ECAJ on the Repeal of section 18C of the Racial Discrimination Act

March 26, 2014 by J-Wire Staff
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“The ECAJ regards the Exposure Draft of the repeal of ss18B, C, D and E of the Racial Discrimination Act, released by the Attorney General today, as deeply flawed.”

Robert Goot

Robert Goot

The above statement was made by Robert Goot, the president of Australian Jewish community roof body The Executive Council of Australian Jewry.

He continued: “The Government proposal in effect rips up key protections to groups within Australian society which have operated successfully for almost 20 years and which have contributed in no small measure to the building and maintaining of an harmonious Australian society.

Whilst the substantial weakening of s18C by removing “humiliate”, “offend” and “insult” and by severely limiting protection to vilification and intimidation and substantially narrowly defining those terms (unlike their ordinary meanings), to mean respectively “to incite hatred” or “to cause fear of physical harm”, is alarming enough, the inclusion of sub-section (4), will have the effect of removing most, if not all of, the protection, inadequate though it is, in sub-section (1).

Sub-section (4) provides that the entire section will not apply to
“…words, sounds, images written, spoken, broadcast or otherwise communicated in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter”.

Further and equally alarming, the existing qualifications to s18C contained in s18D which were protective of free speech, by not rendering unlawful anything said or done “reasonably and in good faith”, have been removed entirely.

Racial bigotry is wrong and harmful to both the people it targets and to the cohesiveness of society as a whole. This legislation gives the green light to unleashing racial hate speech in Australia, no matter how unreasonable and lacking in good faith.

It is hard to envisage any conduct that will be caught by this emasculated legislation. Certainly, it is unlikely that any of the cases which the ECAJ has successfully brought under s18C over the years, could have been instituted, under this proposed legislative regime.

The ECAJ will be making submissions to the Government on the proposed reforms.”

The ABC interviewed both Racial Discrimination Commissioner Tim Soutphommasane and Human Rights Commissioner Tim Wilson.

Transcripts below

MARK COLVIN: In trying to clarify what the details of today’s repeal document mean, I went to the recently appointed Human Rights Commissioner Tim Wilson, and the Racial Discrimination Commissioner Tim Soutphommasane.

It appears they have an agreement not to debate each other directly, so I put key questions to each of them separately.

MARK COLVIN: Dr Tim Soutphommasane is the Race Discrimination Commissioner.

I began with him with the same question as with Tim Wilson. What would happen to someone who denied the Holocaust under the proposed new laws?

Dr Tim Soutphommasane

Dr Tim Soutphommasane

TIM SOUTPHOMMASANE: Well, from what I can see, on first reading of the words of the proposed amendment, it would have to incite a third party to racial hatred or it would have to intimidate someone physically for it to be captured by the provisions, and those tests are going to involve a much higher threshold than what is currently the case.

It is not, by any means, clear whether something of the sort that you’ve described will be regarded as unlawful behaviour.

MARK COLVIN: So. Fredrick Töben, the notorious Holocaust denier in Adelaide, would possibly be free to operate as he wishes?

TIM SOUTPHOMMASANE: That may be possible.

MARK COLVIN: And what about if somebody shouts, ‘Ape’ at Adam Goodes again?


MARK COLVIN: From a football crowd.

TIM SOUTPHOMMASANE: Again, you would have to demonstrate, under the definition of vilification in the language of the proposed amendment, that it would incite a third party to racial hatred.

Currently it is sufficient for someone to hold another person accountable for their words or actions if it has the effect of offending, insulting, humiliating or intimidating them on the basis of race – which focuses the attention on the harms that are actually being caused on another person, as opposed to the effects on the third party.

MARK COLVIN: So to be clear, Adam Goodes, under the old law, would have had the opportunity to use that law in those circumstances, but will not any longer?

TIM SOUTPHOMMASANE: That is one interpretation you can take.

MARK COLVIN: Now there’s been some questioning on social media today about clause 4 in the paper that came out today, and people have been saying that it seems to give a ‘get-out’ for anybody saying anything.

Is that right, or is it some kind of legal complication that doesn’t mean that?

TIM SOUTPHOMMASANE: On my first reading, the exemptions provided by that subsection 4 are very, very broad indeed. What it says is that anything that is said in the course of participation in public discussion will be held exempt from the proceedings sections, which outline what vilification and intimidation involve.

MARK COLVIN: So that’s not a double negative there? It’s not exempting it from the repeal or something like that? It actually is saying that if you’re having a public debate, you can say what you want?

TIM SOUTPHOMMASANE: That’s the effect of it based on my first reading of it, and the fact that the language used refers to “in the course of” means that something that may have the effect of vilifying or intimidating someone need not have any connection with political, cultural, or social or economic debate.

