On 25 March 2014, the Attorney-General, Senator the Hon. George Brandis QC, released for public comment an exposure draft of a Bill that is to amend Part IIA of the Racial Discrimination Act 1975 (Cth.) (RD Act).
Part IIA, which is entitled ‘Prohibition of offensive behaviour based on racial hatred’, includes within it section 18C, a provision that makes it unlawful for a person to do an act, other than in private, 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.
The remainder of Part IIA contains provisions that set the limits of section 18C and aid in its interpretation. Section 18C, and the remainder of Part IIA, were inserted into the RD Act through the Racial Hatred Act 1995 (Cth.) and has not been amended in substance since that time.
The exposure draft indicates that section 18C is to be repealed, along with the provisions that set limits on section 18C, and a new section inserted. The new section makes it unlawful for a person to do an act 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,
(b) the act is done because of the race, colour or national or ethnic origin of that person or that group of persons.
Vilification is defined to mean ‘to incite hatred again a person or group of persons’ and intimidation is defined to mean ‘to cause fear of physical harm to a person, the property of a person or the members of a group of persons’.
The act will not be unlawful, even when it involves vilification or intimidation, where it involves or comprises:
“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.”
As a result of the proposed amendments, the protection against conduct, done because of a person’s race, colour, or national or ethnic origin, that is reasonably likely to offend, insult or humiliate is removed. This conduct will no longer be unlawful, unless it reaches the higher threshold for vilification or intimidation and does not fall within the broad exemption discussed above.
The media release that accompanied the exposure draft stated that the proposed amendments ‘will strengthen the Act’s protections against racism’ and deliver ‘a new protection from racial vilification’. Although an express prohibition against vilification is desirable, for both practical and signalling reasons, conduct amounting to vilification is, in most circumstances, unlawful under the existing section 18C of the RD Act.
Since the proposed amendments remove existing protections and introduce a broad carve out for conduct in ‘the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter’, the proposed amendments will water down and reduce existing protections.
Submissions on the proposed amendments are to be made to the Human Rights Policy Branch, of the Attorney-General’s Department, by Wednesday, 30 April 2014.