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Sections 18C and 18D of the Racial Discrimination Act: What is at stake?

Race Race Discrimination

Edited transcript

Thanks very much for that welcome, and thank you everyone for coming tonight. I’d like to start by acknowledging the traditional owners of the land on which we meet, the Gadigal People of the Eora nation.

Tonight’s forum is about what is at stake with the debate concerning the Racial Discrimination Act. Let me begin by outlining what I believe is at stake with this debate.

At a very basic level, what is at stake is the legal protection that we have against racial vilification in this country. But I think that says very little about what is truly at stake.

There are social and moral questions that we should have in our minds when we’re deliberating upon whether we should be amending the Racial Discrimination Act.

There’s the social question around racism: Do we want to have more racism in our society? Do we value civility and social cohesion in a modern Australia? And there are the moral questions: Is it right to have the expectation that everyone in our society should be free to live lives of dignity and equality? That everyone be able to go about their own business, and be free from racial discrimination?

In the time I have, I’d like to talk about the background to the laws that currently stand, the operation of the laws as they currently stand, and then go through the proposed changes that the Federal Government has put forward and outline my concerns with these laws.

So that you know where I stand on these issues, I do not believe the case has been made for changing the laws. Our racial vilification laws should remain exactly as they are today. They have been in place for almost 20 years and enjoy widespread community support, and send a strong message about racism being unacceptable in our society.

Part IIA of the Racial Discrimination Act

Let’s get into some of the details of the Racial Discrimination Act, namely Part IIA.

This part of the law was introduced in 1995 as the Federal Government’s response to a number of major inquiries and reports. These recommended the law include provisions that protect people from racial abuse and harassment. I refer to the Royal Commission into Aboriginal Deaths in Custody,[1] the National Inquiry into Racist Violence[2] conducted by my predecessor Irene Moss, and the Australian Law Reform Commission study into Multiculturalism and the Law.[3]

These reports and inquiries were conducted at a time when there was mounting community concern about racial vilification and violence. Chinese restaurants had been firebombed, Jewish cemeteries were being vandalised and desecrated, and you also had a reprehensible situation concerning Aboriginal deaths in custody.

Racism today remains a problem in our society. We know from the research that about 20 per cent of Australians say they’ve been subject to verbal racial abuse, and about five per cent say they’ve been subjected to physical abuse on the grounds of race.[4]

If you look at people from particular backgrounds, that figure is substantially higher. Indeed, for Aboriginal and Torres Strait Islander people, about 90 per cent say that they’ve been subjected to verbal racial abuse; with physical abuse it’s much higher than that five per cent level that I mentioned.[5] The Scanlon Foundation study last year also pointed to people from Asian countries of origin experiencing racial or religious discrimination of some kind in the past 12 months in the range of 40 per cent.[6]

That’s the reality of the lived experience of racism. And when racism occurs, the harm goes much deeper than mere hurt feelings, or being slighted. If you think about the impact, just consider how figures such as Adam Goodes or Ben Barba – professional sportsmen who week-in, week-out have to cop physical contact – say they feel when they are subjected to racial abuse. If they’re wounded by racial epithets and slurs, imagine what a school boy or school girl would feel like when they’re subjected to racial abuse.

Operation of Part IIA

Let me turn now to the law as it currently operates. There are two sections of the law that are worth bearing in mind – namely, section 18C and section 18D.

Section 18C makes it unlawful for someone to commit an act that’s reasonably likely to offend, insult, humiliate or intimidate someone on the grounds of race. Section 18D protects freedom of expression. If you do something in artistic work, if you participate in academic or scientific inquiry, if you are engaged in fair reporting or fair comment on a matter of public interest, then you cannot be held to be in contravention of the law – provided that you act reasonably and in good faith.

Now in the current public commentary about how the laws operate, there are a lot of misconceptions about how sections 18C and 18D work. One is to refer to people being convicted or prosecuted under the RDA. That simply cannot happen. This is a civil law; it is not a criminal law. When someone believes the law has been breached, what happens is that they come forward to the Australian Human Rights Commission, which then inquires and investigates and attempts conciliation. The Commission brings the two parties together to talk through their problems and seeks to resolve it in a civil and educative manner.

As the law currently works, we’ve resolved the majority of complaints that come forward to the Human Rights Commission. Last financial year, 192 complaints were made concerning racial hatred and vilification. Fifty-three (53) per cent of those cases were resolved in conciliation. Three (3) per cent ended up in court. So that’s five (5) of almost 200 complaints.[7] The existing mechanism avoids litigation for the most part. It ensures that people have access to justice, and that everyone can hold someone to account for being subjected to racial vilification.

