Everything wrong with Brandis’ proposed changes to the Racial Discrimination Act.
This is a follow up to my previous March post on the exposure draft of changes to racial vilification protections contained in the Racial Discrimination Act 1975 (Cth) (RDA). Please accept my apology for the delay – I have been on sabbatical. Polls indicate that a majority of Australians are in favour of leaving the RDA as it is. The public consultation process ended on 30 April 2014. We sent 5,500 submissions to Attorney-General George Brandis about his proposed changes – which, if enacted, would repeal Sections 18 B, C, D and E, and widen (to an obscene degree) the exemptions under 18D. Public comment of a “racial” nature would no longer be required to be made “reasonably” and in “good faith”.
Brandis’ exposure draft, released on 25 March 2014, can be read here. As expected, the brief document is boldly regressive, containing changes that would effectively render the anti-vilification powers of the Racial Discrimination Act useless.
These are the 3 main ways that Brandis (The Abbott Government) is proposing to ruin the Act:
1. Brandis wants to redefine what vilification means in the Act – the current meaning, “conduct causing offence, insult, humiliation or intimidation” – will be replaced by “conduct that is reasonably likely to vilify [which means incite hatred] or to intimidate”.
Make no mistake – this is not an improvement.
It defines racial vilification to mean ONLY incitement to hatred, which is unprecedented, as even state and territory laws dealing with racial vilification include other conduct – like serious contempt, severe ridicule and revulsion – in their definitions. Simon Rice (Professor of Law, Director of Law Reform and Social Justice at Australian National University) explains here that Brandis is relying on a “spurious distinction” – that Section 18C, in its current form, does not prohibit racial vilification:
“Brandis chooses to define racial vilification only as ‘incitement to racial hatred’, so he is able to say that the current definition is not in fact ‘vilification’. This trivialises the protection that the current racial vilification provisions have offered for almost 20 years, and supports his misleading claim that: There is no law of the Commonwealth of Australia that prohibits racial vilification.”
Rice goes on: “By addressing only incitement to racial hatred, Brandis is winding back the vilification prohibition to cover a single – and increasingly rare – type of behaviour: the crude, public rantings of a racist. He fails to recognise, or maybe even comprehend, the pervasive, casual racism in Australian society that Race Discrimination Commissioner Tim Soutphommasane has identified.”
It is also worth emphasising here that the kind of vilification Brandis does not seem to want to acknowledge – offence, insult, humiliation or intimidation – always precedes and bolsters the kind of vilification that involves incitement to racial hatred and physical harm. I guess this is why Rice says the change to this section is more concerned with maintaining public order, than preventing harm.
Moreover, the State and Territory racial vilification laws – which already use the “incitement” test – have been criticised for being too difficult to prove. The proposed changes to the RDA will make “incitement” even harder to prove, given the wording. The Human Rights Law Centre states that “Taken together, these changes would substantially wind back the scope of the existing protection given by section 18C.”
Rice advises that legislators genuinely concerned about prohibiting incitement to racial hatred – as Brandis claims to be – would do well to turn their attention to “criminal provisions elsewhere in Australia, and Australia’s continuing failure to honour its international treaty obligation to criminalise racial vilification.”
2. Currently, whether something is deemed ‘racial vilification’ is assessed from the perspective of a reasonable person to whom conduct is directed. Brandis wants to change this to the perspective of “an ordinary reasonable member of the Australian community”, and specifically “not by the standards of any particular group within the Australian community”.
It is not clear as to who an “ordinary reasonable member of the Australian community” is.
Moreover, the specification of “not by the standards of any particular group within the Australian community”, is very telling. As Waleed Ali noted in this controversially titled (but excellent) op ed, “That’s code. It means, not by the standard of whatever racial minority is being vilified. Not the ordinary reasonable wog, gook or sand nigger; the ordinary reasonable Australian.”
I am with Ali (not something I say often) when he argues that this attempt to repeal the RDA is springing forth from a particular mythology about the way race relations works in this country – and on whose terms. He notes the exposure draft “trades on all the assumptions about race that you’re likely to hold if, in your experience, racism is just something that other people complain about.”
