The Law and Penalties for Racial Discrimination in Australia

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By Sahar Adatia and Jimmy Singh.

From complaints about Aboriginals being called a “black c**t” to claims that Jewish people who are offended by Holocaust denial are of “limited intelligence”, the Racial Discrimination Act has witnessed a long and checkered history.

While some cases have governed against remarks of racial hatred, many complaints associated with racial discrimination have also been dismissed by the courts.

In fact, while there have been some successful cases produced, less than five percent of claims made under the Racial Discrimination Act make it to the courts, while the majority of them get dismissed.

One such case that produced significant media attention involves the circumstance of Greens MP Jenny Leong, who this week lodged a complaint with the Human Rights Commission accusing NSW Police of racial hatred over statements allegedly posted on Facebook by a number of its officers.

According to reports, the officers from Sydney police commands made the derogatory comments about the Newtown MP, mocking her ethnic background.

More than two years after reporting the matter to the former Police Integrity Commission and following a finding that there was no reasonable prospect of conviction, Ms Leong claims she was offered no fundamental explanation in regards to its response.

With inadequate action taken, she is now seeking compensation, an apology, including a public statement recognising that officers engaged in offensive and unlawful behaviour, and asserting that NSW police undergo training to take racism seriously.

Inadequate and Insufficient: Police Integrity Commission Investigation Fails to Address Racist Remarks

Ms Leong’s encounter with the ethnic jeering dates back to March 2016 when a serving police officer allegedly posted racist and sexist comments on Facebook making reference to the MP’s cultural background.

The inappropriate comments were made in response to a bill she introduced in State Parliament intending to abolish the police sniffer dog program.

An investigation was launched into the remarks and the Police Integrity Commission was assigned to scrutinise whether there was any police misconduct involved in the comments made on social media.

According to Ms Leong, an investigation into the matter was imperative, not only because those responsible needed to be held accountable, but also to bring awareness to the type of conduct that is inappropriate and unacceptable.

“What we need to see … if it is found that police are involved in this matter, that it shows that it is unacceptable,” Ms Leong said.

However, Ms Leong’s complaints were not appropriately addressed, and much to her disapproval, insufficient action was taken against the officers involved.

“2 Dolla Sucky Sucky Lub U Long Time”: The Officer’s Offensive Comments Revealed

It is reported that investigations revealed that a police officer operating under the pseudonym ‘Jack Zane’ had made an array of offensive racial comments.

One read, “Wow Jenny. It was clearly a mistake when your father spotted your mother across a crowded [swamp] and dragged her back into his hut to make you.”

Other remarks included, “It is cause I so Asian?”, “2 dolla sucky sucky lub u long time” and “her daddy was a swamp monkey”.

Adding further complication to the matter, a number of members from the police force “liked” or commented on the offending posts.

By September 2016, about 10 officers were investigated by the Police Integrity Commission for their misconduct.

Ms Leong Left in Quest of “Long-Awaited Answers”

While one officer was suspended over the comments, Ms Leong’s lawyer, Giri Sivaraman, underscored the incompetence of NSW Police in their unsatisfactory effort to take in hand the Green MP’s initial complaints.

According to Mr Sivaraman, his client had suffered a “significant toll” from the saga and was seeking “long-awaited answers”.

“Jenny’s complaint has been passed back and forth within NSW Police since she first dodged this in April 2016, yet she still has not received a substantial response from police as to their findings regarding her complaint and actions taken,” Mr Sivaraman said.

“For Jenny this has never been about seeking retribution against individuals, but about seeking to ensure that NSW Police take responsibility for what has occurred and that they act to make clear that such actions by members of their organisation will not be tolerated.”

Ms Leong was given a letter of apology from the commander of two officers implicated, however no specifics were provided to her about the result of the investigation.

Meanwhile, after writing to the police commissioner with the statements of the serving police officer’s insensitive remarks, she received a deluge of support.

In her letter, she also detailed the abuse directed at her after she uploaded a photo to Facebook of police with drug detection dogs.

Greens MP Seeking Commitment from NSW Police to Provide Cultural and Racial Awareness Training

Ms Leong has now lodged a complaint with the Human Rights Commission claiming the “offensive and unlawful” social media posts made by the serving police officers’ amount to racial hatred and thus constituted a breach of Section 18C of the Racial Discrimination Act.

As part of the complaint, Ms Leong is asserting assurance by NSW Police to provide cultural and racial awareness training to all staff given the conduct of the police’s Professional Standards Command is “extremely unprofessional” and “cause for serious concern”.

