FACT SHEETS

Racial discrimination laws in Australia 

Aug 13, 2020 | AIJAC staff

FACT SHEET (1)

This fact sheet is current as at August 2020.

SUMMARY 

Australia’s Racial Discrimination Act 1975 makes it unlawful to discriminate against someone on the basis of their race, colour, descent, national or ethnic origin. Australians who believe they have been discriminated against on the basis of race can make a complaint to the Australian Human Rights Commission, to try and resolve the matter outside the courts. Australian states and territories also have their own racial discrimination legislation. 

THE FACTS 

Section 18C 

In the past decade, there has been a debate around a particular section of the Racial Discrimination Act 1975, section 18Cwhich was introduced in a 1995 amendment to the Act.  

Section 18C states that it is unlawful to undertake an action that would be reasonably likely to offend, insult, humiliate or intimidate a person or group of people on the basis of race  

Introduced concurrently with section 18C, the following section (18D) serves to protect free speech. Section 18D provides that if a comment is made reasonably and in good faith for artistic, academic, scientific or other public interest purposes, it won’t, prima facie, be considered a breach. 

There have been attempts to adjust the Racial Discrimination Act 1975 to remove or amend section 18C, with critics arguing it is unnecessary and restricts free speech.  

Many in the Jewish community, including AIJAC, believe that the Racial Discrimination Act 1975 does not need to be amended and there is adequate protection for free speech in Australia. In fact, many Jewish community organisations have argued in support of section 18C saying it helps Jewish individuals and organisations to combat antisemitism, including Holocaust denialconspiracy theories and online hate. 

In a submission to a 2016 parliamentary inquiry, AIJAC argued that the idea that section 18C creates a subjective “hurt feelings” test that threatens free speech in Australia is wrong as a matter of law. The language used in section 18C is consistent with other Australian legislation and comparable with similar legislation used in other jurisdictions. Moreover, the words “offend, insult, humiliate or intimidate” have always been read by courts as a single test, so it is incorrect, as many claim, that the legislation makes it illegal merely to “offend” someone. Removing it, AIJAC argued, would weaken the legislation.  

AIJAC further argued that the Racial Discrimination Act 1975 contributes to community cohesion and the Act, including section 18C, has allowed those who have been vilified on the basis of race to be protected by law. 

Following the amendment to introduce sections 18C and 18D, Jewish organisations observed a reduction in antiJewish harassment, particularly in jurisdictions where there had been cases. 

In 2002, AIJAC’s Director of International and Community Affairs (then representing the Executive Council of Australian Jewry) Jeremy Jones, successfully argued in court that material published online by Frederick Toben vilified Jewish people by denying the Holocaust. Toben was found to be in breach of the Racial Discrimination Act 1975  In this same case, the Federal Court established that the Racial Discrimination Act 1975 applied to comments made on the internet. 

That same year, in the case Jones v Scully [2002], a Tasmanian individual was found to have committed an offence under the Racial Discrimination Act of vilifying Jewish people by distributing offensive material. 

State based legislation 

Australia’s states and territories have their own racial discrimination legislation, which compliments the Commonwealth legislation, including the Anti-Discrimination Act 1977 (NSW)Racial and Religious Tolerance Act 2001 (VIC)Anti-Discrimination Act 1991 (QLD)Racial Vilification Act 1996 (SA)Equal Opportunity Act 1984 (WA) and Discrimination Act 1991 (ACT). These acts vary in substance, but all enhance protection against religious discrimination in Australia, including against hate speech. 

In early 2020, there was a push to amend state-based discrimination laws to ban offensive symbols, including the swastika. In response, the Victorian Government has begun an inquiry into Anti-Vilification Protections, which seeks to assess the efficacy of the Victorian legislation.  The NSW Government has also flagged it may consider amending legislation to ban the swastika. 

RELATED ARTICLES


Screen Shot 2023 11 14 At 4.18.47 Pm

Fact sheet: Gaza’s hospitals and ambulances – and Hamas’ exploitation of them

Nov 14, 2023 | Fact Sheets, Featured, Fresh AIR
A cache of weapons and ammunition seized during the operation in Jenin (photo: IDF)

“House and Garden”: An IDF operation targeting terror infrastructure in Jenin

Jul 4, 2023 | Fact Sheets, Featured
Screen Shot 2023 05 09 At 5.42.15 Pm

Factsheet: Israel’s campaign in Gaza against terrorist targets

May 9, 2023 | Fact Sheets, Featured
Lion's Den Emblem

Factsheet: The “Lions’ Den” terror group

Oct 28, 2022 | Fact Sheets, Featured, Fresh AIR
Image: Shutterstock

Factsheet: Myths and Facts about the growth of Israel’s West Bank settlements

Sep 16, 2022 | Fact Sheets, Resources
Image202

Factsheet: “Operation Breaking Dawn”

Aug 9, 2022 | Fact Sheets, Featured

SIGN UP FOR AIJAC EMAILS

RECENT POSTS

Pro-Palestinian protestors waiting in the lobby for the Israeli families of those murdered or taken hostage by Hamas

AIJAC raises questions about handling of incident involving pro-Palestinian protestors ambushing the families of Israeli murder victims and hostages

Masked members of the al-Qassam Brigades, the military wing of Hamas (Image: Shutterstock)

A powerless Hamas is the only way this war will end

Pie Chart

News reports whitewash the crimes of Palestinian prisoners being released

(Image: Shutterstock)

The silence about Hamas’ ongoing war crimes

Hamas fighters in the southern Gaza Strip (Image: Abed Rahim Khatib/ Shutterstock)

A permanent ceasefire now would be a victory for Hamas

Pro-Palestinian protestors waiting in the lobby for the Israeli families of those murdered or taken hostage by Hamas

AIJAC raises questions about handling of incident involving pro-Palestinian protestors ambushing the families of Israeli murder victims and hostages

Masked members of the al-Qassam Brigades, the military wing of Hamas (Image: Shutterstock)

A powerless Hamas is the only way this war will end

Pie Chart

News reports whitewash the crimes of Palestinian prisoners being released

(Image: Shutterstock)

The silence about Hamas’ ongoing war crimes

Hamas fighters in the southern Gaza Strip (Image: Abed Rahim Khatib/ Shutterstock)

A permanent ceasefire now would be a victory for Hamas

SORT BY TOPICS