or national origin of the other person, this need not be the sole, or even the dominant reason for the act. It is sufficient if one of the motives behind the action is the race or colour of the victim.[7]
In 2005 the Australian government redefined the offence of sedition, previously believed to have fallen into disuse. The new law makes it a criminal offence if a person “urges a group or groups (whether distinguished by race, religion, nationality or political opinion) to use force or violence against another group or other groups (as so distinguished)”.[8] This new offence may go some way towards creating a criminal offence of racial vilification, at least in its most serious manifestation where it involves incitement to the use of force or violence. It has, however, a number of significant limitations. For a start, the offence of sedition applies only where “the use of the force or violence would threaten the peace, order and good government of the Commonwealth.” This provision has been criticised on the basis that violence against small minority groups, which are the most vulnerable to racially directed violence, is unlikely to threaten either the geographic integrity or the government institutions of the Commonwealth, and thus is likely to fall outside the provisions of the law.[9] The characterisation of this law as a law of ‘sedition’ has also led to concern that the focus of this law will be directed more towards the protection of the state than towards the needs and interests of racial minorities.[10]
6.3 Racial Hatred Laws in Canada
The Canadian Criminal Code contains a number of racial hatred offences. It is an offence to advocate or promote genocide against a particular race.[11] It is also an offence, by “communicating statements in a public place” to “incite(..) hatred against any identifiable group where such incitement is likely to lead to a breach of the peace”.[12] An ‘identifiable group’ is defined by the Act as “any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation.”[13] It is also an offence to communicate statements “otherwise than in private conversation” which “wilfully promote(..) hatred against an identifiable group.”[14] The Supreme Court has interpreted ‘wilfully’ in this context to require proof of either an intention to promote racial hatred, or “knowledge of the substantial certainty of such a consequence”, thus imposing a “stringent standard of mens rea”.[15]
In addition to these criminal offences, the Canadian Human Rights Act also declares it a ‘discriminatory practice’ to send repeated messages over the telephone or internet which are “likely to expose a person... to hatred or contempt” because of their race or other proscribed grounds of discrimination.[16] Like the provisions of the Australian Racial Discrimination Act, this ‘discriminatory practice’ is not a criminal offence, but may be enforced through the civil procedure established to deal with discrimination.
6.4 Racial Hatred Laws in the United Kingdom
Racial hatred offences in the United Kingdom are contained within the Public Order Act 1986 (UK). Under this act, it is an offence to use, display, publish, show or distribute any words, images or behaviour (including a public broadcast or a play) which are “threatening, abusive or insulting” and which are either intended or likely to stir up racial hatred.[17]
While a person who uses or displays threatening or insulting words or behaviour need not have any intention to stir up racial hatred, it is a defence to show that he (sic) “did not intend his words or behaviour, or the written material, to be, and was not aware that it might be, threatening, abusive or insulting.”[18] It is therefore necessary to show that the offender was subjectively aware of the possibility that their behaviour might be threatening, abusive or insulting, as well as the objective fact that the behaviour in question was likely to stir up racial hatred. In contrast, a person who publishes and distributes the words of others (either in written form or as an audio or visual recording) must satisfy the stricter test that “he was not aware of the content of the material and did not suspect, and had no reason to suspect, that it was threatening, abusive or insulting” (emphasis added).[19] The director or producer of a public broadcast or play, meanwhile, may be found innocent of this offence even when they are aware of the threatening, abusive or insulting nature of the material, as they need only show that they “did not know and had no reason to suspect that the circumstances... would be such that racial hatred would be likely to be stirred up.”[20]
Offenders under the Public Order Act 1986 (UK) may be penalised by up to seven years imprisonment, if tried on indictment.[21] In comparison, the maximum sentence possible under the Canadian racial vilification legislation is two years (or five years for advocating genocide).[22] In the United Kingdom, the consent of the Attorney-General is required before any prosecution for racial vilification can take place.[23] This is also true of the sedition offences in Australia, and the offences of wilfully promoting hatred or advocating genocide under the Canadian statute.[24] In contrast, the Canadian offence of inciting hatred which is likely to lead to a breach of the peace may be criminally prosecuted without executive consent, and the civil provisions of both the Australian and Canadian acts may be pursued by any individual with standing to bring a complaint.[25]
6.5 Exceptions
Restrictions on the promotion of racial hatred and vilification are often highly controversial, due to the limits they impose on the right to freedom of speech. One way in which legislators have sought to balance the right to be free from racial vilification and the right to legitimate free expression is by excluding certain types of communication from the operation of racial vilification laws.
