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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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Subscription information: Full-rate subscription $65.00 per annum  •  ISSN 1835-5048  •  Copyright 2009
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


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

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The Racial Discrimination Act 1975 Examples of special measures are; educational funds and
programs, rental assistance, employment programs and special
(Cth) (RDA) medical services which are aimed at Indigenous Australians.
The RDA is the most important legal document designed to
A complaint of racial discrimination can be made to the Human
protect Australians from racial discrimination. Every state
Rights Commission (HRC) for mediation and conciliation but
and territory jurisdiction has legislation which is modelled
following Brandy v Human Rights and Equal Opportunity
on the RDA.
Commission3 hearings can only be conducted by the Federal
The RDA makes discrimination based on race colour, descent, Court. In 2006/07 the HRC received 376 complaints of which
national or ethnic origin unlawful (s9). Racial discrimination 195 were conciliated, 134 were terminated, 31 were withdrawn,
involves treating someone less favourably because of one 56 were considered trivial and vexatious and in 69 of cases
or more of the above factors. The RDA makes it unlawful to there was no reasonable prospect of conciliation. The majority
discriminate both directly and indirectly. An example of direct of these complaints were based upon discrimination according
discrimination is to refuse to employ an Indigenous person to race, with ethnic origin being the second largest ground of
in a business because it would deter customers. An example complaint. The largest context where discrimination was alleged
of indirect discrimination is to have a criterion which would to occur was in employment. Seventy five complaints were to
necessarily impact adversely upon a group of people. For do with racial hatred. The majority of these were alleged to have
example a height requirement will impact more upon people occurred in the media and in the work place.4
from certain racial backgrounds. Indirect discrimination may
be justified according to the circumstances. STUDENT ACTIVITIES
The RDA prohibits discrimination in the following key contexts, 5. Distinguish between direct and indirect discrimination.
employment (s15), advertisements (s16), access to places and 6. Identify THREE areas in which the RDA prohibits discrimination.
facilities (s11), provision of goods and services (s13), land, 7. Explain how the Racial Hatred Act 1995 (Cth) attempts to extend
housing and accommodation (s12), right to join trade unions and complement CERD.
(s14), rights to equality before the law (s10). 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
The Racial Hatred Act 1995 (Cth) amended the RDA by making other parts of the world such as US, UK Canada and the EU.
offensive behaviour based on race unlawful. Section 18C In brief, that background paper, An International Comparison
prohibits public behaviour which offends, insults or humiliates a of the Racial Discrimination Act 1975 (2008), found that in all
person or group because of their race, colour, national or ethnic jurisdictions examined, except Australia, there is a provision
origin. However artistic work, academic discussion, material that allows relevant human rights bodies to initiate complaints
whose purpose is scientific, or any discussion which is considered in cases of complex issues and systematic discrimination.5
to be in the public interest will be exempt (s18D). Material which Whilst Australia, like other jurisdictions examined, requires a
is published that represents a genuine belief that it’s a fair and civil rather than a criminal standard of proof (i.e. on the balance
accurate report and is in the public interest is also exempt. of probabilities), he also noted that proving discrimination
under federal law required compliance with a higher standard
The RDA allows racially discriminatory policies when those
of evidence, and that Australia was the only jurisdiction which
policies are deemed to be positive actions designed to protect
placed the whole burden of proof upon the plaintiff.
racially disadvantaged groups. These are called ‘special
measures’ and in order to be lawful they must have the The question of religious vilification was also a factor which
following characteristics: was examined in this report. Whilst the US, UK, Canada and the
• they must provide a benefit to the group EU all have laws which prohibit discrimination and vilification
on the ground of religion, this protection only exists in Australia
• their sole purpose must be to secure the advancement
at state level, and even then is not equally available in all
of the group
jurisdictions.6 For a recent study on this specific topic see the
• they must be necessary to achieve the purpose HREOC Discussion Paper, Freedom of Religion and Belief in
• they must stop once the purpose has been achieved. the 21st Century (2008).

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STUDENT ACTIVITIES case and the subsequent decision in the famous case Mabo v
Queensland (No2)9 that recognised native title and extinguished
11. Identify the Race Discrimination Commissioner.
12. Why do you think we do not protect Australian citizens against the concept of terra nullius.
religious vilification at the federal level? (Hint: Constitution) 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
Landmark Cases Federal Court found that certain documents on the website
I have already mentioned above two important cases Koowarta vilified Jews due to the following content:
v Bjelke-Peterson and Brandy v Human Rights and Equal • denials that the Holocaust occurred
Opportunity Commission. There have been a number of other • denials that there were gas chambers at Auschwitz
cases which have clarified the operation of the RDA. It is
• claims that Jewish people have exaggerated the number of
worth briefly looking at them as their facts provide us with
people who were killed for improper and financial gain
an understanding of the way in which the act impacts upon
• claims that some Jews who opposed Holocaust deniers are
behaviour and policies.
of limited intelligence.
Gerhardy v Brown7 challenged the notion that a non
A defence of academic opinion and good faith was not able to
Pitjantjatjaran needed a permit to enter land which had been
be legally tested as Dr Tobin did not enter a defence, and the
granted to the Pitjantjatjaran people under the Pitjantjantjaran
site was therefore found to be in breach of the RDA and the
Land Rights Act 1981 (SA). Mr Brown went onto this
court ordered it to be dismantled.
land without permission, when charged he argued that the
Pitjantjantjaran Land Rights Act contravened the RDA and was
therefore invalid. 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
Eddie Mabo  Association Limited at the expense of its membership.’
Jeremy Jones and on behalf of the executive council of
The High Court upheld the validity of the SA act claiming Australian Jewry v The Bible Believers Church [2007] FCA
that it constituted a special measure consistent with the RDA. 55 – The Bible Believer’s site was found to contravene section
All judges agreed with the concept of ‘special measures’ 18C of the RDA but as the organisation had no legal entity it
and the appropriateness of taking affirmative action for could not be held accountable therefore relief was granted only
Indigenous people. in principle.
Mabo v Queensland (No 1)8 questioned the validity of the In its discussion of defences contained in section 18D – in
Queensland Coast Islands Declaratory Act (1985). The particular the defence relating to academic purposes – the court
Queensland Parliament passed this act when the Meriam cited with approval the decision in Bropho v Human Rights
people commenced proceedings to have their traditional land and Equal Opportunity Commission and Anor (2004) 135 CLR
rights recognised under Australian law. The act extinguished 105. French J held in that case that ‘An act is done reasonably
whatever rights and interests the Meriam people had under in relation to statements, publications, discussions or debates
their traditional laws. One of the questions that this case raised for genuine academic, artistic or scientific purposes, if it bears
was whether the Queensland act was consistent with the RDA. a rational relationship to those purposes. The publication of
The High Court confirmed that state laws should conform to a genuine scientific paper on that topic of genetic differences
the RDA. This decision enabled the continuation of the Mabo between particular human populations might, for one reason

