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Racial Discrimination Law Amendment (Free Speech) Bill 2016

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2016

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

RACIAL DISCRIMINATION LAW AMENDMENT (FREE SPEECH) BILL 2016

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of Senators Leyonhjelm, Burston, Culleton, Day, Hanson, Hinch and Roberts)



RACIAL DISCRIMINATION LAW AMENDMENT (FREE SPEECH) BILL 2016

 

OUTLINE

 

The Racial Discrimination Law Amendment (Free Speech) Bill 2016 repeals Part IIA of the Racial Discrimination Act 1975 (the Act). 

 

Part IIA — inserted into the Act in 1995 — is nominally concerned with the ‘Prohibition of Offensive Behaviour based on Racial Hatred’. However, its provisions make no mention of racial hatred, and accordingly the courts have not interpreted the provisions as relating specifically to racial hatred.

 

Instead, the provisions of Part IIA outlaw public acts that:

·          are reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people, and

·          are done, at least in part, because of the race, colour or national or ethnic origin of a person.

 

The provisions of Part IIA include a defence for acts that are done reasonably and in good faith and meet at least one of three other conditions. However, the courts have interpreted this defence such that it provides protection only if the values of the Act are honoured conscientiously, and sufficient care and diligence is taken to minimise offence and guard against the reinforcement of racial prejudice.  

 

A peer-reviewed article in an academic journal replete with qualifications, footnotes and citations may benefit from such a narrowly-interpreted defence, but it is unlikely that a newspaper column, blog post or comment on social media would.

 

The provisions of Part IIA discourage public discussion on matters of public importance.  This is particularly the case in light of the court’s interpretation of the provisions to date, and the inherent uncertainty as to how courts will interpret them in the future. 

 

For instance, articles by Andrew Bolt discussing affirmative action policies were ruled unlawful under Part IIA. The articles may well have been flawed and insensitive, but they were not a manifestation of racial hatred, and the topic they addressed is a matter of public importance. Outlawing publication of the articles discourages further public discussion of affirmative action policies, including discussion carried out with greater sensitivity and less error.

 

The repeal of the provisions of Part IIA will remove this discouragement of public discussion on matters of public importance, such as affirmative action policies. 

 

The repeal of Part IIA will also enable the Australian Human Rights Commission to focus resources on its role with respect to the raison d’etre of the Act, namely Part II, concerning the prohibition of racial discrimination. 

 

Through the retention of Part II of the Act:

·          it will continue to be unlawful to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin that impairs the enjoyment of any human right or fundamental freedom;

·          there will continue to be specific prohibitions of racial discrimination with respect to equality before the law, public access, accommodation, the provision of goods and services, and employment; and

·          incitement to carry out such discrimination will remain prohibited.

 

The repeal of Part IIA may also facilitate cuts in funding for the Australian Human Rights Commission, to the benefit of taxpayers.

 

With the repeal of Part IIA, a significant range of related law at the State and Territory level would remain. Each State and Territory has enacted laws prohibiting racial vilification or harassment. State and Territory laws also prohibit offensive behaviour and intimidation — prohibitions that are not restricted to acts based on race, colour, national or ethnic origin.  

 

An alternative proposal to simply remove ‘insult’ and ‘offend’ from the provisions of Part IIA would be an improvement on the current law. However, the articles by Andrew Bolt were considered to ‘humiliate’ as well as ‘insult’ and ‘offend’. This indicates that the retention of ‘humiliate’ in the Act would mean that those articles would still be outlawed, and public discussion on matters of public importance would continue to be discouraged. Simply removing ‘insult’ and ‘offend’ would also continue the duplication with State and Territory law with respect to ‘intimidation’. Further, it would not facilitate a refocussing of resources at the Australian Human Rights Commission, or reductions in its funding.

 

NOTES ON CLAUSES

Clause 1: Short Title

1.           This clause provid es for the Act, when enacted, to be cited as the Racial Discrimination Law Amendment (Free Speech) Bill 2016 .

Clause 2: Commencement

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

Clause 3 - Schedules

4.                   Each Act specified in a Schedule to this Act is amended or repealed as is 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

Part 1 - Repeal of Part IIA of the Racial Discrimination Act 1975

Racial Discrimination Act 1975

Item 1 - Part IIA

6.                   This item repeals Part IIA of the Racial Discrimination Act 1975 .

Part 2 - Consequential Amendments

Australian Human Rights Commission Act 1986

Item 2 - Subsection 3(1) (paragraph (b) of the definition of unlawful discrimination )

7.                   This item removes a redundant reference to Part IIA from the definition of unlawful discrimination in the Australian Human Rights Commission Act 1986 .

Item 3 - Subsection 46PF(3)(note)

8.                   Section 18E of the Racial Discrimination Act 1975 is a provision of Part IIA.  This item removes a redundant reference to this section 18E in the note to subsection 46PF(3) of the Australian Human Rights Commission Act 1986 , which is a subsection concerned with adding a respondent to a complaint.

Racial Discrimination Act 1975

Item 4 - Subsection 6A(2)

9.                   This item removes redundant references to Part IIA in subsection 6A(2) of the Racial Discrimination Act 1975 , which is a subsection that removes an entitlement to make a complaint under the Australian Human Rights Commission Act 1986 in certain circumstances.

Item 5 - Paragraph 20(d)

10.               This item removes a redundant reference to Part IIA in paragraph 20(d) of the Racial Discrimination Act 1975 , which confers on the Australian Human Rights Commission a function of preparing guidelines on how to avoid infringing the Racial Discrimination Act 1975 .

Item 6 - Section 26

11.               This item removes a redundant reference to Part IIA in section 26 of the Racial Discrimination Act 1975 , which notes that, in making something unlawful, the Act does not make it an offence.

 



 

Statement of Compatibility with Human Rights

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

 

Racial Discrimination Law Amendment (Free Speech) 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 repeals Part IIA of the Racial Discrimination Act 1975 so that it no longer discourages public discussion on matters of public importance, such as affirmative action policies.

 

Human rights implications

The Bill engages the right to freedom of expression by removing a prohibition on certain speech.

 

The right to freedom of expression is closely related to the rights of freedom of association, assembly, thought, conscience, religion and participation in public affairs.

 

Conclusion

The Bill is compatible with human rights because it advances the protection of the right to freedom of expression.

 

 

Senators Leyonhjelm, Burston, Culleton, Day, Hanson, Hinch and Roberts