Racial Discrimination Act and Freedom of Speech

Changes to the Racial Discrimination Act promoting bigotry and hate not freedom
Changes to the Racial Discrimination Act

On March 25th 2014 the Australian Government released draft legislation showing proposed changes to the Racial Discrimination Act. The Online Hate Prevention Institute is deeply concerned by these proposed changes. We believe they will almost entirely eliminate Australia’s prohibitions against racist hate speech online.

We believe the changes will lead to an increase in racially motivated cyberbullying which in turn will lead to increased suicides, selfharm, and substance abuse. The changes run against the Government’s online child safety agenda and we are particularly concerned about the impact of cyber-racism targeting children (for example Aboriginal memes). We believe the proposed changes will result in indirect serious harm to individuals, increased public health costs, and a decrease in freedom of speech as minorities are intimidated into silence and away from a social social media.

We are particular concerned that the changes remove one of the few tools that facilitate mediation with social media companies to see racist material removed (in line with the companies terms service which they otherwise often fail to enforce). Without this tool it will be hard to have such speech, for example Aboriginal Memes and antisemitic content, blocked in Australia. This will lead to more members of minority communities distancing themselves from social media sites, resulting in  damage to multiculturalism in Australia and damage to Australian democracy as those voices are in a practical way excluded from our national discourse. We are frankly in a state of shock at the wide ranging impacts these changes are likely to have.

We will outlined our concerns in a submission to the Government.

Key Resources

Key Quotes

“People do have a right to be bigots you know. In a free country people do have rights to say things that other people find offensive or insulting or bigotted.” – Attorney General Senator George Brandis (video)

“The changes proposed by Senator Brandis gut the protections against racism that have served our nation for almost 20 years, and a give a green light to racism. These changes are a disgrace.” – Shadow Attorney General Mark Dreyfus (Statement on Facebook)

“George has really drunk the right-wing Kool-Aid.” – An anonymous Federal Government Minister (quoted in the Sydney Morning Herald, 27 March 2014)

“There is no place for bigotry, no place for racism, no place for hate speech in modern Australia… This is a colossal mistake and one with potential disastrous consequences.” – Leader of the Opposition, Bill Shorten (quoted in the Sydney Morning Herald, 30 March 2014)

“Australia has come a long way in the last 30 or 40 years and what I wouldn’t like to see is a regression that allows those who have bigoted viewpoints to vilify any group of people at all” – Ken Wyatt, an Indigenous Coalition MP (quoted in the Sydney Morning Herald, 15 March 2014)

”In commendably seeking to protect freedom of speech, we must not lower our defences against the evil of racial and religious intolerance… Bigotry should never be sanctioned, whether intentionally or unintentionally. Vilification on the grounds of race or religion is always wrong. There’s no place for inciting hatred within our Australia society… No government,  no organisation, no citizen can afford to be less than vigilant in combating bigotry, intolerance and hatred. And frankly, our way of life depends on that vigilance.” – NSW Premier Barry O’Farrell (quoted in the Sydney Morning Herald, 27 March 2014)

“While we as members of the Coalition strongly support free speech, it is not unlimited free speech. People aren’t free to vilify others on the basis of race or religion… Free speech is a valuable commodity which we preserve and protect but there quite rightly is restriction on free speech in the best interest of the good order of the community and common sense.” – Victorian Premier Dr Denis Napthine (quoted in The Age, 25 March 2014)

“On first impression, the bill reduces the level of protection by providing a narrow definition of vilification and by limiting intimidation to causing fear of physical harm. It is not clear why intimidation should not include the psychological and emotional damage that can be caused by racial abuse… [the exemption] provision is so broad it is difficult to see any circumstances in public that these protections would apply” – Prof Gillian Triggs, President of the Australian Human Rights Commission (Statement)

“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… 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.” – The Executive Council of Australian Jewry (Statement)

“We are horrified to consider the kind of Australia that could grow out of what is now being proposed… We know intimately the impact that racist abuse has on our peoples. It undermines our sense of personal security and safety, can disenfranchise us even further from the rest of society, and literally makes us sick… The Parliament would make history of entirely the wrong kind if it moved to protect racist attacks masquerading as public commentary or debate. There is no nobility and no greatness in placing unlimited rights to free speech above the already limited rights of the vulnerable to be free from racist abuse.”- The National Congress of Australia’s First Peoples (Statement)

“Where it is racial vilification, where it is intimidation, I think absolutely we should see the book thrown at that kind of speech” – Senator Zed Seselja (quoted in Sky News, 27 March 2014)

