Change to Racial Discrimination law makes room for nutters

Australia’s multicultural community Photo: PEACE (Personal Education & Community Empowerment) services

In making room for the bolts of this world, we also make room for the nutters

There has been so much press about the so-called ‘freedom of speech’ Bill (the one that amends the federal Racial Discrimination Act) that I decided to take a look at it.  Not the opinion pieces or other articles but the Bill itself.

I also looked at the sections that are being repealed or revoked by the Bill (sections 18B, 18C, 18D and 18E of the Racial Discrimination Act).  If the Bill is passed, all of these sections will be gone and in their place will stand the proposed new section introduced by the Bill, the one that says it is only an offence to “vilify” or “intimidate” on the grounds of race, colour, or national or ethnic origin.

On the face of it, that sounds reasonable.  As with all things legal, however, the devil is in the detail. Or lack of it. This particular devil chews up a well-considered segment of racial discrimination law and coughs out only fragments of what made the law workable. The rest is consumed in the dark recesses of its political stomach, to pass out eventually in unmentionable fashion—preceded of course by a whole lot of hot air.

But don’t just take my word for it. Let’s go to the government statement to assess how much of it is hot air: “The Government Party Room this morning approved reforms to the Racial Discrimination Act 1975 (the Act), which will strengthen the Act’s protections against racism, while at the same time removing provisions which unreasonably limit freedom of speech.”

It definitely says the reforms will “strengthen the Act’s protections against racism” right? I dare any government minister to take a lie detector test on that statement. If you read on, you’ll see why that claim is nothing more than a bombastic passing of hot air. The reforms chop off the current protections at their knees, leaving only stumps to fall over in the… yep, wind.

It further says: “A new section will be inserted into the Act which will preserve the existing protection against intimidation…”

Attorney General George Brandis wants to amend the Racial Discrimination Act, arguing it is an impediment to free speech

I’m afraid that’s another load of hot air. The statement might be true if “intimidate” didn’t have a new definition under the Bill.

Under the existing legislation, it isn’t defined, which means it has its ordinary meaning: to make timid or fearful, to ‘strong arm’ or overawe, to mentally or physically stand over a person—what a person might understand “intimidate” to normally mean.

But under the new definition, only a fragment of the word’s normal meaning is captured. A racist intimidatory act will only amount to “intimidation” under the reform if it is reasonably likely “to cause fear of physical harm”. Thus, any form of intimidation that stops short of causing a fear of physical harm will now be lawful, if the Bill is passed.

Contrast the existing legislation that will be repealed under the Bill: A racist act is unlawful if it is reasonably likely to “offend, insult, humiliate or intimidate”.  Note: A ‘fear of physical harm’ is not necessary to prove intimidation under the existing legislation.

Therefore, to say that the new legislation will “preserve the existing protection against intimidation” is incorrect. In fact, it reduces the existing protection (currently, a person can be ‘intimidated’ in all ways including physical).  It also removes all the other protections against racist acts that are likely to offend, insult or humiliate.

I can accept that the current legislation may be too broad—in particular, the references to “offend” and “insult”.  It would be reasonable, I believe, to remove these words and make a racist act unlawful only if it is reasonably likely to humiliate or intimidate within the ordinary meanings of these words, or if it is reasonably likely to be highly offensive, as determined by the reasonable person. To amend the legislation in this manner would preserve key protections while advancing freedom of speech.  All that’s required is a dismantling in part, not a wholesale demolition.

The statement also says: “A new section will be inserted into the Act which will… 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.”

This introduces, with some fanfare, a brand new protection from “racial vilification”.  Having already bastardised the meaning of “intimidation”, the Bill makes similar work of the meaning of “vilify”. Under the proposed Bill, to “vilify” means: “to incite hatred against a person or a group of persons”. Thus, racial vilification is unlawful only if it is reasonably likely to incite hatred. Anything that stops short of inciting hatred is no longer unlawful under the reforms.

So if I vilify you (within the normal meaning of ‘vilify’) by holding you up to ridicule, humiliation and contempt simply because of the colour of your skin, this will not be unlawful vilification under the terms of the Bill. It is only if I incite hatred against you that my actions (potentially) become unlawful. Contrast the existing law that the Bill proposes to repeal: vilification need not incite hatred to be unlawful. It is enough if it is reasonably likely to offend, insult, humiliate or intimidate.

It is smoke and mirrors to split up ‘vilification’ and ‘intimidation’ and ascribe special, restricted meanings to each. I can define pig shit as an “olfactory agent” but that doesn’t stop it from being pig shit. The fact is that the Bill is proposing to replace what is comprehensive and sensible legislation with something else entirely.

The best way to illustrate this is by example: If I were to upload to the internet some seriously offensive racist material that nonetheless falls short of inciting hatred or causing fear of physical harm, this would constitute an unlawful act under the current law, on the basis that it is reasonably likely to offend, insult, humiliate or intimidate on racial grounds. If the Bill is passed in its current form, this would no longer be unlawful under the Racial Discrimination Act.

Among those targeted in Andrew Bolt stories was Professor Larissa Behrendt, a Eualeyai/Kamillaroi woman, Prof of Law & Director of Research, Jumbunna Indigenous House of Learning at UTS Sydney, Supreme Court barrister

But that isn’t all.

