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Racial Discrimination Amendment Bill 2016

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2016

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

 

RACIAL DISCRIMINATION AMENDMENT BILL 2016

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

(Circulated by authority of Senators Bernardi, the Hon. Eric Abetz, Back, Burston, Bushby, Culleton, Day, Duniam, Fawcett, Hanson, Hinch, Leyonhjelm, the Hon. Ian Macdonald, McKenzie, O'Sullivan, Paterson, Reynolds, Roberts, Smith and Williams)

 

 

 

 

 



 

RACIAL DISCRIMINATION AMENDMENT BILL 2016

 

 

OUTLINE

The Racial Discrimination Amendment Bill 2016 amends paragraph 18C(1)(a) of the Racial Discrimination Act 1975 (the Act) to omit the words 'offend' and 'insult'.

The current paragraph 18C(1)(a):

(a)     is inappropriately modelled upon the Sexual Discrimination Act 1994 ;

(b)    is contrary to the International Covenant on Civil and Political Rights to which Australia is a party; and

(c)     is much broader than racial discrimination legislation in countries comparable with Australia.

Consequently, the current paragraph 18C(1)(a) goes too far in curtailing Australian citizens' freedom of speech, expression and opinion.

The Federal Government has withdrawn its commitment to amend the Act. As a result, this Bill is introduced in its stead. However, unlike the Government's original intentions, this Bill only makes a very minor amendment.

 

N OT E S O N CLAUSES

Clause 1: Short Title

1.           This is a formal provision specifying the short title as the Racial Discrimination Amendment Act 2016.

Clause 2: Commencement

2.           This clause provides that the Bill commences on the day after the Bill receives the Royal Assent.

Clause 3: Heading

3.           Each Act specified in a Schedule to this Act is amended or repealed as it set out in the applicable items in the Schedule. Any other item in a schedule to this Act has effect according to its terms.



 

Schedule 1 - Amendments

 

Racial Discrimination Act 1975

 

Item 1 - Paragraph 18C(1)(a)

1.       Item 1 amends paragraph 18C(1)(a) of the Act to omit the words 'offend' and 'insult'.

 

Item 2 - application of amendment

2.       Item 2 details the application of the amendment.

 



 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

 

Racial Discrimination Amendment Bill 2016

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Bill

 

The Bill amends paragraph 18C(1)(a) of the Racial Discrimination Act 1975 (RDA) to remove the words 'offend' and 'insult' to restore an appropriate balance between outlawing racial discrimination while preserving freedom of speech, expression and opinion.

 

Human rights implications

 

Background: Australia's Human Rights obligations

 

Australia has binding legal obligations under the International Covenant on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).

 

These instruments require the complementary protection of the right to freedom of expression and the responsibility to enact laws against racial hatred.

 

Article 19(2) of the ICCPR provides that 'everyone shall have the right to freedom of expression'. As the United Nations Human Rights Council has stated:

 

"The exercise of the right to freedom of opinion and expression is one of the essential foundations of a democratic society, is enabled by a democratic environment, which offers, inter alia, guarantees for its protection, is essential to full and effective participation in a free and democratic society, and is instrumental to the development and strengthening of effective democratic systems." [1]

 

The right to freedom of expression should 'be understood to be an essential instrument for the promotion and protection of other human rights'. [2] As the United Nations (UN) Special Rapporteur on Freedom of Expression has stated:

 

"The importance of the right to freedom of opinion and expression for the development and reinforcement of truly democratic systems lies in the fact that this right is closely linked to the rights to freedom of association, assembly, thought, conscience and religion, and participation in public affairs. It symbolizes, more than any other right, the indivisibility and interdependence of all human rights. As such, the effective enjoyment of this right is an important indicator with respect to the protection of other human rights and fundamental freedoms." [3]

 

The right to freedom of expression is of fundamental importance however, it is not an absolute or unfettered right and therefore may be subject to certain restrictions.

 

Accepted restrictions to the right of freedom of expression are set out in Article 19(3) of the ICCPR. Other restrictions are also required by Article 20 of the ICCPR and Article 4 of the ICERD in order to ensure that rights of others are protected.

 

Article 19(3) of the ICCPR requires that three conditions be met when assessing whether restrictions on freedom of expression are permissible:

 

(a)     they must be provided for by law;

(b)    they must be necessary; and

(c)     they must pursue one of the legitimate aims set forth in the article, ie, (i) the respect of the rights or reputations of others; (ii) the protection of national security or public order; or (iii) the protection of public health or morals.

 

The UN Special Rapporteur on the promotion and protection of the right to freedom of expression and opinion has developed a set of principles to assist in determining what constitutes a legitimate restriction or limitation of freedom of expression, and what constitutes an 'abuse of that right'.

