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Where am I now? Lawlink > Anti-Discrimination Board > Publications > Understanding vilification laws - Equal Time, November 2004
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Understanding vilification laws - Equal Time, November 2004
 Introduction
Public acts
Incitement to hatred, serious contempt or severe ridicule
Serious vilification
Laws and Price case
Introduction
When the NSW Administrative Decisions Tribunal (ADT) recently upheld a claim that Sydney radio hosts John Laws and Steve Price were guilty of homosexual vilification, the spotlight was turned onto the vilification provisions of the NSW Anti-Discrimination Act (ADA).
The complaint was lodged by Gary Burns after a discussion on radio 2UE about a gay couple on the television program The Block (Burns v Radio 2UE Sydney Pty Ltd and ors [2004] NSWADT 267).
Price referred to the two men as “young poofs” and said that on the “uncut” version of The Block “they could do all sorts of grubby things at 11 o’clock at night”. Laws also referred to them as “a couple of young poofs” and said “I don’t know what’s happened to Kerry (Packer)’s taste”.
In order to be covered by the ADA’s vilification provisions, there must be a public act which incites hatred towards, serious contempt for, or severe ridicule of a person or persons because of their race, colour, descent, nationality, ethnic, ethno-religious or national origin, homosexuality, or HIV/AIDS or transgender status.
To make a complaint of vilification under the ADA, a person must be a member of the group that they think has been vilified. The Anti-Discrimination Board also accepts vilification complaints on an individual’s behalf from representative organisations that have a genuine interest in the matters in the complaint. However the complainant must agree with the complaint being made and be named in the complaint
Public acts
As well as remarks made on radio or television, a public act may include graffiti, speeches or statements, public abuse or gestures, statements in a newspaper, journal or other publication, wearing a symbol such as a badge or clothing with slogans on it, and public posters or stickers.
Whether an act was made in public may become a significant question in a vilification complaint. In the case of Kimble and Souris v Orr [2003 NSWADT 49], a real estate agent made a number of remarks from the balcony of a unit in an apartment complex to the complainants standing below. This included calling one of the complainants a “black bastard” and a “coon”.
The ADT considered at some length whether this constituted a public act, looking at the distance the other balconies in the complex were from the one on which the respondent was standing, and the volume at which he was speaking. It decided that people on other balconies would have been able to hear the respondent, and therefore his behaviour did constitute a public act in this case.
However, acts that are not considered to be public are not covered by the ADA, even if they are highly abusive. For example, abuse inside a private house may not be covered, even if it is based on one of the grounds covered by the vilification provisions, such as race or homosexuality.
Incitement to hatred, serious contempt or severe ridicule
The ADA requires vilification to be relatively serious before it is as unlawful, and this has often been an issue in vilification cases. Also, merely conveying hatred or expressing serious contempt or severe ridicule is not necessarily unlawful unless there is also incitement involved.
In the case of Harou-Sourdon v TCN Channel Nine Pty Ltd (1994), the then Equal Opportunity Tribunal looked at a number of issues in determining whether the acts had been unlawful. This included the length of the vilifying statements in relation to the rest of the program, whether the comments could be regarded as humorous, whether the language used was ordinary, and whether the statements were repeated.
This case also looked at the test for incitement, and determined that it should be a reasonable person, who is neither extremely immune nor particularly susceptible to incitement. This means that an act that would incite someone who already held extreme racist or anti-gay views might not necessarily be seen as incitement under the ADA.
The following are excluded from the ADA’s vilification provisions: a fair report by the media of someone else’s act of vilification; acts that are done “reasonably and in good faith” for academic, artistic, scientific, research or other purposes in the “public interest”; and material that is privileged, such as statements made in parliament, or made by a public authority in the course of undertaking a statutory duty, such as the Ombudsman.
Serious vilification
If an act involves both an expression of hatred, serious contempt or severe ridicule and a threat of physical harm to persons or their property, or incitement to others to threaten physical harm, it may constitute “serious vilification” under the ADA.
The President must refer such matters to the Attorney General. The act or acts will then be considered by the Director of Public Prosecutions and may be prosecuted as an offence. However, there have been no prosecutions under these provisions for a number of years.
New Anti-Discrimination Board member Peter Wertheim was recently asked to chair a committee to review the serious vilification provisions in the ADA and make recommendations for changes if appropriate. The committee will begin meeting in December 2004.
Laws and Price case
In the case of Laws and Price, the remarks were clearly made in public. The Tribunal found that the remarks did not amount to severe ridicule themselves, but it found them to have been capable of inciting severe ridicule in others.
Under the provisions of the ADA, the Tribunal can order compensation and also order 2UE and/or Laws and Price to apologise, and order 2UE to implement a policy or program aimed at eliminating unlawful discrimination.
The tribunal found that as Burns did not hear much of the broadcast, damages were not an appropriate remedy. The parties were invited to make submissions on the form and content of an apology and/or retraction, plus any other order that should be made.
Several days before the finding, Laws published a page-long apology in gay newspaper the Sydney Star Observer over another incident, in which he described another television personality as a “pillow-biter”. In the apology Laws said that his statements were satire.
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