Simon Rice argues that “no member of the […] majority – politicians, policymakers, opinion writers – can understand what it is to have one’s life defined by one’s difference. When ‘free speech’ characterises that difference as a deficiency – a sign of inferiority – offence is a real sense that is qualitatively different from any idea of offence that we in the majority can have.”
There is a genuine difference in lived reality here – the lived reality of racial difference. It is difficult for someone who has not had that experience, day in and day out, to comprehend what it is like to exist in a world where others are responding to your physical appearance, your accent, your cultural dress and markers, and the people you love (i.e. family) who share these traits (and who are outnumbered significantly by people who don’t look like you do), in a negative, hostile, harmful way.
Not having this kind of insight – insight that can have intersections with socio-economic class, too, as people from “minority” backgrounds insulated from severe discrimination by money can be just as sightless – produces a kind of “blindness” to disadvantage and, yes, to what can reasonably be called vilification by those who actually experience it.
And there is an historical context to all of this, in which (all) racial comments are made. An extensive, brutal, and well-documented history of racial persecution and discrimination across the Western world, and in Australia, towards everyone who isn’t white. And, in particular, towards Aboriginal People, who statistically still endure the inter-generational effects of violent colonisation and ongoing racism.
It is no coincidence that the case that sparked this push for the watering down of the RDA involved a group of Aboriginal People suing a very influential, well connected, white columnist. And as Fergal Davis pointed out: “There is a context when the privileged seek to deny the Stolen Generations by implying that being light skinned makes someone less Aboriginal. That context can mean that a seemingly inoffensive phrase is, in fact, offensive.”
In other words, if you’re unlikely to ever experience racial discrimination, if you are not experiencing racial discrimination now, and if the ethnic group you are a part of has historically not experienced racial discrimination and stigmatisation (and the deprivation, exploitation, and violence that follows), you are not in the best position to judge whether or not something is vilifying, harmful, and intimidating.
This is why switching from the perspective of the violated, to the majority – which is what the vague “ordinary reasonable member of the Australian community” is likely to mean in practice – is so problematic. And it is why the Human Rights Commissioner Tim Wilson’s comment to Fairfax, that the proposed repeal would restore ”equality” to discrimination laws, is completely wrong. It won’t restore ”equality”. It will destroy it, as it does not acknowledge that very real difference in lived experience – which the current Act does, and admirably has, for 20 years.
Lastly, switching to the perspective of the majority population, the amorphous “mainstream”, might actually perpetuate the phenomenon of unconscious racism. As Marcia Langton noted in her submission: “it could allow normative racism to be the standard by which allegations of racial or ethnic vilification are judged. Many Australians are simply not aware of when they are being racist.”
3. Brandis wants to include an exemption in Section 18D, that would make vilifying or intimidating public conduct done “in the course of participating in the public discussion” acceptable. There is no qualification to this exception, which is extraordinary, as every other vilification law in Australia limits exceptions to conduct thusly – that conduct must be done “reasonably and in good faith”.
The “in the course of public discussion” exemption is so broad that it renders the section useless as a law against racial vilification – which is the whole point of the law.
The exemption states that vilification “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.” Translation: pretty much ALL public racial vilification is OK. The Human Rights Law Centre notes in their extensive submission:“Most public racial vilification is likely to be covered by the exemption – even if it incites racial hatred or causes racial humiliation or fear of physical harm on the grounds of race.”
But this, to me, is the most egregious part of the entire amendment proposal: the removal of the requirement that the accused acted “reasonably or in good faith”.
It was also the most predictable part of the exposure draft, as columnist Andrew Bolt was unable to rely on the current section 18D free speech exemptions because the court found he did not act “reasonably or in good faith”. Instead, the court found his articles contained multiple errors of material fact, distortions of the truth and inflammatory and provocative language.