 

Generally, the Rapporteur notes that 'permissible limitations and restrictions must constitute an exception to the rule and must be kept to the minimum necessary to pursue the legitimate aim of safeguarding other human rights'. [4]

 

Certain very specific limitations of freedom of expression will be legitimate if 'they are necessary in order for the State to fulfil an obligation to prohibit certain expressions on the grounds and they cause serious injury to the human rights of others'. [5]

 

Article 20(2) of the ICCPR sets a high threshold for hate speech it requires States to prohibit by law. This provision relates to advocacy of hatred that also constitutes incitement to discrimination, hostility or violence. The Special Rapporteur on the promotion of the right to freedom of expression and opinion notes:

 

"Advocacy of national, racial or religious hatred is not a breach of article 20, paragraph 2, of the Covenant on its own. Such advocacy becomes an offence only when it also constitutes incitement to discrimination, hostility or violence; in other words, when the speaker seeks to provoke reactions (perlocutionary acts) on the part of the audience, and there is a very close link between the expression and the resulting risk of discrimination, hostility or violence. In this regard, context is central to the determination of whether or not a given expression constitutes incitement." [6]

 

The UN Human Rights Committee has also clarified that 'a limitation that is justified on the basis of article 20 must also comply with article 19, paragraph 3'. That is, while States are required to impose the prohibitions described in Article 20, these prohibitions must also satisfy the requirements set down in Article 19(3).

The ICERD provides for a broader range of racial hate speech that may be limited and still be regarded as consistent with Article 19 of the ICCPR.

 

Article 4(a) of the ICERD requires States to take actions to prohibit four main areas of conduct:

 

·          dissemination of ideas based upon racial superiority or hatred;

·          incitement to hatred, contempt or discrimination against members of a group on grounds of their race, colour, descent or national or ethnic origin;

·          threats or incitement to violence against persons or groups;

·          expression of insults, ridicule or slander of persons or groups or justifications of hatred, contempt or discrimination, when it clearly amounts to incitement to hatred or discrimination. [7]

 

Australia has a reservation to Article 20 of the ICCPR which relevantly provides that:

 

"Australia interprets the rights provided for by Articles 19, 21 and 22 as consistent with article 20; accordingly, the Commonwealth and the constituent States, having legislated with respect to the subject matter of the article in matters of practical concern in the interest of public order (ordre public) , the right is reserved not to introduce any further legislative provision on these matters".

 

Australia also has a reservation to Article 4(a) of ICERD which relevantly provides that, 'The Government of Australia…declares that Australia is not at present in a position specifically to treat as offences all the matters covered by article 4(a) of the Convention'.

 

The reservation in relation to Article 4(a) of ICERD is explicitly limited to the creation of offences contemplated by that article, rather than the creation of civil prohibitions, such as those contained in Part IIA of the RDA. [8]

 

Section 18C of the RDA

 

The Racial Hatred Act 1995 (Cth) was adopted by the Federal Parliament in 1995 following extensive debate. The Act inserted Part IIA (comprising sections 18B-18E) into the RDA.

 

Section 18C provides that it is unlawful for a person to do an act, otherwise than in private, if the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people, and the act is done because of the race, colour or national or ethnic origin of the of the other person or some or all of the people in the group.

 

Section 18D provides for a number of exemptions from the prohibition in section 18C. The exemptions cover anything done reasonably and in good faith in three contexts:

 

a.        in the performance, exhibition or distribution of an artistic work

b.       in the course of any statements, publications, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest

c.        in making or publishing:

i.                     a fair and accurate report of any event or matter of public interest;

ii.                   a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

 

Removal of 'offend' and 'insult'

 

There has for some time been significant debate about the scope of the conduct prohibited in section 18C, namely, acts done because of someone's race that are reasonably likely to 'offend, insult, humiliate or intimidate' them.

 

The Australian Law Reform Commission concluded last year that:

           

            “… there are arguments that s18C lacks sufficient precision and clarity, and unjustifiably interferes with freedom of speech by extending to speech that is reasonably likely to ‘offend’. In some respects, the provision is broader than is required under international law to prohibit the advocacy of racial hatred, broader than similar laws in other jurisdictions, and may be susceptible to constitutional challenge.” [9]

 

In comparing Australia’s section 18C with other common law countries, the Australian Law Reform Commission found that:

 

The New Zealand and UK provisions seem narrower than the Australian provision…For example, the provisions do not cover offensiveness, and require that the person provoke hostility or hatred against a group of persons defined by race or ethnicity.” [10]

 

The Commission also stated that in 2013, the Canadian Parliament repealed a broader provision in Canada’s Human Rights Act, one reason being that the provision conflicted with the “freedom of thought, belief, opinion and expression’ safeguarded by the Canadian Charter of Rights and Freedoms. [11]

 

Former Federal Court judge, Justice Ron Sackville, has said:

 

“Laws curtailing hate speech are justifiable not because they protect people from being offended or insulted by prejudiced and ill-informed views, but because they help to protect vulnerable groups from more serious harm such as intimidation, discrimination, social exclusion and, ultimately violence. These principles suggest that Part IIA should be amended by eliminating references to conduct that is merely likely to offend or insult members of a particular group.” [12]

