7.1 The principal purpose of the Anti-Discrimination Act 1977 (NSW) (“ADA”) is to prohibit discrimination on defined grounds in certain areas. However, the ADA also makes unlawful certain other related conduct. These prohibitions extend to:

• harassment;
• vilification;
• victimisation; and
• discriminatory advertising.

7.3 The concept of “harassment” is closely related to that of discrimination and involves a significant level of overlap. This matter will be dealt with first.

7.4 The concept of “vilification” is similarly a related concept as it involves adverse treatment on a proscribed ground. The proscribed areas are based upon the public/private distinction, but are not so limited as those in relation to grounds of discrimination. Further, because of the close relationship of vilification and restraints on freedom of speech, different procedures are adopted in order to deal appropriately with the areas of concern.

7.5 Victimisation is a derivative prohibition, designed to provide protection and, where necessary, a remedy, to those who seek to rely upon or enforce their rights under ADA generally.

7.6 Discriminatory advertising is an ancillary area of prohibition and conceptually provides another area within which the general prohibitions operate.

7.7 This chapter deals with each of these matters in turn.

HARASSMENT

Concept of harassment

7.8 The Anti-Discrimination Board (“ADB”) has described harassment in a workplace as:

any form of behaviour that is not wanted and not asked for and that provides a hostile environment. For example, it:
• humiliates someone (puts them down);or
• offends them; or
• intimidates them; and

that happens because of their race, sex, pregnancy, homosexuality, marital status, disability, transgender (transsexuality) or age.¹

7.10 Under the current provisions of the ADA, only sexual harassment is specifically prohibited. All other forms of harassment, such as racial and disability harassment, are dealt with only to the extent that they constitute a form of discrimination.³ In 1997, the ADA was amended to include the following definition of “sexual harassment”:⁴

For the purposes of this part, a person sexually harasses another person if:

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person; or

(b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person,

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.

Harassment and discrimination

7.12 Although express reference to sexual harassment was only included in the ADA in 1997, there is a long line of authority to the effect that harassment can constitute discrimination in particular areas. For example, in 1983, the Equal Opportunity Tribunal (“EOT”) upheld a complaint by a doctoral student concerning treatment by staff at a university. The treatment alleged to constitute discrimination was a form of racial harassment by an educational authority.⁵ In the United States, it has been held in the area of employment that “simply by creating or condoning an environment at the workplace which significantly and adversely affects an employee because of his race or ethnicity, regardless of any other tangible job detriment to the protected employee” constitutes unlawful discrimination.⁶ The principle upon which the approach is based is that the creation of a hostile working environment constitutes differential treatment in relation to the terms or conditions of employment. In New South Wales, this principle was applied in O’Callaghan v Loder,⁷ where Judge Mathews reviewed and applied the American cases. Her conclusion that unwelcome sexual conduct could create a hostile or demeaning atmosphere is reflected in the current statutory definition.

7.13 In 1988 her Honour’s approach obtained definitive support from the Full Federal Court in Hall v A&A Sheiban Pty Ltd.⁸

7.14 There are, however, a few limitations on the scope of harassment as a form of discrimination. First, the current definition of discrimination, requiring reliance upon a comparison between the treatment of the victim and the actual or hypothetical treatment of someone of the other sex, at least in theory leaves open “the bisexual” defence. In other words, if the respondent can satisfy a court or tribunal that he or she would have harassed someone of the other sex to the complainant in exactly the same way, there is, arguably, no differential treatment and therefore no unlawful discrimination. This difficulty would, however, be overcome by the definition of discrimination focusing on detriment proposed in this Report.

7.15 Secondly, this approach does not cover all forms of harassment which may arise in the workplace. For example, harassment by a co-employee, in circumstances where there is no involvement or approval by management or senior supervisory staff, will not give rise to unlawful discrimination. Similarly, harassment of a parent by a teacher at a school will not fall within the current areas of discrimination.

7.16 Apart from the above, while harassment and discrimination both result in some form of detriment to the aggrieved person, the humiliation and intimidation that is intrinsic in the concept of harassment may not always be prevalent in discrimination.

7.17 One response to these limitations has been to seek to broaden the scope of the prohibited conduct. In relation to employment, the new statutory provisions prohibit sexual harassment of an employee by “a person”, thus not restricting the prohibition to the conduct of the employer. However, the Commission is of the view that despite any similarities between the two, harassment and discrimination must be defined separately, as is currently the case with sexual harassment. This decision raises concerns in relation to other forms of harassment that are currently considered as discrimination.

Harassment on other grounds

Other Australian jurisdictions

7.18 The current approach in relation to sexual harassment in the ADA reflects that adopted in other jurisdictions, including the Commonwealth SDA.⁹ However, there is a concern that the expanded prohibition of harassment does not apply equally to all grounds. As will be noted below, there has for several years been a specific prohibition on “racial vilification” in New South Wales, but there has been no specific extension of the racial discrimination provisions to include a broader prohibition on racial harassment.

7.19 Some Australian jurisdictions specifically prohibit harassment on other grounds. The Sex Discrimination Act 1994 (Tas) (“SDA (Tas)”) prohibits conduct which offends, humiliates, insults or ridicules another person on the basis of gender, marital status, pregnancy, parental status and family responsibilities where a reasonable person in all the circumstances would have anticipated that the other person would be offended, humiliated, intimidated, insulted or ridiculed.¹⁰

7.20 The Equal Opportunity Act 1984 (WA) (“EOA (WA)”) prohibits discrimination involving racial harassment.¹¹ Racial harassment occurs where a person threatens, abuses, insults or taunts another person on the ground of the person’s race, a characteristic that appertains generally or is generally imputed to persons of that race or to the race of a relative or associate of that person. The definition also requires that complainants have “reasonable grounds” for believing that they would be subject to a disadvantage if they objected to the conduct, or that they suffered actual disadvantage because they objected to the conduct. The definition applies to detriment in connection with employment or work, possible employment or work,¹² studies or application for admission to an educational institution as a student,¹³ and accommodation or application for accommodation.¹⁴

7.21 The Disability Discrimination Act 1992 (Cth) (“DDA”) prohibits “discrimination involving harassment” on the basis of disability or association with a person who has a disability in employment, education and the provision of goods and services.¹⁵ The harassment must be “in relation to the disability”. The only reported case of disability harassment under the DDA is Adams v Arizona Bay Pty Ltd.¹⁶ In that case Mr Adams alleged several instances of discrimination and harassment arising out of his use of the local taxi service. Allegations of harassment included abusive words by the cab driver to the complainant, being made to wait, having taxis fail to turn up and being hung up on when trying to make a booking. The Human Rights and Equal Opportunity Commission (“HREOC”) found the allegations made out and compensation was awarded. The order stated that the respondent engaged in unlawful conduct under the Act, “namely treating the disabled complainant more harshly than an able bodied customer”.¹⁷

The case for extending the prohibition

7.22 As already noted, the first extension to the definition of discrimination which flowed from the inclusion of a specific ground of “sexual harassment” was the avoidance of the need to compare the treatment with that which would have been accorded to a person of the other sex. This was a particular issue in relation to treatment on the ground of sex, which can readily be identified as having a sexual element, even though it may be directed to a person of the same sex or the opposite sex. That difficulty may not arise in relation to the other grounds. Generally, the need to establish the ground of the treatment will itself reveal whether the treatment is directed to one particular class or not. In other words, unless the conduct involves a distinction based on race, it will not be possible to establish a contravention of the discrimination provision. Unlike sexual conduct, other forms of harassment either demonstrate a distinction based on a prohibited ground, or they do not. Only sexual harassment is directed to a particular human characteristic, namely sexuality, which is common to both classes. As such, the Commission sees the need for sexual harassment to have a separate definition, as is currently the case. Given that harassment has been held to be a form of discrimination, other forms of harassment may be brought within a complaint of discrimination, particularly in view of the proposed detriment-based definition of discrimination.¹⁸

7.23 Secondly, the prohibition on sexual harassment contained in Part 2A of the ADA extends the areas within which such conduct may be unlawful. For example, it makes it unlawful for an employee to sexually harass a fellow employee.¹⁹ The discrimination provision imposes a prohibition on the employer only. Thus employee harassment will not constitute unlawful discrimination unless it affects the terms or conditions of employment and is authorised or permitted by the employer. There are other extensions including sexual harassment by persons engaged in sporting activity, in relation to others engaged in sporting activity.²⁰

7.24 In part, these provisions reflect the need to reconsider the definition of areas in which discrimination is prohibited. This aspect of the prohibition is considered further below.²¹

Definition of harassment

Other jurisdictions

7.25 The New South Wales definition of sexual harassment quoted above is very similar to that contained in the SDA and other jurisdictions which have harassment legislation.²² The SDA, Victoria, Western Australia and the Australian Capital Territory further define “conduct of a sexual nature” to include making statements of a sexual nature orally or in writing to a person or in a person’s presence.²³

7.26 The Equal Opportunity Act 1995 (Vic) (“EOA (Vic)”) also specifies that subjecting a person to any act of physical intimacy and making any gesture, action or comment of a sexual nature in a person’s presence may amount to “conduct of a sexual nature”.²⁴

7.27 The Anti-Discrimination Act 1991 (Qld) (“ADA (Qld)”) uses the term “unsolicited” rather than “unwelcome” and also expressly refers to remarks made with sexual connotations relating to the other person.²⁵ The Northern Territory Act does not expressly state that remarks made relate “to the other person”, nor that other unwelcome conduct of a sexual nature be directed to the other person.²⁶ In that sense the Northern Territory definition may be broader than that in Queensland. In Tasmania, the SDA (Tas) requires remarks to be made “to another person or about another person in that person’s presence”. In addition to the other forms of behaviour listed in the Queensland definition, Tasmania includes “unwelcome gesture, action or comment of a sexual nature”.²⁷

7.28 The Equal Opportunity Act 1984 (SA) (“EOA (SA)”) may be narrower than other jurisdictions in requiring that an act of physical intimacy must be “intentional” and that remarks with sexual connotations must be made “on more than one occasion”.²⁸

7.29 Overseas, the UK legislation on harassment is the most recent. The bulk of the Protection from Harassment Act 1997 (UK) has been in force since June. It makes “harassment” both a crime and a civil wrong and forbids anyone “... to pursue a course of conduct ... which amounts to harassment of another”.²⁹ Although the term “harassment” is not defined in the Act, it is clear that an isolated incident will not be caught by the Act. Only a “course of conduct” which is defined to mean “... conduct on at least two occasions ...” will fall foul of the Act. The only defence available is that “... in the particular circumstances the pursuit of the course of conduct was reasonable”.³⁰

7.30 In Canada, federally, the Human Rights Act prohibits harassment on all prohibited grounds³¹ of discrimination but harassment is not defined in the Act. Some Provinces of Canada also specifically prohibit harassment. For example, the Ontario Human Rights Code prohibits harassment in accommodation and employment. “Harassment” is defined as engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.³²

7.31 The grounds on which harassment is prohibited differ according to the “area” where the harassment occurs. For example, harassment in employment is prohibited on the grounds of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status, sex or handicap.³³ In accommodation, every occupier has a right to freedom from harassment by the landlord or agent or by an occupant of the same building on all the above grounds except record of offences, but including receipt of public assistance.³⁴ Discrimination in the provision of services, accommodation and employment is also prohibited on the ground of sexual orientation, which is excluded from the harassment provisions.³⁵

7.32 There is a general prohibition of sexual solicitation, or reprisal or threat of reprisal for the rejection of a sexual solicitation, by a person in a position to confer, grant or deny a benefit or advancement. The test in relation to sexual solicitation or advance is whether the person making the solicitation knows or ought reasonably to know that it is unwelcome.³⁶ This provision is not limited to any specific areas.

7.33 In the Human Rights Code of Newfoundland harassment is defined in terms substantially the same as in Ontario.³⁷ A person is prohibited from harassing an occupant of a commercial unit or a self-contained dwelling unit or establishment. An “establishment” is defined as a place of business or the place where an undertaking or a part of an undertaking is carried on.³⁸ There is no requirement of relationship between the parties other than being in “the establishment”. It appears that this provision could encompass traditional areas such as employment, education, accommodation and goods and services and may have broader coverage than that of other statutes.

7.34 In the United States, Federal legislation does not expressly prohibit sexual harassment.³⁹ However cases have decided that sexual harassment is a form of sex discrimination.

7.35 The United States Equal Opportunity Commission states that sexual harassment in relation to work covers:

Unwelcome sexual advances, requests for sexual favours, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:

(1) submission to or rejection of such conduct is made either explicitly or implicitly a term or condition of an individual’s employment;

(2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or

(3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.⁴⁰

7.36 Several courts in the United States have also recently rejected a “reasonable person” standard in evaluating sexual harassment claims based on an abusive work environment.⁴¹ Instead, these courts have adopted a reasonable victim standard which “simultaneously allows courts to consider salient sociological differences as well as shield employers from the neurotic complainant”.⁴² The salient sociological difference referred to was that “many of the actions women find offensive are perceived by men to be harmless and innocent”.⁴³ The comment continued:

Concern for the dignity of women would require courts to determine the wrongfulness of conduct from the standpoint of the victim: hence continual minor humiliations as well as flagrant assaults would become actionable.⁴⁴

In order to give a human rights Act an appropriately broad and generous construction, there is growing agreement that the seriousness of the impugned conduct must be perceived from the perspective of the victim.⁴⁶

in the case of a complaint of racial harassment, a tribunal must strive to examine the impugned acts and conduct from the perspective of a reasonable person belonging to a racial minority ... The Tribunal must ask itself: from the standpoint of a reasonable black person, for example, can this conduct be perceived as injurious or humiliating?⁴⁸

7.40 The subjective test of the complainant’s perception, according to his or her own personality and sensitivity, is relevant only in assessing the actual harm caused to the victim and resultant damages.⁵⁰

The Commission’s view

7.41 The Commission has considered whether it is appropriate to adopt a general definition of harassment similar to that adopted in Ontario. There are two interesting differences between the Ontario approach and that adopted in the definition of sexual harassment in the current ADA. First, the ADA requires that the conduct be “unwelcome”, a test which depends upon the subjective response of the victim. The second limb requires the assessment on an objective or “reasonable person” basis of whether the victim would be offended, humiliated or intimidated. Presumably the second limb includes the element of unwelcomeness but requires that a more serious response be capable of reasonable anticipation. The Ontario test deems it sufficient that the unwelcomeness would reasonably have been anticipated. The comment or conduct is sufficiently characterised as “vexatious”. The Commission considers that the present definition is the more appropriate and that its elements can more readily be translated into a general definition of harassment.

7.42 In relation to the United States approach to the reasonable victim standard, although its aim is to eliminate stereotypes and create a harassment free workplace, it has been argued that the reasonable victim standard may in fact be counterproductive and result in establishing two standards in sexual harassment cases, one for women and one for men, similar to protective legislation for women.⁵¹ This danger may be conceded; nevertheless, it is important to ensure that values and perceptions of dominant groups not be assumed to be those of all “reasonable persons”. The appropriate standard is a reasonable person standard, but one which explicitly and thoroughly addresses the reality of sexual harassment by determining whether the actions are unacceptable from the viewpoint of the victim and a reasonable person sharing the victim’s characteristics of race, gender, etc. The Commission is satisfied that the current reasonable person test is adequate and should remain, but that there should be explicit reference to the need to take into account the pertinent characteristics of the victim.

Recommendation 89

Amend the current definition of sexual harassment to make specific reference to the need to take account of the pertinent characteristics of the victim.

Draft Anti-Discrimination Bill 1999: cl 71

7.43 The recent amendments significantly broaden the groups of persons covered and the areas of public life in which sexual harassment is prohibited. The areas covered are:

• employment (employer, employee, commission agents, contract workers, partner, workplace participant, by and of a member of Parliament);
• qualifying bodies (harassment in connection with occupational qualifications);
• employment agencies;
• education (by staff member, by adult student over the age of 16);⁵²
• provision and receipt of goods and services;
• provision of accommodation;
• dealings with land;
• sport; and
• State laws and programs.

