Racial Discrimination Law Amendments and the Reaction from the President of the Human Rights Commission
Monday 14 April 2014 @ 11.08 a.m. | Legal Research
As previously reported by TimeBase, Attorney General George Brandis has caused quite a storm when he called for the complete repeal of Section 18C of the Racial Discrimination Act 1975 (Cth), which proscribes so called offensive behaviour because of "race, colour or national or ethnic origin".
After Attorney-General George Brandis released an exposure draft of Amendments to the Racial Discrimination Act 1975 (Cth) on 25 March 2014, that would lift the ban on offence, insult or humiliation at the same time as creating a new protection against vilification, Professor Gillian Triggs, Australian Human Rights Commission president, in her speech to the National Press Club in Canberra on 9 April 2014, has labelled the proposed changes as "bad law".
Background to Government Amendments
During the election campaign, the Coalition promised to repeal or wind back Section 18C of the Racial Discrimination Act 1975 (Cth), to prevent any repetition of the Andrew Bolt case, mentioned in the article above. The Attorney-General talked of a “multi-front war” being waged against freedom of speech and proposed new provisions to strengthen this freedom.
The consequence is that an Australian government is seeking to water down legislation protecting human rights, and to reverse a trend towards increased protection for of the rights of minorities and vulnerable Australians, and consistent with this, the Attorney General has asked the Australian Law Reform Commission to determine those laws that breach rights.
The Proposed Four Government Amendments
The Government proposes a full repeal of Sections 18B, 18C, 18D and 18E. These would be replaced with an all encompassing provision focusing on villification and intimidation.
Professor Gillian Triggs rebuts these repeals with the following arguments:
- The first major reform to delete the words “offend, insult and humiliate”, replacing them with “vilify” and retaining “intimidate”.
Professor Gillian Triggs says:
I am happy to accept the removal of the words offend and insult, if the substituted words strengthen the law. The new draft adopting the word “vilify” –while on its face a powerful term- is limited to inciting hatred by a third party. That’s a very narrow definition, and in practice incitement will be difficult to prove. It would be better, I suggest, to revert to the more generally accepted definition of “vilify”, which is to denigrating the person or group spoken about.
“Intimidate” is another problematic word, because it is defined to relate only to fear of physical harm. Again, this is a limited definition that, if adopted, means the law can apply only to the rare situations in which racial abuse spills over into violence.
- The second major reform envisaged is the revision of the defenses to prosecution. Section 18D currently protects speech that is fair and in good faith. This provision is to be amended so that a defendant need demonstrate only that the words were used in “the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter”.
Professor Gillian Triggs replies to this as follows:
To adopt such a wide exemption would be a truly radical change, sweeping away free speech exemptions that, over the past nearly 20 years, have been applied by the courts in a measured way to dismiss the vast majority of prosecutions.
Effect of the Exposure Draft Amendments if Enacted
Professor Gillian Triggs provides the following three examples which illustrate currently illegal actions which might become legal if the exposure draft amendments come into force:
- "Racial abuse of an athlete at a football match would be permitted, because it would be unlikely to intimidate that person or incite others to hate him or her on racial grounds.
- Holocaust deniers might be free to air their views, on the grounds that those views were part of public discussion of a political, social or academic matter.
- A Muslim woman wearing the hijab in the local park with her children could be abused on the basis of her religion, quite legally, because she was not physically intimidated and no one was incited to hate her."
Professor Triggs has also further criticised the Government for arguing for stronger freedom of speech protections while failing to protect other human rights, such as those of asylum seekers. She says the Government's argument for freedoms is inconsistent.
In the words of Frank Brennan,
"The criminal law is a very blunt instrument for reshaping the hearts of racists and clearing the air of racist sentiment. Such interference with civil liberty does nothing to enhance further the human rights of the woman wearing the hijab. It does not help in the resolution of interethnic conflict. It does nothing to produce more reasoned public discussion about migration or Aboriginal rights, which are the two key issues relating to race and which play upon the public's racial fears. It will bring the criminal law and its governors into disrepute, if the criminal sanctions are ever invoked...What [Senator Brandis] has produced is neither fish nor fowl. It's the racial hatred law you have when you don't want a racial hatred law."
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