Please see below the
submission to the Racial Discrimination Act (RDA) Exposure Draft from thirty one Victorian based multicultural, faith and community organisations and roof bodies. This coalition of community organisations represent a very broad spectrum of the Victorian community across religions and ethnic groups.
Peril would like to thank David Marlow Executive Director of the Jewish Community Council of Victoria for the permission to publish their submission.
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Submission regarding the Exposure Draft of the
Freedom of Speech (Repeal of S.18C) Bill 2014
From Victorian Multicultural, Faith and Community Organisations
on behalf of our communities
11 April 2014
Background and Principles
The multicultural, faith and community organisations, listed at the end of this submission, represent a great diversity of the Victorian community. We thank the Attorney-General and the Federal Government for the opportunity to respond to the proposed changes to the Racial Discrimination Act (RDA).
We are deeply concerned about the Exposure Draft of proposed changes to the RDA.
Any watering down or perceived dilution of the RDA would send the wrong message to potential offenders that hate speech was becoming more acceptable in our society, opening the door to more abuse, and to potential victims that their right to live free from racial or religious vilification, abuse and intolerance was diminished.
Perceptions are important, and there is a danger in even proposing to change the RDA and the proposition that “people should be free to be bigots”, that this increases the risks to the community of increased racial intolerance, vilification and abuse.
Freedom of speech is a very important right but not an absolute right. It is limited for good reason in several areas, such as defamation, libel and sexual discrimination, as well as racial discrimination.
Hate speech based on race, ethnicity or religion should be deplored and all members of society should be protected from it. Just as freedom of speech should be valued, so should the right of people to be part of a free and fair society without suffering the emotional and mental damage caused by hate speech.
Political philosophers such as Thomas Paine and John Stuart Mill have been quoted in support for the importance of freedom of speech over protection from hate speech, however they did not live in a modern multicultural society. In the days of Paine and Mill many forms of sexual discrimination, which are no longer acceptable today, would have been the norm. Just as sexual discrimination is unacceptable today, so too is racial discrimination unacceptable in modern Australia with our society blessed with people from a multitude of countries, ethnicities and faiths.
We believe that Australia’s multicultural society and our diversity are valuable and important elements of modern day Australia. Harmony in a diverse society can be a fragile thing, and hate speech puts this harmony at risk.
We believe that the Racial Discrimination Act (RDA) as it stands has been working well and is effective in creating an environment that supports multiculturalism and a harmonious Victorian community. We also believe that the protections it provides and the avenues it opens to conciliation are critical to a society that can see things from the perspective of the vulnerable and less powerful.
The current legislation is to protect all Australians regardless of their backgrounds, not just minority ethnic groups. It is here for the protection of all people, whether from a minority or mainstream group from any racially abusive language by anyone. It forms a good foundation to create a civilised civic society for all.
The burden of proof bar for the existing legislation is already very difficult to reach, so any proposed watering down would be a serious problem.
Particular communities may be perceived as strong or weak, united or fragmented, but any individual within any of those communities may feel threatened, harassed, fearful or disempowered when confronted with racially vilifying graffiti, incitement of racial or religious hatred in the media, religious or racial abuse hurled from a passing car, people calling for the death or elimination of a race on a sports field or when confronted by hate speech on public transport.
The current legislation has also been very useful in helping to remove hate speech in the online world. We would not like to see this removed.
We would not like to see the existing legislation changed, except to strengthen it by explicitly adding religion into the protections. By adding ‘religion’ into the list in s.18B(b) and s.18C(1)(b) of the existing Racial Discrimination Act – “race, religion, colour or national or ethnic origin”, we believe that many people of various religious affiliations and faiths would feel better protected, accepted and respected as members of society.
For many people, wearing a hijab, turban, yarmulke, cross or other symbol of religious observance can make them feel like they are wearing a target for abuse. In a free and just society, this should not be the case. For effective freedom of religion, people should be able to practice their faith without fear, intolerance or vilification.
Racial and religious intolerance, vilification, incitement of hatred and intimidation are lines that should not be crossed.
This is not an issue specific to any one race or religion, but an issue for all members of society. Over the past few months, 35 Victorian ethnic, community and faith organisations have been discussing the issues involved and issuing statements expressing our concerns about the potential watering down of the RDA.
Response to Proposed Changes
18B is entirely removed. This section is designed to ensure that if a person commits an act prohibited under s. 18C but does so for several reasons only one of which is in order to insult, offend, humiliate or intimidate a person on the basis of race etc, then even if that reason is not the dominant one, it will be treated as THE reason for the commission of the prohibited act for the purpose of s.18C.
We are opposed to the removal of s.18B. Its removal would elevate the burden of proof required from someone who has been the target of hate speech. For example, if in a game of soccer, a Jewish player is abused as an opposition player and is told to “go back to the gas chambers”, then we believe the victim should still be protected from the hate speech component of the abuse. This may not be the case if 18B is removed.
18C and 18D are also repealed but replaced by a new 18AA. The major changes here are that the words “insult, offend, humiliate” are deleted and replaced subsection 1 with the word “vilify” and so the core prohibition is to commit an act reasonably likely to vilify another person or group of persons or intimidate another person or group of persons.