 

Justice Robert French (as he was then) noted in Bropho v HREOC :

 

"The lower registers of the preceding definitions [in 18C] and in particular those of 'offend' and 'insult' seem a long way removed from the mischief to which Art 4 of CERD is directed. They also seem a long way from some of the evils to which Part IIA [of the RDA ] is directed as described in the Second Reading Speech." [13]

 

Julian Burnside AO QC, prominent human rights lawyer, has publicly stated that:

 

"The mere fact that you insult or offend someone probably should not, of itself, give rise to legal liability. My personal view is that 18C probably reached a bit far so a bit of fine-tuning would probably be OK". [14]

 

The Australian Human Rights Commission in its submission to the Attorney General's Department on the exposure draft of the Freedom of speech (Repeal of S. 18C) Bill 2014 , considers 'that the legislation could be clarified so that it more plainly reflects the way in which it has been interpreted in practice'. [15]

 

Sarah Joseph, Director of the Castan Centre for Human Rights Law at Monash University goes further in saying that:

 

"… the prohibitions on that which offends and insults, even on the basis of race, go too far. Feelings of offence and insult are not serious enough to justify restrictions on the human right to freedom of speech...It is true that the terms, “offence” and “insult” have been interpreted so that they mean more than “mere” offence and insult. It is arguable that judicial interpretation has saved these provisions from actually breaching the right to free speech. However, the law should mean what it says. If “offence” and “insult” do not mean what they say, the prohibitions should go." [16]

 

This Bill amends section 18C by removing the words 'offend' and 'insult'. It keeps the protection against speech that 'humiliates' or 'intimidates' another person on the grounds of race. In this way, the Bill maintains the protection against racial hate speech.

 

Removing the words 'offend' and 'insult' from section 18C, will align the ordinary meaning of the words used in the section with the way in which those words have been interpreted in practice by the courts. As a result, the law will be clearer on its face and the intention of the Parliament will be reflected in the proper drafting of the provision.

 

It is never appropriate to prohibit speech that is merely offensive or insulting. By removing the words 'offend' and 'insult' from section 18C the Bill is consistent with Australia's human rights obligations as expressed by the ICCPR and the ICERD and reduces the restrictions on people's freedom of expression and freedom of speech in Australia.

 

 

 

 

Conclusion

This Bill is compatible with human rights because these amendments restore the balance between the right to freedom of expression while continuing to outlaw racial discrimination. The balance is reasonable, necessary and proportionate in pursuit of the legitimate objective of freedom of speech.

 

Senators Bernardi, the Hon. Eric Abetz, Back, Burston, Bushby, Culleton, Day, Duniam, Fawcett, Hanson, Hinch, Leyonhjelm, the Hon. Ian Macdonald, McKenzie, O'Sullivan, Paterson, Reynolds, Roberts, Smith and Williams




[1] UN Human Rights Council, Resolution 12/16, preamble.

[2] La Rue, F, 2010 Annual Report of the Special Rapporteur on the promotion and protection of the right to freedom of expression and opinion , UN Doc: A/HRC/14/23, 20 April 2010, para 28.

[3] Ibid., para 27.

[4] La Rue, F, 2010 Annual Report of the Special Rapporteur on the promotion and protection of the right to freedom of expression and opinion , op.cit, para 77.

[5] Ibid., para 79(h).

[6] La Rue, F, 2011 Annual Report of the Special Rapporteur on the promotion and protection of the right to freedom of expression and opinion , UN Doc: A/66/290, 10 August 2011, para 28.

[7] UN Committee on the Elimination of Racial Discrimination, General Comment 35 - Combating racist hate speech, UN Doc: CERD/C/GC/35, 26 September 2013, para 13.

[8] See the reports submitted by Australia to the United Nations Committee on the Elimination of Racial Discrimination pursuant to Art 9 of CERD on 20 July 1999 (CERD/C/335/Add.2) at [416]; and on 7 January 2010 (CERD/C/AUS/15-17) at [26].

[9] Australian Law Reform Commission, Traditional Rights and Freedoms-Encroachments by Commonwealth Laws: Final Report, ALRC Report 129, December 2015, paragraph 4.9.

[10] Ibid., para 4.199.

[11] Ibid., para 4.200-4.201.

[12] Ronald Sackville AO QC, ‘Anti-Semitism, Hate Speech and Part IIA of the Racial Discrimination Act’, Pre-publication article, for publication in The Australian Law Journal , 2016, p. 26, accessed from the Thomson Reuters website, 30 August 2016.

[13] Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 at 123[68].

[14] 'Human rights lawyer says 18C went too far', Sydney Morning Herald, 29 March 2014.

[15] Australian Human Rights Commission submission to the exposure draft of the Freedom of Speech (Repeal of S.18C) Bill 2014, para 73.

[16] 'Rights to bigotry and green lights to hate', The Conversations , 28 March 2014.