One area that is commonly excluded is private communication which does not intrude into the public sphere. Thus, the Australian legislation applies to acts done ‘otherwise than in private’, which includes any act which “causes words, sounds, images or writing to be communicated to the public”, “is done in a public place” or “is done in the sight or hearing of people who are in a public place”.[26] Similarly, the Canadian criminal offences apply to communication which takes place “in a public place” or “otherwise than in private conversation”.[27] In the United Kingdom, the act applies both in public and in private, but not “where the words or behaviour are used, or the written material is displayed, by a person inside a dwelling and are not heard or seen except by other persons in that or another dwelling”.[28] It is also a defence for the accused to show that they had no reason to suspect that their words or behaviour could be heard or seen by a person outside of the dwelling.[29]
Both the Australian and Canadian legislation also set out a list of specific exceptions, designed to protect speech which is perceived as legitimate or socially valuable. Under the Australian Racial Discrimination Act 1975 (Cth), these exemptions include:
“anything said or done reasonably and in good faith;
- in the performance, exhibition or distribution of an artistic work; or
- in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
- in making or publishing;
- a fair and accurate report of any event or matter of public interest; or
- a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.”[30]
The Canadian Criminal Code also contains exemptions, however these apply only to the offence of wilfully promoting hatred, and not to the offence of inciting hatred which is likely to lead to a breach of the peace, or advocating genocide. These exemptions provide that:
“No person shall be convicted of an offence...
- if he establishes that the statements communicated were true;
- if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;
- if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or
- if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.”[31]
The condition that applies to all exemptions under the Australian legislation, that the actions concerned be both ‘done reasonably and in good faith’ contains both objective as well as subjective elements It requires an analysis of both the objective facts and the state of mind of the accused. In contrast, some of the Canadian exemptions may be satisfied by a purely subjective test, such as sections b) and d), which depend purely on the honesty and integrity of the intentions of the accused, and not on any objective question of whether such religious arguments are reasonable, or whether the actions of the accused are reasonably likely to be interpreted in the manner in which they are intended. In other cases, the test is purely objective, since a person may make any statement with malicious intent so long as the statement is factually true.
The United Kingdom legislation contains only one exemption, which is much narrower than those discussed above, and applies only to ‘fair and accurate reports’ of parliamentary or judicial proceedings.[32] At the same time, the Human Rights Act 1998 (UK) imposes an obligation on British courts to interpret the legislation, where possible, to be compatible with the European Convention for the Protection of Human Rights and Fundamental Freedoms.[33] This Convention, which includes the right to freedom of expression, imposes some limitations on the extent to which racial vilification can be regulated, and will be discussed further below.
6.6 Racial Hatred Law in the European Union
The European Union is currently in the process of formulating a Framework Decision which will require all member states to meet a minimum standard with regard to the proscription of racial hatred and vilification. In April 2007, after six years of negotiations, the Council of E.U. Justice Ministers reached an agreement as to the text of this Framework Decision, however it has yet to be formally adopted, and it remains unclear if any major changes will be made before it becomes law.
If adopted in its current form, the Framework Decision will require all E.U. states to penalise “publicly inciting to violence or hatred directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin”.[34] They will also be required to create an offence of “publicly condoning, denying or grossly trivializing crimes of genocide, crimes against humanity and war crimes... directed against a group of persons... defined by reference to race, colour, religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite to violence or hatred against such a group...”.[35] A similar offence will apply in relation to the denial or trivialisation of crimes defined by the Nuremburg Tribunal.[36] There is an exception, however, which provides that states may elect not to punish conduct which falls within the definitions above unless it is either “carried out in a manner likely to disturb public order” or “threatening, abusive and insulting”.[37]
Under the terms of the Framework Decision states will also be obliged to ensure that the maximum sentence for the offences above is at least 1-3 years imprisonment, and to ensure that any ‘racial and xenophobic motivation’ is taken into account as an aggravating factor for other criminal offences.[38]
The Decision lays out a framework for criminalizing the aiding, abetting and instigating of such offences, and for ensuring that legal persons may be held liable for actions carried out on their behalf.[39] It also requires states to put in place mechanisms to ensure that investigation and prosecution is “not dependent on the report or accusation made by the victim”, in order to ensure that the law protects those who are vulnerable and unable to complain on their own behalf.[40]
While there are no specific exceptions, such as those which appear in the Australian and Canadian acts, the Framework Decision states that it “shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles, including the freedom of expression and association, as enshrined in Article 6 of the Treaty establishing the European Union”.[41] This article incorporates the rights declared in the European Convention for the Protection of Human Rights and Fundamental Freedoms, including article 10:
- “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers...
