Brandis Backs Down on Bigotry

Federal Attorney General George Brandis has watered down his controversial changes to the racial  discrimination laws, however community organisations remain steadfast that no changes should be made to the current law.

Previously the Coalition Government’s proposed changes, as part of an election commitment, were to Section 18C of the Racial Discrimination Act (RDA) , which prohibit public conduct that is reasonably likely to “offend, insult, humiliate or intimidate” a person or groups because of their skin colour or national or ethnic origin.

However, the Government has announced that while continuing to repealing some sections of the Act a new section will be inserted which Senator Brandis claims will preserve the existing protection against intimidation and create a new protection from racial vilification.

“This will be the first time that racial vilification is proscribed in Commonwealth legislation sending a clear message that it is unacceptable in the Australian community,” Senator Brandis said.

“I have always said that freedom of speech and the need to protect people from racial vilification are not inconsistent objectives. Laws which are designed to prohibit racial vilification should not be used as a vehicle to attack legitimate freedoms of speech.”

Co-Chairs of Reconciliation Australia, Dr Tom Calma and Melinda Cilento released a joint statement saying they are opposed to any changes to the RDA which weaken the protections against racial discrimination.

“The Racial Discrimination Act 1975 (RDA) currently ensures all Australians are protected from discrimination on the grounds of race, colour, descent or ethnic origin,” Dr Calma and Cilento said.

“Any changes to the RDA that weaken protections from racial vilification would pave the way to a less reconciled, just and equitable Australia. We therefore strongly oppose the current proposed changes to the RDA which repeal Section 18C.”

The Reconciliation Australia Co-Chairs said the use of defamation laws by politicians from both sides of politics was well known and exemplifies the balance between free speech and the need for citizens to be protected from scurrilous and false verbal attacks.

“We note that Section 18D of the current Racial Discrimination Act contains exemptions for ‘anything said or done reasonably and in good faith’ and, in the case of publishing, anything that constitutes ‘a fair and accurate report of any event or matter of public interest’.

“We note that in the key case against which the alleged free speech restrictions of the RDA are being measured – the Andrew Bolt case – the judge, J Bromberg, found that Mr Bolt contravened section 18C because the articles were not written in good faith and contained factual errors, and therefore not made exempt by Section 18D of the RDA.

“In his judgment J Bromberg found the Section 18D exemptions did not apply because of ‘….the manner in which the articles were written, including that they contained errors of fact, distortions of the truth and inflammatory and provocative language’.

“Section 18D does provide free speech protection for comments that may be considered offensive to many Australians as long as these comments are delivered in a reasonable and honest way.”

New South Wales Aboriginal Land Council has also condemned the moves to amend the Commonwealth Racial Discrimination Act.

NSWALC Chairperson Craig Cromelin said Brandis should be asked to withdraw his claim people “have the right to be bigots”, when seeking to defend the Government’s position in Federal Parliament this week.

“Bigotry is not OK, Mr Brandis,” Cromelin said.

“It is astonishing that our top law maker seeks to passionately defend the right of people to be bigots than the rights of the most marginalised people in our society.”

Chairperson Cromelin said no-one should forget the Federal Government’s move to amend the Racial Discrimination Act stems directly from the judgment handed down by Justice Bromberg in the case of Eatock v Bolt.

He said Senator Brandis, who was then Shadow Attorney General, immediately claimed the judgment was an attack on free speech, while respected senior journalists claimed the judgment had nothing to do with an attack on free speech.

“Exemptions are available under the current Act which the Australian Human Rights Commission has clearly stated allow the media considerable scope by permitting fair and accurate reporting on any matter of public interest,” he said.

The Government’s draft amendments are now out for community consultation and submissions are open until April 30, 2014 at s18cconsultation@ag.gov.au.

Exposure Draft

Freedom of speech (Repeal of S. 18C) Bill 2014

The Racial Discrimination Act 1975 is amended as follows:

1. Section 18C is repealed.

2. Sections 18B, 18D and 18E are also repealed.

3. The following section is inserted:

1. “ It is unlawful for a person to do an act, otherwise than in private, if:

   1. the act is reasonably likely:

      1. to vilify another person or a group of persons; or

      2. to intimidate another person or a group of persons,

   2. and

   3.  the act is done because of the race, colour or national or ethnic origin of that person or that group of persons.

2. For the purposes of this section:

   1. vilify means to incite hatred against a person or a group of persons;

   2. intimidate means to cause fear of physical harm:

      1. to a person; or

      2. to the property of a person; or

      3. to the members of a group of persons.

3. Whether an act is reasonably likely to have the effect specified in sub-section (1)(a) 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.

4. This section 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.”