ECAJ makes its submission on Section 18C

April 29, 2014 by  
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The Executive Council of Australian Jewry (ECAJ) has made the following submission (Submission) in response to the Exposure Draft Exposure Draft of Freedom of Speech (Repeal of s.18C) Bill 2014 (the Exposure Draft). 

The ECAJ, in its submission, has highlighted how the Howard Government “intervened in Toben v Jones to defend the validity of Part IIA of the RDA and specifically the use of the words “offend, insult, humiliate and intimidate” in section 18C. The Commonwealth argued “that acts done in public which are objectively likely to offend, insult, humiliate or intimidate and which are done because of race, colour or national or ethnic origin are likely to incite other persons to racial hatred or discrimination or to constitute acts of racial hatred or discrimination”, and the court accepted that submission. We respectfully urge the current Coalition government to adopt the same approach.” The Human Rights Commission considers that the exposure Bill as drafted should not proceed.

The submission’s conclusion stated that “no case has been made out to justify repealing or amending the provisions of Part IIA of the RDA. The Exposure Draft should be abandoned. If the government wishes to undertake a serious review of Part IIA of the RDA, Parliament should conduct an open public inquiry and debate, with expert and community input, that is as comprehensive as the processes that provided the evidentiary basis for the existing legislation. The review should not begin from any a priori assumptions about Part IIA of the RDA”.

The Australian Human Rights Commission has also made a submission to the Attorney-General’s Department about the proposed changes to the racial hatred provisions of the Racial Discrimination Act 1975.

The Commission’s submission sets out concerns that any future draft Bill would need to address.  The Commission looks forward to engaging with any future proposal.

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.

“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,” said Commission President, Professor Gillian Triggs.

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’.

The Commission has identified key areas of concern with the proposed exposure draft, including:

  • A narrow definition of vilification, which excludes conduct that is degrading; and limited definition of intimidation, which excludes conduct causing emotional or psychological harm;
  • The Commission is concerned by the breadth of the exemption in subsection (4) of the Draft Bill. This provision is so broad it is difficult to see any circumstances in public to which the protections would apply. Of particular significance is the removal of the requirement that acts be done reasonably and in good faith. The Commission considers that, at the very least, a requirement of good faith should be included. This would prevent racist abuse offered up in the course of public discussion being permitted.


Read the ECAJ submission in full here…



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