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Proposed changes to the Race Discrimination Act: Bad cases make bad law

Rights Rights and Freedoms

The amendments proposed by the Government to the Racial Discrimination Act take with one hand and take even more with the other. The current protections against racial hatred have been significantly reduced and the surviving ban on ‘racial vilification’ and ‘intimidation’ will not apply if the act takes place as part of public discussion.

While public comment has focused on the removal of the words “offend, insult and humiliate” from the current section 18 C, debate has missed the less obvious but more significant and retrograde changes in the Exposure Draft.

The most significant is the treatment of the exemptions in existing section 18D. Under existing law, it is not unlawful to insult or intimidate another person on the basis of race, colour, or national or ethnic origin if you have acted “reasonably and in good faith” in respect of an artistic work or if you make a statement for any genuine purpose in the public interest. Additionally, an exemption applies if a report on a matter of public interest is “fair and accurate” or is “fair comment’ on a matter of public interest by the writer who is expressing a ‘genuine belief’.

Over the last nearly 20 years since they were introduced, these exemptions have provided a balanced restraint on the section 18 C prohibitions on racial hatred and have been used by the Courts to dismiss several cases. Crucially, section 18D is one of the few legislative protections for freedom of speech that exist under Australian law.

The Attorney General introduced the Exposure Draft by referring to the successful civil case against Mr Bolt under section 18C. Mr Bolt was unable to convince the Federal Court that any of these free speech exemptions applied to him. In short, his comments were found to be inaccurate and not made in good faith. Notably, no appeal was made to challenge the Court’s findings.

In what appears to be a contrivance to ensure that a Bolt-type case is no longer possible, the Draft proposes to delete the exemptions in section 18D.  It is now proposed that the prohibitions of vilification and intimidation will not apply if the behaviour arises in “the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter’.

This astonishingly broad exemption will positively permit racial vilification and intimidation in virtually all public discussions. Indeed, it is hard to think of examples of racial vilification or intimidation in public that will not be exempted by these changes. Will, for example, racial vilification on public transport, at football matches or the factory canteen be protected because this is a ‘social’, ‘cultural’ or ‘religious’ matter?

Under the proposed changes, intimidation is confined to fear of physical harm.  The Australian Human Rights Commission is in a unique position to know that the hundreds of inquiries or complaints we receive each year alleging racial abuse, typically on the internet, are not about a fear of physical violence. If psychological and social impacts are excluded from the prohibition, very few cases will be covered by the legislation. It is unwise to disregard the experiences of racial abuse regularly complained of by minority and community groups in Australia. If there is an evil to be addressed by legislation, it should send the strong message that Australia rejects racial hatred in our successful multicultural society.

The Commission saw a 59% spike in racial hatred complaints in 2013, and a 5% rise in general race- based complaints. Not only will the Attorney’s proposals reduce Australians access to the Commission to conciliate their experiences of racial abuse, they also reduce the educative role of the Commission in achieving systematic change, especially in employment, to create a culture that rejects racial abuse.

It is wise of the Attorney to produce his reforms in the form of an Exposure Draft, subject to further consultation. There is room to reach a compromise by finding the right balance between free speech and the right not to be subjected to racial abuse in public. One way of achieving this may be to ensure that any exemption from the prohibition on racial vilification only applies to communications that occur in good faith.

One thing is for sure, the debate about the appropriate balance between free speech and the right not to be subjected to racial abuse in public has raised community awareness of the issue. The Commission looks forward to continuing to facilitate this debate.


Published in The Australian

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