Speeches and papers by AIC staff

Racial vilification on the Internet : free speech or computer crime?

Dr Gregor Urbas
Australian Institute of Criminology

Presented at:
Criminology and human rights
19th annual conference of the Australian and New Zealand Society of Criminology
Wrest Point Convention Centre, Hobart.
7-9 February 2006

There is a recognised dividing line between speech on racially sensitive issues that is academically, socially and legally acceptable – even if not always comfortable – and abusive or offensive discussion that warrants a legal response. In Australia, constitutional protection of free speech is restricted to political discussion, but there are further statutory exclusions from the operation of the Racial Discrimination Act 1975 (Cth) for artistic works, genuine academic and scientific discussion, and news reporting. Nonetheless, the provisions of this Act have been recently applied to declare unlawful the contents of an Australian website run by the “Adelaide Institute”, which denied the historical occurrence of the Holocaust, and subsequent Federal Court litigation in the case has clarified the scope of the free speech and racial vilification issues involved. However, the Racial Discrimination Act does not impose criminal penalties for racial vilification, with remedies limited to declarations and orders for removal of content, unlike several State and Territory statutes enacted or amended over the last decade that have significant criminal penalties.

The regulation of Internet content generally has followed a different path, but there is now potential for considerable overlap. Since 1 March 2005, new telecommunications offences added to the Criminal Code Act 1995 (Cth) make it an offence to use a carriage service to menace, harass or cause offence, and there is also a broad offence of using a carriage service with intent to commit a serious Commonwealth, State or Territory offence – which could in some cases extend to a State racial vilification offence. Thus, the increasingly extensive legal regime for protection of communications technologies from misuse may serve to criminalise racially offensive websites and email discussion, even where Commonwealth racial discrimination law has hitherto not imposed criminal liability. This paper explores these developments and possible future applications of criminal law to online racial vilification.

No paper available