Saturday, 3 May 2014

Changes to the Racial Discrimination Act


The Racial Discrimination Act 1975, as it stands,  stifles free speech, and limits the capacity to solve social problems because discussion has to be so carefully expressed that it becomes useless.  

There are changes proposed that would remove the clause that allows a person to make a complaint because they feel 'offended.' In other words, because their feelings are hurt. Unlike the laws against slander or libel, being factual in the 'offensive' statement is no defence.

The changes retain and strengthen the law against incitement to violence against a person because of his/her race, and against intimidation. 

This is what is proposed: 

Attorney-General for Australia
Minister for the Arts
Senator the Hon George Brandis QC

Government Media Release, 25th March, 2014.
Racial Discrimination Act

25 March 2014

The Government Party Room this morning approved reforms to the Racial Discrimination Act 1975 (the Act), which will strengthen the Act’s protections against racism, while at the same time removing provisions which unreasonably limit freedom of speech.

The legislation will repeal section 18C of the Act, as well as sections 18B, 18D, and 18E.

A new section will be inserted into the Act which will preserve the existing protection against intimidation and create a new protection from racial vilification.  This will be the first time that racial vilification is proscribed in Commonwealth legislation sending a clear message that it is unacceptable in the Australian community.

I have always said that freedom of speech and the need to protect people from racial vilification are not inconsistent objectives. Laws which are designed to prohibit racial vilification should not be used as a vehicle to attack legitimate freedoms of speech.

This is an important reform and a key part of the Government’s freedom agenda. It sends a strong message about the kind of society that we want to live in where freedom of speech is able to flourish and racial vilification and intimidation are not tolerated.

Exposure Draft
Freedom of speech (Repeal of S. 18C) Bill 2014

The Racial Discrimination Act 1975 is amended as follows:

1.       Section 18C is repealed.

2.       Sections 18B, 18D and 18E are also repealed.

3.       The following section is inserted:

 “ It is unlawful for a person to do an act, otherwise than in private, if: the act is reasonably likely:  to vilify another person or a group of persons; or  to intimidate another person or a group of persons,

and the act is done because of the race, colour or national or ethnic origin of that person or that group of persons.

2.       For the purposes of this section:   vilify means to incite hatred against a person or a group of persons; intimidate means to cause fear of physical harm to a person or to the property of a person or to the members of a group of persons.

3.       Whether an act is reasonably likely to have the effect specified in sub-section (1)(a) is to be determined by the standards of an ordinary reasonable member of the Australian community, not by the standards of any particular group within the Australian community.

4.       This section does not apply to words, sounds, images or writing spoken, broadcast, published or otherwise communicated in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter.”
(a few minor punctuation points of the above have been changed from the original direct copy) 

Particularly important points: 
'Laws which are designed to prohibit racial vilification should not be used as a vehicle to attack legitimate freedoms of speech.'
and  Whether an act is reasonably likely to (vilify or intimidate) is to be determined by the standards of an ordinary reasonable member of the Australian community, not by the standards of any particular group within the Australian community.
In essence, the changes to the act would mean that  a person or group cannot complain merely because they feel offended or insulted.  

The act as it stands, does indeed limit free speech.

It limits little things  -  I was standing next to my fishpond, and talking aloud to the goldfish. One was black, and I said something like, 'Hi there, black feller.' Now 'feller' is just a casual term for a male, and black, of course, because it was black. But then I cringed. Had the Aboriginal family next door heard?  Would they be offended?  They shouldn't be - there's nothing wrong with being a 'blackfeller,'  not a thing to be ashamed of,  nothing to be insulted about. And yet, they could claim offence and it could even be feasible to make a complaint.  

How very silly.

It also limits big things. There are some very big problems among specific races and cultures now in Australia, some home grown, many imported from overseas. The first requirement of attacking a problem is to define and to understand the problem. That cannot be done if people cannot air the facts in case someone claims to be offended.

Herald Sun columnist Andrew Bolt outside court.
Photo: Vince Caligiuri
The proposed changes came about after the commentator, Andrew Bolt, was deemed to have broken the law when he wrote about fair-skinned people who choose to identify as Aboriginal.

Andrew Bolt’s article (2009)  has not been reproduced here  in case it gets me into trouble as it did Andrew Bolt. In essence, it points out that claiming Aboriginal heritage, no matter how far removed and unlikely, can give real advantages to those who choose to do so. There are jobs and there are awards in the arts only open to Aboriginal people.  Bolt named several individuals who have received such advantages even when their Aboriginal heritage is not readily apparent. I’ve seen claims that there were factual errors in what he said. Maybe there are, maybe there are not.

He was sued.  He lost the case.

But I know it does happen.  
Here are two examples from my own personal experience

1.       An acquaintance of mine once boasted to me that if she chose, she could claim she was Aboriginal because she knew someone who was Aboriginal and who would be prepared to  say that she was also a part of that Aboriginal community. That was one requirement satisfied. She said nothing about the other requirement – an ancestor who was Aboriginal. 

      A few years later, she made her claim that she was Aboriginal. This was 1980s, almost as ‘politically correct’ a time as now.  It would not have been acceptable for the government employee who looked at the claim  to demand further proof  than a statement by herself and by her acquaintance. And it certainly would not have been acceptable to point out her fair skin and red hair, or the fact that she was never known as Aboriginal as a child and nor were her parents.

      So her claim was accepted, she did some sort of course in Aboriginal Counselling, and  then applied for and was appointed to a well paid government job that had been set aside for Aboriginal applicants only.  It only lasted a couple of years  – I don’t know why.

2.       Another acquaintance, an immigrant from Holland. She was married to an immigrant from England. So how did their son manage to be on the government assistance, Abstudy,  rather than Austudy?  (Abstudy was for Aboriginal children.)   I have no idea how she claimed her son was Aboriginal.

 We come in all colours.  Colour does not make us unequal.  Sometimes, culture does. We must be able to discuss aspects of our culture that are bad for us and bad for our country. And whenever someone objects, if what was said is factual, then that has to be a total defence.

Some cultural practices are bad.  Simply bad.  Some defend the mutilation of the genitals of girls, for instance, by saying it is 'culture.' Forced marriage, underage marriage - aspects of culture.

from Wikipaedia.
The ideal length for a bound foot was three inches
Remember that the Chinese used to cripple girl children by binding their feet so that they grew up with tiny, dainty feet that men found sexy?  It was culture.  It was condemned, and the practice fell out of favour. No little girls are crippled in that way any more. 

But what if it was happening now?  Would we be afraid to speak of it because that would imply that the Chinese culture was inferior?

We must be able to discuss problems. We must be able to discuss other cultures and what they do right and what we find very wrong. We have to be able to breathe freely. This amendment is sensible, it is just, it is needed.


Andrew Bolt concluded in his article:
Let’s go beyond racial pride. Beyond black and white. Let’s be proud only of being human beings set on this land together, determined to find what unites us and not to invent such racist and trivial excuses to divide. Deal?
Sounds a great idea to me.




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