Trumping racial vilification

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

Trumping racial vilification

Posted 19/03/2014 by Kirsty Magarey

There is currently heated debate over the Racial Discrimination Act 1975 (RDA) and its racial vilification provisions. This debate has been narrowly focussed on one section of the Act, and has sometimes failed to recognise the impact of the following ‘free speech’ provision.

The media’s coverage has focussed almost exclusively on section 18C of the RDA. 18C makes it illegal for someone to do a public act which is ‘reasonably likely, in all the circumstances,’ to ‘offend, insult, humiliate or intimidate’ someone on the basis of their race (‘the vilification section’). There has been less attention paid to section 18D, which  provides an overarching freedom of speech limitation on the restrictions of 18C (‘the freedom of speech section’). As an example, the ABC’s recent discussion of ‘Freedom of speech and the RDA’ included a detailed examination of 18C, but made no reference to the freedom of speech section.

Section 18D sets out the perimeters within which section 18C functions. Section 18D overrides 18C any time it applies--providing that 18C does not ‘render unlawful anything said or done reasonably and in good faith’ in the course of what might be summarised as public debate or fair comment, including artistic expressions. This means that one is free to give expression to racist ideas, including those that offend, if it falls within 18D’s fairly broad definitions of reasonable free speech.

Thus in Bropho v Human Rights & Equal Opportunity Commission, for example, a cartoonist created a cartoon about a racial group. There was a complaint, and the cartoon was found to be offensive, but no breach of 18C was found because the section could not be applied. Section 18C was blocked by 18D and the cartoonist was protected in the exercise of their freedom of speech, however offensive to the complainants.

Toben v Jones was another exploration of 18D. There were questions raised about whether holocaust denialism can be undertaken ‘reasonably’. In the event, the court did not need to examine this matter in detail because the defendant’s lack of good faith was established both by his ‘deliberately provocative and inflammatory’ language and his reference to the Jews as ‘murderers’.  The judges at all stages of the case concurred that the tenor of the materials was designed to ‘smear’ Jewish people and could not be said to be ‘an honest attempt to put forward a contribution embodying a genuine purpose, or genuine purpose in the public interest, or a fair comment by way of genuine belief.’

In Eatock v Bolt there was a similar application of the law, in that 18D was found not to protect Mr Bolt’s exercise of his speech. This was, again, not so much because of his statements, but because of his use of inaccurate material. The use of these materials was found not to have been 'reasonable and in good faith'. In the ‘normal’ course of events, Mr Bolt’s views on pale-skinned aborigines would have fallen within the bounds of fair comment in 18D, but it was his inclusion of ‘errors of fact [and] distortions of the truth’, along with ‘inflammatory and provocative language’ [para 8] meant that the protections of 18D were not available to him.

It was the judge's decision regarding section 18D that enabled his decision under 18C, and it is thus inadequate to summarise the Eatock v Bolt case as simply a breach of 18C. It was a breach of section 18C, along with an incapacity to utilise the protections of 18D that led to the judge’s finding.

Cases under these sections have often involved intensive statutory interpretation, including a focus on the inter-relationship between the two sections. In particular 18D, with its explicit recognition of the common law right to freedom of speech, has led to a restrictive interpretation of the words ‘offend, insult, humiliate or intimidate’ in 18C. Thus it is important, in considering the RDA, to have regard to both sections. 

The courts have also had a close regard to the purpose and history of the provisions, and the parliamentary consideration that took place on their introduction. Much of this background is summarised by the Race Discrimination Commissioner, who has given a history of these provisions in ‘Two Freedoms: Freedom of expression and freedom from racial vilification’. In summary, sections 18C and 18D were introduced into the Act in response to a number of reports on racial violence, including the National Inquiry into Racist Violence, the Royal Commission into Aboriginal Deaths in Custody and the Law Reform Commission’s Report, Multiculturalism and the Law, as well as international treaty obligations, including the International Convention on the Elimination of All Forms of Racial Discrimination. Further background on these topics is available from both the Human Rights Commission’s website and the Parliamentary Library.