7.45 In the area of education, private educational authorities are now covered, thus removing the existing exception in relation to harassment. Harassment by adult students at an educational institution against other students or members of staff is also covered, but sexual harassment by students under 16 years of age of other students or staff will not be covered.

7.46 Sexual harassment in connection with the disposal or acquisition of land and in a sporting activity is prohibited for the first time. Sexual harassment by persons engaged in sporting activity, in relation to others engaged in sporting activity is also covered.⁵⁵ Sexual harassment in the course of performing any function under a State law or program is also prohibited.

7.47 Three areas which are not specifically covered in relation to sexual harassment (but are covered in relation to discrimination on all grounds) are local government councillors, industrial organisations and registered clubs. Whether a complaint in these areas may be covered under the general employment or goods and services provisions will depend on the circumstances of each case. The areas of registered organisations and clubs are specifically covered by the SDA.⁵⁶

The areas of operation in other jurisdictions

7.48 Although sexual harassment most commonly occurs within the context of an employment situation, the prohibition applies across many other areas in all jurisdictions.⁵⁷ The broadest prohibition is found in Queensland as it is not restricted to any particular areas, such as employment or education. The ADA (Qld) simply states that a person must not sexually harass another person and can potentially cover all people in any situation, including on the street or in the home. No statistics are available on the number of complaints received outside the traditional areas of operation.

7.49 For reasons given in Chapter Four, the Commission has rejected, as a general proposition, the idea that the ADA should operate like the criminal law, without limitation on the areas of operation.⁵⁸ In particular, it was considered important that a dichotomy be maintained between public and private areas of activity. The policy reasons that justify extensions to the areas covered in relation to discrimination extend to harassment. The broader coverage applicable under the current Act in relation to sexual harassment should be retained, but the anomalous exception in this regard⁵⁹ should be repealed in relation to sexual harassment. Accordingly, the Commission does not recommend adopting the Queensland approach, at least within the context of the ADA but the prohibition against sexual harassment should extend to those areas which are covered, or recommended for coverage in relation to grounds of discrimination generally.

Recommendation 90

The prohibition of sexual harassment should extend to all areas of discrimination, including the new areas proposed in Chapter Four.

Draft Anti-Discrimination Bill 1999: cl 72-81

Recommendation 91

The exception currently applicable to sexual harassment in relation to accommodation in a private household should be repealed.

Introduction

7.50 The Commission’s Discussion Paper⁶⁰ (“DP 30”) did not raise any specific issues in relation to vilification since a review of the vilification provisions in the ADA was being conducted by the Hon James Samios MLC at the time. The Samios Report⁶¹ released in late 1993 made a number of recommendations, most of which were implemented in the Anti-Discrimination (Amendment) Act 1994 (NSW). However, given the developments in the law since DP 30 and the Samios Report, both in New South Wales and at the Federal level, and the development by the High Court of a free speech jurisprudence, this section will consider the following issues:

• Do expressions of hatred cause sufficient harm to warrant anti-vilification legislation?
• Is such legislation constitutionally valid? Can it be justified in light of free speech principles?
• How broad should the legislation be? Which groups should such legislation protect? Why should the legislation protect some groups and not others? Is the link to violence the key?
• Is the current model using a division between vilification and serious vilification appropriate?
• Should such laws be contained in anti-discrimination legislation? Is it preferable for them to be solely contained in the Crimes Act or Summary Offences Act?
• What are the problems associated with the present definitions?
• What limits should be placed on these offences? Which defences should apply?

7.51 With the passage of the Anti-Discrimination (Racial Vilification) Amendment Act 1989 (NSW), New South Wales became the first Australian jurisdiction to pass legislation which makes vilification on the ground of race illegal. The ADA has since been amended to prohibit homosexual vilification, HIV/AIDS vilification and transgender vilification, all of which have been modelled on the original racial vilification provisions.⁶² Vilification complaints can be dealt with by conciliation or, if it is serious vilification, by way of a criminal prosecution.

7.52 In addition to the prohibition on vilification contained in the ADA, there are also provisions (discussed below) that can have application to hate speech, racist propaganda and incitement to violence in criminal and civil law. Thus, the serious vilification provisions which prohibit conduct which would constitute a breach of the criminal law in any event, do not criminalise a new area of conduct hitherto unregulated. Instead, they provide an alternative remedy. It is only the vilification provisions which create in any sense new restrictions on free speech.

Existing criminal law provisions outside the anti-discrimination legislation

7.53 It is a common law misdemeanour to incite or solicit another person to commit an offence. It would be a common law offence for a speaker at a rally to incite a crowd to do any criminal acts, such as damaging property. In addition, there are some statutory offences concerning incitement to perform particular acts. For instance, s 26 of the Crimes Act 1900 (NSW) contains the offence of soliciting murder. There are many other criminal law provisions which could have relevance to some public expressions of hatred.⁶³ Unlike complicity or conspiracy, no agreement is necessary in order for incitement to be committed and it is not necessary that any steps have been taken towards the substantive offence.⁶⁴ Once the incitement takes place, the offence is complete.

Vilification legislation in other jurisdictions

7.54 Since the first vilification amendments to the ADA, most other jurisdictions in Australia have included some form of vilification protection in their anti-discrimination or criminal legislation, although the forms of protection provided vary.⁶⁵

Is there a case for legal regulation?

Arguments against regulating vilification

7.55 There are many arguments against regulating vilification. Foremost among them is the conflict with the free speech principle. Indeed, it has been said that the regulation of vilification is “arguably the most difficult free speech question to resolve, at least in a culture where the traditional liberal theory still holds sway”.⁶⁶ Other arguments include the lack of efficacy of legal regulation to change the views of vilifiers and the availability of other adequate remedies.

Freedom of speech concerns

7.56 The essence of objections to governmental intervention by the introduction of vilification legislation is the fact that it constitutes an impediment to free speech. Freedom of speech is an important civil right for many reasons. The traditional justification for free speech holds that if dissenting views are restricted, a general climate of repression may develop, eroding democracy and leading to the abuse of other human rights. The argument is that in a democracy, all views, no matter how unpalatable, have a right to be heard and can stand or fall on their merits.⁶⁷

7.57 Until recently, the concept of free speech had a greater symbolic value than legal basis in Australia. Since September 1992, in a series of cases commonly known as the free speech cases,⁶⁸ the High Court has held that an implied guarantee of freedom of political discourse exists in the Commonwealth Constitution. The judgments raised a number of questions about the nature and scope of this guarantee, including whether in due time it may ripen into a guarantee of freedom of expression in relation to matters of public interest generally. Although its ambit is yet to be fully determined, it has been argued that some vilification provisions are inconsistent with this implied constitutional guarantee of freedom of speech. In the context of the vilification amendments to the Racial Discrimination Act 1975 (Cth) (“RDA”), Sir Maurice Byers QC expressed the view that the civil remedy in the Racial Hatred Bill 1994 (now incorporated into the RDA) is unconstitutional and would interfere with the freedom of speech implied in the Constitution. He further said:

If speech is to remain free, offence, insult or humiliation cannot be banished. A certain force of expression and intensity of feeling are the inevitable characteristics of many forms of free expression and especially where political questions or historical antagonisms are being discussed or lie behind what is discussed. The amendment requires no more than that the speech or writing is reasonably likely to offend, insult or humiliate and that a reason for the speech or writing is the race, colour or national or ethnic origin of another person or of some or all in a group.⁶⁹

7.58 It has been argued that attitudes are changed by debate and education, not by laws, and that vilification laws will not change the views of vilifiers. It has also been argued that suppressing the expression of racist (and other extremist) views could drive racists “underground”, where their activities would be more dangerous. Prosecuting racists for breaking the law would allow them to use the courts as a platform from which to gain publicity for their views and make martyrs of themselves. Many will escape, as anti-hate speech legislation is also notoriously difficult to interpret and enforce, thereby gaining apparent legitimacy for their views.

7.59 The Commission received several submissions from individuals opposing vilification legislation. For instance, Mr John Hollier said:

I am a supporter of free speech and therefore do not agree that there should be any vilification law. However, if any vilification law is to remain, then I submit that it is anomalous to have a racial vilification law where there is no religious vilification law, or other law protecting minority groups... As a third choice I submit that all vilification law have a ten year sunset clause which requires re-enactment if it is to continue.⁷⁰

7.60 The primary rationale for vilification legislation is to protect human rights, in particular the right to live free from hostility and violence.⁷¹ This is enshrined in international instruments to which Australia is a party and which in turn have informed the law as it is currently framed. Thus, Article 7 of the Universal Declaration of Human Rights (“UDHR”) provides that all persons are entitled to equal protection against discrimination and any incitement to such discrimination. Article 4 of the international Convention on the Elimination of all forms of Racial Discrimination (“CERD”) imposes an obligation on State parties to undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, racial discrimination. Article 20 of the International Covenant on Civil and Political Rights (“ICCPR”) obliges States parties to prohibit by law any propaganda for war and “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”.

Free speech is not an absolute right

7.61 While free speech is highly valued and is an important principle underpinning democracy, it is not an absolute right. It must be balanced against other conflicting rights and interests. Indeed many international instruments which enshrine freedom of speech as a fundamental human right clearly recognise that certain restrictions may legitimately be imposed upon free speech to promote social harmony and public order.⁷² The Human Rights Committee has accepted this and in JRT and WG Party v Canada⁷³ the relevant statute which proscribed racist speech was held to be an appropriate restriction on freedom of speech.⁷⁴ The Human Rights Committee said that Article 19 of the ICCPR, which protects freedom of speech, must be interpreted in the light of Article 20.⁷⁵ So also, our current law reflects the fact that freedom of speech must be compromised at least to the extent necessary to protect the democratic and relatively tolerant nature of society. This need to maintain public order and social cohesion suggests that freedom of speech ought to be contained where it may lead to a breach of the peace. Thus, laws relating to defamation, blasphemy, copyright, sedition, obscenity, use of insulting words, official secrecy, contempt of court and of Parliament, incitement and censorship place limits on free speech; they recognise that there are countervailing interests that must take precedence over freedom of speech in some circumstances. There are certain responsibilities and duties which come with freedom of speech – the freely aired views of one person may impede the rights of the other to go about his or her life “unmolested”.⁷⁶

7.62 One of the most important rights that the right to free speech must be tested against is the emerging right to equality. Establishing such a right to equality requires reciprocity of respect and parity of regard for physical dignity and personal integrity.⁷⁷ Chapter Three of this Report has attempted to redefine the right of equality with a focus on substantive equality rather than formal equality. Legal restrictions on hate speech may be seen as a means of treating all people with equal concern and respect. This is particularly so because of the multi-cultural heritage of Australia where values such as equality of status, tolerance of a wide variety of beliefs, respect for cultural and group identity and equal opportunity for everyone to participate in social processes must be respected and protected. Laws prohibiting incitement to racist hatred and hostility indicate a commitment to tolerance, help prevent the harm caused by the spread of racism and foster harmonious social relations.⁷⁸

7.63 In Canada, free speech is a constitutional right,⁷⁹ but was regarded as a right even before the advent of the Canadian Charter of Rights and Freedoms (“the Charter”). The courts in Canada have held provisions banning racist speech in public to be reasonable and necessary exceptions to the right of free speech.⁸⁰

7.64 In R v Keegstra, the Canadian Supreme Court said that the interpretation of freedom of expression must involve resort not only to the Charter’s freedom of expression guarantee, but also to the values and principles of a free and democratic society.⁸¹ The Court said that such principles are not only the genesis of rights and freedoms under the Charter generally, but also underlie freedom of expression in particular. Those values and principles include “respect inherent to the dignity of the human person ... and respect for cultural and group identity”. Accordingly, anti-hate legislation should be seen not simply as infringing free speech but as promoting and protecting the balanced values and principles of a free and democratic society.

7.65 The rationale for freedom of expression articulated in these cases is more communitarian than individualistic and more focused on the actual impact of speech on the disadvantaged members of society.⁸² In order to justify not legislating against racist or homophobic speech, one must rely on Professor Dworkin’s argument in favour of the primary importance of free speech,⁸³ based on the constitutional protection found in the First Amendment to the United States Constitution. Australia does not have an explicit and broad constitutional guarantee, nor what may be termed the “ideological baggage” of First Amendment case law. The High Court’s recent recognition of the right to free speech as an implied constitutional guarantee appears, at present, to be limited to political discourse and it is most unlikely that the High Court will hold that the regulation of vilification is unconstitutional. Even in jurisdictions with explicit constitutional guarantees, such legislation has not been found to transgress these.

Other arguments in favour of legal regulation

7.66 If racist and homophobic views can be freely disseminated, they may create an environment which encourages some people to do more serious acts, such as physically attacking minority groups. One of the aims of vilification legislation is to reduce the threats to social cohesion, and reduce public disorder, by encouraging and preserving tolerance. This may assist in reversing the inferior status of historically disadvantaged groups.

7.67 It may also be argued that the normative power of a clear legislative expression that the community disapproves of certain behaviours will militate in favour of a more tolerant society. The inclusion of the vilification provisions in the ADA suggests that weight has been given to the view that the legislation sets out clear community standards which can positively influence behaviour. The use of the conciliation mechanism with regard to vilification also reflects the faith that has been placed in its educative potential. The ADB submitted that its success rate in conciliating complaints, particularly against the media, has been high and has assisted in achieving changes in policy and practice. The Samios Report found that several bodies believed that their efforts to combat racism were enhanced considerably by their ability to point to the law, in setting both a community and legal standard.⁸⁴

7.68 Even though there are provisions in the criminal law which cover some of the ways in which racial vilification is expressed, they do not distinguish between actions which may be harmful for very different reasons. For example, a poster advertising a concert only damages the property on which it is stuck, whereas one attacking an ethnic group may also have other damaging consequences, such as inciting violence and severe hatred or ridicule of the group.

7.69 Often complainants do not want to use the criminal channels because they lose control of the cases when they are conducted by the police; they also prefer the privacy of conciliation, which may allow them to avoid having to go before a court. There is no other civil law remedy available to a group which has suffered harm to its standing in the community.⁸⁵

7.70 It is also noteworthy that other jurisdictions around Australia⁸⁶ and overseas⁸⁷ have recognised the need for vilification legislation. Most Australian vilification legislation uses the human rights/anti-discrimination fora rather than the criminal law to deal with vilification.

Striking the balance

7.71 Despite the incidence of vilification of minority groups and the obligations imposed by international instruments, striking a balance between dealing with vilification and restrictions on free speech is a delicate process. In this context the Supreme Court of Canada has developed a three part test to ascertain if a balance has been struck between the two. The test requires that:⁸⁸

• there is a rational connection between the impugned measure and the objective – (the measure is the law itself and the objective is to protect the rights of individuals and groups to live free from incitement to racial or other forms of hatred);
• the measure impairs the right to freedom of expression as little as possible; and
• the effects of the measure are not so severe as to represent an unacceptable abridgment of the right.

7.73 Whatever view one might take of the scope and nature of the present provisions, great care must now be taken before suggesting they should be repealed. The Commission believes that the message which would be given to the community by such an action would be far stronger than a failure to introduce such provisions. The Commission is satisfied that, subject to the following consideration of the areas covered by the current provisions, repeal is not supportable. On the other hand, and again subject to consideration of the areas covered, the Commission does not propose an extension of the conduct caught by the current prohibitions.

Which groups should anti-vilification legislation protect?

7.74 Many submissions expressed concern about the manner in which groups were chosen for inclusion.⁹⁰ In deciding which groups should be included there are three options available. They are to cover:

(a) all identifiable groups;

(b) all groups presently covered by the ADA; or

(c) groups selected on the basis of substantiated reports of vilification.

Coverage of all identifiable groups

7.75 While vilification may be perpetrated against many minority groups, groups should be chosen for protection on the basis of a principle rather than on an ad hoc basis. Further, the idea that all identifiable groups be covered does not have much merit for a number of reasons. It would tend to create a broad range of ill-defined prohibitions. Such provisions would also tend to infringe unjustifiably on freedom of expression – they would tend to limit discussions on a wide range of matters, which may involve the exchange of challenging or hostile views. In principle, such laws should protect only those groups which are socially significant, and which are being harmed noticeably and actively by hatred directed against them.

