Changes to be introduced to Racial discrimination Act Section 18C

Attorney-General George Brandis

In Abbott Government’s first legislative move, the Attorney-General George Brandis is introducing a Bill to amend or water down the Racial Discrimination Act section 18C that protects Australia’s cultural groups, which are in the hundreds.

The next clause or the section 18D outlines exemptions anyway to what is there in 18C on account of anything said or done reasonably and in good faith.

A journalist and a blogger Andrew Bolt was sued over  posts titled “It’s so hip to be black“/”White is the New Black” and “White Fellas in the Black” when in September 2010, nine individuals commenced legal proceedings in the Federal Court against him. The articles suggested it was fashionable for “fair-skinned people” of diverse ancestry to choose Aboriginal racial identity for the purposes of political and career clout.

The applicants claimed the posts breached the  Racial Discrimination Act. They sought an apology, legal costs, and a gag on republishing the articles and blogs, and “other relief as the court deems fit”. They did not seek damages. On 28 September 2011 Bolt was found to have contravened section 18C of the Racial Discrimination Act.

Now Prime Minister Tony Abbott before the elections had said, he would seek to require the Australian Human Rights Commission to protect, rather than restrict, the right of free speech in Australia.

Referring to Mr Bolt’s case, Mr Abbott said free speech was the right of people to say what others don’t like, not just the right of people to say what others do like.

With the Indian community and at times issues such as misuse of Indian gods and goddess’s images by individuals and issues sensitive to the Indian community by talkback radio hosts have arisen, any changes to the RDA is a matter of concern and should be part of the consultative process in any changes being made to Section 18C. Changes made in the name of ”˜right to free speech’ may lead to racially vilifying a group or a race in an otherwise racially and multiculturally diverse community in Australia and  must go through a thorough and democratic consultative process.

RACIAL DISCRIMINATION ACT 1975 – SECT 18C

Offensive behaviour because of race, colour or national or ethnic origin

(1)   It is unlawful for a  person  to do an act, otherwise than in private, if:

(a)   the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another  person  or a group of people; and

(b)   the act is done because of the race, colour or national or ethnic origin of the other  person  or of some or all of the people in the group.

Note:                   Subsection  (1) makes certain acts unlawful. Section  46P of the  Australian Human Rights Commission Act 1986  allows people to make complaints to the Australian Human Rights  Commission  about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section  26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part  IV expressly says that the act is an offence.

(2)   For the purposes of subsection  (1), an act is taken not to be done in private if it:

(a)   causes words, sounds, images or writing to be communicated to the public; or

(b)   is done in a  public place; or

(c)   is done in the sight or hearing of people who are in a  public place.

(3)   In this section:

“public place”  includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.

RACIAL DISCRIMINATION ACT 1975 – SECT 18D

Exemptions

Section  18C does not render unlawful anything said or done reasonably and in good faith:

(a)   in the performance, exhibition or distribution of an artistic work; or

(b)   in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

(c)   in making or publishing:

(i)   a fair and accurate report of any event or matter of public interest; or

(ii)   a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the  person  making the comment.

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