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or another, be insulting or offensive to a group of people. Notes
Its discussion at a scientific conference would no doubt be
1
See the Universal Declaration of Human Rights, UN Convention for Civil
and Political Rights and UN Convention for Economic and Social Rights.
reasonable. Its presentation to a meeting convened by a racist 2
(1982) 153 CLR 168.
organisation and its use to support a view that a particular group 3
Brandy v Human Rights and Equal Opportunity Commission (1995) 183
of persons is morally or otherwise ‘inferior’ to another by reason CLR 245, this decision held that all cases which require determination and
enforcement must be taken to the Federal Court or the Federal Magistrates
of their race or ethnicity, may not be a thing reasonably done in Court as HREOC (now the Australian Rights Commission) lacks judicial
relation to para(b) of s18D.’ 11 power.
4
See Australian Human Rights Commission Annual Reports: <http://www.

STUDENT ACTIVITIES
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/
15. As a class, or in groups, discuss the view that there are simply no racial_discrimination/publications/int_comparison/index.html>
grounds on which a racial group should be discriminated against. 6
All states and territories except NSW and SA have relevant legislation.
Refer to both academic and scientific issues as well as the concept 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.
of positive discrimination. (You could also refer to the Northern
8
(1988) 166 CLR 186
Territory Emergency Response) 9
(1992) 175 CLR 1
10
[2002] FCA 1150
Research 11
Bropho v Human Rights and Equal Opportunity Commission and Anor
1. Locate and identify the federal government’s External Affairs (2004) 135 CLR 105 quoted in Jeremy Jones and on behalf of the executive
powers under the Constitution. council of Australian Jewry v The Bible Believers Church [2007] FCA 55,
para 80.
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 itself, and forms a crucial aspect of national identity. In keeping
fundamental tenet of Western democracies, including Australia with this approach and reflecting the French Republic’s
and the United States. Its historical foundations can be found in constitutional separation of state and religion, France enacted
the Reformation’s challenge to religious authority, starting in the a new law in 2004 banning religious symbols from public
16th Century, and the emerging primacy of the Enlightenment schools.1 The new law applied equally to all ‘ostentatious’
notion of individual liberty. In simple terms, the principle religious insignia – Jewish skullcaps, large crucifixes, etc –
of church and state separation holds that states ought to be regardless of the religion they represented. The law, however,
constituted and governed on secular grounds – not according has generated much controversy due to its affect on Muslim
to religious doctrine – allowing all citizens freedom of girls who wear the hijab, or headscarf, a number of whom have
religious choice. now been suspended or expelled from French public schools.
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. Skull cap Crucifix Hijab

The so-called ‘headscarf affair’ stimulated intense debate


STUDENT ACTIVITIES between those who see the ban as overly intrusive and
1. For approximately how long have many western nations separated
specifically targeted at Muslims, and others who see it as a
church and state?
necessary means of protecting the republican secular tradition.
2. Define the concept of the separation of church and state.
Even feminists were divided over the ban, with some believing
3. Define the term secularism.
4. Explain why states must still recognise and protect various the law saved girls from an oppressive religious tradition, while
religious institutions. others claimed it violated their right to freely express their
own religious conviction. Muslim communities were likewise
Such is the zeal with which secularism is pursued and policed at odds over whether the wearing of the veil was a religious
in France that it is sometimes considered almost a state religion requirement, or a cultural tradition.

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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.

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European states thus face an ongoing challenge in balancing Further Reading
the principle of secularism religious freedom, while providing John Bowen, Why the French don’t like Headscarves: Islam, the State, and
Public Space, Princeton University Press 2007
adequate protection against discrimination on religious grounds.
Tariq Modood, Multiculturalism, Polity Press 2007
Unfortunately, legislation to protect religious minorities is
notoriously difficult to enact: we can legislate against hate Olivier Roy, Secularism Confronts Islam, Columbia University Press, 2007