- The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."[42]
In applying this article to cases involving racial and religious vilification laws, the European Court of Human Rights has held that “there can be no doubt that concrete expressions constituting hate speech, which may be insulting to particular individuals or groups, are not protected by Article 10 of the Convention”.[43] This interpretation is reinforced by article 17 of the Convention, which states that “(n)othing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein...” (including the right to freedom from discrimination).[44]
At the same time, states may only place limits on hate speech which are proportionate to the harm suffered and “necessary in a democratic society.”[45] Thus, for instance, the Court has found a Danish law that criminalised not only the making of racially abusive statements, but the act of reporting such statements in a non-supportive manner in a television news program, to be ‘unnecessary’ and thus invalid under article 10.[46] In other cases, the Court has found that the law itself may be valid, but the application in a particular case may contravene the convention. In Gunduz v Turkey, for example, the Court found that insulting and derogatory remarks about the Turkish secular state made by the accused were insufficiently serious to be classified as ‘hate speech’ and justify a conviction for religious vilification.[47]
6.7 Constitutional Limitations on Racial Hatred Laws
In addition to appearing in the European Convention for the Protection of Human Rights and Fundamental Freedoms, the right to freedom of expression is also entrenched in both the U.S. Constitution and the Canadian Charter of Human Rights and Freedoms.[48] Even in Australia, where the Constitution contains few express rights, the High Court has found an implied right to freedom of political communication based on the democratic nature of the political system.[49] In these jurisdictions, as in the European Union, these constitutional norms have been used to challenge hate speech legislation, with varying degrees of success.
6.7.1 Constitutional Limitations in the United States
The right to freedom of expression is most strictly interpreted in the United States. As Neir emphasises: “Few countries in the world provide as great a protection to free speech, and consequently racist speech, as the United States”.[50] This protection stems from the first amendment to the U.S. Constitution, which states that: “Congress shall make no law... abridging the freedom of speech.” While the courts have held that this right is not absolute, and certain limitations on speech may validly be imposed by government, the extent and nature of such permissible limitations is much narrower under U.S. constitutional law than under the laws of many other states.
In the case of Chaplinsky v New Hampshire, the United States Supreme Court recognised an area of speech described as ‘fighting words’ which could be validly subject to government regulation. These, the court held, were words which “by their very utterance, inflict injury or tend to incite an immediate breach of the peace”. Such words did not receive the same degree of constitutional protection as other speech since “such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”[51]
Based on this theory of ‘fighting words’, it might be possible to infer that narrowly drafted racial vilification laws, which focus solely on speech that ‘tends to incite an immediate breach of the peace’, might be constitutionally legitimate. This assumption was overturned, however, in the landmark case of R.A.V. v St Paul. In this case, the Supreme Court considered state legislation which made it an offence to “place(..) on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender”.[52] The majority of the court accepted that the legislation could be restrictively interpreted to apply only to ‘fighting words’ which aroused ‘anger, alarm or resentment’, and to exclude conduct which caused merely ‘offence’ or ‘hurt feelings’. They went on to find, however, that while the government may have constitutional authority to regulate the use of ‘fighting words’ in general, it “may not regulate use based on hostility--or favoritism--towards the underlying message expressed”. Thus, while it would be valid for the legislature to ban the use of all communications which ‘arouse anger, alarm or resentment’, to ban only the subset of those communications which express racial hatred invalidly targets speech on the basis of its expressive content, and is thus unconstitutional.[53]
In a strong dissent (on this point), Justice Stevens made the argument that, since it was accepted that the government could elect to ban only the most severe and damaging examples of ‘fighting words’, it was legitimate for the state to target racial hatred on the ‘reasonable and realistic’ assumption that it causes “more severe harm to both the target and to society than other threats”.[54] This argument appears to have gained further support from the majority in the case of Virginia v Black, which ruled that a state could specifically ban cross burning with the intent to intimidate, rather than intimidation more generally, “because burning a cross is a particularly virulent form of intimidation.”[55]
While in some ways this is not a settled area of law, as indicated by the somewhat conflicting cases of Black and R.A.V. cited above, both cases support the premise that it is unconstitutional for the U.S. government to regulate speech on the basis of the opinion and ideology expressed. It is thus not possible in the United States to fulfill the ICERD requirement to prohibit the dissemination of “ideas based on racial superiority or hatred” since these ideas, along with all other ideological viewpoints, are constitutionally protected.
