Victoria and New South Wales say “No” to changes in the Racial Discrimination Act

May 2, 2014 by J-Wire Staff
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In a joint statement from both States, Victoria and New South Wales have said that “the proposed changes” in the Racial Discrimination Act by the Federal Government “threaten the social cohesion of wider Australian community”.


The full statement:

Matthew Guy

Matthew Guy

The NSW and Victorian Governments today announced they had lodged formal submissions opposing changes to the protections against racial vilification contained in the Federal Racial Discrimination Act 1975.

NSW Minister for Citizenship and Communities Victor Dominello and Victorian Minister for Multicultural Affairs and Citizenship Matthew Guy said:

“We consider it vital that the Commonwealth does not weaken protections in place against racial vilification.

Victor Dominello

Victor Dominello

“The proposed changes threaten the social cohesion and well-being of not just our states’ culturally and religiously diverse communities, but also the wider Australian community.

“We support the protections currently in place under the Federal Racial Discrimination Act and emphasise the practical and symbolic importance of these protections – particularly for our Aboriginal, multicultural and multi-faith communities.

“Successive NSW and Victorian Governments have worked hard to foster socially inclusive and cohesive communities.

“This is the basis for the Victorian Equal Opportunity Act 2010 and Racial and Religious Tolerance Act 2001 and the NSW Anti-Discrimination Act 1977.

“Unlike the Commonwealth laws, the NSW and Victorian statutes also include criminal prohibitions for serious racial vilification.

“Vilification on the grounds of race or religion is always wrong and we should never allow it to be sanctioned, whether intentionally or otherwise.”

The Federal Government’s Exposure Draft on the Freedom of Speech (Repeal of s.18C) Bill 2014 was released on 25 March and public submissions closed on Wednesday.

Nina Bassat, president of The Jewish Community Council of Victoria, told J-Wire: “The JCCV welcomes the leadership demonstrated by the Victorian and NSW Governments in standing up for multiculturalism and community harmony by defending the Racial Discrimination Act (RDA) as it stands.

We have endorsed maintaining the RDA in its current form through the Executive Council of Australian Jewry (ECAJ) and through endorsing submissions from the Multicultural, Faith and Communities coalition of 34 Victorian organisations and the Faith Communities Council of Victoria.

We believe that racial and religious intolerance, vilification, incitement to hatred and intimidation are lines that should not be crossed, and the RDA has been effective in the past.  We don’t see any justification for repealing or watering down the protections provided by the RDA.”

In Sydney, The New South Wales Jewish Board of Deputies’ president Yair Miller added: ““ We applaud Premier Baird on taking a principled stand on this issue, which is important for the continued social cohesion of our country.”

The following is the submission made by the NSW Government:

“All Australians deserve strong protections against racial vilification.  For reasons detailed below, the NSW Government considers that the Commonwealth Government should not make the proposed changes to the Racial Discrimination Act 1975 (Cth)(RDA) that are in the Freedom of Speech (Repeal of s18C) Bill 2014 (Bill).

There is no place for racial vilification within Australian society and all Australians should be able to live their lives free from the harm caused by the dissemination of racial prejudice.

The law has an important role to play in promoting racial tolerance.  Effective laws to combat racial vilification are essential in a democratic multicultural society such as Australia.

The NSW Government recognises the importance of preserving and protecting freedom of speech as an essential component of a democracy.  Freedom of speech, however, is not absolute.  It has been qualified by exceptions otherwise provided by law, including the law of defamation, contempt of court, legislative provisions dealing with obscenity and Commonwealth and State legislation that prohibit misleading and deceptive conduct in the course of trade. These qualifications ensure that free speech is exercised responsibly.

Protection from racial vilification is another exception that qualifies freedom of speech.

The Commonwealth Government’s Bill proposes changes to the civil protection from racial vilification in the RDA.  The NSW Government is concerned that the proposed changes by the Commonwealth in the Bill do not strike the right balance between freedom of speech and protection from racial vilification.

There is an unacceptable risk that the Commonwealth’s proposed changes will sanction public statements that incite racial hatred.

The impact of the Commonwealth’s proposed changes must be considered within the overall framework of racial vilification and anti-racial discrimination law across Australia, including in the States and Territories.

New South Wales is a diverse multicultural society.  New South Wales has the highest number of Aboriginal people of any State or Territory in Australia, with most living in major cities or regional areas.  People from around 200 birthplaces have made New South Wales their home.  At least one in five people in New South Wales speak a language other than English at home.

New South Wales has enacted strong civil and criminal laws to combat racial vilification. These are contained in the Anti-Discrimination Act 1977(NSW).  The continued operation of laws like this will be critical to protecting individuals from the harm of racial vilification and preventing incitement more generally.

