Thursday, 1 May 2014

Australian Human Rights Commission submission on the proposal to repeal sections of the Racial Discrimination Act 1975

It is comforting to realise how little the far-right quisling, ‘Freedom Commissioner' Tim Wilson, actually counts when it comes to the Australian Human Rights Commission’s considered  response to proposed bad law.

His perspective did not prevail in the Commission's submission and he was reduced to writing his own brief submission to the Australian Attorney-General  who appointed him to his current position.

   1. The Australian Human Rights Commission makes this submission to the Attorney-General’s Department in relation to the exposure draft Bill on proposed changes to the racial hatred provisions of the Racial Discrimination Act 1975 (Cth) (RDA).
  2. The Commission welcomes the opportunity for community consultation on this important and complex issue. The Commission encourages the Attorney-General’s Department to make information about the key issues identified through the consultation process publicly available to inform future public debate.
 3. The Commission’s general observations on the proposal to amend the RDA and its specific observations on the text of the draft Bill are as follows.

General observations on any proposal to change Part IIA

(1) The Commission considers that the exposure Bill as drafted should not proceed. This submission sets out concerns that any future draft Bill would need to appropriately address. The Commission looks forward to engaging with any future proposal.
(2) Any proposal to amend the law should involve extensive public consultation as it has the capacity to affect the human rights of all Australians, and particularly consultation with those communities whose members are most vulnerable to experiencing racial discrimination.
(3) Proposals to change the law are recent and it should be recognised that, in its current form, the Racial Discrimination Act as applied by the courts and administered by the Australian Human Rights Commission has successfully resolved hundreds of complaints about racial hatred over the past two decades. Any proposed change requires further justification.
(4) The Commission considers that the legislation could be clarified so that it more plainly reflects the way in which it has been interpreted in practice by the courts. That is, to confirm that Part IIA deals with ‘profound and serious effects, not to be likened to mere slights’.
(5) It is also important to recognise that racial vilification cannot be addressed only by legal prohibitions. Complementary education and awareness raising measures are also required to promote a culture of respect for human rights and responsibilities. The Commission will continue to play a key role in this regard.

Particular observations on the draft Bill

The Commission has a number of particular concerns about the exposure Bill as drafted. If, following the consultation described above, the Government were to proceed with the draft Bill, the Commission considers that each of the following amendments would be necessary.
(6) The Commission is concerned about the narrow definition given to ‘vilify’. It considers that if there is a change to Part IIA that includes a prohibition on ‘vilification’ then this term should be given its ordinary meaning, including conduct that is degrading.
(7) The Commission is concerned about the narrow definition given to ‘intimidate’. It considers that if there is a change to Part IIA that includes a prohibition on ‘intimidation’ then this term should be given its ordinary meaning, which recognises that intimidation is not limited to causing fear of physical harm but includes conduct causing emotional or psychological harm.
(8) The Commission considers that an assessment of whether an act is reasonably likely to contravene the law must be made ‘in all the circumstances’. The Commission considers that the words ‘in all the circumstances’ should be inserted into subsection 1(a) of the draft Bill following the words ‘is reasonably likely’. On the basis that the legislation and any extrinsic material make clear that all the circumstances of the act including the likely impact on the target person or group must be considered, the Commission does not express any other concerns about the proposed community standards test.
(9) The Commission considers that the exemption for artistic works should be retained. This could be effected by inserting the words ‘the performance, exhibition or distribution of an artistic work, or’ after ‘in the course of’ in subsection (4) of the draft Bill.
(10) The Commission is concerned about the breadth of the exemption in subsection (4) of the draft Bill. The subsection removes the requirement that acts be done reasonably and in good faith. At the very least, including a requirement of ‘good faith’ as a minimum would prevent racist abuse offered up in the course of public discussion being permitted.
(11) The Commission considers that employers are well placed to address the risk of racial vilification by putting in place programs including training and codes of conduct for employees. The Commission considers that existing section 18E, which provides for vicarious liability for racial vilification, should be retained.
(12) The Commission considers that a person who engages in racial vilification should not be able to avoid liability by arguing that the act was also done for another reason. Section 18B provides that if an act is done for two or more reasons and one of those reasons is the race of a person, then the act is taken to be done because of race. Each of the federal discrimination Acts contains a provision equivalent to section 18B and its removal would make Part IIA inconsistent with all other federal anti-discrimination law. The Commission considers that this provision should be retained.
     4.   The right to freedom of expression is of fundamental importance, and extends to expression that may be regarded as deeply offensive. It is not, however, an absolute or unfettered right and carries with it special duties and responsibilities.
      5.    Racial vilification can also harm the freedom of those who are its targets. It can have a silencing effect and harm the ability of victims to exercise their freedom of speech, among other freedoms.
      6.    It is important to retain strong and effective legal protections against racial vilification. Such laws send an important message about civility and tolerance in a multicultural society, and ensure those who experience the harms of racial vilification have access to a legal remedy.
      7.    Throughout this submission, the Commission has been particularly concerned to ensure that it strikes the appropriate balance between freedom of expression and freedom from racial vilification.
     8.    In this submission, the Commission reflects on three areas of particular expertise relating to the draft Bill:
      o    how the draft Bill relates to Australia’s international human rights obligations;
      o    how the draft Bill would alter the existing level of protection of both freedom of expression and freedom from racial hatred; and
      o   the social harm that can result from racial vilification.
      9.   The Commission is uniquely placed to comment on these issues given our legislative mandate under the RDA and Australian Human Rights Commission Act 1986 (Cth),[1] and our role in investigating and conciliating complaints alleging breaches of section 18C of the RDA.
      10.  In the submission, we use case studies of matters dealt with under the legislation to provide concrete examples of how the proposed changes would alter the level of protection that currently exists.
     11.  This submission addresses the following issues in turn:
a.    Australia’s international obligations to provide for freedom of expression while also protecting people from racial hatred;
b.   the background to the enactment of Part IIA of the RDA, and how it currently operates;
c.     in particular, a description of the seriousness of the conduct caught by Part IIA in the context of the recent public debate;
d.    the Commission’s concerns about aspects of the draft Bill;
e.    other measures to combat racial hatred in Australia.
      12.  In addition to this submission, the Human Rights Commissioner has also prepared an additional letter. It contains comments that are intended to complements this submission, and provide further elaboration on the key points of concern to the Human Rights Commissioner.

Read the rest of the submission here.

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