While racist speech and the expression of racist ideas are protected, even in circumstances where they may cause hurt or offence, it is important to emphasise that racist actions, such as discrimination or racial motivated crime, do not receive the same protection, even when it may be argued that such conduct is ‘expressive’ of the same ideas of racial supremacy and hatred. The Supreme Court has upheld the constitutional validity of statutes which make racial bias an aggravating factor when linked to crimes such as assault or property damage.[56] It is also constitutionally valid for the federal government to create specific offences which apply to racially motivated violence and threats.[57] While these offences do not strictly target racial vilification, since they apply to acts that go beyond the expression of racist ideology and offensive speech, they will be considered in more detail later in this chapter along with other legislative responses to racially motivated crime (see 6.8.2).
6.7.2 Constitutional Limitations in Canada
Racial hatred legislation has also been subject to constitutional challenge in Canada, based on the Charter right to “freedom of thought, belief, opinion and expression”.[58] In R v Keegstra, the Supreme Court considered s319(2) of the Canadian Criminal Code, which prohibits the wilful promoting of racial hatred.[59] The majority of the court found that this clause did infringe on the right to freedom of expression, but that it was saved by clause 1 of the Charter, which states that Charter rights may be “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.[60] In this case, the Canadian Court also came to the conclusion that hate propaganda was “only tenuously connected with the values underlying the guarantee of freedom of expression”.[61] Based on this view, which acknowledged a hierarchy of more and less constitutionally valuable speech, the Court then went to find that “(p)arliament's objective of preventing the harm caused by hate propaganda is of sufficient importance to warrant overriding a constitutional freedom.”[62]
6.7.3 Constitutional Limitations in Australia
In Australia, the right to freedom of expression is implied and not expressed, and is limited to what is required for the effective operation of the democratic system of government provided for under the Constitution.[63] The test to establish constitutional invalidity is set out in Lange v Australian Broadcasting Corporation:
"... First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government...?"[64]
In Jones v Scully, the Federal Court acknowledged that the Racial Discrimination Act 1975 (Cth) could in some circumstances burden the freedom of communication about political or government matters, but nonetheless found it to be constitutionally valid, as it satisfied the requirements of the second part of the test in Lange. The court held that the Racial Discrimination Act was reasonably appropriate and adapted to achieving the legitimate end of eliminating racial discrimination, and that “the constitutionally prescribed system of government does not require an unqualified freedom to publish offensive matter or perform offensive acts that are based on race”.[65]
6.8 Other Approaches to Racially Offensive Behaviour and the Extension of Racial Vilification Law to Other Grounds
While not directly relating to the prohibition of racial vilification, it is important to mention several issues which often arise in the same context. These are, the extension of racial vilification laws to cover other grounds, such as religion or sexual orientation, and the use of racial bias as an aggravating factor when imposing sentence for other crimes, such as assault or damage to property. Finally, this chapter will examine other offences which are being used to combat racially motivated offensive conduct, such as the offence of racial harassment.
One key controversy which has often surfaced with regards to racial vilification laws is the extent to which they should be extended to protect individuals from vilification on other grounds, such as religion. Protection from religious vilification has frequently been controversial, due principally to that fact that while religion, like race, is a personal characteristic, which may be used as a basis for vilification and discrimination, it is also a set of beliefs which may be open to challenge and debate in a free and multicultural society.
In response to this difficulty, each of the four jurisdictions (excluding the United States, which has neither race nor religious vilification laws, for reasons set out above) has taken a different approach. In Canada, the relevant sections of the Criminal Code apply equally to vilification on the grounds of race, religion and (since 2004) sexual orientation.[66] In the United Kingdom, in contrast, racial vilification laws have not previously been applied to religious vilification. In 2006, the Racial and Religious Hatred Act introduced new offences of religious vilification, which commenced operation in October 2007.[67] Although these new laws are based on the existing racial hatred legislation, they provide significantly lesser protection for religious vilification. Most notably, the religious vilification laws apply only when the offender intends to stir up religious hatred by their actions, and not when it is merely a likely consequence. They are also limited to prohibiting ‘threatening’ words or behaviour, and not those that are ‘abusive and insulting’.[68] In addition, the act specifically creates an exception for “discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.”[69] This broad exemption is designed to permit criticism, even unpleasant and offensive criticism, of religious beliefs, while making it unlawful to incite hatred against individual adherents of that religion.
At first glance, the proposed Framework Decision for the European Union appears to require member states to provide equal minimum protections against racial and religious hatred.[70] Religion, however, is curiously defined by the Decision, which states that “the reference to religion is intended to cover, at least, conduct which is a pretext for directing acts against a group of persons or a member of such a group defined by reference to race, colour, descent, or national or ethnic origin.”[71] This ‘compromise position’ appears to give little protection to groups who are victimised on the basis of religion alone, and do not belong to a recognised racial or ethnic minority.
