The right to insult, offend and humiliate someone on the basis of race or ethnicity is to become law in Australia if proposed changes to the Racial Discrimination Act are passed by parliament.
“It is not, in the government’s view, the role of the state to ban conduct merely because it hurts the feelings of others,” Federal Attorney-General, Senator Brandis said in defending the proposed amendments.
“It is not possible to have a public debate about a difficult issue … without running the risk that someone who takes a strong contrary point of view is being mocked.”
The proposed changes remove the words ‘’offend, insult and humiliate’’, meaning that such words or acts will no longer be breaches under law.
The draft bill includes a new provision outlawing racial vilification—the incitement of hatred—and retains a provision that makes it illegal to intimidate a person or group of people.
“To intimidate a person is to cause them to be fearful,” Senator Brandis says. “That is an entirely different state of mind, it is an entirely different concept.”
However, the draft bill provides a range of defences that sanction racial intimidation and vilification under a wide range of circumstances.
Section 18(4) of the draft legislation “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.”
Lawyers and ethnic leaders say the exemption makes it unlikely that any cases could succeed in proving acts that incite racial hatred or fear of physical harm.
Colin Rubenstein, executive director of the Australian Israel and Jewish Affairs Council, says the Attorney-General is getting the balance wrong:
“If this were to stand, it’s questionable as to whether any of the cases that have been won over the last 19 years could be sustained in the future, and so therefore it seriously really undermines even the safeguards that are provided in this draft.”
The President of the Australian Human Rights Commission, Professor Gillian Triggs, says the exemption under section 18(4) “is so broad it is difficult to see any circumstances in public that these protections would apply.”
Professor Triggs said the new bill “reduces the level of protection by providing a narrow definition of vilification and by limiting intimidation to causing fear of physical harm.”
“It is not clear why intimidation should not include the psychological and emotional damage that can be caused by racial abuse.”
Professor of law at the ANU Simon Rice says almost no case of racial vilification would stand a chance of succeeding under these proposed change“The actual prohibition is very, very narrow,” says Professor Rice.
“It’s limited to intimidation and inciting hatred and, even the racial abuse that took place on buses and trams in Sydney and Melbourne arguably didn’t involve either of those.”
The Attorney-General says the narrow definitions in the changes are deliberate.
“We think inciting hatred is the core concept of vilification,” he told ABC’s Lateline.
“Whenever one is dealing with prohibitions of what people are at liberty to say in a free country, in our view those prohibitions ought to be drawn narrowly rather than widely.”
The Attorney-General says the proposed amendments are motivated in part by a desire to correct a federal court ruling by Justice Bromberg, which found that Herald Sun columnist Andrew Bolt had breached the Racial Discrimination Act.
In the case in question Mr Bolt had written two newspaper columns implying that light skinned people who identified as Aboriginal had done so for personal gain.
Judge Bromberg found that Bolt’s words were likely to offend, insult, humiliate and intimidate the people he had named.
He also found that Bolt’s articles contained 19 factual inaccuracies and distortions of the truth, and that Mt Bolt had made comment unsupported by the facts.
The Attorney-General and others in the government argue that the Bolt case and others like it have put a “chill” on free speech and created an air of censorship in Australia’s political discourse.
Asked if the false assertions and errors made by Andrew Bolt was the kind of public discussion that required protection, the Attorney General said:
“If you can be prohibited from expressing your political opinion about something, merely because you make an error in your argument, what a gross invasion of the capacity of everyday Australians to express their opinions that would be if you could be taken to court merely for saying something that was factually wrong.”
However, the central issue in the Bolt judgment was not whether Mr Bolt’s articles were an expression of opinion, but whether the factual allegations on which that opinion was based were accurate.
Justice Bromberg ruled that the case wasn’t about freedom of opinion, it was about the freedom to spread untruths.
What are the likely impacts of the proposed amendments to the Racial Discrimination Act?
- There will be no legal remedy to racial abuse that causes people to feel insulted, offended or humiliated.
- Acts of racially motivated hatred and intimidation will be unlikely to be proven under law because of a wide range of defences and exemptions.
- People holding negative views and stereotypes about people of a different race, ethnicity or culture will feel encouraged to express their views in public forums, without limit or restriction.
- Australian society will become more tolerant of racial discrimination and less empathic to the harm and hurt that can arise through the public airing of racist remarks under the guise of free speech.