Coverage of all groups covered by the ADA

7.76 The argument in favour of adopting this option is that if there is sufficient justification for inclusion of a group for the purposes of the prohibitions on discrimination, it is more likely that such groups will suffer vilification and are sufficiently identified. While the ADA currently prohibits vilification because of race, homosexuality, HIV/AIDs status and transgender only, there are attempts to have gender vilification and disability vilification included too. If these moves are acted upon there will be few grounds not covered by vilification provisions. The question then arises as to whether vilification should be included as a prohibition in relation to all specified grounds.

7.77 For example, in relation to the Canadian Criminal Code which protects all of the groups protected by the equality provision in the Charter,⁹¹ the Law Reform Commission of Canada has said that:

An excellent way to select criteria for protecting groups from hatred is to choose criteria which are clearly prohibited grounds of discrimination under Canadian law. While such criteria can be found in various human rights codes, the strongest statement of protection from discrimination is found in subsection 15(1) of the Charter. Although open-ended, this guarantees equality rights to individuals characterised by the specifically enumerated criteria of “colour, race, ethnic origin, religion, national origin, sex, age, or mental or physical disability”. If the Charter protects against individual discrimination on the basis of these specific criteria, it is entirely reasonable that groups characterised by the same criteria be protected by the criminal law when they are subjected to vicious expressions of hatred.⁹²

7.79 Further, some weight must be given to the argument that the greater the number of groups who are protected by vilification legislation, the greater the “chilling effect” on free speech.

7.80 On a practical note, a wide vilification provision will have a noticeable impact on resources available for investigation and conciliation of complaints, for which resources are already very limited.

Coverage of selected grounds

7.81 The approach currently adopted in New South Wales is to afford coverage only to some groups on the basis of a history of being the victims of hatred. Accordingly, as stated above, the ADA now covers racial, homosexual, HIV/AIDS and transgender vilification.⁹⁴ The basis of selecting such areas for coverage may have been the level of reported incidents of vilification against the members of the group. In other words, including vilification in the ADA was to an extent a response to problems of violence towards, and victimisation of, specific groups. Similarly, the physical violence reported by the Commonwealth inquiries into racist violence and Aboriginal deaths in custody led to recommendations in favour of anti-vilification legislation by the Commonwealth.⁹⁵

7.82 While the advantage of this method of coverage is that the legislation responds to the needs in the community as it arises, the disadvantage is that inclusion may depend on the level of power and influence of the lobby group. Given that the purpose of vilification legislation is to protect minority groups, this method of selection is to some extent power-based, and may not necessarily result in protection of those most in need, nor limit protection only to those in most need.

7.83 The reaction of some groups being selectively chosen also gives rise to mixed responses. For instance, the New South Wales Council of Churches lobbied strongly against the Bill which introduced the homosexual vilification prohibition on the ground that it would “stifle freedom of speech and give gays a privileged position in the community”.⁹⁶ However, the Uniting Church was in favour of the Bill.⁹⁷ A Saulwick/Herald poll taken in October 1993⁹⁸ found that 50% of respondents supported the legislation and 45% opposed it. Five percent did not know or did not answer.

7.84 The Commission’s tentative view on coverage is that this current approach of selective coverage should be maintained. However, rather than merely responding to lobby groups, selective coverage should be justifiable and based on statistical information on the incidence of vilification of a particular group.

7.85 On balance, the Commission is satisfied that the current coverage is justifiable. In reaching this conclusion, the Commission has taken into account the undesirable negative message which would result from repeal of the protection currently provided to any particular group.

Other grounds of vilification suggested for inclusion

7.86 Gender vilification. Two members of the New South Wales Legislative Council, the Hon Dr Marlene Goldsmith, and the Hon Dr Meredith Burgmann, have raised the issue of amending the ADA to render gender vilification unlawful. The argument is that if racial and homosexual vilification have been adopted on the basis of the incidence of racist and homophobic violence in the community, then should not vilification on the ground of sex be included, based on the incidence of sexism, sexual assault and violence against women in our society? A number of submissions to the Commission in response to DP 30 have also argued for the specific inclusion of gender vilification within the ADA.⁹⁹

7.87 An inevitable question raised by the issue of gender vilification is the correlation between pornography and violence against women. There is a related issue as to whether such provisions could be used in the pornography debate as a quasi-censorship or obscenity law. Anti-discrimination law is not the appropriate venue for such a debate. In North America Catherine MacKinnon and Andrea Dworkin promoted a Model Anti-Pornography Civil Rights Ordinance which proceeded on the basis that pornography is a practice of sex discrimination.¹⁰⁰ It was enacted in Indianapolis, but was held to be constitutionally invalid by violating the freedom of speech guarantees in the First Amendment to the United States Constitution.¹⁰¹ In light of the fact that the MacKinnon/Dworkin proposals polarise feminist scholars,¹⁰² the prospect of the use of gender vilification laws in this context is highly controversial.

7.88 In addition, it can be argued that violence against women has long been (and should be) the subject of criminal laws covering a wide range of offences. It may be accepted that the level of violence against women in our society remains unacceptably high, but, the issue of pornography aside, the Commission is not persuaded that misogynist speech presents a specific problem which could be satisfactorily addressed by gender vilification laws.

7.89 Religious vilification. Currently, the provisions of the ADA cover vilification on the ground of race. The definition of race in s 4 now includes “colour, nationality, descent and ethnic, ethno-religious or national origin”. The ADB stated in its submission that “a significant proportion of racial vilification complaints are made by Jews in relation to publications which contain material denying that the Holocaust occurred, or using the Bible to bring Jews into disrepute”.¹⁰³ It has been suggested that this kind of publication may well be characterised as religious rather than ethno-religious or racial vilification and will only be dealt with if religious vilification is included. This suggestion is strengthened by the Commission’s proposal to remove “ethno-religious origin” from the definition of race.

7.90 If the legislature adopts the Commission’s recommendation that religion be included as a ground of discrimination, in light of the fact that religious vilification is covered by Article 20 of the ICCPR and the Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religions or Belief, and that several jurisdictions have such laws which cover religious groups, there is a respectable argument in favour of covering all religions. A number of submissions to the Commission also supported the specific inclusion of religious vilification as unlawful conduct within the ADA.¹⁰⁴

7.91 Whilst acknowledging the force of these arguments, the Commission found little evidence of widespread religious vilification in the community. For reasons already noted, Jews have long been recognised as a “race” or “ethnic group” and there is no reason to suppose that legitimate complaints about the existence or otherwise of the Holocaust would not be covered by the existing prohibition. The Commission also considered evidence that there had been significant levels of vilification of Muslims, particularly during and immediately after the Gulf War or some other identifiable incident of limited duration. Again, the complaints revealed conduct of legitimate concern, but most appear to have been appropriately based on race. Accordingly, the Commission is not satisfied that such an extension of the grounds covered is justified in this case.

7.92 Disability vilification. The ADB has received representations from various disability groups claiming that there is a need to have disability vilification provisions included in the ADA.¹⁰⁵ They have cited a number of instances where people with disabilities have been subjected to vilifying statements. The move away from keeping people with disabilities in institutions and integrating them into local communities has apparently met with hostility from some people. Hostility has been reported to be so severe that it has prevented the opening of some accommodation and life-style centres. This is clearly a violation of the human rights of people with disabilities. However, the evidence is at this stage still limited to a few specific situations. The question arises whether it is appropriate to cover all people with disabilities or whether vilification experienced by some is sufficient. While a precedent for selecting particular groups with an identifiable problem has already been set by including HIV/AIDS vilification within the ADA, that inclusion is explained by reference to its close connection with homosexual vilification. As a general principle, it is undesirable to make distinctions between groups of people by reference to specific disabilities. Once again, the Commission is not satisfied that the inclusion of a separate ground of disability vilification is necessary.

General conclusions

7.93 The approach adopted by the Commission in relation to these issues may be summarised as follows. First, the Commission accepts that prohibition on vilification is an appropriate means of protecting human rights and fundamental freedoms. Secondly, because such prohibitions impose limitations on freedom of speech, a principle of restraint should be imposed in considering the introduction or extension of prohibitions. A further prohibition should not be recommended in the absence of evidence that:

• there is a practical problem which needs to be addressed;
• existing laws are not effective to address the problem;
• the proposed measure is one which might reasonably be expected to have an appropriate impact on the problem; and
• the measure, consistently with its legitimate object, does not cause a disproportionate diminution of freedom of speech.

7.95 In considering the existing prohibitions, the Commission has not been able to assess whether, were the prohibitions not already in the ADA, it would have recommended their inclusion. However, different considerations arise in relation to the removal of a particular prohibition from the ADA. Whether or not the prohibition should have been included in the first place may be one factor, but a factor of considerable significance to be weighed against a possibly inappropriate inclusion is the consequence of subsequent exclusion.

7.96 Applying these principles, and given the limitations of the material available to the Commission, the Commission recommends the preservation of the present grounds as appropriate and sufficient.

Practical operation of the current vilification provisions

Elements of vilification

7.97 The elements of the current provisions which prohibit racial, homosexual, HIV/AIDS and transgender vilification are substantially similar. The only difference in the provisions is the addition of an exception for “religious discussion or instruction” in relation to HIV/AIDS vilification. The main elements of vilification are that there must be the following:

• a public act;
• which incites;
• hatred towards, serious contempt for or severe ridicule of;
• a person or group of persons on the ground of their race.

Definition of “public act”

7.99 Section 20B defines “public act” to include:

(a) any form of communication to the public ...;

(b) any conduct observable by the public ...; and

(c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.

7.101 Secondly, the legislation does not cover instances where the victim is alone with the “vilifier”. It is unclear whether the term “observable by the public” means it was actually observable by members of the public who are present or whether it was merely capable of being observed by the public if they had been present. The racial vilification provisions focus on the incitement of third parties to hatred, serious contempt or ridicule. As such, the ADB takes the position that a member of the public must be there for the conduct to be observable by the public. However, the damaging effect of being vilified for belonging to a minority group cannot be minimised by not being witnessed. Consequently, the ADB argues that one approach would be to focus racial vilification provisions on the offence caused to the individual as well as the potential for incitement to occur, rather than its actual reception.¹⁰⁶ On the basis of this argument, it is not the actual number of people who hear or see the communication that is significant, but rather the potential for members of the public to be likely to see or hear it.¹⁰⁷

7.102 The Samios Report recommended that the definition of the criminal offence be expanded to encompass threats of violence on racist grounds, whether or not someone other than the victim or members of the victim’s racial group, heard the threats, and whether or not the conduct occurred in public. Where there is an incitement to threaten others with violence, the Report recommended that there be no need for the conduct to occur in public.

7.103 There have been recent decisions in other areas of law and in other jurisdictions which have shed some light on what constitutes “the public”. Decisions on the meaning of the phrase seem to include the possibility of being overheard by¹⁰⁸ or visible to passers by, even if the act took place on private property.¹⁰⁹ Within the copyright context in Australia, “in public” has been determined by the nature of the audience and whether persons are bound together by a domestic or private tie, or by an aspect of their public life.¹¹⁰ In analysing copyright law, it has been said to be “wise to assume that unless a performance takes place in a purely domestic setting, the probability is that it will be regarded by the courts as taking place in public”.¹¹¹ In R v D and E Marinkovic¹¹² the respondents lived in the same block of units as the complainant and stuck a note on the complainant’s door. Even though the units were not open to the public generally, the note on the door was a “public act”. The respondents also shouted abuse from their balcony which was considered a public act as it could readily be heard by the neighbours.

7.104 Legislation in some countries defines the term “public act” as satisfied if the conduct takes place in the presence of a small number of individuals. For instance, Mexican legislation requires only one other person to be present, and Cyprus five.¹¹³ There are other countries that do not require any public element in offences of serious vilification.¹¹⁴ It is arguable that there is no need for the requirement that the relevant act be public, if the offence requires a relevant intention.

7.105 Part IIA of the RDA makes it unlawful to do a prescribed act, “otherwise than in private”, a concept which is satisfied if the act:

(a) causes words, sounds, images or writing to be communicated to the public;

(b) is done in a public place; or

(c) is done in the sight or hearing of people who are in a public place.

7.106 A public place is further defined to include “any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission”.

Should vilification be confined to the public sphere?

7.107 Clause 27 of the United Nations Draft Model Law states that the prohibited actions are deemed to constitute an offence “irrespective of whether they were committed in public or in private”. However, clause 28 provides that an action which occurs inside a private dwelling shall not constitute an offence. The rationale for including a public element is that the prohibition is not directed against conduct causing personal offence or humiliation, but against conduct which may incite third parties to act. So long as that rationale remains, the element of public activity is necessary.

7.108 In contrast, the RDA provisions are aimed at empowering victims of offensive, insulting, humiliating or intimidating conduct, not merely prohibiting the incitement of hatred. As such, the evaluation of such conduct is based on what is offensive to the “reasonable victim”.¹¹⁵ By insisting on “incitement”, the ADA draws a basic distinction between “giving offence” and “inciting or encouraging racism in others”. Thus, the immediate impact of the conduct on the victim is likely to be ignored. The ADB suggested that an alternative approach would be to focus on the offence caused to the individual as well as the potential for incitement to occur.¹¹⁶

7.109 Of course, it may be argued that public insult is more serious than private insult. But there is a large distinction between even public insult and incitement of third parties, which is a more serious matter. Accordingly, the introduction of Part IIA into the RDA constitutes a significant extension of the prohibitions presently contained in the ADA.

7.110 Given that the RDA operates to provide its extended protection in New South Wales, at least in relation to race, an extension to the ADA would merely bring the State law into conformity with the Commonwealth law. Before taking this step, the Commission thought it appropriate to make inquiry of the HREOC as to its experience, albeit over a period of some three years, in relation to Part IIA of the RDA. The inquiries did not reveal any particular beneficial results flowing from this extended provision. The broad range of conduct that this provision covers also goes beyond the recommendations made by the various government reports that considered the need for federal racial vilification legislation before the RDA was amended.¹¹⁷ The Commission is therefore not satisfied that it is necessary to extend the prohibition of vilification beyond the incitement of others.

Clarification of the definition of “public”

7.111 It is desirable that the requirement that there be a public element in vilification be more clearly identified. The terminology adopted by the ADA is unclear. Whilst the element of incitement is retained, the gravamen of the prohibition is directed to conduct or communications which may be observed or received by third parties. It should be sufficient that the person responsible intends that particular result, and that such a result is reasonably foreseeable. Those elements are consistent with the concept of prohibiting incitement. The second question is whether the identity of the third party or parties matters. If incitement of others is to be prohibited, it makes little difference whether the incitement takes place in a public place or not. This is particularly so where the act may be done on private property or in a home but the results are observable from public places. No doubt conduct may be more serious if it is addressed to a wider audience. However, even that proposition is not universally true. Conspiracies which may be prohibited by the criminal law may be hatched in private between a small number of people: the results may nevertheless be serious. The prohibition on offensive behaviour based on racial hatred in the RDA involves a public element, but only in circumstances where the conduct is offensive to the victim. The public nature of the conduct is difficult to define and of limited relevance. Accordingly, the Commission recommends that the reference in the vilification provisions to “the public” should be deleted, but that the communication should be one which is intended or likely to be received by someone other than a member of the group being vilified.

Recommendation 92

The prohibition on vilification in the ADA should not be limited by reference to “the public” but by reference to a “public communication”.

Draft Anti-Discrimination Bill 1999: cl 91

Distribution of vilifying materials

7.112 Section 20B(c) includes within the definition of “public act”:

[t]he distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person, or group of persons on the ground of the race of the person or members of the group.

The “incitement” requirement

7.114 The civil wrong of racial vilification is committed only where the offender incites “hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the persons or members of the group”.¹¹⁸ The same precondition of incitement appears in the definition of the criminal offence of serious racial vilification in s 20D.

7.115 When the Anti-Discrimination (Racial Vilification) Bill 1989 (NSW) was first introduced, it contained the words “promote or express”. The higher standard of incitement was later substituted. During the Parliamentary debate the word “incite” was said to refer to actual incitement.

