Some defences have been enacted 13 for material that can be accessed using a service if access is necessary for a range of reasons. Defendants bear the evidential burden to establish the defence. It will be interesting to see how effective the new law is in getting abhorrent violent material taken down more quickly and by more providers.
It is not certain that, if the laws had already been in place, it would have prevented the crimes of the nature involved in the Christchurch attack. It is also uncertain if access to that sort of content does encourage further crimes of the same nature. In any event the enacting legislation requires that, after the end of a 2 year period after commencement, the Attorney-General will review the operation of the new law.
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The Australian Government has been criticised heavily for the rush in which the legislation was brought on before Parliament and enacted and for a lack of public consultation. These new laws follow in the wake of Australia enacting world first decryption legislation 17 - also with speed and with little time for public consultation. Both laws have been drafted very broadly and much of the criticism has focussed on the unintended consequences that arise from that approach.
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The trend does indicate that Australia has an increasing appetite to regulate for some form of internet censorship. We will keep you updated as to these and other legislative developments dealing with internet censorship and privacy. Please contact Robyn Chatwood , Partner, in the Dentons Australian Privacy and Technology practice group, or your usual Dentons contact if you need further information or wish to be added to our list to receive updates on the developments.
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Australia suddenly passes new laws regulating streaming of abhorrent violent material by ISPs and other content providers. Regional Capabilities:. Share Linkedin Twitter Email Print.
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Disclaimer Unsolicited emails and other information sent to Dentons will not be considered confidential, may be disclosed to others, may not receive a response, and do not create a lawyer-client relationship. The case established that "those who publish defamatory material on the Internet are answerable before the courts of any nation where the damage to reputation has occurred".
Both the Gutnick case and the approach of the German Supreme Court regarding Dr Toben affirm the application of domestic jurisdiction to Internet content created overseas.
The application of the Racial Discrimination Act or state anti-vilification laws to overseas content has not been tested. All Australian states and the ACT have racial discrimination legislation in many ways similar to the federal Racial Discrimination Act. Their approaches to racial vilification and other conduct based on race hate are not uniform. This section provides only a brief overview of the relevant provisions. Only the NT has no racial vilification provisions at all. In , New South Wales became the first state to make it unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of a person or groups on the grounds of race.
An offence has not yet been prosecuted under this law. These states, as well as Queensland and Victoria, have both civil and criminal laws dealing with racial vilification. Queensland,  Victoria  and Tasmania  outlaw both racial and religious vilification. Tasmania  also covers both racial and religious vilification but imposes no criminal penalties. Unlike other jurisdictions, Western Australian law imposes criminal but not civil sanctions against racial vilification. In Western Australia, the Criminal Code was amended in to criminalise the possession, publication and display of written or pictorial material that is threatening or abusive with the intention of inciting racial hatred or of harassing a racial group.
It is noteworthy that the Western Australian legislation only addresses written or pictorial information - not verbal comments. The emphasis on written material arose in direct response to the racist poster campaigns of the Australian Nationalist Movement in the late s and early s. The following map summarises the relevant provisions in the states and territories. At the federal level, it is an offence to use the Internet intentionally to disseminate material that results in a person being menaced or harassed.
To establish racial vilification of a criminal nature, it is usually necessary to establish a high level of harassment or potential threat.
While the distribution of offensive material may form one end of the continuum of behaviours prohibited under state criminal law, generally, incitement to violence, threats to person or property, and so on, are required in order for state or federal criminal provisions to apply. The key difference is that the states and the ACT listed above have made race a specific element of the offence. It has been argued that the criminal provisions in the ACT, NSW, South Australia, Western Australia and Victoria apply to the publication of race hate material anywhere on the Internet if the material can be accessed in the state jurisdiction concerned.
Such an application of domestically enacted legislation to Internet users and service-providers around the world has been criticized as undermining the principle of state sovereignty and democracy - the right of states to legislate according to the will of their own citizens. This fact, in combination with the commonly acknowledged difficulties of regulating the Internet, illustrate that this concern is premature at best. Racial Hatred Act Racial Discrimination Act , s.
Note the legislation does not cover religion. Racial Discrimination Act , s18C 2 a. In some circumstances a 'private' conversation - at work for example - may amount to racial discrimination. Explanatory Memorandum. Since April conciliation is undertaken by the Commission's President rather than, as previously, the Race Discrimination Commissioner.
The racial vilification provisions were in force for only eight months in this reporting year. In FY this became the highest category of racial vilification complaints. When the Commission still had the function of hearing unconciliated complaints in a tribunal mode. This function was removed in April Specifically Dr Toben was imprisoned for the offences of criminal defamation, several counts of disparaging the memory of the dead and of inciting the populace: Greg Taylor, "Casting the Net Too Widely: Racial Hatred on the Internet", Criminal Law Journal , October , p. In this case the State of New Jersey.
New York. Although racial "harassment" is prohibited by the civil law provisions of the Anti-Discrimination Act NT - see section 20 1 b. The NT Criminal Code creates offences such as making threats s.
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Also see ss. Racial Vilification Act SA. Discrimination Act ACT , ss.
Anti-Discrimination Amendment Act Qld , ss. Racial and Religious Tolerance Act Vic , s. Anti-Discrimination Act Tas s.
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Criminal Code WA , ss. Benjamin's Pub. This application of state criminal law regarding racial vilification is argued by Greg Taylor, op. See particularly p. This needs to be weighed of course against the provisions of the clause 91, Schedule 5, Broadcasting Services Act Greg Taylor, op. Ibid, p. Search Search search. Racial Hatred Defined Since the introduction of provisions dealing with racial hatred in ,  the Racial Discrimination Act makes it unlawful to insult, humiliate, offend or intimidate another person or group in public on the basis of their race.