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.

Bernard Keane — Politics editor

Bernard Keane

Politics editor

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:

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

  1. JamesH

    I predict concern will now focus on what exactly is meant by section 3. For example, if an “ordinary reasonable member of the Australian public” is likely to believe that substantial numbers of asylum seekers are not genuine refugees or even are Muslim terrorists, as various opinion polls seem to indicate, then does someone saying that Iranian refugees are terrorists, or fake refugees are causing all our traffic jams, get a free pass? or does “reasonable” mean “accurately informed”?
    Reaction to the dropping of the “reasonable”, “good faith”, “fair and accurate” tests 18D applied to material covered by section 4, which is what caught Bolt out, will also be interesting.

  2. Sean

    What’s left after the (very very broad) exemption of sub-section (4)? Intimidation (at least as defined) is probably covered by other criminal laws relating to assault anyway. This is Clayton’s discrimination law.

  3. paddy

    Section (4) looks to be a cracker of an escape clause.

  4. Jimmy

    Section 4 is the big thing – it apparently replaces this section –
    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.

    The big thin is the removal of the word “fair”. This I bel ieve is so that Mr Blot can continue his ludicrous arguments without fear of contravening a “fair” comment!!

  5. acannon

    I agree with Sean and paddy and Jimmy. Can anyone give any examples of something which would NOT be exempted by Section 4? I was OK with it up until then. And doesn’t Section 4 contradict Section 1’s “unlawful except in private”?

  6. Hunt Ian

    The changes remove all the protection for citizens against the tactics that Nazi’s made commonplace. Public discussion of how subhuman, dangerous and evil Jewish people might be is protected because it is part of public discussion. That this idea of Jews is an unfair portrayal or that it might lead to violence against them is of no consequence – it is, after all, part of public discussion in which the “Volkische Beobacter” (People’s Observer”) could make an indelible impression, leading all the way to the Holocaust.

    Aborigines, who have been vilified in various ways in Australian history as incapable parasites in their own now stolen land, will now have no defence, should someone with resources like those Andrew Bolt commands, decides to repeat this theme in public discussion. No doubt the equally powerful resources for public discussion that aboriginal people can command will protect them from intimidation.

    The changes Brandis proposes are a disgrace.They bring the Abbott government to a new reactionary low.

  7. Jimmy

    acannon – “I was OK with it up until then.” I would also caution you to have a think about “(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.”

    What if the harm isn’t physical? Is damage to reputation phyiscal harm to a persons property?

  8. Jimmy

    Human Rights Law Centre executive director Hugh de Kretser on the RDA overhaul. Thumbs down George.

    Under the changes, the words “offend, insult and humiliate” would be deleted from the existing laws. “Vilify” would be inserted but narrowly defined and the existing protection against “intimidation” would also be given a new narrow definition.

    The drafting of the community standards test opens up the prospect of perpetuating prejudice. The existing free speech exemptions for fair comment, fair reporting and artistic and scientific works would be over-inflated and greatly expanded to include “public discussion of any political, social, cultural, religious, artistic, academic or scientific matter.”

    Importantly, the requirements for “reasonableness” and “good faith” in the exemptions would be removed.

    It’s hard to imagine any racial topic that would be outside the realms of this extraordinarily broad exemption.

    The attorney’s claim that these proposed laws would provide the strongest ever protection against racism under federal legislation is astonishing and not backed by any basic analysis.

    Overall, these changes substantially weaken the existing protection.

  9. drmick

    The reasonable person test has been challenged again and again as it was originally the reasonable man test. Princess blurt is proven rac ist and changing the law will not change that fact.

    The test fails because of the very diversity these people want to vilify. “Community standards” in days gone by produced white and black lost generations, witch burnings and kangaroo courts that resulted in hangings. They also produced attempts at ethnic cleansing and genocide.
    Do we really need to revisit these? Especially for princess bolts pride?

  10. David Penington

    “otherwise than in private” plus section 4’s “public discussion of any political, social, cultural, religious, artistic, academic or scientific matter” means virtually everything is exempt.

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