7.116 In Harou-Sourdon v TCN Channel Nine Pty Ltd,¹¹⁹ the EOT adopted the plain meaning of “incite”, quoting the definition in the Macquarie Concise Dictionary as to “urge on; stimulate or prompt to action”. In Wagga Wagga Aboriginal Action Group v Eldridge,¹²⁰ the EOT noted that s 20C does not make unlawful the use of words that merely convey hatred towards a person, or the expression of serious contempt or severe ridicule on the ground of race.

7.117 Intention to incite. The issue is whether there should be a subjective intention to “incite”, or whether it is sufficient that the conduct itself is intended, and has the objective quality of being likely, to incite hatred etc.

7.118 As a practical matter it may be difficult in most cases for a defendant to resist the inference that he or she had the subjective intention if the likely effect of the conduct is clear. Nevertheless, if it is appropriate to require a specific intention, that is not an adequate reason to avoid an express requirement to that effect.

7.119 The term “incite” is used in both the civil and criminal provisions of the ADA and should properly be interpreted in the same manner in each. However, the then Attorney General, the Hon John Dowd, said in his Second Reading Speech that the criminal provisions required intent to be proved but the civil provisions did not.¹²¹ Commenting on the Federal Government’s Bill, which attempted to create the crime of inciting racist hatred with a requirement to prove intent (which was not proceeded with), one writer has argued that extreme forms of hate propaganda should not require proof of many cumulative elements.¹²² In particular, the writer said that racial vilification should be proscribed whether or not there is intent because of the destructive message that unpunished racial vilification gives to society.

7.120 The issue of intent was considered in Wagga Wagga Aboriginal Action Group v Eldridge¹²³ and R v D and E Marinkovic.¹²⁴ In both cases the EOT adopted the reasoning that the civil prohibition of racial vilification (s 20C(1)) does not require proof of intent to incite nor that any person was actually incited. Consequently the inciter would be held responsible, regardless of whether or not the specific consequence was intended.

7.121 Generally speaking the ADA does not require a specific intention to cause harm on a prohibited ground. Accordingly, it is argued that the civil consequences of racial vilification should not require a specific intention to incite hatred. The contrary view is largely based on an attempt to limit the intrusion on freedom of speech.

7.122 The Commission is satisfied that the civil consequences of vilification should not depend upon the proof of a specific intention. This is consistent with the view of the Attorney General in introducing the prohibition. It is also consistent with the approach subsequently adopted by the EOT. While this approach does not involve a change to the current law, the ADA should be amended to make express provision for this result.

Recommendation 93

Provide expressly that proof of specific intention to incite is not required for establishing vilification.

Draft Anti-Discrimination Bill 1999: cl 91(3)

7.123 Who must be incited? There are two views on who must be incited. The EOT in Harou-Sourdon quoted with approval from the Casey decision that:

the yardstick should not be a person peculiarly susceptible to being roused to enmity, nor one who takes an irrational or extremist view of the relations among racial groups. The hypothetical listener should in the Tribunal’s view, be described as an ordinary, reasonable person not immune from susceptibility to incitement, nor holding racially prejudiced views.¹²⁵

7.125 Once it is accepted that there is no need to prove that any individual was incited, it is clear that the focus of the test is on the capacity of the conduct or communication to have that effect. This gives rise to two questions: first, whether it is necessary to form a view as to the potential audience; and, secondly, how one should consider the susceptibility to such incitement of persons who may be within that audience.

7.126 In practice, the two questions are likely to be run together. In many cases, there will be no evidence of actual incitement, or of the identity of persons who may have received the communication or observed the conduct. More importantly, there are significant difficulties in a tribunal of fact assessing likely responses to particular words or conduct. According to Harou-Soudon the test should assume that the hypothetical listener does not hold “racially prejudiced views”. However, most people are susceptible to prejudice or prejudgment in some degree and there is little basis, other than intuition, for assessing whether particular words in a particular context are likely to induce others to feel hatred or serious contempt. On the other hand, it is not appropriate to assume that an audience will necessarily include the most malevolent and unthinking persons. Rather, the Commission considers that the tribunal of fact should be free to address the question of capability of incitement in the circumstances of the particular case. It should not assume that all members of the audience are necessarily free from prejudice or that some may be peculiarly susceptible to incitement. While there are limits to the assistance that can be given by way of definition in the legislation, the Commission considers that some reformulation of the relevant provisions are necessary in order to clarify these matters.

Recommendation 94

Provide that the capacity to incite should be assessed in the circumstances of the particular case and without assuming that the audience is either malevolently inclined or free from susceptibility to prejudice.

Draft Anti-Discrimination Bill 1999: cl 91(4)

Hatred, serious contempt or severe ridicule

7.127 The third element of vilification is that it must incite “hatred, serious contempt for or severe ridicule” of the aggrieved group or class. The term “hatred” is used in vilification legislation in Australia¹²⁸ as well as overseas.¹²⁹ In Harou-Sourdon the meaning of hatred, serious contempt and severe ridicule was considered in the light of the plain meaning of those words in the Macquarie Concise Dictionary. The EOT found that the supposedly vilifying statement¹³⁰ could be “distasteful” but did not “constitute the higher threshold of conduct which s 20C proscribes”. In R v Keegstra, the promotion of hatred was held to be synonymous with the promotion of “active dislike”. The majority of the Canadian Supreme Court in that case held that the term should be interpreted in the relevant context to mean “the most intense form of dislike”, “emotion of an intense and extreme nature that is clearly associated with vilification and detestation”, “a most extreme emotion that belies reason; an emotion that, if exercised against members of an identifiable group, implies that those individuals are to be despised, scorned, denied respect and made subject to ill-treatment on the basis of group affiliation”.¹³¹

7.128 The references to “contempt” and “ridicule”, though read in the context of the intensifying adjectives “serious” and “severe”, may still be considered to be less stringent criteria. Similar criteria are contained in overseas legislation. The drafters have declined to define what hatred means or to set a threshold to identify when the less stringent criteria are met. This is so in most jurisdictions. The Commission accepts that the common meanings of the terms are intended and provide appropriate guidance to the public and to courts and tribunals.

Exceptions

7.129 In an attempt to strike an appropriate balance between freedom of expression and freedom from vilification, the ADA has provided for three exceptions. They are:

• a fair report of a public act;
• certain communications which attract absolute privilege under defamation law; and
• relevant acts done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.

7.131 As in the case of exceptions to the prohibition against discrimination, the question at issue is whether the exceptions undermine the prohibition, which is the view of some commentators.¹³²

Fair report

7.132 The notion of protecting “fair reports” of public acts arises from concerns for a free press and a desire to keep the public informed. It is similar to the defence in defamation law and in the context of defamation law has been explained to mean a report that:

must accurately express what took place. Errors may occur; but if they are such as not substantially to alter the impression that the reader would have received had he been present ... the protection is not lost.¹³³

7.134 The defence under the RDA is somewhat broader than the New South Wales defence. The RDA protects anything said or done reasonably and in good faith in making or publishing a fair comment “on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment”.¹³⁴ The breadth of this defence has been criticised on the basis that it has the potential for exempting any public comment made by a person who genuinely believes the truth of the statements regardless of how abusive or offensive the statements might be.¹³⁵ It is not proposed to adopt that standard in the ADA.

7.135 The Commission sees the desirability of guidelines and standards for the print media similar to those that exist for the electronic media in the form of television and radio broadcasting standards¹³⁶ that will clarify exactly what constitutes a fair report. The ADB should be expressly authorised to prepare and promulgate such guidelines. They should not have any special legal status.

Recommendation 95

The ADB should have express power to formulate guidelines including guidelines as to what constitutes a “fair report” under the exception to the vilification provisions.

Draft Anti-Discrimination Bill 1999: cl 128(1)(c), 129(1)(c)

Absolute privilege for defamation

7.136 The vilification provisions exclude speech which would be protected by the Defamation Act 1974 (NSW) or speech that would be subject to a defence of “absolute privilege”, such as Parliamentary debate or testimony before the EOT which is now the Equal Opportunity Division (“EO Division”) of the Administrative Review Tribunal (“ADT”). The matters covered in the Defamation Act include matters relating to the Ombudsman, Privacy Committee etc.¹³⁷ The Commission accepts that this exception should be retained.

Purposes in the public interest

7.137 Section 20C(2)(c) sets out categories for excluding a public act which incites hatred, serious contempt or severe ridicule: words or deeds which are done for “academic, artistic, scientific, research or other purposes in the public interest”. As stated above, homosexual, HIV/AIDS and transgender vilification have the added religious instruction exception. Neither the Samios Report, nor any of the submissions which the Commission received, addressed the scope of the present exceptions.

7.138 Professor Margaret Thornton has argued that the special status accorded to academic, artistic, scientific research or other acts in the public interest, is a “clear manifestation of the social reality that racist acts of social elites are privileged, even though the harm occasioned by such acts may be more pervasive than that arising from a crude tract”.¹³⁸ This view is shared by others who have written in the area.¹³⁹ Given the obvious difficulties associated with making the distinction between whether something is an artistic work or not, it has been suggested that such a defence could open the way for politically motivated organisations to use art as a facade to cover racist material.¹⁴⁰

7.139 In the United Kingdom, s 20 of the Public Order Act 1986 specifically provides for an action against producers or directors of a publicly performed play which uses “threatening, abusive or insulting words or behaviour” if it can be proved that those involved knew that it was likely that racial hatred would be incited.

7.140 Despite the above, the Commission believes that this defence, which allows for discussion and debate in the public interest, is appropriate, especially because, unlike the United States and Canada, Australia has no specific constitutional law guaranteeing freedom of expression.¹⁴¹

Serious Vilification

7.141 The ADA offers the possibility in relation to each relevant ground of criminal prosecution for the offence of serious vilification.¹⁴² However, the criminal sanctions have not been used to date.

7.142 The offence of serious racial vilification occurs where a person racially vilifies another person by means which include:

(a) threatening physical harm towards, or towards any property of, the person or group of persons; or

(b) inciting others to threaten physical harm towards, or towards any property of, the person or group of persons.

Prosecution

7.143 Section 20D(2) provides that the consent of the Attorney General is required for the prosecution of this offence. After investigating a racial vilification complaint, if the President considers an offence may have been committed under s 20D, he or she must refer it to the Attorney General within 28 days of receiving the complaint. The ADB submitted that the time limit should be extended to 35 days. More recently, the ADB has stated that it favours the current requirement. The ADB has also suggested that complainants should be given the express right to seek leave from the Attorney General where the President has declined to refer a matter for prosecution. Once a complaint which raises questions of serious racial vilification has been referred to the Attorney General, the President must advise the complainant of his or her rights to have the civil aspects of the complaint referred to the Tribunal.

7.144 To date, fifteen matters have been referred to the Attorney General by the President under s 20D(2) for prosecution. However, the Attorney has decided not to prosecute five of these cases and a decision is pending on 10 matters (2 complaints involving five respondents each).¹⁴³

7.145 The need to obtain the consent of the Attorney General was seen as an important reassurance for those doubting the wisdom of having a criminal provision in the ADA. However, it has serious problems. First, in practical terms, there is some doubt as to whether the police can arrest when an offence has obviously been committed without first seeking the necessary consent to prosecute. Referral could also politicise the use of the section and allow it to be seen as an instrument of executive oppression (or protection) for certain groups. The Samios Report stated that the need for senior responsibility in the area of prosecutions should not involve politicians. It recommended that the practice of delegating the power to the Director of Public Prosecutions (“DPP”) should be reflected in the ADA itself. If the complainant chooses not to have the complaint referred, it is not clear whether the civil aspect of the complaint lapses or whether it can still be the subject of a conciliated complaint.

Relocation of serious vilification provisions

7.146 The Samios Report recommended that the offence of serious racial vilification should be relocated into the Summary Offences Act 1988.¹⁴⁴ The Commission believes that there are persuasive arguments for making an offence of serious racial vilification part of the Crimes Act 1900 (NSW), so as to highlight the seriousness of the offence. On the other hand, the National Inquiry into Racist Violence raised concerns about the record of police in race relations and particularly in relation to Aboriginal people.¹⁴⁵

7.147 It is clear that different views may be taken of particular conduct. In particular, any conduct which satisfies the definition of serious racial vilification would fall within the civil prohibition. As with other criminal conduct, there is no reason why, in appropriate cases, civil and criminal consequences should not follow.

7.148 The Commission is satisfied that the offence of serious vilification should be relocated in the Crimes Act 1900 (NSW). Any appropriate consent to prosecution should be vested in the DPP. Further, the ADA should provide that the President may refer a matter to the DPP if of the view that it may constitute an offence of serious vilification. Neither the referral, nor any action taken by the DPP, should preclude the matter also being the subject of a complaint under the ADA which can be dealt with in accordance with the procedures available under that Act.

Recommendation 96

Remove s 20D from the ADA and relocate the offence of serious vilification in the Crimes Act 1900 (NSW).

Draft Anti-Discrimination Bill 1999: cl 92(2) and Crimes Amendment (Serious Vilification) Bill 1999

Recommendation 97

Provide the President with the power to refer a matter to the Director of Public Prosecutions where he or she is of the view that it may constitute the offence of “serious” vilification.

Draft Anti-Discrimination Bill 1999: cl 92 (1)

Scope of prohibition

7.149 Section 50(1) makes it unlawful for a person (the “discriminator”)¹⁴⁶ to subject another person (the “person victimised”) to any detriment on the ground that the latter person has:

• brought proceedings under the ADA;
• given evidence or information in relation to proceedings brought under the ADA;
• alleged that the discriminator or any other person has breached the ADA; or
• done anything under the ADA to the discriminator or any other person.

7.151 Victimisation does not have to involve any element of discrimination on any of the substantive grounds under the ADA. A person victimised must simply prove, on the balance of probabilities, that the discriminator caused him or her to suffer a discernible disadvantage because of one of the four categories of conduct outlined in s 50(1).

Subjecting a victim to detriment

7.152 A person alleging victimisation must establish that they have been subjected to some detriment by the respondent. Whereas in a discrimination complaint, a complainant must prove that he or she was treated less favourably on the ground of race, sex etc than another person not of the same race, sex etc would have been treated in the same circumstances, no comparison is required in a victimisation complaint. However, this difference will no longer exist if the Commission’s recommendation for a new detriment-based definition of discrimination is accepted.¹⁴⁸ The EOT has adopted a broad notion of “detriment” as any form of “loss, damage or injury”.¹⁴⁹

7.153 The phrase “subjected to” has been held to carry with it a requirement that the complainant prove that the respondent intended to cause the complainant harm.¹⁵⁰ Recently, however, the EOT has held that this implied requirement means no more than showing that the respondent’s conduct was done on one of the grounds referred to in s 50(1).¹⁵¹

7.154 While there is a need to clarify the words “subjected to” in this regard, an amendment may also be desirable to ensure that s 50(1) covers both actual and threatened acts of victimisation. Currently, the words “subjected to” imply that the respondent must have done an act and the complainant must have consequently suffered a detriment. In contrast, similar provisions in most other Australian jurisdictions expressly provide that victimisation occurs where a respondent does an act, or threatens to do an act, causing harm or injury to the complainant.¹⁵² While it is arguable that s 50(1) is sufficiently broad to encompass threatened acts of victimisation, the Commission believes that the ADA should distinctly prohibit any conduct, actual or threatened, which seeks to undermine the stated purposes of the legislation.

Recommendation 98

Extend the victimisation provision in the ADA to cover the situation where the respondent “threatens” to subject the complainant to any detriment.

Draft Anti-Discrimination Bill 1999: cl 83(1)

7.155 A complaint of victimisation will not succeed unless the victim establishes a causal link between the detriment suffered by the victim, the conduct of the respondent and the victim’s actions in bringing a complaint or allegation under the ADA.¹⁵³ The act of victimisation must occur on the ground that the complainant did one of the things described in s 50(1).