speech, religious vilification and blasphemy, but does that mean


we cannot criticise a religion? What about freedom of speech? Notes
1
Law 2004–228 of 15 March 2004 – for an analysis of this law in English
The recent rise in Anti-Semitism and Islamophobia in Europe see: <http://www.brookings.edu/fp/cusf/analysis/vaisse20040229.pdf>
suggests these will remain pressing concerns for European 2
Leyla Sahin v Turkey (Application no 44774/98–19 June 2004). For the
societies for some time to come.4 full ECHR judgment see: <http://www.echr.coe.int/Eng/Press/2004/June/
ChamberjudgmentsSahinandTekin.htm>
STUDENT ACTIVITIES 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.
7. Do you think the bans on religious symbols in European schools com/pa/ld200506/ldjudgmt/jd060322/begum-2.htm >
violate Article 9 of the ECHR? 4
According to the European Network against Racism, Anti-Semitism and
8. Do these restrictions target one group – Muslims – more than Islamophobia have increased markedly in recent years with discriminatory
others, and if so, can they be considered somewhat discriminatory? behaviour across a range of areas (for example, housing and employment),
9. How has your college or school addressed the issue of religious acts of violent intolerance such as vandalism on Synagogues and Mosques,
and direct personal assaults on Jews and Muslims.
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 • the right of a person to be free from incitement to
discrimination on grounds of race, religion or national
There has been a recent proliferation of racist activity at both
origins
national and international levels leading to a consensus that
racial vilification, or hate speech, requires a legal response. • the right to freedom of expression.
Some have argued that racial vilification is an attitudinal
problem and that legislation is inappropriate.1 However, STUDENT ACTIVITIES
there are a number of important rationales for criminalising 1. Explain how the criminal law can play ‘both an instrumental
racial vilification. These are that the law plays both an and symbolic role in influencing societal behaviour.’
instrumental and symbolic role in influencing societal behavior. 2. Explain why hate speech laws should be treated separately
from more general criminal law.
Instrumentally, the law can change social behavior through
3. What are the two rights which must be balanced when
sanctioning certain types of conduct; it acts as a deterrence.
constructing hate speech laws?
Symbolically, by making a public statement condemning racial
vilification, the law can gradually persuade society that racial The first right has also been expressed as a public policy; the
vilification is morally wrong and reduce its social acceptability.2 need to protect society from the civil unrest and disorder incited
Is it necessary, however, to enact new and specific hate speech by hate speech. The second right is one of the world’s most
laws, instead of relying on existing general laws such as those widely accepted rights, found in almost all democracies of the
regarding offensive language, assault or defamation? To treat world. In Australia, however, these rights are not protected in a
a specifically motivated crime, such as hate speech, under constitutional bill of rights, though the High Court has found the
general provisions obscures the true nature of the crime. As a right to freedom of political communication is implied by the
consequence, the message of the law and its impact on society ‘democratic nature’ of the Australian Constitution.3 Some states
is diluted, namely that racism and hate speech per se is socially (namely the Australian Capital Territory and Victoria) do have
unacceptable. an express right to freedom of expression via their respective
The task of constructing a legal response to hate speech in human rights acts.4 Freedom of expression is so important
a democratic system involves the balancing of two separate, because it supports an individual’s proper participation in a
potentially conflicting rights. Those rights are: working democracy; people need to communicate the social and

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political issues facing their societies, as well as their personal that the interview had addressed an issue of some public interest,
opinions on those issues. However, freedom of expression acknowledging that race can be a legitimate topic of social
is not an absolute right and limitations on the grounds that and political discussion. Furthermore, the role of the press in
certain types of speech are harmful, offensive or cause damage a democracy as a major contributor to public discussion was
are permitted. Some historic examples are laws prohibiting considered important and necessary. Subsequently the penalties
obscenity, blackmail and defamation. imposed on the journalist were found to be unnecessary. The
means employed by the State of Denmark were disproportionate
STUDENT ACTIVITIES to the aims of protecting the reputation and rights of others and
4. How does Australia protect its citizens’ right to freedom of maintaining civil order. The ECtHR also based its decision on the
expression? How does this compare with some states such as finding that ‘taken as a whole, the [television program] could not
Victoria, and the ACT? objectively have appeared to have as its purpose the propagation
5. Why is freedom of expression not an absolute right? 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
European Perspectives
public discussion; aimed at a well-informed audience and also
The European response to hate speech is determined largely by contained a number of counter-balancing elements. As we shall
the legal framework in the European Convention on Human see, the intent element is also used in Australian state jurisdictions
Rights (ECHR).5 Article 10(1) guarantees the right to freedom of as an important device for restricting criminal liability to only
expression whilst Article 10(2) permits certain legal limitations those really serious cases of hate speech.
that are necessary in a democratic society, such as those in the
interests of national security, for the prevention of disorder or STUDENT ACTIVITIES
crime and for the protection of the rights of others. A similar
6. Identify ONE international convention, to which Australia is a
construction is found in the International Covenant on Civil and
party, which has attempted to balance the right to expression with
Political Rights (ICCPR), to which Australia is also a party.6 the right of protection against racial hatred.
Article 19 provides the right to freedom of expression whilst 7. Define the term doctrine of proportionality.
Article 20(1) contains a limitation – the specific prohibition 8. In what way can Australian courts use decisions made by the
on the advocacy of national, racial or religious hatred that ECtHR and the UN HCR to develop common law here?
constitutes incitement to discrimination, hostility or violence.7 9. Explain how Jersild v. Denmark illustrates the challenge of
It is important to note that the European Court of Human Rights applying the doctrine of proportionality.
(ECtHR)8 has held that the right to freedom of expression also 10. How is the term intention used by the European Court of Human
extends to ‘information or ideas’ that ‘offend, shock and disturb’ Rights?
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 Australian Perspectives
the right to freedom of expression must be proportionate to In Australia, responses to hate speech have been enacted at
the legitimate aim pursued.10 The doctrine of proportionality both a commonwealth and state level. At the federal level,
means that governments cannot unreasonably restrict freedom the Commonwealth Parliament attempted to pass legislation
of expression in the pursuit of a legitimate aim or policy, implementing its international obligations under the Convention
such as preventing discrimination or civil disorder. This is the on the Elimination of all forms of Racial Discrimination
fundamental approach to balancing freedom of speech with (CERD) in the mid 90s.16 However, early drafts of the Racial
other legitimate aims of government, and was adopted by the Hatred Act 1995 (Cth) attracted strong opposition on the
Australian High Court in ACTV v NSW.11 grounds that it would unreasonably restrict freedom of speech.
Given the congruency in approaches, it is possible that It was heavily amended in the Senate, with the result that
Australian courts will look to decisions of the ECtHR or the hate speech was made unlawful, but not a criminal offence.
UN Human Rights Committee (HRC) in order to help them There were also very broad exemptions for acts said or done
develop the common law when creating limitations on freedom ‘reasonably and in good faith’; for artistic purposes; in the
of speech. The possibility of referring to international law in course of academic debate and for any other genuine purpose in
order to develop the common law was pronounced by the High the public interest (to list but a few).
Court in the important cases of Mabo v Queensland12 The federal approach to hate speech has been heavily criticised
and Dietrich v The Queen.13 for being ‘symbolic’ rather than substantive protection.
The ECtHR has only directly considered the issue of racist Legislation enacted by state parliaments however, has been
speech in one case, Jersild v. Denmark.14 In that case, a journalist better received. Most states (South Australia, ACT, Queensland
conducted a television interview with a known group of racist and Victoria) have hate speech legislation, largely following the
youths, ‘the Greenjackets’, in which they made racist comments model contained in the Anti-Discrimination (Racial Vilification)
about black people. The youths were convicted under Danish law Amendment Act 1989 (NSW). The common factor of these
for making statements that insulted or degraded a group of people offence provisions is the requirement of proof of intent in order
on the basis of their race, colour, national or ethnic origin. The to attract criminal liability. The crime of racial vilification is
journalist was also convicted for aiding and abetting the youths. generally defined as ‘a public act, to incite hatred towards,
In his defence the journalist alleged a violation of Article 10, his serious contempt for, or severe ridicule of, a person or group of
right to freedom of expression. The ECtHR agreed. It considered persons on the grounds of race’.17

