Amendments to the Racial Discrimination Act 1975
Submission to the Australian Government
Current federal protections from racial hatred make it unequivocally clear that it is unlawful for a person to racially discriminate against another person. Section 18C of the Racial Discrimination Act 1975 in 1 (a) outlines clearly when an act is considered to be unlawful in terms of its likelihood to “offend, insult, humiliate or intimidate another person or a group of people;” and in 1 (b) the basis for this action being due to “race, colour or national or ethnic origin of the other person or of some or all of the people in the group.” Furthermore, 18C (2) clarifies the context of the unlawful act and its forms -“words, sounds, images or writing.”
In the face of the justification that has been presented, it remains unclear why a case is being made for such a significant change to the law, particularly as Australia ratified the International Convention on the Elimination of All Forms of Racial Discrimination on 30 September 1975 and undertook “to prohibit and put a stop to racial discrimination by persons, groups and organisations” and “to take special measures, as necessary, to ensure that disadvantaged racial groups have full and equal access to human rights and fundamental freedoms,” and “to combat prejudices that lead to racial discrimination, and eliminate the barriers between races, through the use of education and information, and by encouraging integrationist or multiracial organisations and movements.”
The amendments suggested in repealing 18C remove from consideration the victim’s views as the amendments stipulate that whether an act is unlawful in vilifying or intimidating another person or a group of persons 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.” To remove considerations of the act offending, insulting and humiliating the victim(s) is to take special measures to ensure those being discriminated against will not be able to make a case that the act is unlawful in terms of how it has personally impacted them. The victim will instead need to show a third party how the act has incited racial hatred, and this would pose difficulty in establishing. Racial discrimination would not be about when a person is treated less favourably than another person in a similar situation because of their race, colour, descent, national or ethnic origin or immigrant status, but about when a third party deems that this has happened.
These amendments not only narrow the existing federal law and diminish the scope of the victim’s complaint, it undercuts the legal protection it aims to offer to those who are discriminated against and furthermore, appears to be discriminatory itself in distinguishing “an ordinary reasonable member of the Australian community” as above “any particular group within the Australian community.” Is the distinction that is being made about “any particular group within the Australian community” reliant on their race, colour, descent, national origin or ethnic origin?” Moreover, how will it be determined that someone is “…an ordinary reasonable member of the Australian community?” How will their objectivity be discerned in their determination of whether an act is unlawful in vilifying or intimidating another person or a group of persons? As racial categories are social constructs would any possible bias of the third party be taken into consideration and will any determination by a third party take into account the sensemaking the victim ascribes to the act based on their racial identification.
The Racial Discrimination Act as it stands does attain a balance between the right to communicate freely and the right to live free from racial hatred or vilification as the Act outlines in 18D exemptions of areas that are not against the law if they are ‘done reasonably and in good faith’ despite being done in public. This list comprises “(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.”
It would appear that the proposed amendment (4) referring to the exemption of “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,” renders all avenues and contexts open to racial discrimination.
It is the responsibility of the Australian Parliament to ensure that Australia promotes and encourages respect for freedoms for all in a safe and responsible environment that is conducive for all people to live with dignity and as equals.
Serious consideration of the implications of the proposed amendments to the Racial Discrimination Act 1975 must be undertaken as the amendments have the potential to diminish equality, civil society and social cohesion in Australia. The amendments go against international standards in offering substantially less protection to victims. Given that racial insults, offenses and humiliation will be acceptable unless one can prove that they ‘incite hatred’ or ‘cause fear of physical harm,’ I fear that this is a backward step for a culturally diverse nation that has since 1995 made positive steps in providing an accessible legal means to honour the rights of those who have been racially discriminated against whilst protecting freedom of speech. I therefore, urge the Federal Government to retain the current protections of the Racial Discrimination Act 1975.
Diann Rodgers-Healey (PhD)
Australian Centre for Leadership for Women (ACLW)