The Australian federal legislation does not protect individuals from vilification on the grounds of religion, except in so far as the act is done for a mixture of racial and religious motives, in which case (as noted above), race need not be the sole or dominant reason for the act.[72] Some religious communities, such as Jews or Sikhs, may also be protected under federal law on the basis that they constitute a ‘race’ or ‘ethnic group’ with shared cultural history and geographic origins. However other religious groups such as Christians or Muslims, which encompass a diverse range of cultural and ethnic backgrounds, are unlikely to fall within this definition.[73] Some state jurisdictions in Australia provide protection from religious vilification, however in many states there remains no relevant law covering this area.[74]
6.8.2 Racially Motivated Crime
Another issue which often arises in the context of racial vilification is how the state should respond when racial hatred goes beyond words, and is expressed in criminal acts of violence, assault, property damage and public disorder. Crimes such as these are generally prohibited regardless of the motivation of the offender, however many jurisdictions have elected to acknowledge the particular harm caused by racially motivated crimes, which affect not only the individual victim, but the targeted group as a whole. This can be done by either creating a separate category of racially motivated offences, or taking racial bias into account as an aggravated factor in sentencing.
In its forthcoming Framework Directive, the European Union will require every member state to “take the necessary measures to ensure that racist and xenophobic motivation is considered an aggravating factor, or, alternatively that such motivation may be taken into consideration by the courts in the determination of penalties.”[75] The Framework Decision also emphasises that decisions to prosecute offences involving racism or xenophobia should not be “dependent on reports or accusations made by victims, who are often particularly vulnerable and reluctant to initiate legal proceedings.”[76]
In the United Kingdom, the new European Union policy is unlikely to require any major legislative change, since British law already contains a number of special provisions regarding hate crimes. The Crime and Disorder Act 1998 (UK) has created a special category of ‘racially aggravated offences’, which include assault, criminal damage, and public order offences “motivated (wholly or partly) by hostility towards members of a racial group based on their membership of that group”.[77] For all other offences, the Criminal Justice Act 2003 (UK) requires the court to impose a higher penalty where it can be shown that an offence was motivated by hostility towards persons of a particular racial group, or by the presumed sexual orientation or disability of the victim.[78] Similarly, the Canadian and United States Courts are obliged to take into account prejudicial motivation of the offender as an aggravating factor when imposing sentence, regardless of whether such prejudice is based on race, religion, gender, disability or sexual orientation.[79]
The United States has also enacted a number of federal offences which apply specifically to racially motivated crimes. It is an offence, for instance, to use force or the threat of force to ‘injure, intimidate or interfere with’ a person of a particular race because they are undertaking certain federally protected activities, such as attending school, applying for employment or serving as a juror.[80] The Local Law Enforcement Hate Crimes Prevention Act, currently awaiting approval by the U.S. Senate, will, if passed, create further federal offences of “wilfully caus(ing) bodily injury... through use of fire, a firearm, or an explosive or incendiary device” to a person because of their actual or perceived race, colour or religion, and will no longer require evidence that the victim was undertaking a ‘federally protected activity’ at the time.[81] This Act will also authorise the federal authorities to make grants and otherwise provide assistance to local bodies responsible for the investigation and prosecution of violent hate crime, providing access to greater federal resources in order to ensure that such crimes are effectively dealt with.[82]
In contrast to the other four jurisdictions, Australian federal law does not specifically address racially motivated crime, either as a separate category of offence, or as an aggravating factor with the potential to lead to a higher sentence. Even within the state and territory jurisdictions, which deal with the bulk of criminal offences in Australia, only New South Wales and the Northern Territory specifically include racial hatred as an aggravating factor.[83]
The creation of a specific federal offence of racial violence was recommended by HREOC’s National Inquiry into Racist Violence in 1991,[84] and by the Australian Law Reform Commission in 1992,[85] but these recommendations have so far not been implemented.
Another recent development in modern race-discrimination law has been the development of the offence of racial harassment. Harassment has been defined in the European Union Directive as “unwanted conduct related to racial or ethnic origin (which) takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment.”[86] To some extent, harassment may cover elements of both racial vilification and racially motivated criminal offences, since it may involve both offensive comments and displays of racism and actions such as low level assault or property damage. It is also unique, however, in that it acknowledges the cumulative impact of a number of different events, rather than assessing each incident in isolation.
