Proposed changes to RDA will disallow people from utilising law
26th Mar 2014
Proposed changes to the Racial Discrimination Act will effectively disallow people from utilising the law, the Australian Lawyers Alliance said today.
The Exposure Draft of the Freedom of Speech (Repeal of s18C) Bill 2014 (Cth), released yesterday by Fairfax Media reveals the value placed by the Federal government on anti-discrimination laws.
“We should all have concern, as these changes may effectively disallow people from utilising the law when racially discriminatory actions have occurred,” said Geraldine Collins, National President of the Australian Lawyers Alliance.
The changes proposed repeal s18C, delete s18B which regards reason for doing an act, 18D which deals with exemptions and 18E, which covers vicarious liability.
“The laws have been in place for approximately 20 years. There is no need for such amendments,” said Ms Collins.
Under the proposed amendment, an act is unlawful if it vilifies or intimidates a person or group because of their race, colour, national or ethnic origin in public. It is unlawful only to incite hatred or cause fear of physical harm.
However, to determine if the act is unlawful, the standards applied is that of ‘an ordinary reasonable member of the Australian community’.
“An ordinary reasonable member? This is a vague, shadowy term lacking in genuine meaning or significance,” said Ms Collins.
“An act may be heinous or significantly offensive to a particular group, but under these changes, what the general population thinks is more important than the person or people affected.
“However, even more troubling, is the carte blanche issued to racially discriminatory expression, where it occurs in virtually any form of public discussion: ‘any political, social, cultural, religious, artistic, academics or scientific matter.
“This test is extremely wide,” said Ms Collins, “and could allow any racially discriminatory expression, vilification or intimidation to spread as far as media can take it.”
The proposed changes also removes provisions regarding acts ’reasonably likely in all the circumstances, to offend, insult, humiliate or intimidate’ and simplifies intimidation to ‘fear of physical harm’ only.
Exemptions already exist in the Racial Discrimination Act 1975 regarding art, publication, discussion or debate or any other genuine purpose in the public interest.
“This is an enormous over-reaction to the Bolt case,” said Ms Collins.
“In Bolt’s case, the presiding judge held that there was a contravention of the Racial Discrimination Act, not because the newspaper article dealt with subject matter, but because of the manner in which it was dealt with.
“The scrapping of vicarious liability appears to be another attempt to protect “big business” at the cost of the ordinary person. It is contrary to legal principles established over hundreds of years.
“An employer is responsible for the actions of its employees. However, this amendment protects an employer from the consequences of the actions of its employees. It effectively means an employer could direct an employee to act in a discriminatory manner and then hide behind the employee in avoiding liability for its own actions.”
In 2009, 619 complaints regarding racial hatred were made to the Australian Human Rights Commission: higher than discrimination on the basis of pregnancy (510).
“This is a robust legal area that continues to require protections,” said Ms Collins.
“Exemptions currently exist to ensure that these protections do not go too far.
“Australia should not be in a race to the bottom to permit xenophobic, bigoted expression.
“These protections are crucial to ensure equality and non-discrimination in Australian society.
“While Mr Brandis has cited that ‘people have a right to be bigots’, an Attorney General cannot invent rights. Bigotry has no place in upholding principles of equality and non-discrimination in Australia.
“People have a duty to utilise their parliamentary responsibility to ensure that vulnerable people have the law’s protection on their side.”