27 April 2014

Submission to the Attorney General on proposed reforms to the Racial Discrimination Act 1975 on behalf of 212,480 Australians


I have just despatched an amended submission to Senator The Hon George Brandis QC; Attorney-General; Minister For The Arts, in response to his interest, expressed in his Media release on 25 March 2014, in hearing from all stakeholders on the proposed reforms to the Racial Discrimination Act. 

The amended submission adds the Aboriginal Legal Service of WA (Inc) to the list of organisations endorsing it, so we now speak on behalf of over 212,000 Australians.

Thanks to Suresh Rajan, President of West Australians for Racial Equality, who showed my draft submission to many stakeholders, including the ALS and won their endorsement.

The following are excerpts from our submission.

Follow this link to download a full copy of the submission (in pdf format).

1.   Racial Discrimination should be Unlawful

Australia is a wonderful, young, free and open nation made up of diverse cultures.
...racially-discriminatory public acts undermine the harmony in Australian society, exacerbate suspicion and mistrust, and can lead to violence as well.
Many Australians are within living memory of personal or family experience of inter-ethnic violence, murder and even genocide. Certainly many indigenous Australians and Jewish Australians have such fresh memories, as do members of other ethnic groups in Australia.

We stress that psychological damage should not be underestimated or belittled in comparison to violence or threats of violence. Survivors of the Holocaust who have witnessed the most horrific acts of violence imaginable, often describe the humiliation that they experienced as more destructive than the violence. The humiliation was often the cause of a loss of will to survive.

Australian Psychological Society president, Associate Professor Tim Hannan, recently said there was compelling evidence that racial discrimination adversely affects people's mental health and well-being.
''We have to balance the right to free speech with our obligation to protect the vulnerable from racial and ethnic prejudice...'' ...
Studies have shown that people who experience racism have poorer self-esteem, higher levels of psychological distress, and conditions such as anxiety and depression.

...Genocide is a process that develops in eight stages that are predictable but not inexorable. At each stage, preventive measures can stop it.
The first ...stages of genocide are ... varying degrees of racial discrimination which, if allowed to prevail, can lead to ethnic violence and ultimately genocide. DENIAL (in the face of overwhelming evidence) is the eighth stage that always follows a genocide. It is among the surest indicators of a motivation to perpetrate further genocidal massacres. It is clearly imperative to nip in the bud any of these behaviours.

Racially-discriminatory public statements are therefore, to some Australians, reminiscent of events that are part of their most horrible memories. Their impassioned response, critical of the proposed reforms ...are motivated by a deep-seated fear that we may get the balance wrong (between freedom of speech and protection from racial discrimination) and therefore risk history being repeated.

To maintain community harmony and protect Australia’s freedom and openness, it is essential to have effective legislation in place to prevent divisiveness and hatred from being disseminated, and it is critical now for Australia to get the balance right in the proposed review of the Racial Discrimination Act.

2.   Australian Parliamentarians are committed to make Racial Discrimination Unlawful

In May 2013, Australia’s Prime Minister (then), the Opposition Leader (who is now the Prime Minister), and over a hundred Australian Members of Parliament across the political spectrum, expressed their commitment and dedication combatting hatred and discrimination, by signing The London Declaration on Combating Antisemitism.
The Declaration includes commitment to... “effective Hate Crime legislation …” ...
Thus, any significant weakening of the Racial Discrimination Act 1975 would contravene the Declaration, so widely endorsed by the current Prime Minister and over a hundred Parliamentarians across the political spectrum less than 12 months ago.

3.   Limits on Free Speech

Much of the public discourse in relation to the proposed reforms to the Racial Discrimination Act 1975 is focussed on a desire to the protect freedom of speech. However in no civil society is freedom of speech absolute. It is not a “black or white” question, but rather a matter of striking the right balance.

...The matter to be reconciled is not WHETHER, or not, there should be freedom of speech, but: WHERE should we place the boundary between free speech and speech that may harm our society?

4.   BOTH Litigation and Education are needed

Some commentators suggest that the best way to counteract racially-discriminatory public statements is by refuting such statements in public debate: exposing factual errors; denigrating unwarranted hatred and divisiveness; educating the wider community; and emphasising the common humanity of all citizens. WE COULDN’T AGREE MORE!

Education promoting community values of comprehensiveness, inclusiveness, acceptance and respect are essential, and certainly the best way to defeat the damaging influences of racially-discriminatory public statements. However while this is the BEST way, it is not, and should not be the ONLY way. As in cases of libel, the damage is often done before any response is possible.

Members of the group that is the subject of racially-discriminatory public statements, and of the wider audience through the Australian community, may include persons who are too young or too ill-informed (and therefore not adequately-equipped) to distinguish fact from slander; or they may not have the resources or eloquence to refute the hateful statements.

... proponents of the argument that hate speech should be defeated in open public discourse, to the exclusion of legislative protection, are wrong. It is not enough to rely on free speech alone. This is why it is necessary to also enact legislation that clearly 
  • demarcates acceptable public discourse from corrosive and damaging expressions of unwarranted hate;
  • provides legal recourse to prosecute perpetrators of the unlawful behaviours; and thus
  • prevents bigots and hate-mongers from disseminating their corrosive views through our society.

5.   What is “Reasonable”? The Community Standards Test.

The public discourse on this matter suggests that some Australians are motivated to support a weakening of the Racial Discrimination legislation and promote greater freedom of speech, because they consider that the judgement of what was allegedly offensive or insulting in the Andrew Bolt case was made from the point of view of the group that was the subject of the public statements, not from the point of view of a typical Australian...

...we accept that a clarification of the standard by which a contravention should be judged is a useful revision of The Act, provided that it relies on a community standard that clearly doesn’t include any discrimination or prejudice towards any ethnic segment of the Australian population.

However we submit that many other parts of the Exposure Draft fall dangerously short of providing acceptable protection against the corrosive influences of racially-discriminatory public statements.

...the draft, in seeking to promote freedom of speech ...has thrown out the baby with the bathwater.

The definitions of unlawful behaviours in the Exposure Draft are too narrow, and of the exclusions is far, far too wide.

6.   Unlawful Acts

We submit that the definitions of unlawful acts in the Exposure Draft are too narrow.

Insult ...should remain an unlawful act, albeit with the clarification of a Community Standards Test...

Offend ...should remain an unlawful act, albeit with the clarification of a Community Standards Test...

Humiliate We ...emphatically submit that this should remain an unlawful act, albeit with the clarification of a Community Standards Test ...


We applaud and support the proposed addition of vilification to those acts that shall be unlawful, because it specifically describes acts that are intended to disseminate defamatory, slanderous, malignant and hateful views through the society, and prevention of such acts should be the primary focus of racial discrimination legislation.

However the definition of “vilify” in the Exposure Draft is very narrow... the definition should be broadened to encompass the commonly accepted meaning and the definitions included in similar State legislation.


We support the proposed retention of intimidation amongst those acts that shall be unlawful.
However the definition of “intimidate” in the Exposure Draft is very narrow...We submit that the definition should be broadened to encompass the commonly accepted meaning and the definitions included in similar State legislation.

7.   Exclusions

...The proposed Exposure draft excludes “…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.”
[These] exclusions are so broad that they may include virtually every act, and that such exclusions effectively render the entire legislation impotent.
There is no reason that the legislation should not require that excluded acts to be in reasonable good faith and that the person committing the act has taken reasonable action to check the veracity of the publicly-stated allegations.

... the revised Act should require exclusions to be
  • done reasonably and in good faith;
  • for a genuine purpose in the public interest; and
  • fair comment that is an expression of a genuine belief held by the person making the comment.