What if this material does, in fact, ‘incite hatred’ against a particular race or cause ‘fear of physical harm’?  If the material is put together in private and the uploading of the material is also done in private, it is quite arguable that this will be lawful under the Act, as amended by the new Bill. Contrast the existing law that the Bill seeks to repeal: clearly, under existing law, the act of uploading to the Internet is unlawful.

But again, that isn’t all.

If I want to be certain that my act of uploading extreme racist material is lawful, I need only upload it while participating in a public discussion. I can be as unreasonable, racist, obnoxious, untruthful and militaristic as I please, at least under the terms of the Bill. I can incite as much racial hatred as my withered little heart will allow. This is lawful under the reform proposed by the Bill.

It is clearly unlawful under the existing legislation.

Now what if, instead of uploading extreme racist content to the Internet, I instead communicate my extreme racist thoughts to a group of people with my racial or cultural background who may be sympathetic to my views? The Bill allows “vilification” or “intimidation” on racial grounds to lawfully take place in the course of participating in a “public discussion”.  However, unlike the current legislation, the Bill doesn’t give any pointers as to what might constitute “public discussion”.

For instance, am I necessarily having a public discussion if I am taking part in a group discussion? What if membership is by invitation only or otherwise restricted?  Will a lecturer or key speaker be engaged in ‘public discussion’? What about a teacher or scribe inculcating racial hatred or vilification in impressionable minds?  The existing legislation more or less answers these questions satisfactorily. The new Bill leaves them hanging in the wind.

Aside from the key questions of “what exactly constitutes ‘in private’ and what does the ‘public discussion’ exemption cover?”, the Bill also invites other questions that frankly, are already covered in the existing legislation that it seeks to repeal—such as: What if I vilify or intimidate a group because of the race/colour/national or ethnic origin of some (not all) of the group—is this lawful because of a loophole in the new Bill?  What if I vilify or intimidate the group only partly because of race/etc; what if the main reason is because I have a grudge against someone in the group? Again, the existing legislation addresses these questions; the new Bill does not.

Another question: What if I, as an employer, did nothing to discourage my employees from victimising another employee (eg. always giving them the dirty jobs) totally or partly because of their race? Under the existing legislation, I as an employer could be vicariously liable as if I victimised the employee myself. This would encourage me, as employer, to implement appropriate safeguards. Under the new Bill, the bully would not be acting unlawfully unless he incites racial hatred or causes fear of physical harm to the victim because of the victim’s race, etc. And under the new Bill, employers have no vicarious liability for vilification or intimidation by employees.

If I were to seek an apt analogy for what the Bill does, it is to strip us of warm clothes in winter and replace them with strips and rags. In the place of a controlled fire, it gives us petrol and matches.

Of course, I have focused on the new Bill and how it would impact on existing protections under the Racial Discrimination Act if the Bill is passed. Other legislation such as the Crimes Act or the anti-discrimination laws of each State and Territory could make certain actions unlawful even if they no longer breach the Racial Discrimination Act.

The overall point is simple: If it ain’t broke, don’t fix it.  Or if it only needs a tinkering around the edges, don’t use a sledgehammer.

Finally, this is something worth thinking about: a member of any race can perpetrate racial discrimination. You don’t have to be in a majority racial group to be a racist.

Picture this: new legislation with holes big enough for trucks to drive through and an organised militant minority racial group that believes it has been victimised by the dominant racial group. The organised militant minority group is lawfully entitled to vilify and incite hatred against the dominant group because it does this “in private” or in the course of participating in “public discussion”. It doesn’t take a lot of imagination to picture what might happen next.

In its current form, the proposed new legislation is open to abuse by everyone.  In making room for the bolts of this world, we also make room for the nutters. The two have always gone together.

Let the government know your views: make a submissions to the proposed changes to the Racial Discrimination Act before April 30.


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:

(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.


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.                                                                              i.     to a person; or
    2.                                                                             ii.     to the property of a person; or
    3.                                                                            iii.     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.”



Offensive behaviour because of race, colour or national or ethnic origin

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

(a)       the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b)       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.


Note:          Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.


(2)     For the purposes of subsection (1), an act is taken not to be done in private if it:

(a)       causes words, sounds, images or writing to be communicated to the public; or

(b)       is done in a public place; or

(c)       is done in the sight or hearing of people who are in a public place.


(3)     In this section:

“public place” includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.


Reason for doing an act


(a)           an act is done for 2 or more reasons; and

(b)           one of the reasons is the race, colour or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act);

then, for the purposes of this Part, the act is taken to be done because of the person‘s race, colour or national or ethnic origin.




Section 18C does not render unlawful anything said or done reasonably and in good faith:

(a)           in the performance, exhibition or distribution of an artistic work; or

(b)           in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

(c)           in making or publishing:

(i)             a fair and accurate report of any event or matter of public interest; or

(ii)            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.


Vicarious liability

(1)       Subject to subsection (2), if:

(a)       an employee or agent of a person does an act in connection with his or her duties as an employee or agent; and

(b)       the act would be unlawful under this Part if it were done by the person;

this Act applies in relation to the person as if the person had also done the act.

(2)       Subsection (1) does not apply to an act done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing the act.


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