The thing is, people already have the freedom to be bigots. And in spite of federal and state laws, bigots feel free to shout slurs at us as we commute to school or work, to mock our customs, our appearance and our accents, to question and challenge our presence in this country. We see ourselves demonised in television dramas and stereotyped in advertising. We see ourselves erased from history and marginalised in political discussion.
For the most part, racism in Australia flourishes uninterrupted. Alan Jones still has a radio show, and continues to broadcast xenophobic hate speech even after he racially vilified people of Middle Eastern backgrounds in the lead up to the Cronulla riots. Andrew Bolt still has his newspaper column, as well as a television show, in which he regularly espouses Stolen Generations denial, among other offensive untruths.
Andrew Bolt’s attempt to intimidate light-skinned Aboriginal people from publicly identifying as Aboriginal was found in breach of the Act because it contained factual errors and inflammatory and provocative language. Bolt’s intimidation continues regardless of this finding. Bolt has targeted up to thirty light-skinned Aboriginal persons, including school children, on his blog under implicit headers of 'No Comment'. If the present provisions are ill-equipped to shield even vulnerable Aboriginal school children from racism and humiliation, weakening these provisions seems an unnecessary limitation of already scant protections. These limitations are, in our view, incorrectly made in the name of open and free public discourse which is by no means violated by the present Act.
However, these changes may have the effect of disincentivising participation in public discourse for persons who have fear of such racial vilification. The proposed changes to the Racial Discrimination Act hollow out the core of a piece of legislation that is already very limited and specific in its possible applications. We oppose all of the proposed changes, as we will discuss in more detail below.
18B. 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.
Repealing subsection 18B appears to condone any vilification or intimidation on the grounds of race, colour or national or ethnic origin of a person so long as there is a secondary reason for the act. For example, talking about a flood of cashed-up Chinks would appear to be acceptable as long as it is also a commentary on the real estate market.
As women of colour, the racism that we experience often intersects with sexism. We are concerned that repealing 18B will make it more difficult to redress vilification that targets us on the basis of gender, sexuality, disability or other factors in addition to race, colour or national or ethnic origin. For example, will the new Act excuse referring to a migrant woman as a ‘mail-order bride’ because this is said on the basis of her gender and relationship as well as her race and national origin?
18C. 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.
And proposed addition:
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:
a. vilify means to incite hatred against a person or a group of persons;
b. intimidate means to cause fear of physical harm:
i. to a person; or
ii. to the property of a person; or
iii. to the members of a group of persons.
Repealing and replacing Section 18C with the new proposed wording on vilification and intimidation will severely reduce the already limited protection available in the Act. The revised Act will make racial insults, offenses and humiliation acceptable unless they can be proven to ‘incite hatred’ or ‘cause fear of physical harm’. It will not recognise the substantial psychological harm that insult and humiliation causes to individuals, nor the social toll through which vilification makes racialised minorities doubt our rights to be visible, to be heard and to be active participants in the future of our nation.
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.
And proposed addition:
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.
We are very concerned by the broad range of exemptions under this proposed sub-section, which will have the effect of permitting public discussion which is intimidating or vilifying without any requirements of fairness, accuracy, sincerity, reasonableness or good faith. In the context of this nation’s eugenicist past, we are especially anxious about an exemption for discussions of ‘scientific’ matters, and the impact such scientific exemptions may have on public discourse surrounding persons vulnerable to racism, and the Stolen Generations.
The proposed change also specifically targets the capacity of racialised groups to collectively protest vilification as an issue of justice and national political interest. Several commentators have said that Pat Eatock et al could have won a defamation case against Andrew Bolt. Instead they chose to sue under the Racial Discrimination Act which offers no damages, but which more accurately frames the issues as intimidation of a racialised group rather than defamation of several individuals.
Currently the Racial Discrimination Act’s provisions relating to racial hatred are often used in relation to public discussion in the course of the matters outlined above, as private acts do not come under the Act. Anything less would possibly be seen as trivial. We ask when the Attorney-General imagines the new provisions would apply if not in cases exempt under this sub-section.
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.
The implication of this addition is that the current law panders to oversensitive minorities, that we require an 'ordinary reasonable member of the Australian community' to decide what real racism is. In the media coverage of the discussion surrounding the changes, it is apparent that people who admit they have never experienced racism nevertheless feel they would be best placed to arbitrate it. While lack of experience in other areas rarely implies expertise, it seems when it comes to racism, experience is seen as a problem, undermining ‘neutrality’. We challenge the possibility of neutrality or an ‘ordinary reasonable’ perspective in relation to an Act that is specifically designed to provide redress in relation to vilification, intimidation and offence situated within historical and ongoing unequal power relations. We think the current Act should be rephrased to clarify that vilification (offence, insult and humiliation) should be assessed by the standards of the affected community (as it has been interpreted by the courts to date).
In conclusion, we feel the proposed changes effectively negate any protections against racial hatred that the Act can offer. The changes champion powerful media commentators’ lust for offense, humiliation and lucrative controversy over the rights of marginalised Australians to observe and participate in public discussion free from vilification. The changes also suggest ignorance of the social and political context which creates the demand for laws against racial hatred. We urge the government to work harder at understanding and challenging racism.
the undersigned members of the Women of Colour Network Australia
[names and personal details removed for privacy reasons]
[names and personal details removed for privacy reasons]