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.
Proposed repeal:
18B. Reason
for doing an act
If:
(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?
Proposed repeal:
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,
and
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.
Proposed repeal:
18D.
Exemptions
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.
Proposed addition:
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.
Yours
sincerely,
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]
