The Racial Discrimination Act: Insults, Timing and Debate

Parliament house flag post
Golden scales of justice, gavel and books

The Racial Discrimination Act: Insults, Timing and Debate

Posted 6/06/2014 by Kirsty Magarey

The regulation of offensive or insulting language has a long history, including through defamation law and the general laws regulating public behaviour and language. In the context of the current debates on the regulation of language in the Race Discrimination Act 1975 (RDA) it is interesting to note that race and cultural heritage, as a basis for insult, have long been subject to regulation. So, for instance, in 1919 in Orange, NSW, a defendant was ‘convicted’ and fined for using insulting language, after calling someone a ‘German sausage’. There was evidence that the plaintiff was born in the UK to an English mother and his father came from an area that was then part of Denmark. The Magistrate took into account the relevant socio-political circumstances when recording the fine and conviction, saying ‘the words used were very insulting at a period like the present.’

The varying nature of insults and their context, along with a question as to whose standards they should be judged against, is discussed in the Parliamentary Library’s recently issued Research Paper ‘The Attorney-General’s suggested changes to the Racial Discrimination Act’. One of the changes proposed by the Attorney-General would change the standards by which insults are to be evaluated. The law as it stands takes into account the perspective of the racially distinct person being insulted when considering the impact of that insult, whereas the proposed changes would confine judges to considering the ‘ordinary, reasonable’ Australian with no reference to a ‘particular group’. This change and its associated issues is one of four specific changes that would be made under the Attorney’s suggestions which are explored in the paper.

The Attorney-General’s changes have been the subject of much public scrutiny and there are reports he will pursue an amended version of his suggested changes. Senator Nova Peris tied the proposal to more long-lasting change when she wrote to the Prime Minister suggesting that the changes should be abandoned entirely and argued that they have ‘sabotaged meaningful discussions on constitutional recognition’.

Another issue that has arisen during the course of the public debate is the different forms of language regulation that would be unaffected by the Attorney’s current proposal. The Race Discrimination Commissioner has pointed to various constraints on speech which may have a more dramatic or unjustified effect on free speech than the RDA’s provisions. This includes defamation law and various forms of public offensiveness legislation. Warren Mundine has said ‘I just find it funny that we are quite accepting that no-one should swear in public, but it's OK for people to be bigots and I find that a bizarre situation. I can assure people, more people died from bigotry than people died from being swore at.’ Others have pointed out that the failure to reform the law in all areas does not justify a failure to reform it where it needs doing, although this argument leaves open, in turn, the question of whether racial insults are of a peculiarly pernicious sort which require regulation over and above the general bans on ‘offensive’ behaviour.

The Research Paper looks particularly at the distinctions that exist between defamation law and the arrangements in the RDA. After the Eatock v Bolt case went to court there were questions as to why the complainants in that case did not pursue the matter in defamation, which was likely to have been more financially rewarding. The Paper offers possible reasons, some of which, like the broader educative reach of the RDA, have subsequently been confirmed by Professor Larissa Behrendt, who also reflected that the applicants in the case believed Mr Bolt would apologise for his inaccuracies before the matter went to court.

Tim Wilson, the new Human Rights Commissioner, has argued that section 18C of the Act should be repealed in its entirety, as has the Institute of Public Affairs, as their concern is to protect an unfettered freedom of speech. This may also be reflected in the Prime Minister’s response to Senator Peris, which is reported to say that while racial vilification will not be acceptable in Australia, laws which are designed to prohibit racial vilification should not be used to attack ‘legitimate’ freedom of speech.

Mr Wilson also pointed out that two options beyond repeal are open: leaving the provisions untouched or making a modest change.

As documented in the paper, some eminent members of the human rights community have shown an openness to modest change, including George Williams, Gillian Triggs and Mark Leibler. Other, equally eminent, members of the Indigenous community have argued for no change, including Jackie Huggins, Mick Dodson, Noel Pearson, and Pat Dodson, who joined what Sky News called a ‘chorus of concerns’, saying that when one has lived the experience of racism and seen its damage one no longer sees a solution to the problem through what might be referred to as a ‘debating society’.

The results of the Attorney-General’s Department consultation process are yet to be made public, but the Research Paper can now be viewed online.

Thank you for your comment. If it does not require moderation, it will appear shortly.
Facebook LinkedIn Twitter Add | Email Print


Flagpost is a blog on current issues of interest to members of the Australian Parliament

