Vilification, discrimination and defamation: different laws for different harms

People targeted by hostile public statements about their race, religion, sexuality or gender often ask whether they can sue for defamation. Sometimes they can. Often, however, the statement was not about them personally, or it expressed contempt rather than a false allegation of fact, and defamation law has little to offer. This article explains the distinction, outlines the federal, Queensland, New South Wales and Victorian provisions, and considers how they interact.

Two different harms

Defamation protects individual reputation. A plaintiff must show that a publication carried imputations about them that would lower them in the estimation of ordinary reasonable people and, outside Western Australia, that it caused or is likely to cause serious harm to their reputation.¹ The plaintiff must be identified. A statement attacking a large or indeterminate class, such as all adherents of a religion, generally identifies no individual member and none of them can sue, although a statement about a small, defined group may, depending on context, identify each member individually. Truth is a complete defence, and the honest opinion defence protects comment on matters of public interest based on proper material.²

Vilification laws are directed at public conduct that incites hatred, serious contempt or severe ridicule of people because of a protected attribute or, under the federal racial provision, conduct reasonably likely to offend, insult, humiliate or intimidate people because of their race. The concern is the effect on the target group rather than individual reputation; truth is not the central question, and no individual need be named.

Discrimination law concerns less favourable treatment because of an attribute in work, education, services and similar areas, and meets defamation mainly in workplace disputes.

The Commonwealth racial provisions

Part IIA of the Racial Discrimination Act 1975 (Cth) applies throughout Australia. Section 18C(1) makes it unlawful to do an act, otherwise than in private, that is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people, where the act is done because of the race, colour or national or ethnic origin of that person or of some or all of the group.³ An act is not done in private if it communicates to the public or is done in or within sight or hearing of a public place.⁴

The courts confine the words “offend, insult, humiliate or intimidate” to conduct with profound and serious effects, not to be likened to mere slights, judged objectively by the likely effect on a reasonable member of the group.⁵ In Eatock v Bolt, Bromberg J held that two newspaper columns about Aboriginal people of fair complexion contravened s 18C and were not exempted by s 18D. They contained errors of fact, distortions of the truth and inflammatory language, and so were not written reasonably and in good faith. The orders were a declaration, a restraint on republication and a corrective notice, with no damages.^{6 7} In Faruqi v Hanson, Stewart J held that a tweet telling a senator to go back to Pakistan contravened s 18C. His Honour rejected the fair comment exemption because the tweet was an angry personal attack, and rejected a constitutional challenge to Part IIA. The tweet was ordered to be deleted; the applicant had disavowed damages.⁸

Section 18D exempts anything said or done reasonably and in good faith in an artistic work, in a genuine academic, artistic, scientific or public interest debate, in a fair and accurate report, or in a fair comment expressing a genuine belief.⁹ The vocabulary resembles defamation defences, but there is no defence of truth as such.

A person aggrieved, or someone acting on their behalf, may lodge a written complaint with the Australian Human Rights Commission, which attempts conciliation.¹⁰ The President may terminate a complaint on various grounds, including that it was lodged more than 24 months after the conduct or has no reasonable prospect of settlement.¹¹ Only after termination may an application be made to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2), within 60 days of the termination notice or such further time as the court allows; the court may make any orders it thinks fit, including declarations, orders not to repeat the conduct and compensation.¹²

Queensland

Section 124A of the Anti-Discrimination Act 1991 (Qld) makes it unlawful, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of a person or group on the ground of race, religion, sexuality, sex characteristics or gender identity.¹³ Three exceptions apply: fair reports of public acts; publications that would attract absolute privilege in defamation; and public acts done reasonably and in good faith for academic, artistic, scientific or research purposes or other public interest purposes.¹⁴ Complaints are made to the Queensland Human Rights Commission, ordinarily within one year, and may be referred to the Queensland Civil and Administrative Tribunal (or, for work related matters, the Queensland Industrial Relations Commission) if conciliation fails.¹⁵ A complainant incurs no civil liability merely because the complaint was made.¹⁶ Serious vilification is an offence under s 52A of the Criminal Code (Qld) where the incitement is knowing or reckless and includes threatening physical harm; the maximum is three years imprisonment.¹⁷