“Medical research clearly links experiences of racism with reduced health outcomes… how are the proposed amendments to the RDA consistent with the Government’s expressed intentions to close the health inequity gap? Now is not the time to reduce protections from racist abuse nor to signal that such views are less odious in modern Australia.” – Reconciliation Australia (Statement)

“Senator George Brandis cannot be serious about his proposed racial vilification law. Despite reports that the draft exposure bill is already watered down, I suspect it is a tactic; it is still so extreme that when it is wound back further, opponents will embrace the concessions as a victory, even though what remains will be a significant loss of protection against racist speech.” – Law Professor Simon Rice, Australian National University (article)

“I was proud to raise concerns in Parliament on the proposed changes by the federal government that risk the laws which protect Victorians from discrimination and vilification. Victoria has been the leading state in embracing multiculturalism. We live it, we breathe it and the success of our State is underpinned by the contributions of people from ethnically diverse communities.” – David Southwick MP (Victorian Parliament) (Statement)

“Freedom of speech is a cornerstone of our democratic society, and must be defended. However, we must also ensure that this does not come at the expense of protections against acts of discrimination, hatred and vilification. The right balance needs to be met to safeguard the rights of all members of our society. The Victorian Government remains unambiguously opposed to any form of discrimination based on an individual’s race, faith, gender, or for any other reason. We will be making a submission to the Commonwealth Government regarding Victoria’s position on the proposed amendments to the Racial Discrimination Act 1975.” – Matthew Guy MP, Minister for Multicultural Affairs & Citizenship (Victoria) (statement)

“Our laws are bound with our values… I have very serious concerns about proposed changes to the Racial Discrimination Act. If enacted, they would severely weaken existing legal protections… [and] embolden a minority with bigoted views to amplify their prejudice. Such developments would come at a high price.”- Australian Race Discrimination Commissioner Tim Soutphommasane (article in The Age, 28 March 2014)

“Unfortunately, the human cost of racism isn’t always appreciated in the debate about Section 18C. Too often, the matter has been reduced to a discussion about legal interpretation or philosophical principle. But we shouldn’t be talking about things in the abstract. Racism hurts its victims in real ways… Those exposed to racist abuse will testify that it can inflict mental and physical harm. It can wound your very dignity as a person. It is something that diminishes people’s freedom and their ability to participate in society.” – Australian Race Discrimination Commissioner Tim Soutphommasane (article in The Age, 28 March 2014)

“Just as freedom of speech should be valued, so should the right of people to be part of a free and fair society without suffering the emotional and mental damage caused by hate speech… Racial and religious intolerance, vilification, incitement of hatred and intimidation are lines that should not be crossed” – Nina Bassat AM, President of the Jewish Community Council of Victoria

“I am absolutely astonished and dumbfounded that in the twentyfirst century… the Government… is actually considering repealing the Racial Discirmination Act as it currently exists. Do they not remember why it was put into place in the first instance? It was there, and is there, to protect minority groups and to ensure we are able to live in harmony alongside each other” – Rabbi Yaakov Glasman, St Kilda Shule (video statement)

“The representative organisations of a large number of our ethnic and indigenous communities have voiced opposition to the Government’s proposals, while not one has expressed support…  Our laws against racial vilification are one of the few inhibitors we possess against the introduction into Australia of the racism which underpins many overseas conflicts and the violence to which it can give rise.” – Vic Alhadeff, Chair of the NSW Community Relations Commission (statement on J-Wire)

“We believe the changes proposed by the government, if passed, will send a dangerous signal that hate speech is sanctioned by the law as a form of freedom of speech, that bigotry has a place in our society.” – Vic Alhadeff, Chair of the NSW Community Relations Commission (statement on J-Wire)

“The National Sikh Council  Of Australia, are totally against the repeal of Section 18C proposed by  the Attorney-General.  In so doing he is redefining the words, vilifies and intimidates which are not in agreement with  the meanings given in any English dictionary. With the amendments  he has proposed, we the minority ethnic communities will be all the time subjected  to racial harassment, malicious and abusive statements  and comment, and  we won’t  have  any recourse to law to constrain the bigots” – Bawa Singh Jagdev OAM, National Sikh Council of Australia (statement

“The nuances of legal terms and their interpretation by the Courts is one matter of concern whilst we seek to maximise freedom of speech but without hateful abuse of this precious freedom. However, in the public domain, what matters is how the debate is perceived… This is a time when perceptions count, whatever the detail. As the great Mahatma Gandhi once conveyed, we should look at any proposed amendments through the eyes of those most vulnerable and least powerful.” – Bishop Philip Huggins, Chair of the Melbourne Anglican Social Responsibilities Committee (media release)

