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Federal

Mar 25, 2014

Racial Discrimination Act: Brandis moves to amend -- not repeal -- 18C

The government has unveiled its amendments to the Racial Discrimination Act, removing the concept of offence but adding racial vilification for the first time.

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In what appears to be an acknowledgement of community concerns about the impact of removing the “offensive behaviour” section of the Racial Discrimination Act, Attorney-General George Brandis this morning announced that section 18C of the legislation will be amended but not removed.

The Coalition committed to amending the RDA before the election, in the wake of the court case that saw Andrew Bolt successfully prosecuted for breaching s18C in articles about people who identified as Aboriginal. However, a wide array of community groups, including some close to the Coalition, have lobbied intensively for the section to be retained. The section currently bans (subject to some exemptions in s18D) actions “reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate others because of the race, colour or national or ethnic origin”.

The key change announced by Brandis will be the removal of the words “offend, insult, humiliate”, leaving “intimidation”. Section 18D will be removed entirely but the exemptions will be moved into 18C. In addition, Brandis announced a new offence would be added to 18C — “racial vilification” — adding the concept of vilification to Commonwealth legislation for the first time.

Vilification as a legal term is currently used in state law, such as the South Australian Racial Vilification Act 1996, which proscribes inciting racial hatred towards, serious contempt for, or severe ridicule of, people or a group by threatening physical harm or inciting others to physical harm. However, the concept was used differently in the NSW Anti-Discrimination Act 1977, which outlaws simply the incitement of hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of race, without any threat component.

Brandis has proposed the lower threshold of the NSW approach, defining “vilify” in the draft bill as “incite hatred against a person or group”, as judged by “an ordinary reasonable member of the Australian community” — no threat is needed (and which would be presumably be covered by intimidation anyway).

The draft amendments will be the subject of community consultation. The exposure draft of the amendment is:

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:

(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.

Bernard Keane — Politics Editor

Bernard Keane

Politics Editor

Bernard Keane is Crikey’s political editor. Before that he was Crikey’s Canberra press gallery correspondent, covering politics, national security and economics.

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45 thoughts on “Racial Discrimination Act: Brandis moves to amend — not repeal — 18C

  1. Jimmy

    David Hand Just for context this is what was said last night;
    “TONY JONES: Do you all agree that the draft itself is insufficient, it is not what you actually need?

    GILLIAN TRIGGS: Yes, I think that’s a fair statement. It’s agreed that it doesn’t yet meet what we believe are appropriate legal standards and it requires considerable redrafting.

    TONY JONES: Finally, if this new freedom of speech bill becomes law, will it actually be a post facto justification for what Andrew Bolt wrote in those notorious articles about those “light-skinned” Aboriginal people?

    GILLIAN TRIGGS: Well I think that is probably the greatest defect with this exposure draft because it does seem to be a contrivance deliberately to ensure that a Bo lt-like case would not emerge again. And one of the phrases one learns in Law school, as I did many decades ago, is bad cases make bad law. And I’m afraid that Mr Bo lt was successfully prosecuted under civil law and he failed to meet the defences because of inaccuracy and lack of good faith. Now, that was the law, that is the law. To try to change the law to deal with that one case is probably, as a matter of legislative drafting and law reform, not a wise approach to law.

    TONY JONES: And is that what you think has actually happened here, that it’s so narrowly an attempt to post facto defend the Bo lt case that it’s actually failed as law?

    GILLIAN TRIGGS: Well I think that’s why we have an overreach. I think it’s fair to say there’s a genuine community concern that the words “offending” and insult” put the threshold at too low a level that. That was if you like a mischief to be addressed by reform legislation, but to go so far as to eliminate the defences of good faith and fair comment and accuracy is an overreach which I think needs to be brought back to a compromise when the Attorney finally produces a bill for Parliament to consider.

    TONY JONES: Gillian Triggs, we thank very much for taking the time to come and talk to us tonight.

  2. Jimmy

    David Hand Just for context this is what was said last night;
    “TONY JONES: Do you all agree that the draft itself is insufficient, it is not what you actually need?

    GILLIAN TRIGGS: Yes, I think that’s a fair statement. It’s agreed that it doesn’t yet meet what we believe are appropriate legal standards and it requires considerable redrafting.

    TONY JONES: Finally, if this new freedom of speech bill becomes law, will it actually be a post facto justification for what Andrew Bo lt wrote in those notorious articles about those “light-skinned” Aboriginal people?

    GILLIAN TRIGGS: Well I think that is probably the greatest defect with this exposure draft because it does seem to be a contrivance deliberately to ensure that a Bo lt-like case would not emerge again. And one of the phrases one learns in Law school, as I did many decades ago, is bad cases make bad law. And I’m afraid that Mr Bo lt was successfully prosecuted under civil law and he failed to meet the defences because of inaccuracy and lack of good faith. Now, that was the law, that is the law. To try to change the law to deal with that one case is probably, as a matter of legislative drafting and law reform, not a wise approach to law.

    TONY JONES: And is that what you think has actually happened here, that it’s so narrowly an attempt to post facto defend the Bo lt case that it’s actually failed as law?

    GILLIAN TRIGGS: Well I think that’s why we have an overreach. I think it’s fair to say there’s a genuine community concern that the words “offending” and insult” put the threshold at too low a level that. That was if you like a mischief to be addressed by reform legislation, but to go so far as to eliminate the defences of good faith and fair comment and accuracy is an overreach which I think needs to be brought back to a compromise when the Attorney finally produces a bill for Parliament to consider.

    TONY JONES: Gillian Triggs, we thank very much for taking the time to come and talk to us tonight.

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