~8~
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 incite particular internalised phobias or anxieties for those
‘Hate’ is defined as a ‘set of emotions or feelings which who identify as black: feeling shame over their ‘unwelcome’
involves extreme ill will towards another person or group of identities. Moreover, it can incite hatred towards those who
persons (Kazak v John Fairfax Publications Limited (2000) do not identify as black: being ‘black’ is both threatening
NSWADT). Katherine Gelber points out that hate speech is and a source of ridicule.
understood in terms of its ‘abusive, threatening or insulting’
features. Yet, such a characterisation proves limiting when
STUDENT ACTIVITIES
3. Discuss the impact of the joke provided above – who might
racist discourses are subtle in particular acts of speech or
find it funny? Does it therefore constitute race hatred speech?
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 Privilege And Power
enacted in the utterance’ (2002: 91).
Racist humour also brings to the fore notions of privilege.
Culturally, whether someone finds something funny is partly
STUDENT ACTIVITIES dependent on their sex and race. Jokes reproduce particular
1. How does the NSW Anti-Discrimination Act 1977 define hate bigoted or privileged ideas about racial difference. Certain
speech? jokes, such as the ‘good start’ ones, present the violation (or
2. Suggest why Katherine Gelber feels that hate speech should be hateful scenario) prior to the ‘normal’ explanation of the event.
defined more widely than ‘abusive, threatening or insulting’
For example:
words?
‘What do you call a group of black people chained
to the bottom of a rock – a good start.’
Why Words Can Hurt?
If we analyse the above joke, we can identify that words
Gelber’s analysis leads us to question what makes words may embody a physical and moral character (Bergson 1911:
powerful and hurtful. Perhaps we need to think about how 115). The above joke presupposes knowledge of black people
words, which are uttered with the intention of being derisive as marginalised or repulsive. The joke when spoken by a
or insulting, operate by attempting to single out the subject’s white (racist) person presents the history of black
race as the basis of the taunt. If we extend the analysis, we marginalisation, vilification and murder. If spoken by a black
can observe that words that are discriminatory are not always person, the utterance brings forth a different (though not
intended as such by the speaker, but discrimination is reflected necessarily opposed) history: it may be used to appropriate
in the interpretation of the listener (Mason 2002a: 96). Whether or subvert the stereotype of that marginalisation or oppression
a statement is vilifying is specific to a time and place. (Billig 2005: 34). Hatred (in the ‘good start’ joke) and
irritation (in the stereotyping jokes) may occupy the same joke
Humour And Prejudice form, but the force (emotional impulse) behind the joke has
When we think about jokes, we often imagine laughter, triviality very different meanings and emotions associated. We need
or light-hearted play. However, it is important to consider how to be careful to differentiate between the tones and structure
humour also expresses ideas as much as it expresses particular of each joke in order to determine the ‘hateful’ or ridiculing
qualities. Michael Mulkay argues that jokes offer a means of character which they embody.
divulging particular forms of racialised information without the Racist humour is particularly problematic. Jokes about one’s
teller or the responder having to acknowledge or recognise that race or ethnicity may be uttered in a mode which we think of
public exchange (1988: 124). as trivial or not serious, but the ways in which they mark us is
Consider the following: much more troubling. By engaging the prejudicial stereotypes
we perpetrate a kind of violence. Perhaps not violence in a
‘What is the worst thing you can call a black person, physical sense; but it perpetrates violence in a social way by
starting with N and ending with R – Neighbour.’ continuing to mark people as strange, repulsive and dangerous.
Whilst the derogatory nature of the joke seems clear, the It is important then to understand that humour is an area of
effect of how it marks particular audiences is not. Much of uncertainty and it can trouble minority groups or produce
the ‘joke work’ here is left to the listener. How we identify experiences of hate depending upon the jokes that are spoken.
what is ‘black’ and what qualities we ascribe to ‘neighbour’
are dependant upon our contexts. Particular ideas are divulged STUDENT ACTIVITIES
through humour without having to be explicitly acknowledged. 4. Why does the author believe that some jokes ‘perpetrate violence
That is, the unsaid word is ‘nigger’, which is left to the in a social way’?
audience to interpolate. Black people become marked as 5. Discuss the difficulties associated with the enforcement of racial
threatening strangers, who should not be allowed to occupy hatred legislation in a comedy setting.
‘our’ safe home space. The listener may ascribe particular
prejudices in order to mark this strangeness (black people are Bibliography
criminal, dangerous, over sexualised) in order to understand Anti Discrimination Act 1977 (NSW), s20C and s49ZT
why it would be terrible for them to be your neighbours. Even Bergson, H. Laughter: An Essay on the Meaning of the Comic. London:
if this particular joke seems ‘unreal’ or ‘over the top’, it can Macmillan and Co., 1911.

