Racial discrimination changes to axe vicarious liability & exemptions

1st May 2014

Proposed changes to the Racial Discrimination Act 1975 (Cth) are being hotly debated in the media, however, could the focus on s18C be missing crucial issues?

On 25 March 2014, the Federal government released an exposure draft of proposed changes to the Racial Discrimination Act 1975 (Cth) (RDA). The same day, an announcement was made reintroducing knights and dames into Australia’s honour recognition as an important ‘grace note’.

Submissions to the Attorney-General's Department on the proposed changes to the RDA were due in yesterday. The Australian Lawyers Alliance has provided its submission and issued an associated release.

The case of Eatock v Bolt [2011] FCA 1130; Eatock v Bolt (No. 2) [2011] FCA 1180 (often referred to as ‘the Bolt case’) has often been attributed to the passionate ire surrounding s18C. In the case, journalist and commentator Andrew Bolt, employed by the Herald and Weekly Times Pty Ltd, authored and published articles entitled ‘Whiter than black’ and 'It's hip to be black'.

In the case, the Court held that the articles did not fall under the exemptions provided by s18D and were discriminatory under s18C. Furthermore, the Herald and Weekly Times Pty Ltd was held vicariously liable for publication of the articles, with an order to pay appropriate costs.

While s18C has attracted a large amount of attention in the weeks that have since passed, little attention has been paid to the other sections also likely to receive the chop: s18D (exemptions) and s18E (vicarious liability).

Turning first to vicarious liability: under the current RDA, employers are held vicariously liable if they fail to take reasonable steps to curtail racially discriminatory conduct. The new changes propose to delete this section in entirety.

By contrast, all state and territory based anti-discrimination acts continue to include vicarious liability provisions.

Similarly, all other federal discrimination legislation continues to maintain vicarious liability: sex discrimination, age discrimination and disability discrimination.

It appears that racial discrimination alone has been singled out as a less serious form of discrimination. If the proposed amendments are passed, employers will have little or no incentive to curtail discriminatory conduct. Plaintiffs will also receive significantly less damages for any harm and injury suffered as a result of discrimination, as employers will no longer be held vicariously liable.

The current s18D is also slated for repeal by the proposed changes. Covering exemptions, s18D ensures that comment in a public place must be ‘reasonable’ and ‘fair’ and ‘in good faith’. While exemptions exist for artistic expression, comment or report must be ‘for the genuine purpose’ of being in ‘the genuine public interest’.

Instead of these steady qualifiers that govern public reporting and commentary, the proposed new s18C creates a broad exemption, wherein commentary is not racially discriminatory where words, sounds, images or writing are 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. This is so broad that it could essentially be extended to any topic. Furthermore, it does not require that the commentary be fair, reasonable or in good faith.

The new s18C is also inherently discriminatory, in that conduct is determined to be racially discriminatory via ‘the standards of an ordinary reasonable member of the Australian community, not by the standards of any particular group within the Australian community.’

Such a provision assumes a homogenisation of Australian culture, and fails to acknowledge the unique challenges experienced by ethnic minorities, and how an act may be considered particularly offensive to a person’s culture.

It is astonishing that the views of individuals that have been affected, and members of ethnic minorities within Australia, are not to be considered.

Waleed Aly described these changes appear to favour white Australians:

‘And what race is this hypothetical "ordinary reasonable member of the Australian community" meant to be, exactly? If you answered that they have no particular race, then you’ve just given the whitest answer possible. It’s the answer that assumes there is such a thing as racial neutrality. Of course, only white people have the chance to be neutral because in our society only white is deemed normal; only whiteness is invisible…’

The Australian Lawyers Alliance has submitted that the changes are unnecessary and inappropriate.

Community organisations are united in their opposition to the changes. The National Congress for Australia’s First Peoples is calling for the changes to be abandoned in entirety. The Australian Human Rights Commission President, Professor Gillian Triggs, has condemned the changes as ‘bad law’.

The flow on effects of these amendments being passed into law may be considerable. As a first step, there is a strong likelihood of growth in the acceptance of racially discriminatory behaviour and potential for increases in conflict and, eventually, violence.

Claimants may have reduced access to the complaint mechanisms available through the Australian Human Rights Commission, and also significantly reduced damages. Employers may sanction and tolerate increases in employee’s discriminatory behaviour.

The bringing of causes of action in this area is not frivolous. Breaches are serious and demand change on the part of individuals and employers involved.

Current exemptions and definitions are adequate to permit freedom of speech and to protect individuals from harm.

The amendments have been proposed under the guise of upholding 'freedom of speech'. However, it is important to recognise that where rights conflict (in this case, the right to freedom of expression versus right to non-discrimination), it is sometimes necessary to reasonably limit one person's right in order to protect another's. This essential balance is fundamental and must not be tampered with.

The comments of Gough Whitlam, when introducing the Racial Discrimination Act, are as pertinent today as they were in 1975:

'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.'

Emily Mitchell was the the Australian Lawyers Alliance's Legal and Policy Officer from 2011 to 2016. 


The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: Human rights Equality Discrimination Emily Mitchell