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Section 18C is repealed.
Sections 18B, 18D and 18E are also repealed.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.

Peter Fray

A lot can happen in 3 months.

3 months is a long time in 2020. Join us to make sense of it all.

Get you first 12 weeks of Crikey for just $12. Cancel anytime.

Peter Fray
Editor-in-chief of Crikey

12 weeks for $12