~ 10 ~
Billig, M. ‘Comic Racism and Violence’. In Lockyer, S. and Pickering, M. Notes
Beyond a Joke: The Limits of Humour. Hampshire: Macmillan Press, 2005. 1
Hate speech legislation varies both on a national and state level and the
Mason, G. The Spectacle of Violence: Homophobia, gender and knowledge. forms of vilification which are prohibited shift between states. Whilst the
London and New York: Routledge, 2002. categories shift, the legal tests (as stated in the NSW legislation) are very
similar. Commonwealth legislation covers racial and sexuality vilification
Mason, G. ‘The Reconstruction of Hate Language’. In Gelber, K. and Stone, A. in the Discrimination Act 1991, sections 65–67. In Queensland, vilification
Hate Speech and Freedom of Speech in Australia. Sydney: The Federation on the basis of gender identity and religion is also legislated in the Anti-
Press, 2007. Discrimination Act 1991 section 124A. South Australia has a specific Racial
Mulkay, M. On Humour: Its Nature and Its Place in Modern Society. Oxford: Vilification Act 1996. Victoria legislates against hate speech under its Racial
Polity Press, 1988. and Religious Tolerance Act 2001, sections 7 and 8. In Western Australia,
hate speech offences are contained in the Criminal Code Act Compilation
Zizek, S. Violence. London: Profile Books, 2008. Act, chapter XI.

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 The package of legislation introduced a number of radical
families, community services and indigenous affairs and the measures covering health, education, welfare reform, law
minister assisting the prime minister for Indigenous affairs, and order, employment and land ownership. Some of the
introduced into the House of Representatives five bills which measures included:
together constituted an emergency response by the federal • quarantining welfare payments to ensure they were spent
government to deal with the problems of sexual abuse of on essential items such as food and clothing
children, alcohol and drug abuse, pornography and gambling • tying welfare payments to children’s school attendance
amongst the Indigenous peoples of the Northern Territory. It • compulsory health checks for children
became known as the Northern Territory Emergency Response • change to community education programs to an income
(NTER). Concern over the sexual abuse of Indigenous children management and employment program
was paramount in the mind of the minister following the release • acquisition of five year leases over land which included
of a report earlier in the year commissioned by the Northern community living areas and town camps in order to
Territory government entitled Little Children are Sacred. The improve living conditions
legality of the federal government’s intervention relied upon its • enforcement through recruitment of inter-state police and
territories power under the Constitution. 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
Patrick Dodson NT anti-discrimination legislation.

~ 11 ~
Graeme Mundine, the head of the body concerned with the NTER will continue in its current form for the next twelve
Indigenous issues set up by the National Council of Churches months but after that revised measures will be introduced which
in Australia commented that ‘any legislation that can only exist will reformulate the policy so that it conforms with the RDA.
if the Racial Discrimination Act is amended has fundamental The intervention policy will therefore be considered as
flaws’.1 Justice Kirby in his last decision on the High Court a ‘special measure’ consistent with the RDA.
also warned about of the dangers ‘in enacting special laws In Gerhardy v Brown9 Justice Brennan laid out the requirements
that target people of a particular race and disadvantage their for special measures as follows:
rights to liberty, property and other entitlements by reference • a special measure must confer a benefit on some or all
to that criterion’.2 members of a class
The Law Council of Australia called for a change in the • membership of that class is based on race, colour, descent,
government policy so that the intervention conforms to the or national or ethnic origin
operation of the RDA. President of the Council, Ross Ray QC,
• the special measure is the sole purpose of securing adequate
said that ‘the Law Council had condemned the suspension of the
advancement of the beneficiaries so that they may enjoy
Racial Discrimination Act from the outset of the intervention
equal human rights and fundamental freedoms
and had consistently called for all protections against racial
discrimination laws to be reinstated’.3 He said that all actions • the special measure must not lead to separate rights for
taken under the intervention should be subject to race different groups beyond the time required to achieve the
discrimination laws. desired outcome.