The Anti-Discrimination Bill 2024 (Qld), released as a consultation draft, was never enacted. Separately, the Respect at Work and Other Matters Amendment Act 2024 (Qld), which was enacted, would replace s 124A with ss 124B to 124D: a harm based ground (s 124C) for public acts that a reasonable person would consider hateful, reviling, seriously contemptuous or seriously ridiculing because of age, gender identity, impairment, race, religion, sex, sex characteristics or sexual orientation, and a recast incitement ground (s 124D). Those amendments were to commence on 1 July 2025 but were deferred in April 2025 to a date to be fixed by proclamation; as at 31 October 2026 the reprint still records them as uncommenced.¹⁸ A review of Queensland’s human rights and anti discrimination framework announced on 11 June 2026 and led by Peter Flanagan KC covers the uncommenced provisions and is due to report by 31 March 2027.¹⁹

New South Wales

Section 20C of the Anti-Discrimination Act 1977 (NSW) makes it unlawful, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of a person or group on the ground of race.²⁰ Parallel provisions deal with transgender vilification (s 38S), homosexual vilification (s 49ZT), HIV or AIDS vilification (s 49ZXB) and religious vilification (s 49ZE).²¹ The exceptions mirror Queensland’s, including communications that would attract absolute privilege under the Defamation Act 2005.²² Complaints go to the President under the Act, who may decline a complaint about conduct more than 12 months old; unresolved complaints may be referred to the NSW Civil and Administrative Tribunal.²³

The former offence in s 20D was repealed in 2018 and replaced by s 93Z of the Crimes Act 1900 (NSW), which makes it an offence, by a public act, intentionally or recklessly to threaten or incite violence on the ground of race, religious belief, sexual orientation, gender identity, intersex status or HIV or AIDS status, with a maximum of three years imprisonment.²⁴ In 2025 Parliament added s 93ZAA, an offence of intentionally and publicly inciting racial hatred in a way that would cause a reasonable person in the target group to fear harassment, intimidation or violence, with a maximum of two years imprisonment.²⁵

Victoria

The Justice Legislation Amendment (Anti-vilification and Social Cohesion) Act 2025 (Vic) received assent in April 2025. Its criminal provisions, inserted into the Crimes Act 1958 (Vic), commenced in September 2025. Its civil provisions commenced on 15 April 2026, when the civil protections in the Racial and Religious Tolerance Act 2001 (Vic) were repealed and moved, in expanded form, into a new Part 6A of the Equal Opportunity Act 2010 (Vic).²⁶ Two civil grounds now exist. Section 102D prohibits public conduct, engaged in because of a protected attribute, that would be reasonably likely to be considered by a reasonable person with that attribute to be hateful or seriously contemptuous of, or reviling or severely ridiculing, the person or group; s 102E prohibits public conduct likely to incite hatred against, serious contempt for, revulsion towards or severe ridicule of a person or group on the ground of a protected attribute.²⁷ The protected attributes in s 102B are disability, gender identity, race, religious belief or activity, sex, sex characteristics, sexual orientation and personal association with a person identified by one of those attributes; public conduct under s 102C includes communication through social media. Section 102G excepts conduct engaged in reasonably and in good faith in an artistic work, for a genuine academic, artistic, public interest, religious or scientific purpose, or in a fair and accurate report of a matter of public interest. A complainant may go to the Victorian Equal Opportunity and Human Rights Commission or directly to the Victorian Civil and Administrative Tribunal under s 122.³³ Conduct before 15 April 2026 remains governed by the 2001 Act.