7.156 Problems have arisen, in complaints of both discrimination and victimisation, when the conduct which is the subject of the complaint is done on two or more grounds.¹⁵⁴ These problems were resolved, for the purposes of the discrimination provisions, by amendment in 1994. Section 4A now provides that an act done on the ground of two or more reasons will constitute unlawful discrimination provided that one of the reasons, whether or not it is the dominant or substantial reason, consists of unlawful discrimination.

7.157 However, s 4A does not apply to s 50(1).¹⁵⁵ In a victimisation complaint, the EO Division must therefore consider the relevant case law preceding the 1994 amendment. The EOT has previously held that it is sufficient to establish unlawful conduct under the ADA if the prescribed ground constitutes a “significant factor” in the decision-making process.¹⁵⁶ In a more recent judgment, however, the EOT has adopted the findings of Justice Clarke in Waterhouse v Bell, that an act will be unlawful provided that one of the real or operative grounds for doing the act was a proscribed ground of discrimination.¹⁵⁷ Though possibly less stringent than the previous “significant factor” test, this may set a higher standard than that under s 4A under which it is sufficient that one of the reasons for doing the act was a prohibited reason.

7.158 This inconsistent treatment of discrimination and victimisation is not justified and it is most likely an oversight which should be corrected.

Recommendation 99

Provide that where an act of victimisation is done for two or more reasons, it is sufficient if one of those reasons is a significant reason.

Draft Anti-Discrimination Bill 1999: cl 83(3)

Complainant must appear to have done one of the things described in s 50(1)

7.159 Some anti-discrimination laws expressly provide that a failure by the complainant to do any proposed act or to pursue an action will not affect a complaint of victimisation.¹⁵⁸ A similar provision in the ADA is not necessary as it is already clear that, in New South Wales, the complainant need not have actually lodged a complaint or raised an allegation in order to fulfil the final element of a complaint of victimisation. It is sufficient under the ADA to show that the respondent knew that the complainant intended to do one of those things or suspected that the complainant had done or intended to do one of the acts described in s 50(1).

Section 50(2) defence

7.160 An act will not constitute victimisation under s 50(1) if the allegation of discrimination which gave rise to the victimisation was false and lacking in good faith.¹⁵⁹ It operates like an exception under the ADA. If the elements of a complaint under s 50(1) are substantiated, the complaint prevails unless the respondent can affirmatively establish both elements of the defence.¹⁶⁰

7.161 Identical provisions exist in other anti-discrimination legislation, except in South Australia, where the respondent need only prove that the allegation of discrimination was false or that it was not made in good faith.¹⁶¹ The Commission does not accept this approach. Making the elements of the defence less stringent would blunt the purpose and significance of the anti-victimisation provision. In addition to this, the Commission is of the view that the falsity or otherwise of the allegation is, by itself, irrelevant and the primary consideration is whether the allegation was made in good faith. Only if lack of good faith is established, will the falsity of the allegation become significant.

What happens if the original complaint of discrimination is dismissed?

7.162 The fact that the original complaint of discrimination is dismissed is irrelevant when determining whether a person has victimised the complainant unless that person proves the two elements of the defence in s 50(2).¹⁶² The failure or dismissal of the original complaint of discrimination is not, in itself, proof that the allegation of discrimination was false and lacking in good faith.

7.163 Compensation continues to be available for victimisation notwithstanding the absence of a finding of discrimination.¹⁶³ This is appropriate in giving effect to the purpose of the provision.

Should victimisation be a criminal offence?

7.164 Victimisation is not a criminal offence under the ADA. It is an unlawful act which can be the subject of a complaint in the same manner as an alleged act of discrimination or vilification. The usual procedures in the ADA for the resolution of complaints, namely investigation, conciliation, referral to the EO Division and inquiry apply.¹⁶⁴ Remedies, including awards of damages, are available in relation to complaints of victimisation.¹⁶⁵

7.165 It has been argued that the present procedures and remedies for dealing with victimisation are an inadequate deterrent. It is felt by some that making victimisation an offence under the ADA, punishable by a monetary penalty and/or imprisonment, as it is under Federal and some State anti-discrimination legislation,¹⁶⁶ would provide a more effective deterrent. However, the Commission is not convinced that it would.

7.166 The only prosecution brought for victimisation of which the Commission is aware occurred in the Federal sphere. The DPP chose to bring the matter under the Commonwealth Crimes Act rather than Federal anti-discrimination laws.¹⁶⁷

7.167 The offence provision in the SDA has been criticised extensively for its ineffectiveness.¹⁶⁸ A number of submissions to the Lavarch Committee, for example, claimed that the difficulties involved in pursuing a claim of victimisation through the legal channels and the unwanted publicity that attaches to a court action deterred many people from pursuing their complaint.¹⁶⁹ Its other major flaw is that it places the onus of bringing an allegation to the police on the victim. Whether the HREOC may act as the complainant in a prosecution for victimisation has never been tested and therefore remains unclear.

7.168 Following this criticism, the SDA and RDA were amended in 1992 to allow complaints of victimisation to be brought in the same manner as complaints of discrimination, and for the same complaint resolution procedures to apply.¹⁷⁰

7.169 Victimisation should, unquestionably, remain a ground for complaint under the ADA as it is important that complainants retain a right to seek damages for the often substantial economic loss suffered as a result of the victimisation. In one recent case, for example, the EOT awarded $40,000 to an engineer dismissed from employment because he raised allegations of race discrimination. The EOT said that his loss was, in monetary terms, worth well in excess of the jurisdictional limit.¹⁷¹ However, no useful purpose would be served by creating another offence.

UNLAWFUL ADVERTISEMENTS

Scope of the prohibition

7.170 Section 51(2) makes it unlawful to publish, or cause to be published, an advertisement that indicates an intention to do an act which is unlawful under the ADA. An advertisement is defined broadly to include any notice, sign, label, circular or anything which conveys a message, whether written or not. All forms of publishing, including publishing in newspapers, radio, television and film, come within the scope of the ADA. Because it places liability on publishers as well as those who place the discriminatory advertisements, the onus is on newspaper editors, television stations and radio broadcasters to ensure compliance with the provisions of the ADA.

7.171 The original purpose of s 51 was to prevent employers advertising positions with sex-based classifications or any other criteria which suggest that discriminatory factors would be used for the selection of employees.¹⁷² This prohibition is therefore subject to the exceptions under the Act which permit discrimination on the basis that it is a genuine occupational qualification. Also, advertisements for junior employees are still exempt from the ADA.

7.172 Another issue raised in DP 30 was whether sex-based advertisements or advertisements based on other stereotypes should be unlawful under the ADA even if they do not indicate an intention to discriminate against any particular individual.

7.173 Pointing to the large amount of sexist or sex-related advertising in the media and the relative ineffectiveness of bodies such as the (now dissolved) Advertising Standards Council in regulating general advertising, several submissions received by the Commission supported a more pro-active approach.¹⁷³ The Department for Women and the Independent Teachers’ Association, for example, submitted that the ADB’s powers should be reviewed and strengthened so that it could bring prosecutions for breaches of s 51(2). The ADB, on the other hand, submitted that it did not see a “censorship” role as appropriate for it.

7.174 Whilst the Commission is conscious that the line between advertising which generally reveals sexist attitudes, and advertising which reveals an intention to discriminate under the ADA, may to an extent be arbitrary, it is nevertheless a line which needs to be drawn. If the ADA is not to contain a prohibition on vilification in all areas, it is difficult to justify a prohibition on advertising which may be distasteful to many but which does not satisfy the higher test of vilification. Indeed, even in those areas where vilification is made unlawful, it would be difficult to justify a lower standard which would trigger unlawfulness in relation to advertisements. Accordingly, the Commission is satisfied that the current provision should be retained in its present form.

News items and reports

7.175 It was suggested, in DP 30, that the scope of s 51 be extended to cover news items and other reports in both the print and electronic media.¹⁷⁴ A number of submissions to the Commission in response to DP 30 suggested that sexist and other discriminatory advertising should be specifically prohibited under the ADA.¹⁷⁵ The Commission does not support this view. If news items or reports were believed to vilify a person or group (in relation to race, sexuality or HIV status), the item would constitute a public act for the purposes of anti-vilification laws and would thus already be covered.

7.176 The Commission is of the view that s 51 should continue to be limited to advertisements which indicate an intention to discriminate.

Dealing with discriminatory advertisements

7.177 There are numerous ways of dealing with discriminatory advertisements depending on how the advertisement is alleged to be unlawful, what outcome is sought and who wishes to bring the action.

7.178 Advertisements that indicate an intention to discriminate may either be the subject of an action in the local court, alleging a contravention of s 51(2), or may in appropriate cases form the basis of a complaint of discrimination to the ADB, under the substantive provisions of the ADA.¹⁷⁶ For example, a person who is excluded from selection in employment because the employer has advertised for applicants aged between 28 and 45 could lodge a complaint against the employer alleging a breach of s 49ZYB. This section makes it unlawful for an employer to discriminate against a person on the ground of age in the arrangements made for determining who should be offered employment.

7.179 Any person, whether affected by the advertisement or not, including the President of the ADB, may bring an action in the local court alleging a contravention of s 51(2) against the publisher, advertising placement agency and/or their client. If the offence is proved, the court can impose a fine of up to $5000 on the advertiser. To the Commission’s knowledge, however, this avenue has never been pursued.

7.180 In order to avoid liability, advertisers frequently consult the ADB over the content of their advertisements.¹⁷⁷

Defences and exceptions

7.181 Section 51(4) provides that a person will not be liable under s 51(2) if he or she believed on reasonable grounds that the advertisement did not show an intention to discriminate unlawfully under the ADA. This provision is consistent with the defence of honest and reasonable mistake of fact which is available in relation to many similar statutory offences. It should be retained.

LIABILITY ISSUES

Legislative history of sections 52 and 53

7.182 In addition to liability for primary acts of discrimination, the ADA also imposes liability on those who cause or permit discriminatory conduct¹⁷⁸ and on principals and employers for the discriminatory acts of their agents and employees.¹⁷⁹

7.183 Under s 52 of the ADA it is unlawful for a person to “cause, instruct, induce, aid or permit” another person to do an act that is unlawful by reason of a provision of the ADA.¹⁸⁰

7.184 Under s 53 of the ADA an act done by an agent or employee which if done by the principal or employer would be in contravention of the ADA is “taken to have been done” by the principal or employer. This is so unless the principal or employer did not authorise the doing of the act. Authorisation may be express or by implication and may be given before or after the doing of the act.

7.185 Both of these sections were amended in 1994¹⁸¹ as a result of judicial confusion surrounding their interpretation. In its original form s 53 provided that “an act done in contravention of this Act” by an agent or employee was “deemed” to be done by the principal or employer for the purposes of liability under the ADA. However, because the Act does not attach liability for discriminatory conduct in employment to anyone but the employer¹⁸² an argument could be made that only an employer could act in “contravention” of the ADA. As a result, because an employee could not relevantly “contravene” the ADA, an employer could not be vicariously liable for the discriminatory act of the employee.¹⁸³

7.186 Similarly, in relation to s 52, it was argued that an act could not be “unlawful” under the ADA unless it was performed by the employer or educational authority itself. As a result, it was argued that liability for the acts of employees could not be attached to an employer or educational authority by use of s 52.

7.187 This argument was advanced in Leves v Haines & Ors,¹⁸⁴ where a female student made a complaint of sex discrimination on the basis that certain electives (such as technics and technical drawing) were not offered at the single-sex girls’ school which she attended. These electives were offered to her twin brother at the single-sex boys’ school in the same suburb. In this case the decision not to offer the electives was made by the high school Principal, but the relevant “educational authority” was the Minister for Education. Because the ADA only attaches primary liability in education to the “educational authority”,¹⁸⁵ it was held that the Principal of the school was not liable for the acts of discrimination. However, it was argued by the respondent that because the Minister had not made the discriminatory decision, the Minister could not be directly liable under the Act. In addition to this, it was also argued that because an action cannot be “unlawful” under the ADA (for the purposes of s 52) or “done in contravention of the Act” (for the purposes of s 53) unless it is done by the educational authority itself (ie the Minister), the Minister could not be held vicariously liable for the acts of the Principal of the school. In that case, rejecting this view, the EOT stated that:

In other words, a circular situation is reached, whereby the responsible body under the Act cannot be made liable for the acts of any other person because that other person was not the responsible body under the Act.¹⁸⁶

7.189 The issue of the correct interpretation of s 53 arose again for consideration in M v R Pty Ltd and Anor.¹⁸⁸ In that case the question was whether an employer could be held vicariously liable for acts of sex discrimination committed by one employee against another. Once again an argument was advanced that because s 25 of the ADA only imposes liability for sex discrimination upon employers, the discriminatory acts of the fellow employee could not amount to an “unlawful” act (for the purposes of s 52) or a “contravention of the Act” (for the purposes of s 53).

7.190 Similarly to Leves, in M v R it was held that the employer was personally responsible for the acts of discrimination under an expansive interpretation of the words “terms and conditions of employment” in s 25.¹⁸⁹ However, in M v R it was also held that the facts of the case were sufficient to ground a finding that the employer was vicariously liable under s 53 of the ADA. In coming to this conclusion, Judge Graham pointed to the difference in terminology between s 52 and 53 of the ADA. His Honour reasoned that the use of the phrase “act done in contravention of the Act” in s 53 (in contrast to “act that is unlawful” in s 52) indicated that actual legal liability was not required by s 53. His Honour held:

In other words, the act of the employee contemplated by s 53 is one which is discriminatory but, because done by a person who is not an employer, is not prima facie unlawful. It can only become an unlawful act if it is the act of the employer, or, as s 53 provides, is deemed to be the act of an employer, and thus becomes unlawful.¹⁹⁰

An act done by a person as the agent or employee of the person’s principal or employer which if done by the principal or employer would be a contravention of the Act is taken to have been done by the principal or employer also, unless the principal or employer did not, either before or after the doing of the act, authorise the agent or the employee, either expressly or by implication, to do the act.¹⁹²

7.193 The 1994 Act also amended s 52 to provide that:

It is unlawful for a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of this Act.¹⁹⁴

The amendments to sections 52 and 53 will clarify the vicarious liability provisions by providing that as long as the principal or employer is a person who is subject to the Act, it is not necessary that the employee or agent also fits that description.¹⁹⁵

Other jurisdictions

Federal

7.196 Each of the Commonwealth Acts contains provisions similar to those in the ADA relating to aiding and abetting and vicarious liability for discriminatory conduct. The aiding and abetting provisions of the SDA¹⁹⁹ apply to acts of sex discrimination but are worded slightly differently to those in the ADA. Under the SDA the act of discrimination must be done “in connection with the employment of the employee or the duties of the agent as an agent”.²⁰⁰ There is a similar defence where the principal or employer “took all reasonable steps” to prevent the discriminatory acts,²⁰¹ but the SDA does not contain the additional requirement that the employee lack the authority of the employer.

7.197 Under the RDA there is no general provision relating to aiding and abetting racial discrimination. Instead, there is provision that it is “unlawful” to “incite” or to “assist or promote” the doing of an act that is unlawful under the race discrimination provisions of the RDA.²⁰²

7.198 Under the DDA it is an offence to “incite” or to “assist or promote” the doing of an act which is unlawful under the disability discrimination provisions of the DDA.²⁰³ In addition to this provision, there is a general provision attaching liability to anyone who “causes, instructs, induces, aids or permits” an act which is unlawful under the Act.²⁰⁴ In relation to vicarious liability, the DDA provides that any conduct engaged in on behalf of a body corporate or person other than a body corporate by a servant or agent acting “within the scope of his or her actual or apparent authority” is taken to have been engaged in also by the person or body corporate unless the person or body corporate establishes that they “took reasonable precautions and exercised due diligence to avoid the conduct”.²⁰⁵

Other States

7.199 The majority of other States have similar legislation to NSW, with occasional minor differences in the wording of the provisions.²⁰⁶ None of the vicarious liability provisions in any of the other states contain the proviso in s 53(1) of the ADA that the discriminatory acts of the employee must be without authority, as, with the exception of Tasmania and the Northern Territory, each of the other jurisdictions merely deal with this issue through some formulation of the “reasonable steps” defence.²⁰⁷

7.200 The only other State legislation which is significantly different from the ADA is that of Tasmania. The SDA (Tas) places a positive obligation on an employer organisation to ensure that all members, officers, employees and agents are “made aware of the discrimination and prohibited conduct” to which the Act relates and that no member, officers, employee or agent “engages in, repeats or continues such conduct”.²⁰⁸ An organization which does not comply with this provision is then made liable for any contravention of the SDA (Tas) committed by its members, officers, employees or agents.²⁰⁹ It also provides that a person will be jointly and severally liable for any contravention of the SDA (Tas) if he or she “knowingly” caused, induced or aided such a contravention.²¹⁰

Vicarious liability

Authorisation of discrimination by the employer

7.201 Under s 53(1) a discriminatory act committed by an agent or employee is deemed to have been done by the principal or employer:

unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.

a principal or employer is not liable under [s 53] if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.