The NSW Government notes that the Commonwealth Government is not proposing any changes to the protections against racial discrimination provided in the RDA.  The NSW Government supports the retention of protections against racial discrimination.

The Commonwealth’s proposed changes remove the prohibition on public acts that “offend, insult, humiliate or intimidate” on the basis of the race, colour or national or ethnic origin of a person or group.  Instead, the prohibition will only apply to public acts that “vilify” or “intimidate.”

The proposed definitions of vilify and intimidate, however, are significantly more confined than the ordinary dictionary meaning of the terms, and overall, the proposed scope of the prohibition reflects a substantial narrowing of the current civil prohibition contained in section 18C of the RDA.

Most importantly, under the changes proposed by the Commonwealth, statements which vilify or intimidate a person or group on the basis of race would be permissible if those statements were made in the course of a “public discussion of any political, social, cultural, religious, artistic, academic or scientific matter.”

As a result, virtually any racially vilifying or intimidating remarks uttered in the course of public discussion would be sanctioned.  Notably, there is no requirement that the statements be made reasonably and in good faith.

The narrowness of the protection that will be provided under the proposed Commonwealth changes can be illustrated in relation to persons who deny that the Holocaust occurred in a manner that involves racial vilification and  the act is done unreasonably and in bad faith.

Enclosed is advice provided by Mr Arthur Moses SC who concludes that, under the proposed Commonwealth laws, it would be permissible for Holocaust deniers to publish their opinions on websites in the course of public discussion.

There is already significant overlap between existing Commonwealth, State and Territory racial vilification and anti-discrimination laws.  The Bill proposes to make no changes to section 18F of the RDA which provides that the Commonwealth’s racial vilification laws is not intended to exclude or limit the concurrent operation of any law of a State or Territory.  The NSW Government supports this position, but notes that it will not guarantee the continued validity of State and Territory laws.

The NSW Government opposes the proposed changes to the RDA.”

In the meantime, community leaders in NSW have also rejected the Government Exposure Draft on race hate law.

Representatives of the Indigenous, Greek, Jewish, Chinese, Arab, Armenian, Korean and Cypriot communities today unanimously called on the Federal government to scrap the “Freedom of Speech (Repeal of section 18C) Bill 2014”, saying that “it sends the wrong message about the kind of society we want Australia to be”.

The group has been pursuing a vigorous campaign to dissuade Federal politicians against any repeal or watering down of Australia’s laws against racial vilification.

“Our community organisations wholeheartedly support the call by the Australian Human Rights Commission for the government’s Exposure Draft not to proceed”, said Peter Wertheim, acting as spokesperson for the group.

“We share the Commission’s view that hundreds of complaints about racial hatred have been successfully resolved over the past two decades under the existing law and that no case has been made for any proposed changes.”

Mr Wertheim said that each of the community organisations represented by the group has made a written submission to the government in response to the Exposure Draft.

“In our unanimous view, the government has asserted, but not demonstrated, that the existing law imposes an unjustified limitation on freedom of expression. It has made this assertion in the face of voluminous evidence to the contrary”.

He cited “research in Australia and overseas as to the harms of racial vilification; the conclusions of three national inquiries as to the nexus between racial vilification and racially-motivated violence and other forms of social dysfunction; and the significant body of jurisprudence that has given effect to the existing law.”

Commenting on the government’s announced reasons for wishing to change the current law, Mr Wertheim said that the government had proceeded from the “fixed assumption” that the outcome of one case – Eatock v Bolt – was an injustice necessitating a change in the legislation.

“That assumption is far from universally accepted by the Australian people. On the contrary, two recent surveys have indicated that the existing law has overwhelming public support from across the political spectrum.”

The group has said that if the government wishes to undertake a serious review of the current law, it should hold an open, public inquiry, as occurred in the lead-up to the enactment of the current law

Any Inquiry should have input from experts and the wider community, particularly those communities whose members are most vulnerable to experiencing racial discrimination. The Inquiry should not begin from any a priori assumptions about the current law, and for that reason the entire Exposure Draft should be abandoned,” Mr Wertheim concluded.

Endorsed by:

Ms Kirstie Parker, Co-chair, National Congress of Australia’s First Peoples

Mr Les Malezer, Co-chair, National Congress of Australia’s First Peoples

Mr Vache Kahramanian, Executive Director, Armenian National Committee of AustraliaMs Randa Kattan, CEO, Arab Council Australia

Mr Tony Pang, Secretary, Chinese Australian Services Society
Mr Luke Song, Korean Society of Sydney
Mr Sotiris Tsouris, Cypriot Society of NSW
Mr George Vellis, Co-ordinator, Australian Hellenic Council
Mr Patrick Voon, President, Chinese Australian Forum
Mr Peter Wertheim, Executive Director, Executive Council of Australian Jewry

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