Page 816 - Week 03 - Wednesday, 9 April 2014
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state that any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.
The Australian government has ratified this covenant and also has legislation which gives effect to these rights. The Racial Discrimination Act, the act central to this discussion today, is one such piece of legislation. It was enacted with the purpose of prohibition of racial discrimination and certain other forms of discrimination and, in particular, to make provision for giving effect to the Convention on the Elimination of All Forms of Racial Discrimination. These are obligations that we have signed up to voluntarily as a nation and where we have binding treaty commitments.
Part IIA of the Racial Discrimination Act makes it unlawful for a person to do a public act if the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
This provision, known as the racial vilification provision, is designed to prevent people from publicly abusing the right to freedom of expression by engaging in acts of racial abuse, vilification or intimidation. This provision serves to provide a clear legal indication that racially abusive behaviour is not accepted by our community.
This part has obviously been the subject of much controversy and public debate in recent times. The commonwealth Attorney-General has indicated he plans to reform the Racial Discrimination Act to repeal section 18C, and the related 18B, 18D and 18E, and replace it with provisions that, in my view, will substantially wind back and water down the racial vilification provisions in the Racial Discrimination Act. In March, the commonwealth attorney released an exposure draft of the repeal bill.
Under the proposed amendments to section 18 of the Racial Discrimination Act, it will be unlawful for a person to publicly do an act because of their race, colour or national or ethnic origin of a person or group of people if the act is reasonably likely to vilify another person or a group of persons or to intimidate another person or a group of persons. In the proposed new section 18, “vilify” means to incite hatred against a person or a group of persons, and “intimidate” means to cause fear of physical harm to a person, their property or to members of a group.
Senator Brandis would have us believe that this is a reasonable measure to strengthen the act’s protections against racism while at the same time removing provisions which unreasonably limit freedom of speech. And so it may appear on the surface, but the devil is in the detail. While we might think that it is appropriate to consider what actions might constitute vilification and what might not, the fact of the matter is that the bill purports to exclude almost all facets of public interaction from the scope of the racial vilification protection.
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 will not be subject to the proposed section 18. This is so excessively broad that the application of the racial
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