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Background

This question was inspired by I was racially abused at a public park. What legal actions can I take?, although I am not asking specifically about that case. In that question someone, in Australia, was verbally abused in a seemingly racist manner. One of the answers quotes Australia's Federal Racial Discrimination Act 1975 (emphasis mine):

18C Offensive behaviour because of race, colour or national or ethnic origin

(1) It is unlawful for a person to do an act, otherwise than in private, if:

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b) 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.

However, in an edit the OP states he is "not of middle eastern decent but I do have a beard. I was wearing a robe like garment for a cultural function I was attending". This suggests (to my not-legally-trained brain) that even if Section 18C were to apply1 when the target was someone with a different "race, colour or national or ethnic origin", it might not apply if the target only gave the appearance of having a different "race, colour or national or ethnic origin".

1 For the particular incident from the linked question, it is possible that Section 18 would not apply in any case. This Wikipedia page suggests that for 18C to apply, courts require speech to have "... profound and serious effects, not to be likened to mere slights.". I don't know Australian case-law to know whether the incident described would fall under this requirement: for my question, assume that the acts would meet such requirements.

Question

For brevity, I will use "target person" to mean someone "of/from a different race, colour or national or ethnic origin".

If someone carries out an alleged act of racial discrimination / intimidation / abuse (verbal or physical) against someone they believe to be a target person, would it be a defence (or would it not be an offence), if it turns out that the other party was not actually a target person, but just gave the appearance of being a target person?

Assumptions and Caveats

  • I do now want to debate about whether it is right or wrong to try to legislate in this way, whether it is "thought control taken too far", or whether other approaches, such as better education, may be better. If necessary, assume that appropriate legislators (parliament, congress, whatever) have decided through due democratic process that they want to punish the "appearance of being racist", whether the target actually is of a different ethnic group, or is mistaken for belonging to such a group by the perpetrator.

  • I assume that were the target(s) of the attack/abuse to actually be of/from a different race, colour or national or ethnic origin, there would be no question about guilt. The "doubt" is only whether legislation also applies when the perpetrator only believes their victim to be a target person.

Scope

As the original question was about Australia, an answer addressing Australian law would be welcome. As I'm from the UK, an answer from that perspective (specifically, English law) would also be welcome. However, providing it is not seen as being too broad, answers from other jurisdictions are also welcome.

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  • Some laws in some jurisdictions use phrasing like "actual or perceived race" to explicitly clarify this issue. For example, in the US, 18 USC 249.
    – Nate Eldredge
    Commented Oct 4, 2020 at 19:19
  • Same in the U.K. In the USA the reasoning is that anti-discrimination laws are not there to protect one particular person, but that particular group, so we don’t want to allow any excuses.
    – gnasher729
    Commented Oct 5, 2020 at 11:19
  • Not sure if this answers the question but in the UK it's illegal to use words in public likely to incite racial hatred regardless of whether they're directed at somebody, so you could possibly be prosecuted for shouting racist abuse regardless of whom it is directed at.
    – Stuart F
    Commented Oct 6, 2020 at 10:46

1 Answer 1

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Q: Is it an offence if the target of racism only appears to be of/from a different race, colour or national or ethnic origin? Yes

Q: If someone carries out an alleged act of racial discrimination / intimidation / abuse (verbal or physical) against someone they believe to be a target person, would it be a defence (or would it not be an offence), if it turns out that the other party was not actually a target person, but just gave the appearance of being a target person? No

Short answer:

The victim's actual, or perceived, race is not important in this context - it's the actions and intent of the offender that creates the various offences which carry a higher sentence due to the racist element being an "Aggravating Factor"

Long answer:

(Just in the context of race-related "hate crimes")

DISCRIMINATION falls within the Equality Act  2010 which primarily relates to unlawful discrimination within employment, or the provision of goods or services on the grounds of a person's protected characteristics defined by s.4:

The following characteristics are protected characteristics —

... race ...

s.13 creates the offence:

(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

...

(5) If the protected characteristic is race, less favourable treatment includes segregating B from others ...

s.26 of the 2010 Act also creates an offence of harrassment (although it is primarily concerned with unwanted and unwarranted sexual advances it is not exclusively so):

(1) A person (A) harasses another (B) if —

(a) A engages in unwanted conduct related to a relevant protected characteristic, and

(b) the conduct has the purpose or effect of—

(i) violating B's dignity, or

(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

...

(5) The relevant protected characteristics are — ... race

RACIALLY AGGRAVATED OFFENCES are created by s.28 of the Crime and Disorder Act 1998 and carry are greater maximum sentence than the equivalent non-aggravated offences:

  1. An offence is racially ... aggravated for the purposes of sections 29 to 32 below if —

(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a racial ... group ...

s.29 relates to certain assaults under the Offences Against the Person Act 1861

s.30 relates to certain offences under the Criminal Damage Act 1971

s.31 relates certain to offences under the Public Order Act 1986

s.32 relates to certain offences under the Protection from Harassment Act 1997

OTHER OFFENCES fall within s.145 of the Criminal Justice Act 2003 which captures those not dealt with by the 1998 Act and requires the court to, for example, impose a sentence greater than it would for a comparable offence that lacks a racist element:

(1) This section applies where a court is considering the seriousness of an offence other than one under sections 29 to 32 of the Crime and Disorder Act 1998 ...

(2) If the offence was racially or religiously aggravated, the court—

(a) must treat that fact as an aggravating factor

...

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  • 1
    Superb answer. For me, the clincher is the parenthetic phrase "based on the victim’s membership (or presumed membership)" from s.28 of the Crime and Disorder Act 1998.
    – TripeHound
    Commented Mar 6, 2021 at 10:47
  • @TripeHound Ta. Also, I ommitted (in error) s.9(1) of the 2010 Act which states race includes colour - so even a mistake about the victim's true heritage will be captured by the definition of unlawful discrimination.
    – user35069
    Commented Mar 6, 2021 at 11:38

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