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

FlagPost

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


Parliamentary Library Logo showing Information Analysis & Advice

Archive

Syndication

Tagcloud

refugees asylum immigration Australian foreign policy Parliament climate change elections women social security Indigenous Australians Australian Bureau of Statistics Employment Sport illicit drugs people trafficking taxation Medicare welfare reform Australian Defence Force higher education welfare policy United Nations health financing Asia income management Middle East criminal law disability Australian Sports Anti-Doping Agency World Anti-Doping Agency United States federal budget gambling school education forced labour aid statistics Australian Electoral Commission WADA emissions trading dental health Australia in the Asian Century steroids detention Private health insurance OECD ASADA labour force transport Law Enforcement Australian Federal Police Industrial Relations people smuggling National Disability Insurance Scheme Australian Crime Commission slavery Senate election results Papua New Guinea Australian Public Service constitution International Women's Day corruption Afghanistan Fair Work Act child protection debt federal election 2013 parliamentary procedure poker machines ALP New Zealand Newstart Parenting Payment 43rd Parliament political parties Census High Court skilled migration voting Federal Court terrorist groups Higher Education Loan Program HECS youth paid parental leave Aviation environment foreign debt gross debt net debt defence capability customs doping health crime health risks multiculturalism aged care Gonski Review of Funding for Schooling sex slavery sea farers Special Rapporteur leadership United Kingdom UK Parliament Electoral reform politics banking firearms public policy violence against women domestic violence mental health China ADRV terrorism social media pensions welfare ASIO intelligence community Australian Security Intelligence Organisation governance public service reform Carbon Pricing Mechanism carbon tax mining military history employer employee fishing by-election European Union same sex relationships international relations coal seam gas family assistance planning United Nations Security Council Australian economy food vocational education and training Drugs health reform Indonesia children codes of conduct terrorist financing health system money laundering asylum seekers early childhood education Canada Population Financial sector national security fuel disability employment Tasmania integrity science research and development Australian Secret Intelligence Service sexual abuse federal state relations World Trade Organization Australia accountability housing affordability bulk billing water renewable energy children's health health policy Governor-General US economy export liquefied natural gas foreign bribery question time speaker superannuation expertise Senators and Members climate Intergovernmental Panel on Climate Change Department of Agriculture Fisheries and Forestry food labelling Pacific Islands reserved seats new psychoactive substances synthetic drugs UNODC carbon markets Indigenous constitutional recognition of local government local government consumer laws PISA royal commission US politics language education baby bonus Leaders of the Opposition Parliamentary remuneration Australia Greens servitude Trafficking Protocol energy forced marriage rural and regional Northern Territory Emergency Response ministries social citizenship human rights 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 workers Bills anti-corruption fraud bribery transparency corporate ownership whistleblower G20 economic reform innovation standards NATO 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 public health 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 Southeast Asia Israel Palestine regional unemployment asylum refugees immigration political finance donations foreign aid Economics efficiency productivity human rights; Racial Discrimination Act employment law bullying Animal law; food copyright Australian Law Reform Commission industry peace keeping contracts workplace policies trade unions same-sex marriage disorderly conduct retirement Parliament House standing orders public housing prime ministers election timetable sitting days First speech defence budget submarines Somalia GDP forestry world heritage political engagement leave loading Trade; tariffs; safeguards; Anti-dumping public interest disclosure whistleblowing Productivity Commission regulation limitation period universities Ireland cancer gene patents genetic testing suspension of standing and sessional orders animal health live exports welfare systems infant mortality middle class welfare 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 nutrition anti-dumping Constitutional reform referendum Rent Assistance competition policy pharmaceutical benefits scheme obesity evidence law sacrament of confession US presidential election international days DFAT UN General Assembly deregulation Regulation Impact Statements administrative law small business Breaker Morant homelessness regional engagement social determinants of health abortion Youth Allowance Members suspension citizen engagement policymaking federal election 2010 workplace health and safety Trafficking in Persons Report marine reserves hearing TAFE Victoria astronomy resources sector YMCA youth parliament alcohol Korea rebate Australian Greens presidential nomination Racial Discrimination Act entitlements political parties preselection solar hot water Financial Action Taskforce Horn of Africa peacekeeping piracy Great Barrier Reef Stronger futures political financing Hung Parliament political education social inclusion Social Inclusion Board maritime early childhood National Quality Framework for Early Childhood Education and Care Murray-Darling Basin Iran sanctions Norway hospitals republic President Barack Obama Presidential visits

Show all
Show less
Back to top