Two men have sparked outrage in the US by posting a Halloween photograph to Facebook depicting a black-faced man in a bloody hoody dressed as Trayvon Martin accompanied by a white man dressed as George Zimmerman, wearing a shirt that reads “Neighbourhood Watch”, fashioning a gun out of his right hand, pointed at the man dressed as Martin.

For those who don’t know, Treyvon Martin was a 17 year old African American high school student who was shot in February 2012 by George Zimmerman, a 28 year old hispanic man and neighbourhood watch co-ordinator for the gated community where Martin was temporarily staying and where the shooting took place.

The insensitive photographs have been met with utter disgust, with one online blogger posting “Is the life of a young black man worth nothing to us? A teen who was unjustly followed and murdered”.

So could your Halloween costume be cause for an action under the Racial Discrimination Act, 1975 or the Anti-Discrimination Act, 1977 (NSW)?.

Anti-discrimination Act, 1977

Section 20C of the NSW Act regarding Racial Vilification provides as follows:-

“It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons, on the ground of the race of the person or members of the group”.

Section 20B defines a “public act” as one of the following:-

1. Any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material; and
2. Any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia; and
3. The distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.

Racial Discrimination Act, 1975

Similarly, Section 18C of the Federal Racial Discrimination Act provides that it is unlawful for a person to do an act, otherwise than in private, if:-

1. The act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
2. 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.

An act is taken not to be done in private if it:-

1. Causes words, sounds, images or writing to be communicated to the public; or
2. Is done in a public place; or
3. Is done in the sight or hearing of people who are in a public place.

Social commentator and PHD Researcher Emily Brayshaw, says that very “few cultures have opened themselves up to appropriation” for the purposes of Halloween costumes.  She gives the example of the native American Headdress which was not worn by all indigenous Americans, but only by those who earned the privilege to wear one within their community.  Her advice to party-goers it to be culturally sensitive in their choice of clothing this Halloween.

To found out more about your rights to be free from discrimination contact Brazel Moore Lawyers on (02) 43247699.