To insult, offend and humiliate are not trivial, and trivial cases under the existing legislation do not get very far. The existing wording is virtually the same as in the Sex Discrimination Act s.28A (offended, humiliated or intimidated) and we believe that the existing wording supported by the ‘reasonably and in good faith’ exemptions under s.18D ensure a rational and responsible view of situations.
We would be amenable to amending the wording to “seriously offend, insult or humiliate” to ensure that there is no perception that trivial situations are included. Nevertheless, we recognise that use of the word ‘serious’ could be too subjective and we would prefer to maintain the current s.18C balanced by s.18D as a better solution.
“Vilify” and “intimidate” are both defined in subsection 2.
Vilification as defined (inciting hatred) would concern itself with how the hate speech affected a third party or audience, rather than the damage inflicted directly by the hate speech on the target.
We welcome the introduction of the idea of ‘vilification’ into the RDA, but believe that by narrowly defining it as inciting hatred it is far too narrowly defined, unless it is used in addition to existing protections rather than as a replacement of existing protections: offend, insults or humiliate. People should be protected from direct racial and religious vilification as well as incitement of hatred if we are to feel free to safely practice our faiths and cultures in Australia.
Intimidation in the Exposure Draft is defined as “to cause fear of physical harm”. We believe that this is too narrowly defined and that mental or emotional harm should be included, which we believe is at least as serious as physical harm. Victims of intimidation may not be seen as under threat of physical harm but the seriousness of emotional harm from Aboriginal citizens being refused a taxi ride because of their race, or people being afraid to leave their homes or actively participate in society because of emotional harm cannot be underestimated.
Mental and emotional harm can cause physical harm through substance abuse, self-harm and potentially suicide: these outcomes also need to be avoided. This has serious implications for the individual and the community.
Emotional intimidation may actually deter people from participating fully in society, including participating freely in public debate and discussion. People may avoid participation out of fear of verbal racial harassment and the proposed new wording would not provide any sense of protection.
By what standards should acts alleged to vilify or intimidate be judged? Subsection 3 states that it is to be judged by the standards of an ordinary reasonable member of the Australian community, not those of a particular group. This would mean that if words were uttered about a person who is a member of Group A and by the standards of that Group the words would be regarded as reasonably likely to vilify that person, that would not be enough to constitute a breach of the new section UNLESS the words concerned would be so regarded by an ordinary member of the wider Australian community as well.
The implication of the proposed subsection 3 is that there is such a thing as an ordinary reasonable member of the Australian community. The Australian community is diverse and there is no such thing as ‘normal’ or ‘ordinary’. Does the ‘ordinary’ Australian understand what it is to be an Indigenous Australian, a Holocaust survivor, an African refugee, a Muslim woman wearing a hijab, a Chinese family walking down the street or an Indian student on the way to classes? All can feel intimidation, intolerance and alienation. All should feel welcome, safe and valued members of Australian society.
We would prefer to keep to the community standards test as applied in Eatock v. Bolt where the court considered the likely impact on a reasonable member of that part of the community vilified. We believe that is a rational approach as well as being more fair and respectful to the community being vilified than the proposed wording.
We would prefer that the last part “not by the standards of any particular group within the Australian community” be removed as it could be seen as offensive by many community members.
Subsection 4 is in effect an exemption of words etc which are communicated “in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter.”
The most serious problem we have with the Exposure Draft is subsection 4. It excludes vilification and intimidation if “in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter.” We believe that this is far too broad. Racial vilification and intimidation as defined should not be tolerated under any circumstances and we would want subsection 4 as it stands to be deleted. The proposed subsection 4 would exclude most imaginable situations making the proposed legislation completely ineffectual and a virtual full repeal of the protections for which the RDA was designed.
We understand that subsection 4 aims to ensure that free speech, public discussion and debate are not inhibited by subsection 1. However, we believe that the ‘reasonable or in good faith’ protection in the existing s.18D provides a reasonable and adequate protection to freedom of expression. Hence, the ‘reasonable or in good faith’ should be maintained and not deleted.
18E (Vicarious liability) – to be deleted entirely.
We do not have strong opinions about the repeal of s.18E.
18F – State and Territory laws are not to be affected.
We believe that it is very important that the Federal RDA does not seek to exclude or limit any concurrent State or Territory laws. We see the State laws as critically important and as complementary to the RDA.
Additional statements of support from Endorsing Organisations
“We should be doing more to say to people, ‘it’s not acceptable to be racist’… That’s the message we want to get across to politicians, legislators, but also to the broader community.”
– Joseph Caputo, Chairman of the Federation of Ethnic Communities Councils
“Freedom of speech is a cornerstone of our democratic society, and must be defended. However, we must also ensure that this does not come at the expense of protections against acts of discrimination, hatred and vilification. The right balance needs to be met to safeguard the rights of all members of our society,”
– Eddie Micallef, Chairperson of the Ethnic Communities’ Council of Victoria
“Racial and religious intolerance, vilification, incitement of hatred and intimidation are lines that should not be crossed.”
