Its No Crime To Be Unlawful
There’s been quite a bit of debate recently about the finer points of law relating to racial vilification. It remains to be seen whether the government goes ahead with its proposed legislation to amend the Racial Discrimination Act and make it legally permissible to offend people by spouting racist comments. Attorney General George Brandis told parliament: “People do have a right to be bigots. In a free country, people do have rights to say things that other people find offensive or insulting or bigoted.”
To cement this thinking into law the government wants to change Section 18C of the Racial Discrimination Act. The Act has been around for 39 years and states it is “unlawful” for a person to commit an act in public that is reasonably likely to “offend, insult, humiliate or intimidate another person or group of people”, and that the act is done because of the “race, colour or national or ethnic origin of the other person or of some or all of the people in the group”.
But what does the term “unlawful” mean? Is it the same as “criminal”? If I do something that is unlawful am I committing a crime? Is abusing someone for their race a crime? Well, technically, it’s not. No criminal sanctions are attached to the Act and nothing in the Act makes any form of vilification a criminal offence.
One of Australia’s leading legal experts in the this field, the director of law reform and social justice at Australian National University, Professor Simon Rice, told the ABC’s Fact Check:
“Unlawful conduct is not illegal conduct. ‘Unlawful’ is conduct prohibited by law, an ‘offence’ is also conduct prohibited by law but at a more serious or higher level. There is a fundamental procedural difference – unlawful acts are pursued by the person or entity who is aggrieved, and illegal acts are pursued by the police in order to punish the perpetrator. For unlawful conduct the harmed person seeks a personal remedy like compensation; for illegal conduct the perpetrator is punished.”
A complaint about ‘unlawful’ conduct under section 18C can, however, be made to the Australian Human Rights Commission. In the case of journalist Andrew Bolt and his article “White fellas in the black”, the Federal Court of Australia found that the article had breached section 18C and ordered that the Melbourne Herald and Weekly Times publish an article of equal prominence to publicise the court’s decision. The newspaper was also ordered to pay very substantial legal costs.
While publishing the original article was not ‘criminal’ conduct, it was ‘unlawful’ conduct. However once the Court orders were made, it would have been ‘criminal’ conduct (contempt of court) for the publishers not to comply with them. Such a situation occurred with a person who posted anti-Jewish propaganda and refused to comply with a court order to take it down. He ended up serving three months in jail – not for the racist comments, but for refusing to obey a court order.
Which shows the law provides more than one way to skin a cat.