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Turnbull Government's Proposed Amendments to Racial Discrimination Act

Life is full of ironies, so why should politics be any different?

So then it shouldn’t come as a surprise that yesterday, 21 March 2017, a day that was proclaimed as “Harmony Day” by the Australian Government, a day intended, according to the government’s own Harmony Day Website, to promote “inclusiveness, respect and a sense of belonging for everyone”, the Turnbull Government announced proposed changes to section 18C of the Racial Discrimination Act 1975 to loosen restrictions against hate speech.

As currently in force, section 18C, which is headed: “Offensive behavior because or race, colour or national or ethnic origin” makes it unlawful for a person to do an act “otherwise than in private” (in other words, in public) that is reasonably likely, in all the circumstances, to “offend, insult, humiliate or intimidate another person or a group of people, and 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.

There are exceptions to the prohibition in section 18C in the immediately following section of the Racial Discrimination Act, Section 18D.

Section 18D provides that Section 18C does not make an act unlawful if it is done reasonably and in good faith in the performance, exhibition or distribution of an artistic work; 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 in making a fair and accurate report of any event or matter of public interest or a fair comment on any event or matter of public interest.

Complaints that are made about an act or speech said to contravene Section 18C are investigated by the Human Rights Commission.  The Commission investigates complaints and either dismisses the complaint or initiates a “conciliation process” . If the matter is not resolved through conciliation, then it can be taken to court.

The changes proposed by the Turnbull Government will involve amending the language of Section 18C to replace the words “offend” and “insult” with “harass”.

Prime Minister Turnbull has categorically denied that the proposed changes to Section 18C would “water down” Australia’s racial hate laws and has argued that he changes would make the legislation clearer, fairer and more effective.

However, Shadow Attorney-General Mark Dreyfus of the Labour Party has said that: “to pretend that this is a strengthening of the law is simply nonsense”.

And indeed, it would be pretty hard to argue that a standard requiring that speech or other acts must rise to the level of “harassment” is a higher threshold than simply providing that the speech or conduct is unlawful if it “offends” or “insults”. The term “harass” would seem to require that a person must “feel threatened”, while a standard of “insult or offend” would seem to be satisfied if it resulted in injury to a person’s feelings.

Of course, Section 18C is of special significance to migrant communities, as well as to Australia’s indigenous communities and religious minorities, who have most commonly been the target of “hate speech”.

It appears that these proposed changes to the Racial Discrimination Act may be motivated by an interest in counteracting so-called “political correctness”. 

But that seems (at least to the writer) to be an exceedingly strange step to take on Harmony Day.

In this day and age, when public discourse is increasingly being coarsened and brought down to the lowest common denominator, when certain groups (Muslims, for example) are being vilified for their religious orientation, when indigenous Australians still suffer from systemic racial discrimination, when anti-Semitism is permitted to find a home in the White House in the person of Mr Trump’s senior policy advisor, Steve Bannon and widespread anti-Semitic incidents in the United States are not denounced immediately, is that really the time to lower the bar and to make it easier to engage in “hate speech” or speech that is offensive and insulting to minority groups?

Shouldn’t the legislative initiative really be on the side of promoting greater  civility and respect for others, regardless of their race,  colour, ethnic or national background?

Can it be seriously suggested that it unduly restricts free speech rights to make it unlawful to use words in public that are intended to offend or insult? Have we not come further as a society toward understanding, acceptance and celebration of diversity and multiculturalism that we no longer accept that the use of language to insult and offend is deeply and inexcusably hurtful?

That in order for us to have a peaceful, cohesive and mutually respectful society, there must be some reasonable limit on free speech?

Isn’t more tolerance needed, not less?

What do you think? 

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  • Alan-Collett
    Alan-Collett Wednesday, 22 March 2017

    There is (IMHO) clearly something awry - whether it is the legislation or process - when one considers the QUT students, and the stance taken by the AHRC against Bill Leak.

    In any event, is it is not the case that the intention to offend is not what is causing the problems? The mere taking of offence is sufficient as to give rise to the prospect of action under 18C, with the apparent endorsement of the AHRC.

    The higher standard - allied to changes at the AHRC - seems to me to be a reasonable effort to address the situation, but I can see how political capital might be spent trying to get this issue over the line.

    Best regards.

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