I want to make clear as well that the courts have interpreted the law, in the last 20 years of its operation, in a uniform way. They’ve said that hurt feelings or mere slights are not enough to constitute a breach. It has to involve serious and profound effects.[8]

Obviously a lot of the debate has concerned the Andrew Bolt case, in which Herald Sun columnist Andrew Bolt wrote a number of articles concerning fair skinned Aboriginal people.[9] I think it’s important to be clear about what the Federal Court in that case held. We should note, too, that Mr Bolt never appealed the decision by the Federal Court.

Some will say that the Bolt decision represents the proposition that one cannot debate racial identity in modern Australia; that the RDA serves to censor opinion; that it prevents us from having a free and open dialogue about issues of public importance.

Now what the Federal Court actually held was this: Mr Bolt did not enjoy the protection afforded under section 18D because he had combined errors of fact, distortions of the truth, and had used inflammatory and provocative language. It was a combination of these factors, the Court held, that meant he could not have been found to have been acting reasonably or in good faith.

The question I’d like to put to those advocating repeal of section 18C is this: What is it exactly that you want to say that isn’t currently protected by section 18D?

Conclusion

Let me conclude with some reflections on what the Federal Government has proposed in repealing section 18C.

In its exposure draft which was released in March, the Federal Government has proposed prohibiting acts that vilify and intimidate. So changing ‘offend, insult, humiliate and intimidate’ as the language of prohibition, to ‘vilify and intimidate’. In addition, there’s a community standards test which judges a breach of the law according to whether an ordinary reasonable member of the Australian community at large has engaged in the relevant conduct. As well as that, there’s a category of exception which would ensure that anything that’s done in the course of public discussion is held exempt from a breach of law.

My concerns are as follows:

Vilify in the ordinary sense of the word means to degrade or demean someone. The definition provided in the exposure draft is that of incitement of a third party to racial hatred. What this would do is shift the focus of the law away from the impact or the harm on the victim or target to the effects on a performance of inciting racial hatred.

As for intimidation, intimidation is defined in the exposure draft as physical intimidation. It wouldn’t cover non-physical forms of intimidation such as psychological or economic intimidation.

The community standards test would also involve a shift from the current situation which takes into account the reasonable person who is a member of the target group.

I have some questions about who this ordinary reasonable member of the Australian community at large would be: what is, for example, the ethnicity or cultural origin of this person? How is he or she disposed to those of other races or backgrounds? The answers to these questions are not clear to me from the exposure draft.

Finally, the broad category of exception ensures that anything that is said in the course of public discussion, regardless of whether it’s done reasonably and in good faith, would be protected. So you could say something that was dishonest, you could say something that was wildly unreasonable, you could say something that was done in absolute bad faith, but you could still claim the protection of free speech. It is not evident to me what, if any, conduct, even if it involves the incitement or racial hatred; even if it involves physical intimidation, would be prohibited if the exposure draft were to be enacted as law.

This debate comes down to this. We’ve heard from those who’ve been proposing changes to the law that we should be championing a right to be bigots. What about the right to be free from the effects of bigotry? Yes, freedom of speech is a fundamental value in a liberal democracy, but so is freedom from racial discrimination.

In our debate, we should bear this in mind and ask: What kind of society do we want to be?

Because if the proposed amendments are enacted, I believe we should be very concerned about the signals it would send. It could have a very significant effect, I fear, on the daily interactions that we have in society. And it could impair the ability of all Australians, regardless of racial or ethnic background, to pursue lives of meaning and dignity.


[1] Royal Commission into Aboriginal Deaths in Custody, National Report Volume 4 (1991). At http://www.austlii.edu.au/au/other/IndigLRes/rciadic/national/vol4/26.html
[2]Human Rights and Equal Opportunity Commission, Report of National Inquiry into Racist Violence in Australia (1991). At http://www.humanrights.gov.au/publications/racist-violence-1991
[3]Australian Law Reform Commission, Multiculturalism and the Law, Report No 57 (1992). At http://www.austlii.edu.au/au/other/alrc/publications/reports/57/
[4]K Dunn, Challenging Racism: The Anti-Racism Research Project. At http://www.uws.edu.au/social_sciences/soss/research/challenging_racism/findings_by_region
[5]A Ferdinand, Y Paradies & M Kelaher, Mental Health Impacts of Racial Discrimination in Victorian Aboriginal Communities, The Lowitja Institute (2013). At https://www.lowitja.org.au/lowitja-publishing/L023
[6] A Markus, Mapping Social Cohesion 2013: The Scanlon Foundation Surveys National Report (2013). At http://www.scanlonfoundation.org.au/research.html
[7] Australian Human Rights Commission, Annual Report 2012-2013 p.132. At :https://www.humanrights.gov.au/publications/annual-report-2012-2013
[8] Kiefel J in Creek v Cairns Post Pty Ltd (2001) 112 FCR 352, cited with approval in Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105.
[9] Eatock v Bolt [2011] FCA 1180

Dr Tim Soutphommasane, Race Discrimination Commissioner