“This will put back reconciliation, understanding [and] respect. The protections are there to protect people from being vilified but also to be a deterrent to potential offenders” – Tom Calma, co-chairman of Reconciliation Australia (quoted in The Age, 31 March 2014)

“We should be doing more to say to people, ‘it’s not acceptable to be racist’… That’s the message we want to get across to politicians, legislators, but also to the broader community.” – Joseph Caputo, Chairman of the Federation of Ethnic Communities Councils of Australia (quoted in The Australia, 1 April 2014)

“Governments tried to formally categorise people of Indigenous descent based on ‘blood-quotum’, labelling them with terms like ‘half caste’ and ‘quadroon’, usually based on appearance… We didn’t need government telling us who was in our tribe and who was not; who was in our family and who was not… Bolt can point out if someone with no Indigenous ancestry receives a prize for people of Indigenous descent… No breach of s18C… However, if Bolt wants to argue that a prize or special benefits for Indigenous people should only be awarded to people with dark skin or who are ‘full blood’ then my sympathies end. Because that’s the mentality of the authorities-of-old who purported to define my tribe – my family – by appearance and by ‘blood-quotum’.” – Nyunggai Warren Mundine (in The Australian, 1 April 2014)

“I’ve watched the debate over the amendments to s18C the Racial Discrimination Act with deep frustration. The debate is sucking up oxygen from the important work this Government needs to do and threatens the real change it has committed to deliver for Indigenous people. And all this to appease Andrew Bolt.”- Nyunggai Warren Mundine (in The Australian, 1 April 2014)

‘This legislation gives the green light to unleashing racial hate speech in Australia, no matter how unreasonable and lacking in good faith. Certainly, it is unlikely that any of the cases which the ECAJ has successfully brought under Section 18C over the years could have been instituted under this proposed legislative regime.’ – Robert Goot, President of the Executive Council of Australian Jewry (in The Jewish News, March 27 2014)

“[The proposal] adopts a free speech defence that in effect permits racial vilification and intimidation in virtually all public arenas.” – Prof Triggs, President of the Australian Human Right Commission (quoted at ABC News, 9 April 2014)

“Over the duration of many discussions that I have had on this issue, not a single person has suggested to me that their right to free speech has been restricted by the act in its current form… I believe we are potentially permitting acts that have no place in our wonderfully multicultural communities” – Craig Laundy MP (Federal Liberal MP) (quoted in the Sydney Morning Herald, April 10 2014)

“Indigenous Australians are devastated by the federal government’s decision to tell Australians they have the right to be racial bigots in public… If the Prime Minister truly believes that constitutional recognition is a forward-looking, unifying move­­ment, he must get rid of the changes to 18C. Anything less will condemn the referendum to failure.” – Senator Nova Peris (Labor’s first indigenous MP, in The Australian 11 April 2014)

Additional Quotes

On Freedom:

“Dear Mr Abbott, I beg you to abandon your plans to change the Racial Discrimination Act. You might think you are increasing freedom, but let me assure you that you will be taking away the freedom of communities such as mine. The freedom to live without hatred and without lies being told about us… we are all migrants – not minorities. But if this law gets up, we will be made to feel like minorities.” – Moshe Fiszman, Holocaust Survivor (Open Letter to the PM)

“something seems more than a bit fishy about focusing all our free speech efforts on eradicating the quite weak protection that exists for some of the most vulnerable people in our society, and leaving the rest of us, the rich and powerful, fully protected.” – Dr Peter Balint, lecturer in politics at the University of New South Wales (quoted in The Age, March 27 2014)

“Perhaps the most questionable aspect of the ongoing debate, however, is that many commentators have advanced such a one-sided view of freedom. For all the talk about a freedom to offend, insult and humiliate others, not everyone recognises that racial vilification can harm free speech by silencing its victims.” – Dr Tim Soutphommasane, Race Discrimination Commissioner at the Australian Human Right Commission (article in the Sydney Morning Herald, 20 March 2014)

On the Harm in Hate Speech:

“Words can hurt much more than blows… if you talk to child survivors, being from the Holocaust or other abuse, they will say that the physical blows they received were nowhere near as painful as the emotional blows of denigration and humiliation”. – Paul Valent, Holocaust Survivor (quoted in The Australian, 27 March 2014)

“A failure to understand the impact of one’s behavior can reflect an inability to see things from the perspective of another… When it concerns racism, those in positions of social privilege commonly dismiss or underestimate the harm of discrimination. They can fail to understand that the power or free speech that they might enjoy may not necessarily be exercised by those less powerful or with less voice.” – Dr Tim Soutphommasane, Race Discrimination Commissioner at the Australian Human Right Commission (speech).