A number of other organisations have called for the RDA to STUDENT ACTIVITIES
be reinstated, amongst them; Amnesty International, Oxfam 7. What did the NTER Review Board conclude in 2008? (Read
and Australians for Native Title and Reconciliation. Amnesty text carefully – there is a big difference between supporting an
International’s Indigenous rights coordinator in Australia said intervention and liking the way in which it is operating).
that taking away people’s rights was never a good solution, 8. Explain how the NTER will use the decision made in
‘racial discrimination does not improve the lives of children’.4 Gerhardy v. Brown (1985).
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, Challenges To The Northern Territory
Helen Watchirs, reminded her audience in a speech in 2008 that Intervention
it was racially discriminatory measures aimed at improving The Northern Territory Intervention was challenged in the
the lives of Indigenous Australians which led to the Stolen High Court in the case of Wurridjal v The Commonwealth of
Generations and all of the disadvantage and harm that we Australia.10 This case challenged the legality of the federal
now know came with it.6 government’s compulsory five year leases on land over which
Indigenous people claimed a spiritual connection. The challenge
STUDENT ACTIVITIES was unsuccessful. This case did not deal with the suspension of
4. Explain why the NTER failed to comply with the Racial the RDA, but as we saw above at least one judge, Justice Kirby,
Discrimination Act 1975 Cth and how the government was cautious about the justice of a law which could only operate
overcame this. when the RDA was suspended.
5. Identify TWO persons and TWO international organisations
who disagreed with this action. As a domestic challenge on the grounds of racial discrimination
6. Explain, in particular, why Helen Watchirs believes that setting is not possible a challenge is planned at an international level.
aside the RDA can lead to harm for Indigenous people. 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.
NTER Review PAPA is working on a submission that argues that the NTER
In June 2008 the Rudd Government established a NTER Review does not constitute a ‘special measure’ permitted under the
Board to conduct an independent review of the intervention. CERD because the measures have not improved the lives of
The Board reported in October 2008. It concluded that ‘the women and children. Some of the arguments that will be used to
situation in remote communities and town camps was – and substantiate this are that:
remains – sufficiently acute to be described as a national • no consultation, or inadequate consultation with the relevant
emergency. The NTER should continue’.7 Just as importantly communities has taken place over the imposition of the
the report also said that the positive potential of the intervention emergency response
had been dampened by the manner in which it has been • the system is creating extra layers of bureaucracy which
introduced and that in order to succeed the relationship between has made meeting the demands of daily life such as travel,
Indigenous people and the governments of Australia had to be health care, food, payment of bills etc. more difficult
reset. The review committee said that ‘the relationship must be • the system is creating segregated service delivery for
recalibrated to the principle of racial equality and respect for example in supermarkets where there are separate
the human rights of all Australian citizens’.8 Indigenous people only queues for people using the
The current minister for families, housing, community services ‘basics card’.11
and Indigenous Affairs, Jenny Macklin, has announced that

~ 12 ~
Impact On Australia’ International Notes
1
<htpp:www.ncca.org.au/media releases/081001> ‘The Northern Territory
Standing Intervention is a Shame Job’
The CERD Committee has the power to issue early warning
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
measures and urgent procedures. Should it do so, Australia will Indigenous Australians claim a spiritual connection.
join the ranks of Ethiopia, Belize, Nicaragua, Philippines, Brazil 3
Law Council media release ‘Reinstate Racial Discrimination Act in
and Peru. Whilst it is unlikely that CERD Committee will take NT, Law Council Urges’, 14-oct-08 <http://www.lawcouncil.asn.
au/media/news-article.cfm?article=F95F65FB-1E4F-17FA-D272-
this drastic step, we know that Australia’s record in relation to F2A30D7A9495&cat=Media%20Release.>
our Indigenous population is compromised. This year a UN 4
Amnesty International Call for Racial Discrimination Act to be reinstated
Special Rapporteur on human rights and fundamental freedoms 18 Sept 2008 <www.amnesty.org.au/news/comments/17387/>
of Indigenous people is planning a formal visit to Australia 5
Patrick Dodson ‘Dodson on the Intervention: crude, racist and poorly
where the NTER will certainly be a focus. considered’ November 2008 www.crickey.com.au
6
Helen Watchirs Human Rights and Discrimination Commissioner speech
Speculation has also arisen as to the effect that the NTER will given at the Australian National University 30th July 2008 <http://www.hrc.
have on Australia’s relationship with US President Barack act.gov.au/assets/docs/ReconciliACT%20ANU%20July%202008.doc>
Obama. In a recent opinion piece Claire Smith speculated that 7
Report of the NTER Review Board October 2008 <http://www.nterreview.
gov.au/docs/report_nter_review/execsumm.htm>
whilst there was much agreement between Kevin Rudd and
8
Report of the NTER Review Board October 2008 <http://www.nterreview.
Barack Obama, the issue of race might well ‘ruin the promise gov.au/docs/report_nter_review/execsumm.htm>
of a beautiful friendship’.12 9
Gerhardy v Brown (1985) 159 CLR 70

STUDENT ACTIVITIES Wurridjal v The Commonwealth of Australia [2009] HCA 2


10

11
George Newhouse NT intervention: Indigenous Australians take their
9. Explain why PAPA believes that the NTER does not constitute a case to the UN Monday 27th Aug 2008 <www.Crikey.com.au>. The
‘special measure’. effectiveness of the Intervention is a moot point. See Chris Graham NT
Intervention: we’re actually getting somewhere 20/06/08 <www.Crickey.
10. What is PAPA doing about it?
com.au> and compare with Rachael Siewart The Intervention, One Year On
11. What did the Wurrudjal People do about the NTER? June 2008, http://newmatilda.com
12. Outline TWO ways in which the international community could 12
Claire Smith Could Racial Discrimination Ruin the Promise of a Beautiful
put pressure on the Australian Government to reinstate all of the Relationship? <www.abc.net.au/news/stories/2009/02/02/2479644.htm>
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, The Basic Concepts Of Contract Law