Remedies compared

Only defamation routinely produces substantial general damages, subject to the statutory cap on non economic loss;²⁸ vilification proceedings more often end in declarations, removal orders, corrective notices and apologies.

When both claims arise

A single publication engages both bodies of law when it names a person and attacks them because of a protected attribute. In Faruqi v Hanson the tweet named the applicant, but she relied on s 18C, which required no proof of false imputations or serious harm to reputation and let the court consider the effect on the wider groups she belonged to.

The first is who was harmed. If the grievance is an attack on a community, its members cannot sue for defamation and a vilification complaint is the only civil route. If a named individual has been falsely accused of discreditable conduct, defamation addresses that harm directly and vilification laws may not reach it at all.

The second is the nature of the statement. Abuse and contempt that convey no factual allegation may not be defamatory but may be vilification; a measured but false factual allegation about a named person is the reverse.

The third is process and cost. Vilification complaints are cheap to lodge and begin with conciliation; defamation proceedings cost more, although the offer to make amends procedure encourages early resolution.²⁹ The one year limitation period in defamation runs regardless of any complaint lodged elsewhere.³⁰

The fourth is the defences. The s 18D exemption and the defences of honest opinion and public interest have different elements; a publisher careless about facts may lose the exemption, as in Eatock v Bolt, while retaining arguments in defamation, or the reverse.

Discrimination complaints and defamation about the same facts

The commonest interaction arises in employment, where an employee complains of discrimination or harassment by a colleague, and the colleague says the allegations are false and defamatory.

Statements made in proceedings before an Australian court or tribunal attract absolute privilege under s 27; the definition of Australian tribunal covers bodies with power to take evidence on oath, including QCAT, NCAT and VCAT.³¹ The Australian Human Rights Commission Act provides that a person is not liable to any action in respect of loss suffered by another by reason only that a complaint was made, or information or evidence given, to the Commission.³⁴ Queensland’s Act contains an equivalent provision for complaints to its Commissioner.¹⁶ In New South Wales, Schedule 1 to the Defamation Act gives absolute privilege to matter published for the purpose of the execution or administration of the Anti-Discrimination Act 1977 to or by the President of the Board that administers that Act or a member of the Civil and Administrative Tribunal.³⁵ A complaint to any of these bodies is therefore a poor foundation for a defamation claim. Elsewhere the protection depends on the local statute or, failing that, qualified privilege.

Internal complaints to an employer are not covered by absolute privilege, but qualified privilege at common law and under s 30 will ordinarily apply because the complainant has a legitimate interest in raising the matter and the employer a corresponding interest in receiving it.³² The defence is lost if the complaint was actuated by malice. A complaint known to be false may therefore be actionable. Repetition outside the complaint process is not privileged.

The accused person may also be defamed if the employer publishes the accusation to people with no legitimate interest in receiving it (see the article on defamation in the workplace). A defamation claim brought in response to a discrimination complaint may itself be alleged to constitute victimisation under the relevant anti discrimination legislation, and the person complained about should take advice before responding in that way.

Practical points

The first question is whether the attack was personal and factual, which points to defamation, or an expression of hatred or contempt because of an attribute, which points to vilification. Preserve the publication, its date and its audience, and note the time limits: one year for defamation and for Queensland and New South Wales complaints, and two years for federal complaints. A publisher facing both allegations should assess them separately.

Differences between jurisdictions

Section 18C applies nationally but covers only race, colour and national or ethnic origin. Queensland and New South Wales use an incitement test across several attributes, Queensland’s harm based ground is enacted but not commenced, and Victoria from 15 April 2026 applies both incitement and harm based tests to the widest list of attributes. The other states and territories have their own provisions, which vary considerably. The defamation provisions discussed are uniform except in Western Australia, which retains the pre 2021 text, and the two territories use different section numbering in their equivalent Acts.

Getting advice

Harris Defamation Lawyers acts for the subjects of hostile publications and for those accused, and can advise on which avenue, if any, fits the facts.