“…it’s not good enough to dismiss the harm caused by racial vilification as trivial hurt feelings, and to denigrate those on the receiving end of racism as ‘self-proclaimed victims’. The real harm of racial vilification lies in the damage it causes to a victim’s individual freedom and to our cohesion as a multicultural society.”- Tim Soutphommasane, Australian Race Discrimination Commissioner (article in The Australian, 14 March 2014)

“On behalf of FECCA, I write specifically to urge the Department to consider, as part of its public consultation process, issues relating to cyber-racism as a subset of cyber-bulling, and the impact of such issues upon children and young people from CALD backgrounds.” – Submission of the Federation of Ethnic Communities’ Councils of Australia to the Government’s consultation on online child safety (submission)

“There is a context when the privileged seek to deny the Stolen Generations by implying that being light skinned makes someone less Aboriginal. That context can mean that a seemingly inoffensive phrase is, in fact, offensive. Given that history and context, it is wrong to privilege the rights of bigots over the rights of minorities, especially since there is no evidence that 18C was having a chilling effect on the debate about race in Australia. On the other hand, repealing 18C makes a statement: that there is a right to offend and that the determining what is offensive is a matter for the majority, for the privileged.” – Fergal Davis (article in The Guardian (UK), 31 March 2014)

On the role of more speech:

“You can’t have a rational discussion with them because they are not open to logical discussion as they seek to offend, hurt and humiliate. I fear these proposed changes would give anti-Semites free rein, be it Holocaust denial or personal offence.” – Paul Valent, Holocaust Survivor (quoted in The Australian, 27 March 2014)

A right to negatively stereotype groups of people?

On Lateline on 25/3/2014 Emma Alberici asked Senator George Brandis if people should the right to spread lies stereotyping segments of the Australian community. He replied that he thought such a right should exist and went on to suggest prohibiting lies in a commercial setting was important, but not lies about communities. (Transcript)

EMMA ALBERICI: The central issue in the Bolt judgment was not whether Mr Bolt’s articles were an expression of opinion, but whether the factual allegations on which that opinion was based were accurate. The judge concluded that the case was not about freedom of opinion, it was about freedom to spread untruths. Are you saying that freedom should exist?


On S18C and the current law

“Judgments concerning Section 18C have consistently and explicitly applied an objective test… As for the level of harm that is covered by Section 18C, the courts have consistently followed Justice Kiefel’s test in Creek: the conduct in question must cause ‘profound and serious effects, not to be likened to mere slights’…My view is that the current Racial Discrimination Act strikes a fair balance between freedom of speech and freedom from racial vilification. Section 18D is one of the few provisions in Australian law that explicitly protects the interest of free speech. It protects anything that is done reasonably and in good faith in the course of artistic expression, scientific inquiry, or fair comment and reporting of a matter of public interest.” – Dr Tim Soutphommasane, Race Discrimination Commissioner at the Australian Human Right Commission (Article in The Australian, 14 March 2014)

Key Issues with proposed changes (OHPI Analysis)

Impact on Child Safety

While we welcome other proposed changes from the Government to address the online safety of children, a move which will provide some avenue of redress for people under 18 years of age, these change offer no protection for post secondary school students, young adults and others in the community. The proposed changes for the online protection of children are also limited to content that identifies a specific child; so a children being subjected to racism aimed at them and others more generally will have no recourse. We believe change to the Racial Discrimination Act will increase the risk of harm for a significant segment of the community, inclduing for children.

Serious limitations in the Draft Legislation

Intimidation has been defined in the proposed changes to the Racial Discirmination Act as being limited to fear of physical harm. Racism, and particularly cyber-racism, is more likely to cause emotional or mental harm. The proposed changes will remove the possibility of a legal remedy to prevent such harm. We fear this will increase the cost to the healthcare system as racially motivated harassment increases. We believe the changes will significantly undermine multiculturalism in Australia.

Impact on Freedom of Speech

We believe the changes will, in a practical sense, significantly undermine fundamental freedoms such as the right for all Australians to participate in our democratic processes. We fear they give the green light to online hate speech and will make it impossible to have content such as Aboriginal Memes, Holocaust denial, and other forms of racism removed (or at least blocked in Australia) by platform providers. This is turn is likely to force members of minority communities away from participation in social media. This in turn will have an impact on the skills and employability of these individuals.