A recent decision of the Queensland Civil and Administrative Tribunal (Huenerberg v Murray [2023] QCAT 175) has highlighted that a person can be found to have made a racially based insult when referring to a country rather than a race.
In the particular matter, the Respondent had referred to the Applicant in a way that was found to be vilification on the grounds of race contrary to sec 124A of the Anti-Discrimination Act 1991. The part of the comment which referred to “race” was the description of the person as “German”.
Is “German” a race? We often consider “race” as something that is relevant to physical characteristics. Relevantly however, the Anti-Discrimination Act has a very wide definition of “race” including:
- Colour; and
- Descent or ancestry; and
- Ethnicity or ethnic origin; and
- Nationality or national origin.
As a result, for the purposes of the Anti-Discrimination Act 1991, it seems that one could have a race of German, Australian, or any other nationality, although it is relevant that the Member considered that the reference to being German was insulting that it was a reference “to the fact that he was in some way foreign to Australia”. Of course, the complained of comment was not just that the complainant alleged that he was called “German” (there was a more colourful description that followed), but it was the reference to “German” that enlivened sec 124A.
While the decision raises a number of interesting concepts in the interpretation of sec 124A, it is worth noting before letting fly with any choice insults that racial vilification – for the purposes of the Anti-Discrimination Act – is not limited to matters that would involve physical characteristics, but can involve many other matters.