7.204 In both the SDA and the RDA, the corresponding vicarious liability provisions provide a defence where the principal or employer “took all reasonable steps” to prevent the discrimination.²¹² The DDA also provides a defence where a body corporate took “reasonable precautions and exercised due diligence” to avoid discriminatory conduct.²¹³ The “reasonable steps” defence is also used in the legislation of the majority of other States throughout Australia.²¹⁴ None of these provisions contain an additional defence in relation to lack of authority.

7.205 There is little judicial discussion of the interpretation of the word “authorise” in s 53(1) of the ADA. However, in M v R Pty Ltd²¹⁵ the EOT held that the imposition of liability on an employer was “limited ... by the issue of absence of authority from the employer for the doing of the act by the employee”.²¹⁶ The EOT went on to say that, although it was not necessary to determine the extent of the limitation for the purposes of the case:

the existence of this limitation serves to soften the apparent rigour of the earlier part of the section and suggests a recognition on the part of the legislature that the unfettered imposition of vicarious liability could work manifest injustice to an employer and carry the legislation beyond the employment field marked out by the Act and into the realm of purely personal relations between employees.²¹⁷

7.207 In Moloney v Golden Ponds Pty Ltd²¹⁸ it was held that an employer company in liquidation could be found liable for acts of discrimination committed by two receivers of the company who were appointed by the Liquidator of the company even though the employer had no effective control over the actions of the receivers at all. In that case the EOT noted that no submissions had been made as to whether the employer did or did not “authorise” the acts of the receivers. However, they held that it was open to the EOT to find that the receivers were liable under s 52 on the basis of the vicarious liability of the employer under s 53.²¹⁹

7.208 Both M v R and Moloney suggest that there is a lack of clarity about the proper effect and interpretation of the authority provision in s 53(1). It is arguable that the provision requiring lack of authority is unnecessary in light of the defence in s 53(3) where the principal or employer has taken “all reasonable steps” to prevent the discrimination. No legislation in any other State contains the proviso that the act of the employee must be without authority. In each of the other States the equivalent provisions merely provide some formulation of the “reasonable steps” defence.

7.209 The “reasonable steps” formulation has achieved a practical approach to the issue of vicarious liability in the cases. In Adams v Helios Electroheat Pty Ltd²²⁰ it was held that a company was vicariously liable for the manager’s sexual harassment of a secretary because it failed to have in place effective policies, complaints and grievance procedures to deal with sexual harassment in the workplace. In the Victorian case of Bevacqua v Klinkert²²¹ an employer was held not to be vicariously liable for the discriminatory acts of their employee because it had taken reasonable precautions against sexual harassment. Furthermore, in Kolavo v Ainsworth Nominees²²² it was held that where acts of discrimination by an employee are established, the onus is on the employer to show that s 52 and 53 do not apply to attach liability to the employer and employee.

7.210 Accordingly, the Commission is satisfied that the additional provision relating to lack of authority should be removed from s 53(1) and that an employer should only be relieved from liability for the discriminatory conduct of their employees if they meet the test in s 53(3) that they “took all reasonable steps” to prevent the discrimination.

Recommendation 100

In relation to vicarious liability under the ADA, the only available defence should be where the employer took all “reasonable steps” to prevent the relevant conduct.

Draft Anti-Discrimination Bill 1999: cl 85(2)

7.211 Section 53(2) of the ADA specifically provides that where both principal or employer and agent or employee are subject to liability under the ADA “they are jointly and severally subject to that liability”. This means that the complainant may proceed against either of the parties individually or against both of them together. The legislation in Victoria and Queensland also provide specifically for joint and several liability of employer and employee.²²³

7.212 One possible issue which may arise in relation to this provision is that of its interaction with the Employees Liability Act 1991 (NSW). Under the Employees Liability Act, where an employee commits a tort for which his or her employer is also liable, the employer is liable to indemnify the employee in respect of the employee’s liability and the employee is not liable to indemnify the employer in respect of the employer’s vicarious liability.²²⁴ This legislation was introduced to reverse the position created by the decision of the House of Lords in Lister v Romford Ice and Cold Storage Co Ltd,²²⁵ where it was held that an employee (who was unlikely to be insured) could be required to indemnify an employer for loss sustained by the employer as a result of a tort committed by the employee.

7.213 Although the liability created by the ADA has been described as a “statutory tort” it is unclear whether it is a “tort” for the purposes of the Employee’s Liability Act 1991 (NSW). Liability imposed by operation of statute is wholly defined by the relevant statutory provision and is separate from liability imposed by the common law. A similar uncertainty arises in relation to the liability created under the Fair Trading Act 1987 (NSW); there are divergent opinions as to whether the statutory cause of action created is a “tort” for the purposes of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) which provides for contribution between joint tortfeasors.²²⁶ Ultimately, this question is a matter of statutory construction, but, the fact that the ADA expressly provides that employer and employee are “jointly and severally” liable²²⁷ means that the Employees Liability Act 1991 (NSW) is unlikely to apply.

7.214 This raises a question as to the consistency of the approach adopted under the ADA and whether there is a particular justification for maintaining separate liabilities.

Aiding and abetting

7.215 Section 52 of the ADA provides that:

It is unlawful for a person to cause, instruct, induce, aid or permit another person to do an act which is unlawful by reason of a provision of this Act.

7.217 In O’Callaghan v Loder²²⁸ an allegation of sex discrimination was brought against Mr Loder, who was the Commissioner for Main Roads and the complainant’s employer. Although the acts of sex discrimination were not made out in that case, the EOT held that it had jurisdiction to hear the case against the Commissioner both in his capacity as the complainant’s employer and also in his personal capacity. This was because s 53 operated to make the Commissioner vicariously liable for the acts of sexual harassment as the complainant’s employer and, once such principal liability was established, s 52 operated to make Mr Loder liable in his personal capacity for aiding and abetting the employer (the Commissioner) in “unlawful” conduct. Judge Mathews held:

It is difficult to use concepts such as aiding and abetting when in reality we are not talking about two or more people but one person who is joined in two different capacities. Nevertheless, in my view there is nothing in a literal reading of s 52 which precludes it from being used in these proceedings.²²⁹

7.219 This interpretation of the aiding and abetting provisions creates a circuitous route for the imposition of liability on employees who discriminate against others in the workplace. Whilst this result is sensible, it may be thought anomalous that where the employer is not vicariously liable for the discrimination, for example, because of a comprehensive anti-discrimination policy, an employee would not be liable for his or her own act. However, in practice, the issue does not often arise because the ADA places significant obligations upon employers and educational authorities to provide an environment free from discrimination and in most cases of proven discriminatory conduct the employer has been found to be either directly or vicariously liable for the discriminatory acts of their employees.²³²

7.220 Liability for the acts of employees may also arise without reliance upon the express terms of s 52. For example, in keeping with general principles of tort law, some groups, including school authorities, may owe special responsibilities in relation to their pupils, sometimes described as “non-delegable duties”.²³³

7.221 In M v R it was pointed out that s 52, in conjunction with s 53, operates to impose personal liability on the person committing the acts of discrimination where that person is the alter ego of the employer company. Consistently with the principles of company law:

it is quite possible for the acts of one natural person to constitute a principal offence on the part of a company and an accessory offence on the part of the natural person.²³⁴

7.223 In situations where the employer may be found vicariously liable, however, it is arguable that if the legislature intends to make the fellow employees liable then the ADA should impose such liability directly.

7.224 Another indication that the effect of these provisions may require legislative clarification is the fact that the Human Rights and Equal Opportunity Commission has held that the corresponding aiding and abetting provision in the SDA does not apply to make an employee who has committed acts of sex discrimination against a fellow employee personally liable for those acts. In contrast to the position taken by the EOT in the New South Wales cases, in Sutton v Ultimate Manufacturing²³⁶ the Human Rights Commission held that, although a respondent company was liable for sex discrimination under s 14 of the SDA, the aiding and abetting provision²³⁷ was not available to found individual liability in the manager or director of the company who actually performed the act of discrimination. In coming to this conclusion, the Inquiry Commissioner stated that:

I do not think that the imputation of an act of one person to another person by operation of law [under s 106] is properly described as the first person causing the other person to do the act [under s 105].²³⁸

7.226 Apart from establishing the liability of employees, s 52 has also been used to attach personal liability to the receivers of a company in liquidation. In Moloney v Golden Ponds Corporation Pty Ltd²⁴¹ an employee of an insolvent company was dismissed by the receivers of the company on the basis of her relationship with one of the previous directors. The dismissal was held to be an act of unlawful discrimination on the basis of sex under the ADA and it was held that the employer was vicariously liable for those acts under s 53. As a result, s 52 was held to be available to establish personal liability not only in the receivers themselves, but also in the creditor company, which had appointed the receivers, for causing, instructing, inducing, aiding or permitting the unlawful acts.²⁴²

7.227 Whilst discrimination can obviously occur in circumstances where the workplace is subject to a racially or sexually hostile environment, liability for discriminatory conduct can arise outside the workplace or away from the school or grounds of the educational authority. In Metwally v University of Wollongong²⁴³ it was held that a university was vicariously liable for the acts of its employees under s 53 even though many of the relevant incidents of race discrimination occurred on social occasions. This interpretation is supported by the recent Federal Court decision in McManus v Scott-Charlton²⁴⁴ where it was held that, under the vicarious liability provisions of the SDA, in some situations there may be a positive obligation upon employers to take disciplinary action against employees who discriminate against fellow employees outside the workplace where that discrimination significantly affects workplace relations.

7.228 In view of the fact that the current wording of s 52 does not appear to have given rise to any significant practical problems, the Commission does not recommend amendment to this provision.

2. ADB, Harassment in the Workplace: Guidelines for Managers at 4.

3. O’Callaghan v Loder [1984] EOC 92-023 at 75,499. For a further discussion of harassment as a form of discrimination see below at para 7.12.

4. ADA s 22A Pt 2A, inserted by Anti-Discrimination (Amendment) Act 1997 (NSW).

5. See Metwally v University of Wollongong [1984] EOC 92-030. The decision was later overruled on constitutional grounds on the basis of inconsistency between the RDA and the ADA: Wollongong University v Metwally (1984) 158 CLR 447. The RDA was later amended to allow for the concurrent operation of both laws.

6. Henson v City of Dundee 682 F 2d 897 (1982). The concept of harassment as a form of discrimination was recognised in 1976 in Williams v Saxbe 413 F Supp 654 (1976).

7. [1983] 3 NSWLR 89 per Mathews DCJ.

8. (1988) 20 FCR 217 per Lockhart, Wilcox and French JJ.

9. A number of submissions advocated the inclusion of a specific prohibition against sexual harassment within the ADA: Commissioner for Equal Opportunity (SA), Submission at 4; Disability Discrimination Legal Centre, Submission at 2; Gay and Lesbian Rights Lobby, Submission at 6; NSW Ministry for the Status and Advancement of Women, Submission at 19; and NSW Women’s Advisory Council, Submission at 8.

10. SDA (Tas) s 17(1).

11. EOA (WA) Div 3A s 49A-49D.

12. EOA (WA) s 49A.

13. EOA (WA) s 49B.

14. EOA (WA) s 49C.

15. DDA Pt 2 Div 3 s 35-40.

16. [1997] EOC 92-885.

17. Adams v Arizona Bay at 77,188.

18. See Chapter 3 at 3.33.

19. ADA s 22B.

20. ADA s 22I(1).

21. See below at para 7.43.

22. SDA s 28A; EOA (Vic) s 85; EOA (WA) s 24-26; DA (ACT) s 58.

23. SDA s 28A(2); EOA (Vic) s 85(2); EOA (WA) s 24(4), 25(3) and 26(3); and DA (ACT) s 58(2).

24. EOA (Vic) s 85 (2)(a) and (c).

25. ADA (Qld) s 119.

26. ADA (NT) s 22.

27. SDA (Tas) s 17(3).

28. EOA (SA) s 87(11).

29. Protection From Harassment Act 1997 (UK) s 1(1)(a).

30. Protection From Harassment Act 1997 (UK) s 1(3)(c).

31. “Prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted”: Canadian Human Rights Act, RSC 1985, c H-6, s 3(1).

32. Section 10(1).

33. Sections 5(2) and 7(2).

34. Sections 2(2) and 7(1).

35. Sections 1, 2(1) and 5(1).

36. Section 7(3).

37. Section 2(g).

38. Section 2(e). “Undertaking” is not defined.

39. Civil Rights Act of 1964 (US) – Title VII. Note that the application of the Act is limited to employers engaged in interstate commerce with more than 15 employees, labor organisations and employment agencies. The Act prohibits discrimination based on race, colour, religion, sex or national origin. Sex includes pregnancy, childbirth or related medical conditions. Other Federal legislation prohibits discrimination in employment on the grounds of age and disability. See Age Discrimination in Employment Act of 1967 (US), Rehabilitation Act of 1973 (US), Americans with Disabilities Act of 1990 (US).

40. US Equal Opportunity Commission, Guidelines on Discrimination Because of Sex at s 1604.11(a).

41. See King v Board of Regents of University of Wisconsin 898 F 2d 533 (1990) at 537; Ellison v Brady 924 F 2d 872 (1991) at 878; Andrews v City of Philadelphia 895 F 2d 1469, 1482 (1990).

42. Rabidue v Osceola Ref Co 805 F 2d 611 (1986) at 626. The dissent in this case relied on a note published in (1984) 97 Harvard Law Review 1449 which suggested the reasonable victim standard and provided a full explanation for adopting it to evaluate sexual harassment claims by women.

43. “Sexual Harassment Claims of Abusive Work Environment Under Title VII” (1984) 97 Harvard Law Review 1449 at 1451.

44. “Sexual Harassment Claims of Abusive Work Environment Under Title VII” (1984) 97 Harvard Law Review 1449 at 1452. Many courts have followed this approach: Yates v Avco Corp 819 F 2d 630, 637 (1987). In Ellison v Brady 924 F 2d 872 (1991) the rationale for adopting a reasonable victim standard was that “conduct that many men consider unobjectionable may offend many women”. It was held that such a standard was necessary “primarily because we believe that a sex blind reasonable person standard tends to be male biased and tends to systematically ignore the experiences of women”(at 879).

45. Dhanjal v Air Canada (1996) 28 Canadian Human Rights Reports D/367 at para 200 and 201.

46. Dhanjal v Air Canada at para 210.

47. Dhanjal v Air Canada at para 211.

48. Dhanjal v Air Canada at para 211-212.

49. Dhanjal v Air Canada at para 213.

50. Dhanjal v Air Canada at para 214.

51. T Adams, “Universalism and Sexual Harassment” (1991) 44 Oklahoma Law Review 683.

52. Note that this age limit exists under the SDA; cf Victoria where no age limit exists.

53. Under the amendments it is unlikely that harassment by local government councillors of employees of the council will be covered because councillors are neither the employer nor providing a service to the employee. However, a recent exposure draft of the Anti-Discrimination Amendment (Pregnancy and Carer’s Responsibility) Bill 1997 (NSW) includes an amendment making it unlawful for a local government councillor to sexually harass another local government councillor.