In a statement released by her lawyers, Ms Leong advocated that “offensive and racist behaviour has no place within the police force and no place in our society – we cannot let people get away with it, it must be called out.”

“Given the offensive actions taken by members of the NSW Police, the public need to be assured that the NSW Police take the issue of racism seriously, not only in relation to my own complaint but more widely,” Ms Leong declared.

No comment was provided by NSW Police who said they could not make any statements as the matter is now subject to legal action.

At a Glance: “Racial Hatred” under the Racial Discrimination Act 1975 (Cth)

According to the Australian Human Rights Commission, the Racial Discrimination Act 1975 makes it unlawful to discriminate against a person on the basis of his or her race, colour, descent, national or ethnic origin, or immigrant status.

The Act protects people from racial discrimination in many areas of public life, ranging from employment, education, getting or using service, renting or buying a house or unit, and accessing public places.

Under the Racial Discrimination Act, it is unlawful to do or say something in public that is reasonably likely to cause offence, insult, humiliate or intimidate a person or group because of their race, colour, or national or ethnic origin.

This behaviour is understood as racial hatred, and can range from actions such as posting racially offensive material on social networking sites, to displaying racist posters, to calling people racist names.

A person who subjects another person to racially offensive conduct behaviour is principally responsible for his or her behaviour.

On another note, the conduct alleged may also fall under the cyber bullying laws which attract a criminal conviction and heavy penalties.

For more details on this, see the our page on using a carriage service to harass, menace or offend charges.

Table Of Contents

The Law and Penalties for Racial Discrimination in Australia

The Law and Penalties for Racial Discrimination in Australia

In Australia, it’s unlawful to do (or say anything) that is reasonably likely (in all the circumstances) to offend, insult, humiliate or intimidate another person (or group of people) because of race, colour, national or ethnic origin pursuant to section 18C of the Racial Discrimination Act 1975 (Cth).

This kind of discrimination is only prohibited in Australia if it’s committed in the following circumstances:

The words, sounds, images or writing is communicated in public; or
It occurred in a public place; or
It occurred in sight or hearing of people who are located in a public place.

A ‘public place’ is anywhere the public have access to as a right (or by invitation).

A complaint of this nature can be lodged with the Australian Human Rights Commission who will appoint a President to investigate the complaint and attempt to resolve it first- by conciliation.

An example of a successful outcome from conciliation includes a financial compensation and anti-discrimination training.

The president appointed by the Commission can terminate the complaint if the complaint is considered vexatious, misconceived, lacks substance or trivial, or where there’s no reasonable prospects of it being settles by conciliation pursuant to section 46PH of the Australian Human Rights Commission Act 1986 (Cth).

If conciliation is unsuccessful, the matter can then be taken to the Federal Court under section 46PO of the Australian Human Rights Commission Act 1986 (Cth).

If the Federal Court accepts that there has been ‘unlawful discrimination’, the Court may make any of the following orders:

Order declaring that unlawful discrimination has occurred by the respondent and a direction not to repeat or continue such conduct;
Ordering that the respondent perform a reasonable act (or course of conduct) to redress any damage or loss sustained by the applicant;
Order the respondent to employ or re-employ the applicant;
Order that the respondent pay compensation damages for any loss/damage sustained as a result of the respondent’s conduct;
Order that the respondent change the termination of contract/agreement to redress any loss/damage sustained by the applicant;
Order declaring that it will be inappropriate in taking further action.

You will face a fine of up to $2,100 for hindering, obstructing, molesting or interfering with a person who tried to exercise or perform any of the powers to lodge a complaint or provide information (or cooperates) to the Australian Human Rights Commission (section 27(1) of the Racial Discrimination Act 1975 (Cth)).

In respect to a corporate body- the corporate body will face a penalty of up to a $21,000 fine; while a natural person will face a penalty of up to $5,250 fine and/or 3-months imprisonment if any one of the below occurs because a person makes or proposes to make a complaint to the Australian Human Rights Commission or furnishes any information or document to a person trying to exercise or perform such powers under that law, or attends or proposes to attend a conference held by the Commission in response to a complaint lodged:

A person is refused employment; or
A person is dismissed or threatened to be dismissed from employment; or
A person is intimidated or coerced (or receives a pecuniary or other penalty)

This is reflected in section 27(2) of the Racial Discrimination Act 1975 (Cth).

The Section was introduced as a response to recommendations of major inquiries that found that racial hatred and vilification can result in emotion and psychological harm to their targets, while perpetuating other means of discrimination and exclusion.

The inquiries also revealed that seemingly low-level behaviour can soften the environment for more severe acts of harassment, intimidation or violence by condoning such conduct.

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Published on 21/11/2018