Does It Operate To Protect The basic concepts of contract law are reasonably simple.
Contracts can generally be in writing or oral (although
Consumers And Traders?
some contracts can only be made in writing). Contracts
What Is Contract Law? generally commence with an offer to do something. This is
Contracts are about promises – a promise by one party to often followed by negotiations about the offer which in turn
do something and a promise by another to do something in is followed by acceptance of the offer. Finally, the agreed
return. Perhaps the best way to understand contract law is by terms are put into writing. Contracts usually involve a form
example. If you order a book from a bookstore, contract law of payment that lawyers refer to as consideration. Generally,
will ensure that you keep your promise (to pay for the book) if both parties to the contract carry out their promises the
and the bookstore keeps its promise (to provide you with contract ends.
the book). Contract law regulates how people make promises,
It is important to remember, however, that while it is
how promises are enforced and whether such promises are fair.
convenient to describe contract law as a process of offer,
The law of contract cannot be found in any one place. negotiation of price and terms, acceptance, and putting
Rather, contract law is a combination of law made by courts, those negotiations into writing, a very significant amount
government legislation and regulations as well as regulations of contracting does not occur this way. We enter into oral
made by businesses themselves (often called self-regulation). contracts every day, largely without thinking about doing so.

~ 13 ~
Standard-form contracts, with all of the terms of the contract invest in new staff, new equipment and new products and
provided by the trader (generally on a ‘take it or leave it’ basis), services. Contract law also protects traders by ensuring that
are a very common part of any modern economy. Standard the contracts they enter into will be enforced by the courts.
form contracts limit the capacity of consumers to negotiate Without contract law, our economy would soon come to
individual terms of contracts. But this type of contract is very a halt as traders would have no way of knowing whether
important. If each contract was individually negotiated between promises consumers make to pay for their goods and
the trader and consumer the costs would be astronomical – services would be honoured.
costs that would need to be paid by the consumer.
Similarly, contract law works to protect consumers.
Much of what we know as contract law actually exists to deal Consumers can be confident that if a trader has promised
with things that have gone wrong with contracts. Contract them something the trader will need to deliver on that
law provides an extensive series of rules to deal with such promise. Modern contract law provides for an extensive
things as: array of consumer protections. Courts, using contract law
• who can and cannot enter a contract (for example, minors) principles, have long protected certain consumers by not
• deciding what the intentions of the parties were when enforcing contracts (or parts of contracts). These principles
they entered into the contract, and what the terms of the have also worked to prevent traders misrepresenting or
contract were misleading consumers, taking advantage of consumer
mistakes or enforcing contracts made under duress.
• factors that might affect whether a contract is valid
(for example, if one of the parties to the contract In more recent times, courts have developed such
misrepresented an important term of the contract) principles as unconscionability that protect certain
• how contracts can be breached and how breaches are vulnerable consumers. Many of these principles,
dealt with particularly unconscionability and misleading conduct,
have become important laws of the parliament. In 2009, the
• how contracts are terminated and what remedies that
Commonwealth Government announced laws that will further
might arise from termination.
protect consumers by making certain terms of contracts
Does Contract Law Protect Traders And Consumers? unfair. Such ‘unfair contract terms’ laws will operate to
There are two legal cornerstones of any modern, market- protect consumers.
based economy like Australia. The first is the rule of law When considering contract law as a tool of consumer
(that simply means that there is a system of known rules protection it is useful to keep in mind that protection does
that govern how society operates). The second is contract not necessarily come without cost. For example, measures in
law. Contract law protects traders by giving them certainty contracts to ensure that they are fair may increase the costs
about the rules that regulate how they are allowed to of goods or services that are supplied under those contracts,
undertake their trade. This certainty is vital for traders or potentially reduce competition among traders, which also
to have the confidence to compete with other traders and comes at a cost to the consumer.

Legal Update By Beth Wilson


Health Services Commissioner. Victoria

Alternative Dispute Resolution In his foreword the Chair of the Committee notes: ‘ADR
and restorative justice have emerged in recent decades as
Victoria’s Law Reform Committee in May 2009 released two ways to deal with civil disputes and criminal offences
its Inquiry into Alternative Dispute Resolution (ADR) and outside the courtroom. They are dynamic and innovative
restorative justice which has national implications. The fields powered by the combined efforts of community
Report defines ADR as, ‘an umbrella term in which the ADR organisations, universities, industries, courts and tribunals,
practitioner considers and appraises the dispute and provides and government at federal and state levels.’ The executive
advice about the facts of the dispute, the law and, in some summary notes that ADR is a term used to describe
cases, possible or desirable outcomes and how that may be processes through which people resolve disputes with
achieved. Advisory processes include a mini-trial and an early the help of a third person, rather than asking a court or
neutral evaluation’. Restorative justice is defined as ‘a process tribunal to decide the case for them. Restorative justice
whereby parties with a stake in a specific offence collectively focuses on repairing harm caused by an offence and
resolve how to deal with the aftermath of the offence and its encouraging offenders to take responsibility for their
implications for the future’. actions. Together ADR and restorative justice are an

~ 14 ~
important, evolving and alternative means of dealing (15/5/2009) Dr Terri Foran notes: ‘Stupid laws deserve to be
with civil claims and criminal offences. challenged and I encourage all practitioners in the Northern
Included in the 78 recommendations is that the National Territory to effectively lobby your politicians on this one. The
Alternative Dispute Resolution Agency Council should work health of so many young Australians depends on it.’
with government and ADR providers to develop agreed
performance measures and consistent data and reporting Duty Of Care
systems. Six High Court of Australia judges have decided that the
police do not have a duty of care to intervene to prevent
Mandatory Reporting suicides in all cases. A Victorian woman sued two police
Health service providers including doctors are deeply officers who, she believed, were responsible for her husband’s
concerned by a Northern Territory law which obliges them to death by suicide. The court ruled the law does not oblige a
report any person under the age of 16 whom they know to be person to rescue another from harm unless the person appeared
sexually active. Under the Care and Protection of Children Act to be mentally ill. The High Court ruling was a reversal of
health workers face up to $20,000 fines if they do not report. an earlier Court of Appeal decision that police should have
They say the law is unworkable, undermines the trust between intervened when they found the man in his car with a vacuum
health worker and patient and will prevent young people hose attached to the exhaust. The man assured the police he
accessing sexual health services. Writing in Australian Doctor would be alright but committed suicide later that day.