54. ADA s 22B.

55. ADA s 22I(1).

56. SDA s 28D and 28K.

57. Employers and employees (and prospective employees) – SDA s 28B(1) and 28B(2); ADA s 22B(1) and 22B(2); EOA (Vic) s 86; EOA (SA) s 87(1) and 87(2); DA (ACT) s 59(1) and 59(2); EOA (WA) s 24(1); ADA (NT) s 31; and SDA (Tas) s 21.

Common workplace/workplace participant – SDA s 28B(6); ADA s 22B; EOA (Vic) s 87; DA (ACT) s 59(6).

Partners in a firm – SDA s 28B(5); ADA s 22B; EOA (Vic) s 88; DA (ACT) s 59(5).

Commission agents or contract workers – SDA s 28B(3) and 28B(4); ADA s 22B; EOA (SA) s 87(4) and 87(5); DA (ACT) s 59(3) and 59(4); EOA (WA) s 24(2); and EOA (Vic) s 86 and s 4 definition of employment.

Registered organisation – SDA s 28D.

Industrial organisation – EOA (Vic) s 89; and ADA (NT) s 32.

Qualifying bodies – SDA s 28C; ADA s 22C; EOA (Vic) s 90; and ADA (NT) s 33.

Educational institutions – SDA s 28F; ADA s 22E; EOA (Vic) s 91; EOA (SA) s 87(3); DA (ACT) s 60; EOA (WA) s 25; SDA (Tas) s 21; and ADA (NT) s 29.

Provision of goods and services – SDA s 28G; ADA s 22F; EOA (Vic) s 92; EOA (SA) s 87(6); DA (ACT) s 62; SDA (Tas) s 21; and ADA (NT) s 41.

Provision of accommodation – SDA s 28H; ADA s 22G; EOA (Vic) s 93; EOA (SA) s 87(6); DA (ACT) s 63; EOA (WA) s 26; SDA (Tas) s 21; and ADA (NT) s 38.

Clubs – SDA s 28K; EOA (Vic) s 94; DA (ACT) s 64; SDA (Tas) s 21; and ADA (NT) s 46.

Councillors in local government – EOA (Vic) s 95.

Land – SDA s 28J.

Laws and programs – SDA s 28L; and SDA (Tas) s 21.

Access to premises to which the public or a section of the public have access – DA (ACT) s 61; and EOA (Vic) s 92 and definition of “services”.

Employment agencies – SDA s 28E; and ADA (NT) s 34.

Awards, enterprise agreements and industrial agreements – SDA (Tas) s 21.

Insurance and Superannuation – ADA (NT) s 48.

59. ADA s 22G(2).

60. DP 30 at 87.

61. J Samios, Report of the Review by the Hon James Samios, MBE, MLC into the Operation of the Racial Vilification Law of New South Wales (Legislative Council, Sydney, 1992) (the “Samios Report”).

62. Homosexual vilification was added in 1993 by the Anti-Discrimination (Homosexual Vilification) Amendment Act 1993 (NSW) Sch 1; HIV/AIDS vilification was added in 1994 by the Anti-Discrimination (Amendment) Act 1994 (NSW) Sch 2; and transgender vilification was added in 1996 by the Transgender (Anti-Discrimination and Other Acts Amendment) Act 1996 (NSW) Sch 1.

63. Crimes Act 1900 (NSW) s 547, which relates to apprehended violence by any person to the person of another or of apprehended injury to his or her property;

Summary Offences Act 1988 (NSW) s 4(1), which relates to a person conducting himself or herself in an offensive way, or using offensive language in or near or within hearing of, a public place or school;

Inclosed Lands Protection Act 1901 (NSW) s 4A;

Crime Prevention Act 1916 (NSW) s 2;

Crimes Act 1900 (NSW) s 545C, relating to unlawful assembly;

Crimes Act 1900 (NSW) Pt 15A, which relates to apprehended violence orders;

Crimes Act 1914 (Cth) s 85S, which provides that a person must not use a telecommunication service to menace or harass another person;

Crimes Act 1914 (Cth) s 24D, which provides that a person must not write or publish any statement which intentionally promotes feelings of ill-will and hostility between different “classes” of Australians, if the statement threatens public order (sedition); and

Crimes Act 1914 (Cth) s 85S, which prohibits the use of Australia Post to menace or harass another person, or use it in an offensive way.

65. Western Australia was the second Australian jurisdiction (after NSW) to legislate against racial vilification, amending the Criminal Code 1913 (WA) to include a vilification offence. The ACT included racial vilification provisions in the DA (ACT) in 1991, closely followed by the ADA (Queensland) which contained a section dealing with limited forms of racial and religious vilification. In 1992 the Racial and Religious Vilification Bill was brought before the Victorian Parliament, but eventually lapsed after the second reading. In 1995 the Commonwealth amended its RDA to include a racial vilification section, and the South Australian Parliament passed its first vilification legislation in 1996 in the form of the Racial Vilification Act 1996 (SA).

66. A Flavin, “Can Legislation Prohibiting Hate Speech be Justified in Light of Free Speech Principles? 18(2) University of New South Wales Law Journal 327.

67. Some submissions argued that the prohibition on vilification is an unjustifiable incursion on free speech in a democratic society: Call to Australia, Submission 1 at 6; J Hollier, Submission at 1; Dr T Johnston, Submission at 2.

68. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Levy v State of Victoria (1997) 189 CLR 579; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211; Theophanous v The Herald and Weekly Times (1994) 182 CLR 104; Cunliffe v Commonwealth of Australia (1994) 182 CLR 272; Nationwide News v Wills (1992) 177 CLR 1; and Australian Capital Television v Commonwealth (1992) 177 CLR 106.

69. M Byers, “Free Speech a Certain Casualty of Race Law” The Australian (21 November 1994) at 11.

70. J Hollier, Submission at 1-2.

71. N Hennessy and P Smith, “NSW Racial Vilification Laws Five Years On” (1994) 1(1) Australian Journal of Human Rights 249 at 250.

72. S Ch’ang, “Legislating against Racism: Racial Vilification Laws in NSW” in S Coliver (ed), Striking a Balance: Hate Speech, Freedom of Expression and Non-discrimination (Human Rights Centre, University of Essex, London, 1992).

73. DOC A/38/40 at 231.

74. In that case, the prohibition was clearly political: the speech of a racist political party in a liberal democratic society.

75. See para 7.60 above. See also S Akmeemana and M Jones, “Fighting Racial Hatred” in Australia, Race Discrimination Commissioner, Race Discrimination Act 1975: A Review (AGPS, Canberra, 1995) at 136.

76. Western Australia, Equal Opportunity Commission, Legislation Against Incitement to Racial Hatred: A Report to the Attorney General of Western Australia (Occasional Report No 2, 1988).

77. K Mahoney, “Hate Vilification Legislation and Freedom of Expression’ (1994) 1(1) Australian Journal of Human Rights 369.

78. New South Wales, Parliamentary Debates (Hansard) Legislative Council, 10 May 1989, the Hon J M Samios, Second Reading Speech at 7817 and the Hon RJ Carr, Second Reading Speech at 7921-7922. See also Australia, Parliamentary Debates (Hansard) House of Representatives, 15 November 1994, the Hon M Lavarch, Second Reading Speech at 3341-3342.

79. Canadian Charter of Rights and Freedoms s 1 sets out the fundamental premises for balancing competing rights:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free society.

• whether the incitement to racial hatred is protected expression; and
• even assuming that racial incitement is prima facie protected speech, whether it can nonetheless be subject to reasonable limitations, proscribed by law.

82. K Mahoney, “R v Keegstra: A Rationale for Regulating Pornography?” 37 McGill Law Journal 242.

83. According to Dworkin, it is an essential and “constitutive feature of a just political society that government treat its adult members as responsible moral agents”: R Dworkin, “The Coming Battles over Free Speech” (1993) 150 Civil Liberty 11 at 13.

84. The Samios Report at 12.

85. For instance, there is no provision in the current law for a cause of action for defamation of a group. The possibility of creating such a claim has been previously considered and expressly rejected in the Australian Law Reform Commission, Unfair Publication: Defamation and Privacy (ALRC 11, 1979).

86. Commonwealth. The RDA was amended by the Racial Hatred Act 1995 (Cth) by inserting a new Pt 2A to prohibit racial vilification which came into force on 13 October 1995. The original proposal in the Racial Discrimination Amendment Bill 1992 (Cth) was to make racial vilification unlawful by amending the RDA and racial incitement a criminal offence by amending the Crimes Act 1914 (Cth). However, the Bill was amended significantly in the Senate with the criminal provisions being removed in their entirety. The amendments now incorporated prohibit, in s 18C, a public act which “is reasonably likely in all the circumstances to offend, insult, humiliate or intimidate” another person or group of people on the basis of their race, colour, or national or ethnic origin. Section 18D provides for a wide range of exemptions designed to achieve a balance between the rights to equality and dignity of the targets of racial vilification and freedom of speech. The vilification provisions will be administered under the existing structures with cases being lodged by an aggrieved person.

Western Australia. Sections 76 to 80 were inserted in the Criminal Code 1913 (WA) in 1990, and are aimed at written or pictorial material which is threatening or abusive on racist grounds. The provisions criminalise the publication or display of such materials or the possession of such materials with the intent of threatening or abusing on racist grounds. Verbal communication is not within the ambit of the provisions, and no provision is made for the mediation or conciliation via a civil mechanism such as the ADB.

Queensland. Section 126 of the ADA (Qld) creates an offence, attracting a penalty of 35 penalty units for individuals and 170 penalty units for corporations:

“A person must not, by advocating racial or religious hatred or hostility, incite unlawful discrimination or another contravention of the Act.”

The provisions are limited to prohibiting the advocacy of breaches of other provisions of the anti-discrimination law. The requirement that there be an incitement to unlawful discrimination or some other breach of the ADA (Qld) empties it of any substantive content as a vilification law. No civil mechanism is created to deal with incitement to racial or religious hatred.

Australian Capital Territory. The DA (ACT) contains provisions not identical to, but clearly modelled on the NSW provisions. Section 66 makes it a civil wrong for a person, by public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group. Section 67 creates the offence of “serious racial vilification”, which is in identical terms to the NSW provision. Unlike the NSW provision, it is not necessary to obtain the Attorney General’s consent in order to prosecute those charged with serious racial vilification. Further, the civil structure differs from the NSW model; the ACT Discrimination Commissioner has investigative and decision-making powers. Appeals lie to the ACT Administrative Appeals Tribunal.

Victoria. Victoria introduced the Racial and Religious Vilification Bill 1992 (Vic) in 1992. The bill has subsequently lapsed, and there is no indication that it will be re-introduced. [RE-check]

Canadian provincial legislation. All of the provincial human rights Codes and Acts prohibit one narrow category of hate speech; namely, the publication or public display of “any notice, sign, symbol emblem or other similar representation” with intent to infringe, or to incite infringement, of a fundamental right.

A few provinces have adopted legislation specifically addressing the issue of hate propaganda. In 1981, British Columbia adopted the Civil Rights Protection Act which makes the promotion of hatred on the basis of colour, race, religion, ethnic origin or place of origin a tort actionable by the person, or by any member or class of persons, against whom the conduct or communication was directed. Manitoba has included a section dealing with group libel in its Defamation Act.

Cuba. Constitution – Art 349; and Criminal Code Art 295.

Cyprus. Criminal Code s 51.

France. Penal Code Art 187 and 416.

Germany. Criminal Code Art 130, 131 and 185 ff.

Argentina. Art 1, 2 and 3 of the Argentine Republic.

United Kingdom. Race Relations Act 1976 (UK) s 14; Protection from Harassment Act 1997 (UK) s 1(1); Public Order Act 1986 (UK) Pt 3 and Football (Offences) Act 1991 (UK) s 3.

New Zealand. Race Relations Act 1971 (NZ) s 25.

Netherlands. Criminal Code s 137.

India. Penal Code s 153A and 153B.

Israel. Penal Law 1986 s 144A-144E.

88. Canada v Taylor (1991) 75 DLR (4th) 577.

89. N Hennessy and P Smith, “NSW Racial Vilification Laws Five Years On” (1994) 1(1) Australian Journal of Human Rights 249. See also the Samios Report; and L McNamara, “A Profile of Racial Vilification Complaints in New South Wales: Preliminary Findings” (unpublished paper, July, 1996).

90. For instance, one submission said:

“I see no good reason why “x” vilification as such should be made a crime even though public acts of communication which promote or express hatred towards, serious contempt for, or severe ridicule of, particular people or groups are quite unacceptable to most of us, especially if the individual or group is identified by religious or other characteristics.

It is socially divisive and personally distressing to victims ... it nonetheless does bruise free speech. Why, for example, should vilification of homosexuals be unlawful and not vilification of women who are forced to seek abortions? Who is to decide what is reasonable and what is not?”

(T Johnston, Submission at 2).

This view was also expressed by E Fitzpatrick, Submission at 1 and R Gibbs, Submission at 1.

92. Canada, Law Reform Commission, Hate Propaganda (Working Paper 50, 1986) at 32.

93. P Fitzgerald, Submission at 15; Gay and Lesbian Rights Lobby, Submission at 8; NSW Women’s Advisory Council, Submission at 10. A number of other submissions to the Commission also supported the extension of the vilification provisions to the grounds of gender, disability and religion. See below at para 7.86, 7.89, 7.92.

94. The definitional problems in relation to race, homosexuality and transgender status have been specifically dealt with and HIV/AIDS is considered within the wider definition of disability in Chapter 5 of this Report.

95. Australia, Human Rights and Equal Opportunity Commission, Report of the National Inquiry into Racist Violence in Australia (AGPS, Canberra, 1991) at 389-98.

96. “Churches Set to Split Over Gay Vilification” Sydney Morning Herald (19 October 1993) at 6.

97. Perhaps a most articulate defence of vilification legislation in the context of the debate in NSW on homosexual vilification was provided by the Rev Ann Wansbrough of the Uniting Church, NSW Synod:

The point of the proposed legislation is to protect a group of people who, because of characteristics by which they are identified, are at far greater risk than the population generally with regard to vilification itself, and the violence which erupts from vilification. Similar arguments apply in the case of people who have HIV/AIDS ... Barry George and the Herald editorial of August 31 are wrong when they associate vilification with freedom of speech. Human rights instruments protect the right of people to exchange views and opinions, not the right to undermine the human dignity of those with whom one disagrees, or to put them at risk of physical violence. Vilification is itself an abuse of human rights.

99. NSW Ministry for the Status and Advancement of Women, Submission at 19; NSW Women’s Advisory Council, Submission at 10; M Santin, Submission at 1; and H Walsh, Submission at 1.

100. It defined pornography as the sexually explicit subordination of women through pictures or words that also included such things as women presented as dehumanised sex objects, things or commodities – women presented as sexual objects who enjoy humiliation, or print or other similar presentations of women. It also censored pornography by making it sex discrimination to produce, sell exhibit or distribute pornography: R Graycar and J Morgan, The Hidden Gender of Law (The Federation Press, Sydney, 1990) at 376-379.

101. American Booksellers Association v Hudnut 771 F 2d 323 (1985), affirmed by the Supreme Court 475 US 1001 (1986).

102. For the anti-censorship feminist position see: V Burstyn (ed), Women Against Censorship (Douglas and McIntyre Ltd, Vancouver, 1985); L Segal and M McIntosh (eds), Sex Exposed (Virago Press, London, 1992); N Strossen, “Convergence of Feminist and Civil Liberties Principles in the Pornography Debate” (1987) 62 New York University Law Review 201.

103. Anti-Discrimination Board, Submission 1 at 51.

104. The Bretheren (Universal Christian Fellowship), Submission at 5; Church of Scientology, Submission at 1; J Hollier, Submission at 1; Scientologists Taking Action for Non-discrimination, Submission (8 February 1994) 1; H Segal, Submission at 1; Seventh-Day Adventist Church, Submission at 3. However, the submission of the Seventh-Day Adventist Church argued that religious vilification should be included only “provided it is not interpreted to disallow any expression of opposition, or vehement disagreement.”