Parliamentary Library Logo showing Information Analysis & Advice




refugees asylum immigration Australian foreign policy Parliament elections climate change social security women welfare reform taxation Indigenous Australians Australian Defence Force welfare policy school education higher education private health insurance health financing emissions trading Middle East Senate Australian Bureau of Statistics employment people trafficking Asia statistics illicit drugs gambling health reform federal election 2010 Australian Public Service income management Medicare disability Sport United Nations environment industrial relations constitution transport politics criminal law Afghanistan health forced labour food public service reform aged care aid Australian Sports Anti-Doping Agency World Anti-Doping Agency United States federal budget Carbon Pricing Mechanism dental health international relations governance regulation Fair Work Act voting law enforcement electoral reform OECD Australian Electoral Commission WADA child protection poker machines Australia in the Asian Century steroids National Disability Insurance Scheme detention 43rd Parliament slavery health system leadership domestic violence parliamentary procedure International Women's Day accountability defence capability multiculturalism ASADA Australian Federal Police labour force people smuggling debt New Zealand Australian Crime Commission pharmaceutical benefits scheme political parties coal seam gas Human rights crime China Census election results UK Parliament Papua New Guinea banking corruption pensions children's health Aviation federal election 2013 foreign debt gross debt net debt Senators and Members ALP Newstart Parenting Payment Youth Allowance sea farers United Kingdom energy food labelling Australian economy violence against women vocational education and training military history by-election High Court skilled migration mental health Federal Court terrorist groups science social media Higher Education Loan Program HECS federal state relations youth paid parental leave same sex relationships customs planning doping health risks Gonski Review of Funding for Schooling sex slavery Special Rapporteur Northern Territory Emergency Response social policy ANZUS Rural and regional trade unions Foreign affairs election timetable Indigenous royal commission Productivity firearms public policy Population ADRV terrorism transparency research and development welfare ASIO intelligence community Australian Security Intelligence Organisation carbon tax mining employer employee renewable energy regional unemployment fishing European Union family assistance United Nations Security Council forestry Drugs welfare systems Indonesia children Constitutional reform local government codes of conduct terrorist financing homelessness Parliamentary remuneration money laundering Trafficking in Persons Report social inclusion paternalism environmental law US presidential election nutrition ODA Defence sitting days electoral divisions Southeast Asia administrative law universities TAFE Ireland citizenship asylum seekers early childhood education Canada Financial sector national security fuel disability employment Tasmania integrity standards NATO Australian Secret Intelligence Service sexual abuse World Trade Organization Australia public health housing affordability bulk billing water health policy Governor-General US economy export liquefied natural gas foreign bribery question time speaker superannuation public housing expertise climate Intergovernmental Panel on Climate Change Department of Agriculture Fisheries and Forestry Pacific Islands reserved seats new psychoactive substances synthetic drugs UNODC carbon markets animal health middle class welfare constitutional recognition of local government referendum consumer laws PISA competition policy US politics language education baby bonus Leaders of the Opposition citizen engagement policymaking Australia Greens servitude Trafficking Protocol forced marriage alcohol entitlements ministries Hung Parliament social citizenship maritime Iran regional students school chaplains federal budget 2011-12 salary Medicare Locals primary care Building the Education Revolution Turkey Syria marine pollution sustainability prisons police deaths in custody electoral margins electoral pendulum electoral redistribution redistribution NSW redistribution WA redistribution ACT electoral boundaries ASEAN Sustainable Development Goals Double dissolution Senators safety vehicles MYEFO Pathology tertiary education Taiwan Xi Ma meeting family violence government financial advisers financial planners Financial System Inquiry Murray Inquiry China; Economic policy; Southeast Asia; Africa housing Speaker; House of Representatives; Parliament High Court; Indigenous; Indigenous Australians; Native Title ACT Indigenous education Norfolk Island External Territories emissions reduction fund; climate change child care funding refugees immigration asylum procurement Indigenous health e-voting internet voting nsw state elections 44th Parliament 2015 ABS Age Pension Death penalty capital punishment execution Bali nine Bali bombings Trade EU China soft power education Fiji India Disability Support Pension Antarctica Diplomacy by-elections state and territories Bills anti-corruption fraud bribery corporate ownership whistleblower G20 economic reform innovation Members of Parliament Scottish referendum Middle East; national security; terrorism social services Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013 online grooming sexual assault of minors ACT Assembly smoking plain packaging tobacco cigarettes Asia; Japan; international relations Work Health and Safety Migration; asylum seekers; regional processing China; United States; international relations fiscal policy Racial Discrimination Act; social policy; human rights; indigenous Australians Foreign policy Israel Palestine asylum refugees immigration political finance donations foreign aid Economics efficiency human rights; Racial Discrimination Act employment law bullying Animal law; food copyright Australian Law Reform Commission industry peace keeping contracts workplace policies same-sex marriage disorderly conduct retirement Parliament House standing orders prime ministers First speech defence budget submarines workers Somalia GDP world heritage political engagement leave loading Trade; tariffs; safeguards; Anti-dumping public interest disclosure whistleblowing Productivity Commission limitation period cancer gene patents genetic testing suspension of standing and sessional orders live exports infant mortality honorary citizen railways disciplinary tribunals standard of proof World Health Organisation arts international students skilled graduate visas temporary employment visas apologies roads Italy national heritage NHMRC anti-dumping Rent Assistance obesity evidence law sacrament of confession international days DFAT UN General Assembly deregulation Regulation Impact Statements small business Breaker Morant regional engagement social determinants of health abortion Members suspension workplace health and safety marine reserves hearing Victoria astronomy resources sector YMCA youth parliament Korea rebate Australian Greens presidential nomination Racial Discrimination Act political parties preselection solar hot water Financial Action Taskforce Horn of Africa peacekeeping piracy Great Barrier Reef Stronger futures political financing political education Social Inclusion Board early childhood National Quality Framework for Early Childhood Education and Care Murray-Darling Basin sanctions Norway hospitals republic President Barack Obama Presidential visits qantas counselling Korean peninsula Work Choices biosecurity hendra federalism federation preselection therapeutic goods Therapeutic Goods Administration plebiscites computer games pests suicide nuclear COAG Ministerial Councils floods ADHD stimulant medication advertising electricity extradition conscience votes poverty preventative health rural health coastal erosion Parliamentary Budget Office work-life balance

Show all
Show less
Back to top