Under Canadian law, harassment is a ‘discriminatory practice’ subject to the same civil penalties as racial discrimination. The Canadian Human Rights Act makes it unlawful “to harass an individual on a prohibited ground of discrimination” in a number of different fields, including the provision of goods and services, access to public facilities and commercial or residential accommodation and in matters related to employment.[87] The Canadian Human Rights Commission defines as harassment “any behaviour that demeans, humiliates, or embarrasses a person, and that a reasonable person should have known would be unwelcome.”[88]
In the United Kingdom, racial harassment is both unlawful under the race-discrimination regime, and a criminal offence. In 2003, changes to the Race Relations Act were implemented which made racial harassment unlawful in the areas covered by the European Union directive.[89] The statutory definition of harassment closely follows the Directive, defining it as “unwanted conduct [on the grounds of race or ethnic or national origins] which has the purpose or effect of violating that other person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for him”.[90] It notes, however, that “(c)onduct shall be regarded as having... [the effects above] only if, having regard to all the circumstances, including in particular the perception of that other person, it should reasonably be considered as having that effect.”[91]
Racially aggravated harassment is also prescribed by the Crime and Disorders Act 1998 (UK).[92] Under this act, it is a criminal offence for a person to pursue a course of conduct (which must involve at least two separate occasions) which he “knows or ought to know” amounts to harassment of another person, and which is motivated by racial hostility. It is also an offence, for racially motivated reasons, “to cause(..) another to fear, on at least two occasions, that violence will be used against him... if he knows or ought to know that his course of conduct will cause the other so to fear on each of those occasions”.[93] Although these are criminal offences, with potential penalties of up to 2 years imprisonment for racial harassment, and up to 7 years for causing fear of violence, they do not require proof of intent or subjective knowledge. It is sufficient if a reasonable person in possession of the same information as the accused would know that his conduct amounts to harassment or would cause another person to fear violence.[94]
While there is no equivalent offence in Australian federal law, racial harassment is an offence under the state laws of Western Australia. The Equal Opportunity Act 1984 (WA) makes racial harassment unlawful when it occurs in the context of employment, education or in relation to accommodation.[95] Intentional harassment is also a criminal offence under the Western Australian Criminal Code.[96]
[1] International Convention on
Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS
171, Article 20(2) (entered into force generally 23 March
1976).
[2] International
Convention on the Elimination of All Forms of Racial Discrimination, opened
for signature 21 December 1965, 660 UNTS 195, art 4 (a) (entered into force
generally 4 January 1969).
[3] http://www.ohchr.org/english/countries/ratification/2.htm#reservations (accessed 7/10/07).
[4] http://www.ohchr.org/english/countries/ratification/2.htm#reservations (accessed 7/10/07).
[5] See Concluding Observations of the Committee on the Elimination of Racial
Discrimination: Australia, UN Doc CERD/C/AUS/CO/14 (14 April 2005),
paragraph 12;“The Committee notes that Australia has not withdrawn its
reservation to article 4 (a) of the Convention. It notes with concern that the
Commonwealth, the State of Tasmania and the Northern Territory have no
legislation criminalizing serious acts of racial hatred or incitement to racial
hatred.”
[6] Racial
Discrimination Act 1975 (Cth) s
18C.
[7] Racial Discrimination
Act 1975 (Cth) s 18B.
[8] Criminal Code Act 1995 (Cth) s
80.2(5).
[9] Australian Law Reform
Commission, ‘Fighting Words: A Review of Sedition Laws in Australia’
(2006) ALRC Report 104, s 10.61 and generally Chapter
10.
[10] Australian Law Reform
Commission, ‘Fighting Words: A Review of Sedition Laws in Australia’
(2006) ALRC Report 104, s
10.47.
[11] Criminal Code,
RS 1985, c. C-46 s 318.
[12] Criminal Code, RS 1985, c. C-46 s
319(1).
[13] Criminal
Code, RS 1985, c. C-46 Code s
319(7).
[14] Criminal
Code, RS 1985, c. C-46 s
319(2).
[15] Dickson C.J. and
Wilson, L'Heureux-Dubé and Gonthier JJ, R. v Keegstra, [1990] 3
SCR 697.
[16] Canadian Human
Rights Act, RS 1985, c. H-6 s
13(1).
[17] See Public Order
Act 1986 (U.K.) c 64 ss 17-22. Note that the Act also covers the presenting
or directing of a public performance of a play, the public showing of a
recording and the broadcasting of a program service. It also makes it offence to
possess offensive material for the purpose of making it public (s23).
