Racist comments have been in the news recently and it could be useful to know just what the law says about how racist we can be before we end up in court.
First off, make no mistake that racism and making racist comments, no matter how trivial or joking the originator might think they are, is an abhorrent act and should not go unpunished. Such comments are meant to be hurtful, mean and cruel. The intention is to belittle, divide and ridicule. There is no excuse. The law is a different matter.
Serious racial vilification comes under section 20D of the NSW Anti-Discrimination Act 1977, the first such law in Australia.
Basically, it depends where and how you say it. Serious racial vilification has to be a public act, has to incite hatred, contempt or severe ridicule on the ground of race towards someone or a group of people and threatens physical harm to that person or the property of that person.
There is a big proviso to this section - nobody can be prosecuted unless the Attorney General agrees to it. So far nobody has.
Human rights lawyer with Stacks, Joshua Dale, recently gave evidence on behalf of the Australian Lawyers Alliance to a parliamentary committee looking into the working of the racial vilification laws.
Dale argued it was too difficult to prove an intention to publicly incite racial hatred as it has to be accompanied by a threat to harm person or property.
Dale argued penalties under section 20D are also inadequate - a maximum of $5,500 fine and/or six months jail. A corporation can be fined $11,000.
"For there to be no prosecutions under section 20D in some 24 years is tantamount to admitting there have been no occurrences of racial vilification worthy of prosecution," the submission said.
"This illogical conclusion would surely be out of step with community expectations and experiences."
Dale said there had been 29 complaints of racial vilification referred to the Director of Public Prosecutions for criminal prosecution - but none were advanced.
This is despite several highly controversial racist statements made by radio shock jocks particularly before the so-called Cronulla riots in 2005.
People who feel they have been racially vilified can make a complaint to the Anti Discrimination Board where compensation can be payable. This is usually for pain and suffering that can be established as caused by racist comments. The board can order mediations where a settlement is encouraged.
If you are caught up in racist comments either as perpetrator or victim it would be wise to get legal advice as the law is far from clear.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.