The Human Rights Law Centre submission refers to one example extracted from the court decision:
Mr Bolt said of Wayne and Graham Atkinson that they were “Aboriginal because their Indian great-grandfather married a part-Aboriginal woman” (1A-33). In the second article Mr Bolt wrote of Graham Atkinson that “his right to call himself Aboriginal rests on little more than the fact that his Indian great-grandfather married a part-Aboriginal woman” (A2-28). The facts given by Mr Bolt and the comment made upon them are grossly incorrect. The Atkinsons’ parents are both Aboriginal as are all four of their grandparents and all of their great grandparents other than one who is the Indian great grandfather that Mr Bolt referred to in the article.
They went on to observe that:
“The court in the Bolt case made it very clear that it’s not unlawful to publish articles that deal with racial identity or challenge the genuineness of someone’s racial identity. If Mr Bolt had been accurate in writing about the light-skinned Aboriginals he discussed in his articles, or even if he had taken reasonable steps to be accurate about them [emphasis mine] (such as contacting them), it is far more likely that his articles would have been protected by the section 18D free speech exemptions.”
Stipulating a legal requirement that a remark on someone’s race, or a discussion of a matter that involves race, must be done “reasonably or in good faith”, is just good sense, given historical precedent – centuries of people distributing false information about individuals and groups with the most sinister of intentions (do some reading on any genocide, ethnically motivated atrocities or thuggery, to find numerous examples of such poisonous public communication).
That Brandis and his supporters want this legal requirement removed says a lot – none of it good, yet none of it surprising. They might claim, still, that this push to amend the act is all about restoring free speech. But, as the decision in the Bolt case made clear, and as The Human Rights Law Centre noted above, “it’s not unlawful to publish articles that deal with racial identity or challenge the genuineness of someone’s racial identity”. Which brings me to my final point…
The bogus “restoring free speech” argument: how the RDA already supports freedom of speech.
We have free speech when it comes to race in Australia.
We really do. After 20 years of the sections of the Act in question being operational, the laws have been considered in less than 100 finalised court cases. The Human Rights Law Centre states in their submission to the Attorney-General that “An analysis of these cases shows that the laws have been applied sensibly by the courts and are operating reasonably effectively. In particular, courts have stated that to be unlawful under section 18C, the conduct must have ‘profound and serious effects, not to be likened to mere slights’.”
They go on: “Further, courts have also stated that the conduct must be assessed against an objectivestandard, judged from the perspective of a hypothetical reasonable or ordinary person from the relevant racial group. Courts have said that extreme, atypical or intolerant reactions are not relevant. Even if someone is personally offended or insulted by conduct, there won’t be a breach of racial vilification laws unless the conduct meets the objective standard.”
In other words, it is already quite difficult to be found to have violated this Act. And a major study of Australian hate speech laws – recently conducted by Katharine Gelber, Professor of Politics at University of Queensland, and Luke McNamara, Professor of Law at University of Wollongong – provides further evidence of this.
In fact, in this joint article published in The Conversation, Gelber and McNamara assert that “Australia’s version of hate speech legislation places a heavy enforcement burden on the people it is meant to help. Perhaps this is the price to be paid for balancing free speech rights and the right not to be vilified, but it means that legal protection is unevenly distributed across the communities who experience racism and other forms of prejudice.”
They make it clear that Australia does not have a ‘Big Brother’ situation: “It is down to victims to ‘enforce’ the law, and this is no easy task. Some complainants turn to hate speech laws in desperation because all other efforts have failed to stop a neighbour from subjecting them to appalling public racist abuse and no other legal redress is available.”
So. Not only does the Racial Discrimination Act in its current form place NO heavy restrictions on public debate or free speech, but minorities who experience vilification carry the enormous burden of trying to pursue justice under the Act – an extremely difficult pursuit they may not have the time, resources, expertise, patience or confidence to follow through.
“Complainants who do decide to proceed are not motivated by self-interest or greed”, Gelber and McNamara stress. “Jeremy Jones never received a cent in relation to any of the cases he pursued under the Racial Discrimination Act to confront and condemn serious anti-Semitism.” Their research showed up little evidence of an overzealous approach to taking legal action on behalf of complainants.
