The Commission has made a submission to the Australian Government's consultation on proposed amendments to the Racial Discrimination Act 1975 (Cth). The Commission has serious concerns about the Freedom of Speech (Repeal of s 18C) Bill 2014 – Exposure Draft.
In summary, The Commission submits:
1. Effective state and federal laws proscribing racial vilification are important for multicultural communities such as Victoria. The Commission has very serious concerns that the proposal set out in the Exposure Draft will not provide the protection from racist speech and behaviour that the Australian community has a right to expect and that the Australian Government has stated that the legislation is intended to achieve.
2. Based on the experience of the Victorian Racial and Religious Tolerance Act 2001 and other discrimination laws across Australia, we believe the proposed new laws will be ineffective because:
a. the new test provides that racist intimidation and vilification are unlawful only if an act is done solely because of race, colour or national or ethnic origin of a person or group which is targeted. This will be very difficult for the complainant to prove.
b. the test of 'incitement to hatred' relies on proving that the conduct moved the emotional state of a third person. This is a very high threshold to meet. The test would be more effective if it related to the abhorrence of the conduct or the impact on the person or a reasonable person in the victim's position.
c. the definition of intimidation is limited to conduct which will cause fear of physical harm (conduct which is already prohibited as criminal conduct).
d. substituting the exemption for acts done 'reasonably and in good faith' with a broad exemption for any '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', will remove almost all conduct from the operation of the Act.
3. In combination, the Commission believes the proposed amendments in Exposure Draft will remove any effective mechanism to combat racist speech and behaviour which impacts the rights of others (outside of specific relationships where discrimination can occur).
4. It is essential for there to be serious consideration of these issues and the implications of any legislative amendments. Adequate community consultation and a thorough examination of the case law and the experiences of other jurisdictions should be part of any genuine law reform work in this area.