The proposed changes to the Racial Discrimination Act announced by the Attorney-General George Brandis have far-reaching implications and will significantly weaken the existing
protections against racial vilification.
For nearly 20 years, the antivilification provisions of the Racial Discrimination Act have provided a legislative shield against hate speech in our community. The proposed amendments would mean that the targets of racial vilification will in future have very limited
The existing act, as interpreted by the courts in cases since 1995, has properly distinguished between free speech and racial vilification. A wellknown example is the judgment against the notorious Holocaust denier Fredrick Toben.
The Federal Court found that material on his website suggested that Jewish people who believe that the Holocaust occurred are of limited intelligence and have exaggerated the number of Jews killed during World War II to profit from what he called the “Holocaust myth’’.
The landmark case in 2002 against Toben in the Federal Court was run by Stephen Rothman SC, now a judge of the Supreme Court of NSW, and Peter Wertheim, the current executive director of the Executive Council of Australian Jewry.
Toben refused to comply with court orders to remove voluminous material vilifying members of the Jewish community.
In 2007, I took over from Wertheim and commenced the contempt-of-court case against Toben. This culminated in a finding by judge Bruce Lander in 2009 following a three-day hearing that Toben’s conduct was “wilful and contumacious”.
Toben also withdrew an undertaking given to the court in 2007 that he would comply with the orders. The judge found that Toben’s conduct “was one of publicly expressed deliberate and calculated disobedience to orders” of the court. Toben was sentenced to three months’ imprisonment.
His appeal to a full bench of the Federal Court was unanimously dismissed and, late one August day in 2009, Toben was taken from the court to prison.
He was not incarcerated for his views, no matter how abhorrent they are. There are no criminal penalties under the Racial Discrimination Act. He was jailed because he refused to recognise the authority of the court.
Currently, section 18C of the act makes it unlawful for a person to do an act otherwise than in private that is reasonably likely to offend, insult, humiliate or intimidate another person or group of people because of their race, colour or national or ethnic origin.
The prohibition in section 18C is balanced by the freespeech
exemptions in section 18D — one of the few codified guarantees of free speech in Australia.
These exemptions protect virtually anything said or done reasonably and in good faith and cover any genuine academic, scientific or artistic discourse, or any other purpose in the public interest. Published material is protected, if it is a fair and accurate report or comment of an event, or is an expression of a genuine belief held by the person making the comment.
Mere egregious slights or insults have been found by the courts not to fall foul of section 18C. The strangely named Freedom of Speech (Repeal of S. 18C) Bill 2014 would repeal sections 18B, C, D
and E and replace them with significantly weakened legal protections against racial vilification.
The government proposes to keep “intimidate” but remove the words “offend, insult and humiliate” and to replace them with “vilify”. Both terms are defined for the purposes of the act. The new definition of vilify bears no relationship to the ordinary dictionary definition of the word.
The Macquarie Dictionary defines “vilify” as “speak evil of, defame or traduce”. Under the proposed amendment, vilify will mean “to incite hatred against a person or group”. This definition fails to address the effect of racial vilification on targeted individuals and groups and would require a complainant to prove instead that the wider community has been incited to hatred.
The definition reflects a confusion of the concepts of vilification and incitement. This is a much narrower provision than found in state racial vilification laws. With the exception of Western Australia and the Northern Territory, all states and the ACT prohibit inciting hatred towards, serious contempt for, or severe ridicule of a person or group. Further, “intimidate”, unlike its dictionary definition, will now be narrowly defined to mean causing fear of physical harm to a person or property and would exclude cases where racial targeting, short of a threat of physical harm, is used to undermine a person’s relationship with fellow workers, neighbours, teammates
The notorious examples of racial abuse that have occurred at sporting events, such as the abuse directed at Adam Goodes, Ali Abass, Timana Tahu, Greg Inglis and Ben Barba fell short of incitement of others (and in some cases were not heard by anybody else) and the threat of physical harm. This kind of crude racist
abuse would not be caught by the proposed new legislation.
The proposed amendments would mean that Toben would be free to publish his vile material with impunity.
It would be impossible to establish that the abuser’s words mounted to incitement of others or that they caused fear of physical harm.
The hatespeakers’ trump card will be the freespeech exemptions to replace section 18D.
Statements which vilify or intimidate a person or group on the basis of race will be entirely permissible if they are made in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter. The exemption would apply even if there is no relationship between the vilifying or intimidatory statements and the matter being discussed. The statements would be permissible even if made unreasonably or in bad faith. It is hard see what would not be exempt.
Even Toben argued that his Holocaust denial was a part of a public discussion of an academic matter, namely the history of the Holocaust.
Free speech has never been unfettered. Defamation laws provide remedies for damage to reputation and hurt to feelings. Misleading and deceptive conduct is prohibited in trade or commerce. It is only the restrictions on hate speech which have attracted the Attorney-General’s ire in the name of free speech or, as he puts it, “the right to be a bigot”.
As noted by Race Discrimination Commissioner Tim Soutphommasane, racism can have the effect of silencing its targets. We all have a right to be protected against bigotry and hatred. The emasculated Racial Discrimination Act will not do this.
Steven Lewis is a principal at ACA Lawyers and has run a number of cases under section 18C of the Racial Discrimination Act.