It’s sufficient that it’s done in the course of, so it may be, for example, that someone is venting at another person based on their race, but if it is done in the course of, say, a discussion about property prices; there’s no need for direction connection, in other words, between public debate and racial vilification.

And, the effect of all this is to remove the protection that currently exists in the law in the form of 18D of the Racial Discrimination Act, which insures that free speech doesn’t mean hate speech, that free speech is something that extends protections only for those things that are done in genuine public debate and done with reasonableness and good faith.

MARK COLVIN: Final question then; where does this leave you? Is your position now tenable?

TIM SOUTPHOMMASANE: My position as Race Discrimination Commissioner is that we need to have strong and effective protections against racial vilification. I don’t believe that these proposed legislative amendments do that. They weaken existing protections against vilification and…

MARK COLVIN: But is this a resignation issue for you?

TIM SOUTPHOMMASANE: No, it’s not. I will continue to ensure that Australians can enjoy the utmost legal protections and also a social environment in which they can go about their lives being free from racial discrimination and racial vilification.

MARK COLVIN: Race Discrimination Commissioner Tim Soutphommasane. There will be a longer version of both those interviews available on our website from this evening.

And, just now, the Australia/Israel and Jewish Affairs Council, AIJAC, has released a statement saying the Attorney-General’s had gone too far and failed to adequately safeguard important rights and values.

AIJAC says to pass the amendments as they stand would risk emboldening racists, threatening the quality of life of ethnic minorities in Australia and seriously straining the fabric of our social cohesion and harmony.
Tim Wilson is the Human Rights Commissioner, known informally as the ”Freedom Commissioner”.

First, I asked him would the new laws prevent people denying the truth of the Holocaust, in which the Nazis deliberately murdered 6 million Jews.

TIM WILSON: And I don’t have an answer to you for that.

MARK COLVIN: Well, shouldn’t that be clear by now?

TIM WILSON: Well I think a lot of people are going away to look at the changes that are being proposed and assess the law. Often superficial assessments don’t give a clear answer, and of course, often it’s up to the courts to interpret acts.

MARK COLVIN: But the Government’s had the Jewish lobby, the Jewish community, in its ear for weeks about this; surely it should be clear straight up that it is or is not acceptable to deny the Holocaust?

Tim Wilson

Tim Wilson

TIM WILSON: Well I would have to go away and have a look at it, but of course, you can even currently under the law, deny the Holocaust in private. The question is merely about what you do in public and the extent to which there are legal limitations on what you can say in public.

That is what this discussion is about and the change to law about. They are not about whether it’s acceptable to engage in any of the sorts of conduct you’ve just outlined, only the extent to which there are legal limits on which you can say in public.

MARK COLVIN: Is it going to be possible to shout ‘Ape’ at Adam Goodes at a football match?

TIM WILSON: Well, it probably will not be the case you are able to do that but I would have to go back and have a look at the law. But again, it seems to me there’s been a significant miscommunication and conflation about the ideas that are being achieved by changing the Racial Discrimination Act.

Even if that were legal, and as far as I’m aware, that isn’t the case, it would still be in violation of so many other codes and social conventions that operate in society which say that that conduct is completely and utterly unacceptable.

MARK COLVIN: So there’s no need for a law if society doesn’t like something?

TIM WILSON: There is a need for a law to recognise where there is a conflict of rights, but the law is not the solution to all of society’s ills, as the Australian Human Rights Commission reports itself.

Despite the fact that Section 18C in its current form has operated, there has been an increase in the amount of complaints and enquiries related to racism. This is why social conventions and education are one of the best mechanisms to challenge racism and make sure that we keep it in check and respond to it as an entire community and that people shouldn’t abrogate their own responsibility to tackle racism.

MARK COLVIN: But, all the education, all the social work in the world is not going to stop somebody like Fredrick Töben, the notorious Holocaust denier and villifier of Jews.

TIM WILSON: No, that’s true, but he’s, even under the current Act, entitled to have his view and, his mad and crazy view about that issue. The key thing is that we need to make sure that we lift the standard and that people hold him to account rather than trying to silence him, because if you silence, his view doesn’t disappear.

MARK COLVIN: Well he was sent to jail of course.

TIM WILSON: Well exactly, and he still hasn’t changed his view. It just goes into a corner and festers and it actually gives legitimacy to his view that actually needs to be responded to.

MARK COLVIN: No, but you said there was nothing that stopped him, but he was sent to jail. The law does prevent him from doing some of what he does.

TIM WILSON: Mark, what I said was that he hasn’t changed his view and this is the point, and when you actually treat these things legally, you suggest that there is somehow some legal or intellectual legitimacy to his hateful and spiteful view which should be exposed, it should be mocked publicly and ridiculed for the stupidity in it.

MARK COLVIN: Human Rights Commissioner Tim Wilson.

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