BLAW10002 Lecture Notes - Lecture 11: Blasphemous Libel, Obscene Libel, Racial Discrimination Act 1975
14 May 2018
School
Department
Course
Professor
Offensive Speech
Various instances of the regulation of ‘offensive speech’
•Blasphemy of blasphemous libel
-Inherited in Australia through English common law
-Now abolished in some jurisdiction and codified in others
-Historical emphasis on Christianity
•Obscenity
-Common law offence of ‘publication of an obscene libel’
-Now regulated through the national classifcation scheme, though many states retain
statutory offences
-Historically used to control ‘acceptable’ or politically expedient representations of sexuality
•Child pornography
-Federal, state and territory criminal laws
-Cover both actual and virtual child pornography
-Covers both actual and virtual (no actual child, actors) child pornography - also
acknowledges that the idea is beyond just children - its the message
•Sedition, including counter-terrorism laws
-Sedition undermines the state in a broad sense about political speech
-Inherited in Australia through English common law
-Broad range of Commonwealth statutory offences
-Derived from the law of treason - a citizens’ allegiance to his or her monarch
-Historically used to suppress political dissent
-Intention required
-Introduced to Commonwealth criminal law in 1920 -
Vilification (hate speech) - the international context
•A category of speech that describes derogatory or demeaning speech, based on a specific
descriptive characteristic of an individual
•E.g. age, race, gender, disability
•Seen to convey hatred to a particular group of people
•International Covenant on Civil and Political Rights
-Article 20
1. Any propaganda for war shall be prohibited by law
2. Any advocacy of national, racial or religious hatred that constitutes incitement to
discrimination, hostility or violence shall be prohibited by law
-Preceding Article: Article 19 speaks about freedom of speech
•Convention on the elimination of All Forms of Racial Discrimination
-Article 4
-States parties condemn all propaganda and all organisations which are based on ideas or
theories of superiority of one race or group of persons of one colour or ethnic origin
-Or which attempts to justify or promote racial hatred and discrimination in any form
-And undertake to adopt immediate and positive measures designed to eradicate all
incitement to, or acts of, such discrimination
-With regard to the principles embodied in the Universal Declaration of Human Rights and
rights expressly set forth in article 5 of this convention, inter alia:
(a) shall declare an offence punishable by law all dissemination of ideas based on racial
superiority or hatred, incitement to racial discrimination, as well as acts of violence or
incitement of such acts against any race or group of persona of another colour or ethnic
origin, and also the provision of any assistance to racist activities, including the financing
thereof;
(b) shall declare illegal and prohibit organisations, and also organised and all other
propaganda activities, which promote and incite racial discrimination, and shall
recognise participation in such organisations or activities as an offence punishable by
law;
(c) shall not permit public authorities or public institutions, national or local, to promote or
incite racial discrimination
Vilification (hate speech) - the Australian context
Racial Discrimination Act 1975 (Cth)
•Section 18C - Offensive behaviour because of race, colour or national or ethnic origin
1. It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances to offend, insult, humiliate or
intimidate another person or group of people; and
(b) the act is done because of race, colour or national or ethnic origin of the other person or
of some or all of the people in the group
2. For the purposes of subsection (1), an act is taken not to be done in private if it:
(a) causes words, sounds, images or wiriritng to be communicated to the public; or
(b) is done in a public place; or
(c) is done in the sight or hearing of people who are in a public place
3. In this section ‘public place’ includes any place to which the public have access as of right
by invitation, whether express or implied, and whether or not a charge is made for
admission to the place
•Section 18D - Exemptions
•Section 18C does not render unlawful anything said or done reasonably and in good faith:
(a) in the performance, exhibition or distribution if an artistic work; or
(b) 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
(c) in making or publishing:
(a) a fair and
•Racial Discrimination Act complaints process
-Complaint to the Human Rights Commission
-Investigation by the President of the HRC
-Conciliation
-If conciliation does not work, complainant can apply to have case heard in Federal Court or
Federal Circuit Court proceedings
Racial and Religious Tolerance Act 2001 (Vic)
•Subsections 7(1) and 8(1) prohibit racial and religious vilification respectively
•Conduct directed at an individual or a class of persons that incites, ‘hatred agisnt, serious
contempt for, or revulsion or severe ridicule of
•Racial vilification is also prohibited in all other states and territories, except the Northern
Territory
•Religious vilification is also prohibited in Queensland and Tasmania
•Other Australian jurisdictions have in place protections against vilification based on:
•Sexual orientation;
•Gender Identity;
•HIV/AIDS status; and
•Disability
•Protection on
Eatock v Bolt [2011] FCA 1103
•An action brought pursuant to section 18C of the Racial Discrimination Act
•Per Bromberg J
•Part IIA of of the RDA aims to promote racial tolerance and protect against the
dissemination of racial prejudice
