Before the last election then Opposition Leader Tony Abbott promised to repeal section 18C of the Racial Discrimination Act, which makes it unlawful to publicly “offend, insult, humiliate or intimidate” a person or a group of people.
Section 18C was introduced into the Racial Discrimination Act in 1995, during Paul Keating’s prime ministership. For the following 11 years under Prime Minister John Howard, this effective protection against hate speech remained on the statute books. The reason for Senator Brandis’ proposed major changes appears to be almost solely as a result of the successful case brought against pro Liberal journalist, Mr Andrew Bolt.
In a 2011 case, Federal Court Justice Bromberg found that Mr Bolt breached Section 18C, holding that “fair-skinned Aboriginal people” were reasonably likely, in all the circumstances, to have been offended, insulted, humiliated or intimidated by the imputations conveyed” in several articles by Bolt published in the Herald Sun. Mr Bolt did not appeal the decision.
As was pointed out by David Danby in an article published on the Guardian.com last Tuesday, “the whole purpose of section 18C is to promote tolerance by bringing parties together to discuss the subject of their complaint and arrive at a conciliated and agreed outcome. Between 13 October 1995 and June 2010 the Australian Human Rights Commission received 1266 complaints under the RDA. Only approximately 20 matters were decided in the courts. Fifty-three per cent of racial vilification complaints in 2012-13 were resolved at conciliation. Less than 3% of racial hatred complaints actually went to court.”
Government’s Media Release
In a Media Release published on the Attorney General’s website last Tuesday, it was announced that “the Government Party Room this morning approved reforms to the Racial Discrimination Act 1975 (the Act), which will strengthen the Act’s protections against racism, while at the same time removing provisions which unreasonably limit freedom of speech. The legislation will repeal section 18C of the Act, as well as sections 18B, 18D, and 18E.”
A new section will be inserted into the Act which will preserve the existing protection against intimidation and create a new protection from racial vilification. This will be the first time that racial vilification is proscribed in Commonwealth legislation sending a clear message that it is unacceptable in the Australian community.
In the media release, Senator Brandis goes on to say: “I have always said that freedom of speech and the need to protect people from racial vilification are not inconsistent objectives. Laws which are designed to prohibit racial vilification should not be used as a vehicle to attack legitimate freedoms of speech.”
“This is an important reform and a key part of the Government’s freedom agenda. It sends a strong message about the kind of society that we want to live in where freedom of speech is able to flourish and racial vilification and intimidation are not tolerated,” concludes the media release.
The draft amendments are released for community consultation. The Government is interested in hearing from all stakeholders on the proposed reforms. Submissions can be made until 30 April 2014 at email@example.com. A copy of the draft amendments in the Exposure Draft is reproduced at the end of this article.
The implications of the proposed changes explained
In an article published today on The Conversation website, Professor Simon Rice OAM, Professor of Law and Director of Law Reform and Social Justice at Australian National University in Canberra, explains: “There are three essential parts to the proposed changes. First, they drop the current test for racial vilification – “conduct causing offence, insult, humiliation or intimidation” – and replace it with a test of “conduct that is reasonably likely to vilify [which means incite hatred] or to intimidate”.
Professor Rice goes on: “The second part to the proposed changes is that they switch the perspective for assessing racial vilification from the feelings of a reasonable person to whom conduct is directed, to the view of an “ordinary reasonable member of the Australian community” as to whether conduct is likely to intimidate or incite hatred.”
“The third part and perhaps most important of the proposed changes is the conduct that is explicitly permitted. Vilifying or intimidating public conduct that is done because of a person’s race is prohibited, but it is allowed when it is done in the course of public discussion. There is no qualification to this exception. Every other vilification law in Australia limits exceptions to conduct that is done reasonably and in good faith.
“This throws out the baby, the bathwater and the bath. The exception is so wide to a prohibition that is so narrow that people will be able to offend, insult, humiliate and incite serious contempt or severe ridicule on the basis of race. They will be able to do so unreasonably and dishonestly, with impunity.”
“The most troubling aspect about the proposed changes – along with knowing that Australia’s chief law officer is a champion of the right to bigotry – is the blithe assertion of a dominant cultural perspective,” writes Professor Rice.
“When deciding the likeliness of incitement, who will not claim for themselves the title an ‘ordinary reasonable member of the Australian community’?” asks Professor Rice. “The role will be taken by a judge, who will decide the likelihood of incitement from their perspective, and not as it might be for the actual audience of the comment.”
“This ‘objective test’ is a double whammy to a victim of vilifying conduct. Not only do the proposed changes tell them that their real and reasonable sense of offence is irrelevant, the changes say it is irrelevant to know how the intended audience of vilifying conduct might actually react,” explains Professor Rice.
Freedom of speech (Repeal of S. 18C) Bill 2014
The Racial Discrimination Act 1975 is amended as follows:
- Section 18C is repealed.
- Sections 18B, 18D and 18E are also repealed.
- The following section is inserted:
- “ It is unlawful for a person to do an act, otherwise than in private, if:
- the act is reasonably likely:
- to vilify another person or a group of persons; or
- to intimidate another person or a group of persons,
- the act is reasonably likely:
- the act is done because of the race, colour or national or ethnic origin of that person or that group of persons.
- For the purposes of this section:
- vilify means to incite hatred against a person or a group of persons;
- intimidate means to cause fear of physical harm:
- to a person; or
- to the property of a person; or
- to the members of a group of persons.
- Whether an act is reasonably likely to have the effect specified in sub-section (1)(a) is to be determined by the standards of an ordinary reasonable member of the Australian community, not by the standards of any particular group within the Australian community.
- This section does not apply to words, sounds, images or writing spoken, broadcast, published or otherwise communicated in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter.”