– Nina Bassat AM, President of the Jewish Community Council of Victoria
“The proposed changes to the RDA are unacceptable, as they would virtually make the RDA useless. Moreover, we reject the argument that individuals who are subjected to racist hate speech will be able to effectively counter such speech by using their own right to free speech, given the power imbalance that often exists between those who make racist verbal attacks and the targets of such attacks.”
– Dr Chris Popov of the Australian Macedonian Human Rights Committee
“As the great Mahatma Ghandi once conveyed, we should look at any proposed amendments through the eyes of those most vulnerable and least powerful.”
– Bishop Philip Huggins, Chair of the Anglican Social Responsibilities Committee
“For more than 30 years, the B’nai B’rith Anti-Defamation Commission has been on the frontlines, fighting anti-Semitism and other forms of racism whenever and wherever they occur. Racism is still a pervasive problem in our community and legal protections against racial vilification are essential in combatting bigotry and protecting individuals. We know through our work that strong and effective racial vilification laws such as section 18C of the RDA are a vital and necessary tool in addressing and countering the unique harm caused by bias-motivated hate speech.”
– Dr Dvir Abramovich, Chair of the B’nai B’rith Anti-Defamation Commission
“Mental and emotional harm can cause physical harm through substance abuse, self-harm and potentially suicide: these outcomes also need to be avoided. This has serious implications for the individual and the community.”
– Dr Andre Oboler, CEO of the Online Hate Prevention Institute
“No to racism and to racist elements in our society.”
– Dr Berhan Ahmed, Chairperson of the African Think Tank Inc.
“Civility is key to society and civilization, and mutual respect is key to civility. No robust discussion requires the denigration and dehumanisation of the other.”
– Professor Emeritus Gary Bouma AM, UNESCO Chair in Interreligious and
Intercultural Relations – Asia Pacific
“Just as defamation law acts as an exception to the principle of freedom of speech, to allow those whose reputation are unfairly affected by falsehoods, so too should there continue to be recourse for a group being unfairly racially vilified. Protecting speech made in the wide range of public discussions named in subsection (4), without requiring any truthfulness or good faith to be proven, simply allows people to spread racial hatred in a form of collective defamation, and would likely open the legal door for all kinds of racist accusations including Holocaust denial.
Modern-day racism and bigotry often exists not in mere name-calling or unexplained distaste, but spreading falsehoods about a minority race, religion, ethnicity or nationality – a comment made without any factual basis or objective good faith should not be protected as free speech – it can most certainly spread intolerance and racial hatred, which many of our communities sadly understand.
Australia is by and large a good, tolerant and decent place. We need to preserve that, not give a potential green light to those waiting to spread misinformation about vulnerable members of our society. Section 18C of the RDA has acted effectively over 20 years, mostly in conciliation, and that is why most mainstream Australians wish it to remain as is.”
– Dean Sherr, President of the Australian Union of Jewish Students (Vic)
“Thomas Paine supported that liberty was only the freedom to do what did not harm another and that law should prohibit actions which are harmful to society.”
– Dan Wootton, Moderator, Uniting Church in Australia, Synod of Victoria and Tasmania
“The CCJ Vic is the oldest inter faith organisation in Australia and has fought for 30 years to create understanding and respect between faiths and communities. We see at the cutting edge what harm and division, racism and bigotry can create.
Anything that dilutes the present legislation can only harm community relations in this country and opens a Pandora’s box in which no one can predict the outcome.”
– Philip Bliss, Vice Chair and Chair of Programming, Council of Christians and Jews Vic
Endorsed by the Following Organisations:
African Think Tank Inc.
Asian Australian Alliance (AAA)
Australasian Centre for Human Rights and Health
Australian Macedonian Human Rights Committee (AMHRC) (national organisation)
Australian Union of Jewish Students (AUJS) (Vic)
B’nai B’rith Anti-Defamation Commission (ADC)
Chair of the Social Responsibilities Committee of the Anglican Diocese of Melbourne
Chinese Association of Victoria Inc
Chinese Community Society of Victoria
Council of Christians and Jews (CCJ)
Ethnic Communities’ Council of Victoria (ECCV)
Federation of Chinese Associations Inc (Vic)
Federation of Ethnic Communities’ Councils of Australia (FECCA)
Hindu Council of Australia (HCA)
Hindu Foundation of Australia
Hindu Swayamsevak Sangh (HSS)
Interfaith Centre of Melbourne
Islamic Council of Victoria (ICV)
Jewish Christian Muslim Association (JCMA)
Jewish Community Council of Victoria (JCCV)
Knox Interfaith Network
National Liaison Council of Chinese Australians
Online Hate Prevention Institute (OHPI)
Progressive Judaism Victoria (PJV)
Rabbinical Council of Victoria (RCV)
Sikh Interfaith Council of Victoria Inc.
UNESCO Chair in Interreligious and Intercultural Relations – Asia Pacific
Uniting Church in Australia, Synod of Victoria and Tasmania
Victorian Council of Churches
Vishva Hindu Parishad (VHP)