105. A number of submissions also supported the inclusion of disability vilification provisions within the ADA: Disability Council of NSW, Submission at 3; P Jenkin, Submission at 3; and NSW Council for Intellectual Disability, Submission at 1.

106. Anti-Discrimination Board, Submission 1 at 52.

107. In Stutsel v Reid (1990) 20 NSWLR 661 the Supreme Court dealt with the offensive language provisions in the Summary Offences Act 1988 (NSW). The Court held that no evidence need be adduced to prove that there was a person who could have heard the offensive words in the public place at the relevant time.

108. R v Ashley (1991) 77 NTR 27 at 30. The Supreme Court of the Northern Territory held that “the public” includes “all persons who would have been clearly foreseen by an ordinary person ... to have been within the ambit of danger created by the alleged act, because their presence in the vicinity at that time might be reasonably anticipated”.

109. Kane v Church of Jesus Christ Christian Aryan Nations (No 3) (1992) 18 CHHR 268 was a case where the display of signs, swastikas and burning crosses on the private property of one of the respondents was held to be a display “before the public” as the displays were easily visible to passers by. It was held that “public” did not necessarily mean the whole public and that it was “before the public” even though it was held on private property. “Public” was defined to mean “open to general observation, done or existing in public”.

110. Australasian Performing Right Association Ltd v Commonwealth Bank of Australia (1992) 111 ALR 671 at 685.

111. Australasian Performing Right Association Ltd v Commonwealth Bank of Australia at 679 citing findings of the Gregory Committee 1952 (UK).

112. [1996] EOC 92-841.

113. Mexico: Press Act, Art 1; and Cyprus: Criminal Code, s 51.

114. Cuba: Constitution, Art 349 and Criminal Code, Art 295; Bulgaria: Constitution, Art 35(4) and Criminal Code, Art 162; Denmark: Penal Code, Art 136(1) and 266; Germany: Penal Code, s 130; Ukraine: Criminal Code, Art 66; and USSR: Act on Criminal Liability for State Crimes, Art 11.

115. K Eastman, “Drafting Vilification Laws: Legal and Policy Issues” (1994) Australian Journal of Human Rights 285 at 290.

116. Anti-Discrimination Board, Submission 1 at 52.

117. Australia, Human Rights and Equal Opportunity Commission, Racist Violence: Report of the National Inquiry into Racist Violence in Australia (AGPS, 1991); Australia, Royal Commission into Aboriginal Deaths in Custody, Final Report (AGPS, 1991) Vol 4; Australian Law Reform Commission, Multiculturalism and the Law, ALRC Report 57, 1992.

118. ADA s 20C(1).

119. [1994] EOC 92-604. The EOT quoted with approval the Australian Broadcasting Tribunal’s decision in the Inquiry into Broadcasts by Ron Casey (1989) 3 BR 351.

120. [1995] EOC 92-701.

121. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 4 May 1989 at 7490.

122. T Solomon, “Problems in Drafting Legislation Against Racist Activities” in (1994) 1(1) Australian Journal of Human Rights 265 at 284. The Canadian Supreme Court held a similar view in Canada v Taylor (1992) 13 CHRR 435, emphasising that the objective of the Canadian Human Rights Act, RSC 1985, c H-6 can only be achieved by ignoring intent.

123. [1995] EOC 92-701.

124. [1996] EOC 92-841.

125. (1989) 3 BR 351 at 357.

126. N Hennessy and P Smith, “NSW Racial Vilification Laws Five Years On” (1994) 1(1) Australian Journal of Human Rights 249 at 253.

127. Nealy v Johnston (1989) 10 CHRR 6450 at 6470.

128. ADA (Qld); Criminal Code (WA); and DA (ACT).

129. Canada: Canadian Human Rights Act, RSC 1985, c H-6, s 13; Bulgaria: Constitution, Art 35(4); and Criminal Code, Art 162; Dominica: Nationality and Racial Offences Act, s 6; Germany: Penal Code, s 130; Mexico: Press Act, Art 1; Netherlands: Penal Code, s 137.

130. “I thought the French had class. I knew they weren’t too good on personal hygiene, but I thought at least they had class”.

131. R v Keegstra [1990] 2 SCR 697 discussed in T Solomon, “Problems in Drafting Legislation Against Racist Activities” (1995) 1(1) Australian Journal of Human Rights 265 at 282.

132. K Eastman, “Drafting Racial Vilification Laws: Legal and Policy Issues” (1995) 1 Australian Journal of Human Rights 285; T Solomon, “Problems in Drafting Legislation Against Racist Activities” (1995) 1 Australian Journal of Human Rights 265.

133. Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376 at 380.

134. RDA s 18C.

135. K Eastman, “Drafting Racial Vilification Laws: Legal and Policy Issues” (1995) 1 Australian Journal of Human Rights 285; T Solomon, “Problems in Drafting Legislation Against Racist Activities” (1995) 1 Australian Journal of Human Rights 265.

136. Radio Program Standard (RPS) 3 and Television Program Standard (TPS) 2.

137. Defamation Act 1974 (NSW) Pt 3, Div 3.

138. M Thornton, The Liberal Promise (Oxford University Press, 1990) at 50. Thornton provides the following example: “... the well publicised views of the prominent academic historian, Professor Geoffrey Blainey, on Asian immigration in 1984 notably increased the extent of racist discourse in Australian society. Blainey’s own book, All for Australia encapsulated his views in an acceptable academic form, which would effectively bring him within the protection of the New South Wales exception”.

139. K Eastman, “Drafting Vilification Laws: Legal and Policy Issues (1995) 1(1) Australian Journal of Human Rights 285 at 292.

140. S Akmeemana and M Jones, “Fighting Racial Hatred” in Australia, Race Discrimination Commissioner, Race Discrimination Act 1975: A Review (AGPS, Canberra, 1995) at 171.

141. However see discussion above at para 7.61.

142. ADA s 20D.

143. Information supplied by the ADB (17 September 1998).

144. Samios Report, Recommendation 10.

145. Australia, Human Rights and Equal Opportunity Commission, Racist Violence: Report of the National Inquiry into Racist Violence in Australia (AGPS, Canberra, 1991) at 69ff.

146. This terminology was probably borrowed from the Race Relations Act 1976 (UK) s 2 where victimisation is treated as a form of discrimination: Metwally v University of Wollongong [1984] EOC 92-030 at 75,554 per Barbour J.

147. Bogie v University of Western Sydney [1990] EOC 92-313 at 78,145.

148. See Chapter 3 at para 3.57.

149. Shaikh v Commissioner, NSW Fire Brigades [1996] EOC 92-808 at 78, 986; Bailey v Australian National University [1995] EOC 92-744 at 78,553.

150. Bhattacharya v Department of Public Works [1984] EOC 92-117 at 76, 133; Bogie v The University of Western Sydney [1990] EOC 92-313.

151. Shaikh v Commissioner, NSW Fire Brigades [1996] EOC 92-808 at 78, 986.

152. See EOA (WA) s 67(1); ADA (Qld) s 130; EOA (Vic) s 97(1); SDA (Tas) s 18(2); ADA (NT) s 23(2); SDA s 94(2); RDA s 27(2); and DDA s 42(2).

153. Bhattacharya v Department of Public Works [1984] EOC 92-117.

154. See for example: Reddrop v Boehringer Ingleheim Pty Ltd [1984] EOC 92-031; Waterhouse v Bell [1991] EOC 92-376.

155. Shaikh v Commissioner, NSW Fire Brigades [1996] EOC 92-808 at 78, 986. See also Lyon v Godley [1990] EOC 92-287 in relation to the application of a similar provision (s 5) to the victimisation provision in the EOA (WA) and similarly, Bailey v Australian National University [1995] EOC 92-744 in relation to the SDA.

156. O’Callaghan v Loder [1984] EOC 92-023 at 75,499. See also Reddrop v Boehringer Ingleheim Pty Ltd [1984] EOC 92-031 at 75, 569.

157. Shaikh v Commissioner, NSW Fire Brigades [1996] EOC 92-808 at 78, 986 per King J, citing Clarke JA in Waterhouse v Bell (1991) 25 NSWLR 99.

158. EOA (WA) s 67(3); and ADA (Qld) s 131.

159. ADA s 50(2).

160. ADA s 109.

161. EOA (SA) s 86(3).

162. R v Sex Discrimination Board: Ex parte Koh [1986] EOC 92-175 (SA SC).

163. Walker v Radio Cabs of Wollongong Co-operative Society Ltd [1988] EOC 92-240; Harrison v Department of Technical and Further Education [1992] EOC 92-429; Bevacqua v Klinkert & Ors [1993] EOC 92-515 (Vic); Shaikh v Commissioner, NSW Fire Brigades [1996] EOC 92-808.

164. Bogie v University of Wollongong [1990] EOC 92-313 at 78,145.

165. Walker v Radio Cabs of Wollongong Co-operative Society Ltd [1988] EOC 92-240.

166. SDA s 94(1); RDA s 27(2); DDA s 42(1); and ADA (Qld) s 129. Complaints of victimisation may also be brought under these laws.

167. Information supplied by Ms Merryl Lees, Legal Officer, Human Rights and Equal Opportunity Commission (2 February 1997).

168. See NSW Bar Association, Submission.

169. Australia, House of Representatives Standing Committee on Legal and Constitutional Affairs, Half Way to Equal: Report of the Inquiry into Equal Opportunity and Equal Status for Women in Australia (Canberra, 1992) (the “Lavarch Report”) at 234.

170. In 1992, s 47A was inserted in the SDA. Essentially it allows inquiries and civil proceedings to be commenced in respect of complaints of victimisation. Similarly s 19A was inserted in the RDA.

171. Shaikh v Commissioner, NSW Fire Brigades [1996] EOC 92-808. See also Edwards v Council of the Municipality of Kogarah [1995] EOC 92-664 where the complainants were awarded $15,000 each for victimisation; and Harrison v Department of Technical and Further Education [1992] EOC 92-429.

172. New South Wales, Parliamentary Debates (Hansard) Legislative Council, 26 November 1982 at 3642.

173. Anti-Discrimination Board, Submission 1 Attachment 3 at 18; NSW Ministry for the Status and Advancement of Women, Submission at 18; and NSW Women’s Advisory Council, Submission at 1. See also Law Society of NSW, Submission at 6; and NSW Independent Teacher’s Association, Submission at 4. See also protests of Women’s Electoral Lobby reported in A Harvey, “Movie Poster Has Lobby Group Up in Arms” Sydney Morning Herald (10 February 1997) at 2.

174. DP 30 at 120-121.

175. Law Society of NSW, Submission at 6; Ministry for the Advancement and Status of Women, Submission at 26; and NSW Independent Teachers’ Association, Submission at 4. However, the NSW Women’s Advisory Council, Submission at 1 argued that education and industry codes of practice are a more effective means of dealing with the problem of discriminatory advertising than prohibition.

176. Advertisements which vilify may be dealt with as a complaint of vilification to the ADB. Alternatively, complaints can be brought to the relevant industry council alleging a breach the industry code of ethics, most of which contain provisions that advertisers should comply with anti-discrimination laws.

177. New South Wales, Anti-Discrimination Board, Annual Report 1993 and Annual Report 1995.

178. ADA s 52.

179. ADA s 53.

180. It is important to note that the inclusion of the word “permit” in s 52 suggests that in certain situations there may be a positive obligation to prevent others from engaging in discriminatory conduct.

181. Anti-Discrimination (Amendment) Act 1994 (NSW).

182. In 1997 the ADA was amended to attach liability directly to fellow employees in relation to sexual harassment alone. See Anti-Discrimination Amendment Act 1997 (NSW) inserting Pt 2A into the ADA.

183. The same argument was made in relation to educational authorities.

184. (1987) 8 NSWLR 442.

185. ADA s 31A.

186. Leves v Haines at 76,624.

187. ADA s 31A.

188. [1988] EOC 92-229.

189. In Hill v Water Resources Commission [1985] EOC 92-127 it had been held that an employer could be directly liable for failure to provide.

190. M v R Pty Ltd [1988] EOC 92-229, at 77,174.

191. Anti-Discrimination Board, Submission 1 at 109.

192. Anti-Discrimination (Amendment) Act 1994 (NSW), emphasis added.

193. ADA s 53(2).

194. Anti-Discrimination (Amendment) Act 1994 (NSW). The previous s 52 had provided that “[w]here a person causes, instructs, induces, aids or permits another person to do an act that is unlawful by reason of this Act, they both shall be subject, jointly and severally, to any liability arising under this Act in respect of the doing of that act”.

195. New South Wales, Parliamentary Debates (Hansard) Legislative Council, 4 May 1994, the Hon J Hannaford at 1831.

196. Anti-Discrimination Amendment Act 1997 (NSW).

197. ADA s 53(3).

198. ADA s 53(4).

199. SDA s 105.

200. SDA s 106.

201. SDA s 106(2).

202. RDA s 17.

203. DDA s 43.

204. DDA s 122.

205. DDA s 123. This provision specifically provides that if, for the purposes of the ADA, it is necessary to establish the state of mind of a person or a body corporate, it is sufficient to establish that a director, servant or agent of the person or body corporate had the requisite state of mind.

206. See EOA (Vic) s 98, 99, 102 and 103; ADA (Qld) s 122, 123 and 133; EOA (SA) s 90 and 91; EOA (WA) s 160-162; DA (ACT) s 108H and 108I; and ADA (NT) s 27.

207. EOA (Vic) s 103; ADA (Qld) s 133(2); EOA (SA) s 91(3); EOA (WA) s 161(2); and DA (ACT) s 108I(3).

208. SDA (Tas) s 73.

209. SDA (Tas) s 73(2).

210. SDA (Tas) s 20.

211. Anti-Discrimination Amendment Act 1997 (NSW).

212. SDA s 106(2); and RDA s 18A(2) and 18E(2).

213. DDA s 123(4).

214. EOA (Vic) s 103; ADA (Qld) s 133(2); EOA (SA) s 91(3); EOA (WA) s 161(2); and DA (ACT) s 108I(3): “reasonable precautions”.

215. [1988] EOC 92-229.

216. M v R at 77,174.

217. M v R at 77,174-77,175.

218. [1995] EOC 92-674.

219. Moloney v Golden Ponds at 78,142.

220. [1996] EOC 92-856.

221. [1993] EOC 515.

222. [1994] EOC 92-576.

223. EOA (Vic) s 102; and ADA (Qld) s 133(1). Compare this to the EOA (SA) which provides that a principal or employer is “vicariously liable” for the discriminatory acts of their agent or employee unless the defence of “reasonable diligence” is made out, in which case the agent or employee is liable for those acts: EOA (SA) s 91.

224. Employees Liability Act 1991 (NSW) s 3.

225. [1957] AC 555.

226. See New South Wales Law Reform Commission, Contribution Between Persons Liable for the Same Damage (Discussion Paper 38, 1997) at para 4.18.

227. ADA s 53(3).

228. [1984] EOC 92-022.

229. O’Callaghan v Loder at 75,493-75,494.

230. [1988] EOC 92-229.

231. Murphy v Rasmus Pty Ltd [1989] EOC 92-308; Moloney v Golden Ponds Corporation Pty Ltd [1995] EOC 92-674; Hawkins v Malnet [1995] EOC 92-767; and Adams v Helios Electroheat Pty Ltd [1996] EOC 92-856.

232. Hill v Water Resources Commission [1985] EOC 92-127; M v R Pty Ltd [1988] EOC 92-229; Moloney v Golden Ponds Pty Ltd [1995] EOC 92-674; and Hawkins v Malnet [1995] EOC 92-767.

233. See Commonwealth v Interovigne (1982) 150 CLR 258.

234. M v R at 77,175.

235. ADA s 22B(2).

236. [1997] EOC 92-891.

237. SDA s 105.

238. Sutton at 77,280, emphasis added. Section 106 is the vicarious liability provision in the SDA and s 105 is the aiding and abetting provision.

239. Sutton at 77,280. It does not appear from the report that the recent NSW authorities were drawn to the Commissioner’s attention.

240. [1985] EOC 92-127.

241. [1995] EOC 92-674.

242. Moloney v Golden Ponds at 78,142.

243. [1989] EOC 92-030.