Vicarious liability to be chopped under RDA changes

30th Apr 2014

Employers may win and individuals lose out with vicarious liability and exemptions on the chopping block under proposed changes to the Racial Discrimination Act 1975 (Cth), the Australian Lawyers Alliance said today.

“While much focus has been fixed on the changes to Section 18C, the proposed deletion of Sections 18D and 18E are very serious when thinking about holding employers and the media accountable for discriminatory conduct,” said Geraldine Collins, National President of the Australian Lawyers Alliance.

Both Sections 18D (exemptions) and 18E (vicarious liability) have been slated for repeal by the proposed changes to the Racial Discrimination Act. Both sections were also referred to in the famous case of Eatock v Bolt, in which the Court found Mr Bolt’s articles did not fall under the exemptions and the Herald and Weekly Times to be vicariously liable for Mr Bolt’s publication of racially discriminatory articles.

“Deleting vicarious liability removes an incentive for employers to curtail discriminatory behaviour that occurs under their watch,” said Ms Collins.

“It also robs individuals of access to appropriate redress, with employers largely getting away with permitting discriminatory conduct.”

“Legislation across the country, at both a state and federal level, has acknowledged the seriousness of a culture of discrimination. Vicarious liability for racial discrimination exists in every state and territory across Australia. To remove such a responsibility from the federal legislation is grossly inappropriate.”

“Removing vicarious liability also means that racial discrimination is treated less seriously than other forms of discrimination; age, sex and disability discrimination. These are all forms of discrimination legislated at a federal level which are underwritten by vicarious liability.”

“Anti-discrimination is not just the responsibility of individuals. It is the responsibility of any organisation, schools, companies, media and every member of the community.”

“This proposed legislation seeks to abolish that responsibility,” said Ms Collins.

The exemptions in the current Racial Discrimination Act are also narrower than those proposed by the Federal government. Under the current legislation, comments that were raised reasonably and in good faith, for artistic purposes, in the genuine purpose of the public interest or in making fair comment or report in publishing are not unlawful. However, in the new Section 18C, words or images, if they are articulated in a public discussion of virtually any broad matter, are acceptable.

“The Racial Discrimination Act is in place to ensure that Australians communicate reasonably and in good faith about individuals and members of our communities,” said Ms Collins.

“The words of Gough Whitlam, spoken when the Act was first introduced, continue to remain relevant today: 'The main sufferers in Australian society, the main victims of social deprivation and restricted opportunity, have been the oldest Australians on the one hand and the newest Australians on the other. We stand in their debt. By this Act we shall be doing our best to redress past injustice and build a more just and tolerant future.'

“It is our hope that the Federal government will abandon these proposed changes. The discussion surrounding them has revealed a strong unity among Australians to support anti-discrimination: and that is a wonderful thing.”

“But as Australians we need to, in the words of Gough Whitlam when introducing this Act, do our best to redress past injustice and build a more just and tolerant future. This includes rejecting these proposed changes as unnecessary and inappropriate.”

See our submission on Amendments to the Racial Discrimination Act 1975 (Cth) 

Tags: Human rights Equality Discrimination