The government is looking into changes to the Racial Discrimination Act

URGENT ATTENTION about Racial Discrimination

Dear Ethnic community broadcasters

The Government is again considering changes to the Racial Discrimination Act (RDA): article 18C and 18D.

Ethnic broadcasters have a wealth of community knowledge and experience to draw from, and we encourage you to stay informed about this issue.

There is a Parliamentary Committee that has held public hearings around Australia and they will inform the Government of thier findings.

  • Federal Government shuold retain the current protections of the Racial Discrimination Act. The laws against racial vilification have operated successfully since 1995, providing an accessible legal means for addressing vilification on the basis of race, colour or national or ethnic origin.
  • Racism is a serious and escalating problem, as demonstrated by recent research, including by the Scanlon Foundation. Racism and racial vilification causes harm to individuals, to groups and society as a whole.
  • The law has an important role to play in addressing the harm caused by racial discrimination and racial vilification. By setting standards of conduct, the laws constrain the spread of racism and racial hatred and encourages people to speak out against racism, complementing broader education strategies.
  • The laws generally strike an appropriate balance between the right to freedom of expression and the right to freedom from racial discrimination and vilification.
  • There should be no change to Part IIA of the RDA.
  • The Australian Human Rights Commission (AHRC) process provides important access to remedies for victims of racial vilification with most complaints resolved through an accessible mediation process.

The present legislation should be retained because:

  • It is strong, clear, fair, successful protection against racial vilification.
  • It provides an accessible legal means for accountability: It’s free to make a complaint to the Australian Human Rights Commission for free, while it can be costly to sue for defamation.
  • It’s a defining piece of legislation affirming Australia as a nation that’s democratic and culturally and racially diverse. It’s a barometer for society of what’s acceptable.
  • It also protects freedom of speech by recognising fair and accurate reporting, or reasonable statements made in good faith as part of public discussion.

Committee Secretary, Parliamentary Joint Committee on Human Rights

PO Box 6100, Parliament House, Canberra ACT 2600

Phone: 02 6277 3823

Fax: 02 6277 5767

Email: 18Cinquiry@aph.gov.au

 

How This Happened Again?

On 8 November 2016, the Attorney-General referred matters to the Parliamentary Joint Committee on Human Rights for inquiry and report which can be summarised as follows:

  • whether the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) (‘RDA’) (including 18C and 18D) impose unreasonable restrictions on freedom of speech; and
  • whether the complaints-handling procedures of the Australian Human Rights Commission should be reformed.

The NEMBC does not support the terms of reference of the Joint Committee Inquiry. Australians made their support for legislation against racial vilification very clear two years ago in response to the proposed Freedom of Speech (Repeal of s. 18C) Bill 2014 which proposed major changes to section 18C of the RDA.

Moreover, we find the terms of reference extraordinary in that they appear to oppose the proper enforcement of the RDA and thereby appear to seek to undermine the rule of law and the statutory role of the Australian Human Rights Commission.

If you would like to make your individual voice or the voice of your organisation or community heard, but feel you need some drafting assistance, please feel free to use the short form letter or longer form submission templates attached below at the bottom of this page as your starting point.   Click on an Attachment to download the relevant PDF (Terms of Reference) or Word document (templates).

The templates are designed to assist you in addressing the terms of reference and legal issues but we strongly encourage you to add your own concerns, fears and lived experiences to increase the impact of your submission (see Making a Submission).

It is now more important than ever that those who believe in the right of all people to live their lives free from intimidation, discrimination and harassment on the basis of race, make their voices heard.

Click here for the full terms of reference or find them attached below.

For more information contact:

Committee Secretary, Parliamentary Joint Committee on Human Rights

PO Box 6100,  Parliament House, Canberra ACT 2600

Phone: 02 6277 3823

Fax: 02 6277 5767

Email: 18Cinquiry@aph.gov.au

Background

What does the law say?

Section 18C of the Racial Discrimination Act makes it unlawful for someone to do an act that is reasonably likely to “offend, insult, humiliate or intimidate” someone because of their race or ethnicity.

Section 18D of the Racial Discrimination Act contains exemptions which protect freedom of speech. These ensure that artistic works, scientific debate and fair comment on matters of public interest are exempt from section 18C, providing they are said or done reasonably and in good faith.

What is the background to these laws?

Australia has obligations to implement protections against racial hatred under the International Covenant on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).

Sections 18C and 18D were introduced in response to recommendations of major inquiries including the National Inquiry into Racist Violence and the Royal Commission into Aboriginal Deaths in Custody. These inquiries found that racial hatred and vilification can cause emotional and psychological harm to their targets, and reinforce other forms of discrimination and exclusion. They found that seemingly low-level behaviour can soften the environment for more severe acts of harassment, intimidation or violence by impliedly condoning such acts.

Echoing these inquiries, the Australian Law Reform Commission published the 1992 report, Multiculturalism and the Law, which recommended the introduction of legislation to deal with racial hatred.

Balancing freedom of speech and freedom from racial vilification

The courts have consistently interpreted sections 18C and 18D as maintaining a balance between freedom of speech and freedom from racial vilification. The courts have held that for conduct to be covered by section 18C, the conduct must involve “profound and serious” effects, not “mere slights”. The courts have also found that section 18C is an appropriate measure to implement Australia’s obligations to prohibit racial hatred under the ICCPR and ICERD.

While many laws restrict freedom of speech, such as laws applying to defamation, advertising and national security, section 18C fills an important gap in legal protections for those affected by racial hatred and vilification.

You may also find the articles and resources below helpful:

S.18C and 18D of the Racial Discrimination Act 1975

At a glance: Racial vilification under sections 18C and 18D of the Racial Discrimination Act 1975 (Cth)

Examples of other more concerning attacks on freedom of speech in Australia are contained in this Guardian article  Beyond 18C: six barriers to freedom of speech in Australia

Change Section 18C? Critics should do this crash course first

Research reveals what racism can do to a child’s body: Racism can get under the skin and do lifelong damage. BY DR. NAOMI PRIEST UNICEF Australia

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