February 25, 2014, www.timebase.com.au, http://www.timebase.com.au/news/2014/AT097-article.html

Recent press has reported that Federal Attorney-General George Brandis (the Attorney) has said that the Federal criminal laws banning racial violence “have been too narrowly drawn” in that they should in fact also prohibit the “incitement to racial hatred”. This appears to be a deviation from the Attorney’s (and his government’s) previously expressed views when they were in opposition, which called for the complete repeal of section 18C of the Racial Discrimination Act 1975 (Cth) (the Act) which proscribes so called offensive behaviour because of “race, colour or national or ethnic origin”.

The change of approach is reported to have come about as a result of the Attorney’s consultation with community groups on the changes to be made to section 18C of the Act (also known as the “Andrew Bolt” provision).

Background

In Eatock v Bolt [2011] FCA 1103 (28 September 2011), section 18C of the Act became known as the “Andrew Bolt provision” after it formed the basis of a ruling that the well known blogger/columnist’s comments about “light-skinned Aboriginal people” amounted to unlawful racial vilification, per Bromberg J in the case:

“The imputations which I have found were conveyed by the newspaper articles were plainly calculated to convey a message about the race, ethnicity or colour of fair-skinned Aboriginal people, including whether those people are sufficiently of Aboriginal race, colour or ethnicity to be identifying as Aboriginal. I am satisfied that Mr Bolt both understood and intended that imputations of that kind were conveyed by the newspaper articles he wrote. I have therefore found that in writing those parts of the newspaper articles which conveyed the imputations, Mr Bolt did so including because of the race, ethnic origin or colour of fair-skinned Aboriginal people.”

Apart from section 18C, the other provision relevant in the case was section 18D, which exempts from being unlawful, “conduct which has been done reasonably and in good faith for particular specified purposes, including the making of a fair comment in a newspaper”.

On this Justice Bromberg concluded that:

“. . . the conduct of Mr Bolt and the Herald & Weekly Times is not exempted by section 18D of the Racial Discrimination Act from being unlawful because:

(i)  it was not done reasonably and in good faith in the making or publishing of a fair comment, within the requirements of section 18D(c)(ii) of the Racial Discrimination Act; or
(ii)  done reasonably and in good faith in the course of any statement, publication or discussion, made or held for a genuine purpose in the public interest, within the requirements of section 18D(b) of the Racial Discrimination Act.”

The decision represented the first major application of sections 18C and 18D of the Act and drew extensive criticism because of the prominence of those involved in the case.

The provisions, as result, became a key target for change/ amendment under the new government’s approach to racial discrimination and related issues of racial vilification. Since the election, the Federal Attorney is quoted as saying he “would consult on whether his proposed changes should go even further, and extend to the complete repeal of section 18C, which also makes it unlawful to humiliate or intimidate another person on the basis of race”.

What the Attorney Now Proposes

While it is reported that the Federal Attorney General has not yet come to a concluded view about the provisions of the Act and the final changes that should be made, it is reported that he now appears to favour making racial vilification a criminal offence at the commonwealth level. As it is presently worded, section 80.2A of the Commonwealth Criminal Code outlaws “incitement to racial violence” but “not racial hatred” and in this respect the Attorney is reported as saying that the section is “too narrowly drawn, . . .” saying further:

“My position is that we can have better anti-vilification laws while at the same time removing those provisions of the Racial Discrimination Act which, as occurred famously in the Bolt case, prevented the expression of opinion merely because it offended a group.”

Thus, instead of the previous preference for total repeal of section 18C of the Act, the Attorney’s preference subject to further consultation appears to be the amendment of section 18C of the Act to retain the words “humiliate” and “intimidate” in section 18C, and replace the words “offend” and “insult” with words such as “denigrate or vilify” which are believed to create a more acceptable level at which an offence may be committed. This measure is then to be combined with changes to the Commonwealth Criminal Code possibly adding provisions on humiliation or intimidation on the basis of race to provisions dealing with incitement to racial violence.

About the Proposed Change

The Attorney is reported to have said about the proposed changes:

“I’m going about this in a very careful and deliberative way, because the objective is to ensure the Racial Discrimination Act is not used as a vehicle to suppress the expression of opinion, nor to weaken Australia’s anti-vilification laws.”

Criticism

The Shadow Federal Attorney-General has reportedly attacked the proposals as “extraordinary” saying it “makes inciting racial hatred a criminal offence as a proxy for section 18C of the Racial Discrimination Act, which the government appears set to water down”.

The Shadow Attorney told the Australian Jewish News (AJN) that:

“the proposal to tweak section 80.2A of the Commonwealth Criminal Code was recognition of the gaping hole a repeal of 18C . . . would create, and accused his opposite number of failing to understand the distinction between civil protection and criminal offence . . . Criminal law is the strongest form of legal sanction we have as a society, and it’s extraordinary that Senator Brandis would express concerns about the effect of Section 18C on ‘free speech’ and ‘liberty’, only to mark out some of the conduct regulated by Section 18C as a new federal crime, . . .”

The Online Hate Prevention Institute (OHPI) on its Facebook page states that:

“While we believe the Bolt case was rightly decided, and would have been decided the same way under the proposed change, this change may avoid damaging section 18C. The proposal of a criminal provision is welcomed. OHPI has done significant research into criminal provisions for racial vilification during 2013 and we will be sharing this work with the Attorney General. We believe the Western Australian law is the best in the country in this area. It has a range of offences which would make implementation of the law far simpler when it comes to online hate speech”.

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