Finally, in regards to free speech – Gelber and McNamara’s 20-year study of media content revealed zero evidence that the Act has had any ‘chilling effect’ on free speech and debate in the media in that time period. “While some of the crudest edges have been knocked off the language used in media commentary”, they write, “Australians seem as willing as ever to express robust views about a broad range of issues from Indigenous land rights, to gay marriage, to immigration and refugees.”
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The International Covenant on Civil and Political Rights (ICCPR), which Australia is a party to, protects both freedom of opinion and freedom of expression – whilst stipulating that the exercise of the right to freedom of expression may be subject to restrictions, in certain circumstances. In essence, it must be balanced against other rights.
The Racial Discrimination Act already gets that balance right. Referring (rather ironically) to one of Human Rights Commissioner Tim Wilson’s heroes, Professor of Law Simon Rice urges us to remember philosopher John Stuart Mill’s classical liberal “harm principle”: that those who enjoy freedom of expression must assess the limits on that freedom by an awareness of the harm that can be caused by it.
The Act, as it stands, embodies this idea. Gelber and McNamara’s study showed that The Racial Discrimination Act has permitted freedom of speech whilst codifying standards of behaviour and providing some basic protections – recourse for when a violation has occurred – for vulnerable people in our community. This further supports the view that Brandis’ proposed changes to the Act are regressive and wholly unnecessary.
I’m going to let award-winning writer, poet & commentator Siv Parker have the last word:
“The nature of the debate in my corner of social media revolves around dismay that a small handful of peoples’ definition of freedom of speech may incapacitate another person’s entire existence. What is freedom, if it simply means the liberty to rip apart the social fabric of our country?”
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Links (in order of appearance):
1. Vetuna, P, ‘Brandis’ fight for the right to SPREAD FALSEHOODS to further bigoted agendas – S18C repeal’, in The Plebeian blog, 28 March 2014,
2. ‘Overwhelming majority reject change to racial vilification law’, in Australian Human Rights Commission website, 14 April 2014,
3. ‘FREEDOM OF SPEECH (REPEAL OF S. 18C) BILL 2014 Attachment A’, in Attorney General’s Department website, March 2014,
http://www.ag.gov.au/Consultations/Documents/Attachment%20A.pdf
4. Rice, S, ‘Race act changes are what you get when you champion bigotry’, in The Conversation, 26 March 2014,
https://theconversation.com/race-act-changes-are-what-you-get-when-you-champion-bigotry-24782
5. ‘Racism a challenge for all of us, says new Race Discrimination Commissioner’, in Australian Human Rights Commission website, 19 August 2013,
6. ‘Information Paper on proposed changes to Australia’s racial vilification laws’, in Human Rights Law Centre website, April 2014,
http://hrlc.org.au/wp-content/uploads/2014/03/InformationPaperRacialVilificationLawsApril2014_B.pdf
7. Ali, W, ‘Brandis’ race hate laws are whiter than white’, in The Age website, 27 March 2014,
http://m.theage.com.au/comment/brandis-race-hate-laws-are-whiter-than-white-20140327-35lv7.html
8. Davis, F, ‘I used to believe I had the right to be a bigot. But reason prevailed’, in The Guardian, 31 March 2014,
9. Hall, B, ‘Human Rights Commissioner Tim Wilson says race hate laws are bizarre, unequal’, in The Age website, 30 March 2014,
10. Langton, M, ‘Our race act has had a civilising effect: leave it be’, in The Australian website, 8 May 2014,
11. Gelber, K, & McNamara, L, ‘Explainer: how do Australia’s laws on hate speech work in practice?’, in The Conversation, 9 May 2014,
http://theconversation.com/explainer-how-do-australias-laws-on-hate-speech-work-in-practice-26105
12. Parker, S, ”Repealing the race hate laws isn’t ‘freedom’ to Indigenous people’, in The Guardian, 27 March 2014,
The Plebeian 