[18] Public Order Act
1986 (U.K.) c 64 s
18(5).
[19] Public Order Act
1986 (U.K.) c 64 ss 19(2) and
21(3).
[20] Public Order Act
1986 (U.K.) c 64 ss 20(2)(c) and
22(5)(b).
[21] Public Order
Act 1986 (U.K.) c 64 s
27(3).
[22] Criminal Code,
RS 1985, c. C-46 ss 318(1), 319(1) and
319(2).
[23] Public Order Act
1986 (U.K.) c 64 s
27(1).
[24] Criminal Code Act 1995 (Cth) s 80.5A, Criminal Code, RS 1985, c. C-46 s 318(3)
and s 319(6).
[25] For a
discussion of standing requirements, see Chapter
2.
[26] Racial Discrimination
Act 1975 (Cth) s 18C(2).
[27] Criminal Code, RS 1985, c. C-46 s
319.
[28] Public Order Act
1986 (U.K.) c 64 s
18(2).
[29] Public Order Act
1986 (U.K.) c 64 s
18(4).
[30] Racial
Discrimination Act 1975 (Cth) s
18D.
[31] Criminal Code,
RS 1985, c. C-46 s 319(3).
[32] Public Order Act 1986 (UK) c 64 s 26. Note that a much broader exemption
applies in the area of religious vilification, which is discussed below at
6.8.1.
[33] Human Rights Act
1998 (UK) c 42 s 3.
[34] Council of the European Union, ‘Proposal for a Council Framework Decision
on combating racism and xenophobia’, 8544/07 DROIPEN 34 (Brussels, 17
April 2007), annex 1, art 1(a)
http://register.consilium.europa.eu/pdf/en/07/st08/st08544.en07.pdf (accessed 30/8/07).
[35] Ibid art
1(c).
[36] Ibid art
1(d).
[37] Ibid art
1a.
[38] Ibid art 3(2) and art
4.
[39] Ibid art 2 and art
5-6.
[40] Ibid art
9.
[41] Ibid art
7.
[42] Convention for the
Protection of Human Rights and Fundamental Freedoms, opened for signature 4
November 1950, CETS 5 (entered into force 3 September 1953), art
10.
[43] Gunduz v Turkey (2003) Eur Court HR 35071/97 at para
41.
[44] See Convention for
the Protection of Human Rights and Fundamental Freedoms, opened for
signature 4 November 1950, CETS 5 (entered into force 3 September 1953), arts
17 and 14.
[45] Convention for
the Protection of Human Rights and Fundamental Freedoms, opened for
signature 4 November 1950, CETS 5 (entered into force 3 September 1953), art
10.
[46] Jersild v Denmark (1994) Eur Court HR
15890/89.
[47] Gunduz v
Turkey (2003) Eur Court HR
35071/97.
[48] U.S. Constitution,
amend I and Canadian Charter of Rights and Freedoms, Schedule B Constitution Act 1982 (UK) cl
2(b).
[49] For further: Griffiths
L ‘The Implied Freedom of Political Communication: The State of the Law
Post Coleman and Mulholland’ (2005) 12 James Cook University Law Review 93.
[50] Neir C L,
‘Racial Hatred: A Comparative Analysis of the Hate Crime Laws of the
United States and Germany’ (1994-95) 13 Dickinson Journal of International
Law 241 at 265.
[51] Chaplinsky v. New Hampshire (1942) 315 U.S. 568 at
572.
[52] RAV v City of St
Paul 505 U.S. 377
(1992).
[53] Scalia J (writing
for the majority) in RAV v City of St Paul 505 U.S. 377
(1992).
[54] Stevens J RAV v
City of St Paul 505 U.S. 377 (1992); see also the dissent (on this point) of
White J.
[55] Virginia v Black
et. al., 538 U.S. 343 (2003). Note, however, that the court specifically
made reference to the fact that ‘cross burning’ need not require
racial motive, and is therefore not specifically targeting a particular
‘ideology’ of racial hatred. This analysis seems somewhat
contradictory, however, since it may be argued that it is primarily the racial
history of cross burning, and its use in this context, which has made it such a
‘virulent form’ of
intimidation.
[56] Wisconsin v
Mitchell (92-515), 508 U.S. 47
(1993).
[57] See e.g. 18 USC
§§ 241-245.
[58] Canadian Charter of Rights and Freedoms, Schedule B Constitution Act
1982 (U.K.) cl 2(b).
[59] R v Keegstra, [1990] 3 S.C.R.
697.
[60] Canadian Charter of
Rights and Freedoms, Schedule B Constitution Act 1982 (U.K.) cl
1.
