This week the Attorney General, Senator George Brandis, has released an exposure draft of amendments to the Racial Discrimination Act and is seeking public comment.
Australia is the most successful and harmonious multicultural society in the world. I know that all of my colleagues in the Abbott Government believe that we should have no tolerance for those who seek to promote racial hatred and in doing so undermine the very fabric of our society.
Many residents of my electorate of Wentworth have first hand experience of the consequences of racial hatred, of how easily what appears to be “crazy theories” and “ranting and raving” too weird to take seriously can lead to genocide.
Racism and racial hatred have killed millions, wounded and marginalised many more and destroyed societies and nations. They have no place in Australia.
At the same time , as is often the case in politics and government, difficult questions of definition and balancing competing values arise.
How far should prohibitions on speech amounting to racial vilification go? And by what standards should they be judged? What about our equally important value of free speech?
These amendments are published as an exposure draft because we know getting the balance right is hard and we want to ensure that Australians are carefully consulted before any specific changes are moved in the Parliament as Bill to amend the Act.
Following the decision in the Andrew Bolt case in 2011 Tony Abbott committed a Coalition Government to repeal section 18C of the Racial Discrimination Act in its current form so that in the words of the “Real Solutions” policy document “Prohibitions on inciting racial hatred or intimidation of particular groups should be focused on offences of incitement and causing fear but not a prohibition on causing offence.”
Mr Abbott spoke at length about free speech, s.18C and the Bolt Case in this speech in 2012.
Let me first set out the relevant provisions of the Racial Discrimination Act as it stands (available online here):
18B) Reason for doing an act
(a) an act is done for two or more reasons; and
(b) one of the reasons is the race, colour or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act);
then, for the purposes of this Part, the act is taken to be done because of the person's race, colour or national or ethnic origin.
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.
Note: Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.
(2) For the purposes of subsection (1), an act is taken not to be done in private if it:
(a) causes words, sounds, images or writing to be communicated to the public; or
(b) is done in a public place; or
(c) is done in the sight or hearing of people who are in a public place.
(3) In this section:
"public place" includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.
Section 18C does not render unlawful anything said or done reasonably and in good faith:
(a) in the performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
(c) in making or publishing:
(i) a fair and accurate report of any event or matter of public interest; or
(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.
18E) Vicarious liability
(1) Subject to subsection (2), if:
(a) an employee or agent of a person does an act in connection with his or her duties as an employee or agent; and
(b) the act would be unlawful under this Part if it were done by the person;
this Act applies in relation to the person as if the person had also done the act.
(2) Subsection (1) does not apply to an act done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing the act.
The exposure draft proposes to change the existing law in the following manner:
1. Section 18C is repealed.
2. Sections 18B, 18D and 18E are also repealed.
3. The following section is inserted:
“(1) It is unlawful for a person to do an act, otherwise than in private, if: (a) the act is reasonably likely:
(i) to vilify another person or a group of persons; or
(ii) to intimidate another person or a group of persons, and
(b) the act is done because of the race, colour or national or ethnic origin of that person or that group of persons.
(2) For the purposes of this section:
(a) vilify means to incite hatred against a person or a group of persons; (b) intimidate means to cause fear of physical harm:
(i) to a person; or
(ii) to the property of a person; or
(iii) to the members of a group of persons.
(3) 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.
(4) 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.”
The Government welcomes your views on this matter and they should be sent to [email protected] or:
Human Rights Policy Branch
3-5 National Circuit
BARTON ACT 2600
If you wish to copy me on your submission, and please make sure to do so if you are one of my constituents in Wentworth – you can send it to me at [email protected] or to my office in Sydney: PO Box 545, Edgecliff NSW 2027.
To assist in your formulation of a submission, let me walk through the substance of some of the changes:
1. 18B is entirely removed. This section is designed to ensure that if a person commits an act prohibited under s. 18C but does so for several reasons only one of which is in order to insult, offend, humiliate or intimidate a person on the basis of race etc, then even if that reason is not the dominant one, it will be treated as THE reason for the commission of the prohibited act for the purpose of s.18C.
2. 18C and 18D are also repealed but replaced by a new 18AA. The major changes here are that the words “insult, offend, humiliate” are deleted and replaced subsection 1 with the word “vilify” and so the core prohibition is to commit an act reasonably likely to vilify another person or group of persons or intimidate another person or group of persons. Prior to the election Senator Brandis said on several occasions that “there was a very lively community debate about whether or not to say something which merely offends somebody’s political opinions or sensibilities should be against the law.” Do you agree? And what about “insult or humiliate” – is “vilify” enough to replace them?
3. “Vilify” and “intimidate” are both defined in subsection 2. Do you think those definitions are appropriate? If you do not, then let us know how you would change them and why.
4. By what standards should acts alleged to vilify or intimidate be judged? Subsection 3 states that it is to be judged by the standards of an ordinary reasonable member of the Australian community, not those of a particular group. This would mean that if words were uttered about a person who is a member of Group A and by the standards of that Group the words would be regarded as reasonably likely to vilify that person, that would not be enough to constitute a breach of the new section UNLESS the words concerned would be so regarded by the wider Australian community as well. To date I haven’t found this new section to be particularly controversial as It concurs with what most people would expect the law to be.
5. Subsection 4 is in effect an exemption of words etc which are communicated “in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter.”
6. This is a most important subsection and its counterpart in the current law is section 18D. It is designed to ensure that free speech, discourse, debate is not chilled or inhibited by subsection 1.
7. A big difference between subsection 4 and the current section 18D is that it does not expressly require the exempted speech to be “reasonable or in good faith”
8. A very common suggestion including from Jewish communal organisations is that “reasonably and in good faith” should be expressly inserted in subsection 4, otherwise it has been argued the scope of subsection 4 would enable almost any speech to be exempted other, perhaps, than, as the Prime Minister has noted, language which was not part of a discussion such as violent or vulgar abuse.
9. Note also 18E is proposed to be deleted entirely, let us know if you have a view about that too.