Solicitor Ian Lacey AM, BA, LLB., Member of Religions for Peace NSW Branch and the Executive Council of Australian Jewry, has prepared a note on the proposed changes to the Racial Discrimination Act. The proposed changes remove limited protections in place and provide no useful adequate protection in its place, writes Ian Lacey.
A NOTE ON THE PROPOSED AMENDMENTS
TO THE RACIAL DISCRIMINATION ACT
On 25 March 2014 the Attorney-General, Senator George Brandis, issued a Media Release setting out the proposed amendments to the race hatred provisions of the Racial Discrimination Act. The media release calls for submissions to be made by 30 April 2014.
The present law provides civil remedies for “Offensive behaviour because of race, colour or national or ethnic origin”, which is defined as an act that is “reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people”.
The amendment proposes to repeal that law. In its place, protection would be provided only against acts which “vilify” or “intimidate”. The language is deceptive, as the words are not given their ordinary English meaning. To “vilify” is defined as “to incite hatred”, and most importantly, it does not include group defamation. To “intimidate” does not include psychological threats, and becomes “to cause fear of physical harm”.
The result is that the new grounds for protection would apply only in the case of the most dangerous and extreme threats. The unlawful acts would usually be very difficult to prove, while at the same time they would attract only the present civil remedies, which include orders against repetition or for retraction and apology, and occasional damages, and which aim for reconciliation and education.
Does not Require Reasonableness,
Good Faith or an Expression of Genuine Belief
Another cause for concern is the proposal to repeal Section 18D. This presently provides an exemption for actions done “reasonably and in good faith”, including “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.” The exemption proposed in place of Section 11D applies in the case of “the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter.” Significantly the proposed exemption does not require reasonableness, good faith or an expression of genuine belief.
The result of the proposed amendment would be that a person inciting hatred or threatening physical harm to another on the ground of race, colour or national or ethnic origin would be exempted from the operation of the law merely by showing that the act occurred as a public discussion of a political or social matter. Such a provision would make the legislation almost entirely ineffective in practice.
The present law has proved useful in the nineteen years since its enactment, particularly in the process of conciliation conducted by the Human Rights Commission. While the processes could certainly be improved and expedited, there is no clear and pressing need for repeal.
In particular the law as it presently stands creates no significant limitation on freedom of speech. Section 18C is entitled “Offensive behaviour because of race, colour or national or ethnic origin.” There is no limitation on public debate and discussion, unless the perpetrator engages in offensive behaviour. If the language used is not “reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate”, then the present provisions do not present any impediment at all to the free expression of ideas. In addition there is also the present exemption for fair comment.
In all, it appears that the draft Bill would remove the limited protection against racial abuse provided by the present law, while providing no useful or adequate protection in its place. As such its passage would represent a retrograde step in the preservation of our harmonious and diverse society
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Ian Lacey, AM, BA, LLB.
Ian Lacey AM has worked as a volunteer in the community for 35 years. In addition to being a long-serving Deputy, member of the Board’s Executive and former member of various committees, he has authored two major Board of Deputies publications – booklets on Understanding Judaism and The Arab-Israel Conflict – and is currently working on a third publication – a booklet on the Holocaust.
Ian also wrote content for the Board of Deputies’ education website (ijs.org.au), wrote a textbook on the Arab-Israel conflict, prepared submissions on anti-vilification law for the Federation of Ethnic Community Councils of Australia and the NSW Ethnic Communities Council, and has contributed an array of authoritative articles to academic journals.
He lectures on international law and Israel on behalf of the Australian Institute of International Affairs and has worked tirelessly alongside his wife, Josie Lacey OAM, in the area of multicultural relations. Ian and his wife Josie are foundation members of Relgions for Peace Australia, NSW Branch.
© Ian Lacey AM, 2014