[61] R v Keegstra,
[1990] 3 S.C.R. 697.
[62] Dickson
C.J. and Wilson, L'Heureux-Dubé and Gonthier JJ, R v Keegstra,
[1990] 3 S.C.R. 697.
[63] Jones v Scully [2002] FCA 1080 (2 September 2002) at
235.
[64] Lange v Australian
Broadcasting Corportation (1997) 189 CLR 520 at
567-568.
[65] Jones v
Scully [2002] FCA 1080 (2 September 2002) at
239.
[66] Criminal Code,
RS 1985, c. C-46 ss 318-320.
[67] Racial and Religious Hatred Act 2006 (UK) c
1.
[68] Public Order Act
1986 (UK) c 64 ss
29A-29F.
[69] Public Order Act
1986 (UK) c 64 s 29J.
[70] See: Council of the European Union, ‘Proposal for a Council Framework
Decision on combating racism and xenophobia’, 8544/07 DROIPEN 34
(Brussels, 17 April 2007), art 1(1)(a), which requires states to punish
“publicly inciting to violence or hatred directed against a group of
persons or a member of such group defined by reference to race, colour,
religion, descent or national or ethnic origin.”
http://register.consilium.europa.eu/pdf/en/07/st08/st08544.en07.pdf (accessed 30/8/07).
[71]Ibid, art
1(1)(b).
[72] Racial
Discrimination Act 1975 (Cth) s
18B.
[73] See further the
discussion in: Human Rights and Equal Opportunity Commission Isma –
Listen: National consultations on eliminating prejudice against Arab and Muslim
Australians (2004) at
1.3.1.3.
[74] Queensland,
Victoria and Tasmania currently have laws prohibiting religious vilification,
while the remaining states of NSW, Western Australia, South Australia and the
Territories do not. Ibid at
1.3.2.4.
[75] Council of the
European Union, ‘Proposal for a Council Framework Decision on combating
racism and xenophobia’, 8544/07 DROIPEN 34 (Brussels, 17 April 2007),
annex 1, art 4
http://register.consilium.europa.eu/pdf/en/07/st08/st08544.en07.pdf (accessed 30/8/07).
[76] Ibid cl
8.
[77] Crime and Disorder Act
1998 (U.K.) c 37 ss
28-31.
[78] Criminal Justice
Act 2003 c 44 ss
145-146.
[79] 18 USC Appx § 3A1.1; Criminal
Code, RS 1985, c. C-46 s
718.2.
[80] 18 USC
§
245.
[81] Local Law Enforcement
Hate Crimes Prevention Act of 2007 H.R. 1592 (110th U.S. Congress:
2007-2008) s 6.
[82] Ibid s
3.
[83] See: Sentencing Act
1995 (NT) s 6A(e) “the offence was motivated by hate against a group
of people”; and Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A
(2)(h) “the offence was motivated by hatred for or prejudice against a
group of people to which the offender believed the victim belonged (such as
people of a particular religion, racial or ethnic origin, language, sexual
orientation or age, or having a particular
disability)”.
[84] Moss I,
‘The Report of the National Inquiry into Racist Violence’ (1991)
49(2) Aboriginal Law Bulletin 16.
[85] Australian Law Reform
Commission, ‘Multiculturalism and the Law’ (1992) ALRC 57 at
7.33.
[86] Council Directive
2000/43/EC of 29 June 2000 implementing the principle of equal treatment between
persons irrespective or racial or ethnic origin [2000] OJ L180/22, art
2(3).
[87] Canadian Human
Rights Act, RS 1985, c. H-6 s
14.
[88] Canadian Human Rights
Commission, Anti-Harassment Policies for the Workplace: An Employer’s
Guide (2006) at 1.2.
[89] For
a discussion of grounds which the UK government considers are not covered by the
directive, see above 3.1.
[90] Race Relations Act 1976 (UK) c 74 s 3A
(1).
[91] Race Relations Act
1976 (UK) c 74 s 3A (2).
[92] Crime and Disorder Act 1998 (UK) c 37, s
32.
[93] Protection from
Harassment Act 1997 (UK) c 40, s 4 (1); as referenced by the Crime and
Disorder Act 1998 (UK) c 37, s
32.
[94] Protection from
Harassment Act 1997 (UK) c 40, ss 1(2) and 4(2) as referenced by the Crime and Disorder Act 1998 (UK) c 37, s
32.
[95] Equal Opportunity Act
1984 (WA) ss 49A-49C.
[96] Criminal Code (WA) ss 79-80.