Media Watch By Margaret Beazer

National Charter Of Rights Will To date, the impact of the Victorian charter and the ACT HRA
in the courtroom has been negligible. Far from being a failure,
Protect The Disadvantaged
that is how it should be. Outside the courtroom, however,
The Age, June, 8 2009, Philip Lynch these laws are used to address disadvantage and promote
dignity; a fact conveniently ignored by national charter of
Australia’s two examples of this process have proved rights critics.
critics wrong
You won’t have read, for example, that the Victorian charter
Critics of a national charter of rights have recently shifted prevented the eviction of a single mother and her kids from
their line of attack. Dire predictions of floods of litigation, public housing into homelessness, or that it assisted an elderly
get-out-of-jail-free cards, rampant individualism and the woman with brain injury to get access to critical medical
end of democracy have been replaced with attacks on the assistance. Or that it helped a woman with cerebral palsy and
constitutionality of a human rights act and the role of the children with autism to obtain support services.
Australian Human Rights Commission.
These are common-sense decisions in real-life cases, which
This tactical change is necessary because, after four years of show how charters of rights can and do improve lives and
the ACT Human Rights Act and three years of the Victorian promote values such as freedom, respect, dignity and a fair
Charter of Rights and Responsibilities, their original claims go. The latest line of attack (Bob Carr, Opinion 5/6) is really
have been proved profoundly wrong. a re-hash of the argument that a charter of rights would usurp
Far from a tidal wave, the flow of cases has been barely a parliamentary sovereignty. Whether by neglect or design, this
trickle. The view that charters of rights create a lawyers’ particular argument makes several false assertions.
picnic is unsubstantiated; of the few Victorian charter cases Carr would have us believe that the popularly endorsed model
that have been determined, the vast majority have been run of a national charter of rights would ‘give the Australian
pro bono for the homeless, people with mental illness and Human Rights Commission a role in effectively striking
people with disability. down laws’. It does nothing of the sort. The dominant
Neither the Victorian charter nor the ACT HRA has emerged model does three fundamental things. First, it requires that
as a ‘get-out-of-jail-free card’. Carl Williams’ attempt to delay parliament scrutinise the compatibility of legislation with
his criminal prosecution because his ‘lawyer of choice’ was human rights before enactment, thereby improving the
not available was quickly dismissed. So too was a doctor’s quality of laws. Second, it requires that public authorities
reliance on the presumption of innocence in contesting his give proper consideration to human rights, thereby improving
de-registration following charges of rape. public service delivery and outcomes. Third, it requires

~ 15 ~
that courts interpret and apply laws compatibly with human Abortion Act may have benefited from greater parliamentary
rights, thereby giving effect to parliament’s intent and our scrutiny of its human rights implications, this episode does
international obligations. highlight that neither the Victorian charter nor the ACT HRA
has shifted legislative power to the judiciary.
The model merely gives the Australian Human Rights
Commission the responsibility to notify parliament if it The evidence is clear: an Australian charter of rights could
appears that a law is incompatible with human rights. improve public services, promote more responsive and
Parliament can respond to such a notification as it sees fit, accountable government, and address disadvantage.
amending, repealing or leaving the law untouched. Section Bring it on.
36(5) of the Victorian charter, on which the dominant
Philip Lynch is director of the Human
model is closely based, is unambiguous: ‘A declaration of
Rights Law Resource Centre.
inconsistent interpretation does not affect in any way the
validity, operation or enforcement of the statutory provision.’ Philip Lynch has granted permission
This model retains parliamentary sovereignty. It also to reproduce this article
recognises that human rights are not trump cards. Far from
promoting a culture of individualism, the Victorian charter STUDENT ACTIVITIES
and ACT HRA explicitly recognise that human rights must be 1 What problems were predicted for Victoria and the ACT after
balanced with other considerations, such as national security, the passing of their human rights acts?
public health and public order. They recognise that human 2 ‘The view that charters of rights create a lawyers’ picnic is
rights are deeply communitarian ‘necessary in a diverse, unsubstantiated.’ Explain why the writer thinks this is the case.
democratic, inclusive and participatory society’. Include an example in your explanation.
3 How have the existing human rights laws been used to address
Carr also invokes the recent passage of the Victorian Abortion
disadvantage and promote dignity?
Law Reform Act, taking issue with section eight, which
relevantly requires that doctors and nurses with conscientious 4 How would a Commonwealth human rights act, using the most
popular model (referred to as the dominant model), be used to
objections nevertheless ‘perform an abortion in an emergency
protect human rights?
where necessary to preserve the life of the pregnant woman’.
In a position surely at odds with his insistence on unfettered 5 If this model were used, could a law that is found to be
inconsistent with the human rights act still be operable?
parliamentary sovereignty, Carr suggests that the Victorian
Explain.
charter should have prevented the passage of this law and that
it should be open to doctors and nurses to rely on the charter 6 Do you think a Commonwealth charter of human rights would
shift legislative power to the judiciary? Discuss.
to challenge the provision (presumably in a court!). While the

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General Editor: Margaret Beazer, Education Consultant and Legal Studies Writer
Student Activities Writer: Lesley Maguire, St Patricians College, Legal Studies Writer
Managing Editor: Denise Michie