Exposing the exposure draft: a law school professor’s insights into the Racial Discrimination Act

BRETT SHANDLER

​​De Minimis speaks with Associate Professor Beth Gaze, MLS’s expert on anti-discrimination law.

Following the 2011 Federal Court finding that two columns written by Herald Sun columnist Andrew Bolt had contravened s 18C of the Racial Discrimination Act 1975 (Cth), then Opposition Leader Tony Abbott and Shadow Attorney-General George Brandis promised to repeal the provision ‘in its current form’ should the Coalition come to power at the 2013 Federal Election. In March this year, the Attorney-General released an exposure draft of legislation to amend the Act, which if enacted will have the effect of narrowing the protections against racial vilification, widening corresponding exemptions, and assessing public acts by reference to the standards of an ordinary reasonable member of the Australian community rather than those of any particular groups within the community. The draft’s release has precipitated vigorous community debate about the appropriate balance between freedom of expression and protection against racial vilification. To make sense of the exposure draft, De Minimis spoke with Associate Professor Beth Gaze, MLS’s expert on anti-discrimination law.

What are your thoughts on the exposure draft of the RDA amendments?

The exposure draft of changes to the RDA proposes changes that would essentially end protection in federal law against speech that is racially offensive or intimidating, by introducing an exception so wide it would cover virtually all situations. Since this is an important policy to protect the rights of people of minority ethnic backgrounds and indigenous people, and to protect community harmony which is a big benefit to all of us, these changes go too far and should be rejected. Interestingly it seems that public opinion is firmly of this view too, in light of the public opinion polls and comments by members of parliament.

Many commentators, including some who support retaining s 18C, claim that it sets the bar too low. Do you believe this is the case?

Section 18C prohibits conduct including speech that is not in private, and that ‘[offends, insults, humiliates or intimidates]’ someone on the basis of their race or ethnicity. While there has been some discussion in the media recently suggesting that the standard of ‘offence’ is too low and should be deleted, the courts have said that all these criteria are satisfied only where conduct is serious, so a high standard is applied and trivial matters cannot be pursued.  Enforcement is by a civil action by the person affected, and in most cases there are little or no damages awarded, so the action really exists to vindicate the principle that intimidatory speech is unacceptable.

In my view the inclusion of offence is not inappropriate.  Section 18C was adopted in response to the prevalence of seriously offensive racial speech in the community targeting particular groups such as Aborigines, Jews and other groups. Not only is such speech offensive to the group that is targeted, but failing to take action to challenge it may allow it to create a dangerous social environment of racial hostility that can lead to violence, fear and intimidation, and actual harm to people affected. Threats of physical harm are assaults, and clearly prohibited by tort and criminal law.  But s 18C deals with the creation of an atmosphere that allows intimidation and hostility to develop and spread. There are many historical examples of the serious effects of such environments. Knowing this, we should not wait until people are at risk of harm before demonstrating social disapproval. History shows the dangers.

A good range of defences to s 18C is available, including artistic performance, statements in genuine academic or scientific purpose or any other genuine purpose in the public interest. This would allow debate on these issues that is not inflammatory, even if it may be seriously offensive or intimidating, although where it does fall into those categories, courts are likely to be careful to ensure that the conduct is genuinely for a public purpose.

So respect for the equal rights of minority people to live safely and without fear, intimidation, threats or being targeted on the basis of their race justifies these laws.

So you don’t buy the argument that s 18C in its current form places an unjustifiable burden on freedom of speech?

Those in favour of amending or repealing the provision often argue that free speech needs to be better protected. However defamation laws are a much bigger threat to freedom of speech in Australia, in particular because of the use of stop writs, to get an injunction on an interim basis, which threaten large costs against speakers and thereby chill controversial speech.  But the opponents of 18C are not suggesting they will reform defamation law, which suggests their concern with freedom of speech is a rather limited one. In the Bolt case, the poor journalism based on wrong facts that could have been easily checked was the only reason why the case breached the law, which suggests that s 18C does adequately protect freedom of expression. We would not want the law to protect false reporting or commentary that could easily have been checked for correctness. 

The interest of the proponents of reform in having no limits on their exercise of their own speech could be seen as self-interested, as they command excellent media attention – Bolt has a blog and TV show, and the Liberal MPs have media attention and staff to promulgate their views.  The groups targeted by such speech often have fewer avenues to respond.

Australia’s law is similar to Canada’s approach whereby the racial equality of respect is valued as well as freedom of expression. Australia has one of the highest proportions of people born overseas or whose parents were.  Our multicultural community requires us to respect racial equality, and not to simply put freedom of expression at the top of the tree as an absolute value, like the American Supreme Court has done.

Beth Gaze is an Associate Professor at Melbourne Law School and an expert in anti-discrimination and equal opportunity laws. Brett Shandler is a 3rd year JD student.