Draft Amendments to the Racial Discrimination Act

25 March 2014

SENATOR THE HON GEORGE BRANDIS QC; ATTORNEY-GENERAL; MINISTER FOR THE ARTS - MEDIA RELEASE - RACIAL DISCRIMINATION ACT

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.

The draft amendments are released for community consultation. The Government is interested in hearing from all stakeholders on the proposed reforms. Submissions can be made until 30 April 2014 at s18cconsultation@ag.gov.au.

A copy of the draft amendments is attached.

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 Section 18C is repealed.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 Sections 18B, 18D and 18E are also repealed.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:

“(1) It is unlawful for a person to do an act, otherwise than in private, if:

(a) the act is reasonably likely:
(i) to vilify another person or a group of persons; or
(ii) to intimidate another person or a group of persons,
and
(b) 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:

(a) vilify means to incite hatred against a person or a group of persons;
(b) intimidate means to cause fear of physical harm:
(i) to a person; or
(ii) to the property of a person; or
(iii) 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.”

Review of the Racial Discrimination Act is Deeply Flawed

25 March 2014

The President of the Executive Council of Australian Jewry, Robert Goot AM SC, today issued the following statement.

“The ECAJ regards the Exposure Draft of the repeal of ss18B, C, D and E of the Racial Discrimination Act, released by the Attorney General today, as deeply flawed.
The Government proposal in effect rips up key protections to groups within Australian society which have operated successfully for almost 20 years and which have contributed in no small measure to the building and maintaining of an harmonious Australian society.
Whilst the substantial weakening of s18C by removing “humiliate”, “offend” and “insult” and by severely limiting protection to vilification and intimidation and substantially narrowly defining those terms (unlike their ordinary meanings), to mean respectively “to incite hatred” or “to cause fear of physical harm”, is alarming enough, the inclusion of sub-section (4), will have the effect of removing most, if not all of, the protection, inadequate though it is, in sub-section (1).
Sub-section (4) provides that the entire section will not apply to
“…words, sounds, images written, spoken, broadcast or otherwise communicated in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter".
Further and equally alarming, the existing qualifications to s18C contained in s18D which were protective of free speech, by not rendering unlawful anything said or done “reasonably and in good faith”, have been removed entirely.
Racial bigotry is wrong and harmful to both the people it targets and to the cohesiveness of society as a whole. This legislation gives the green light to unleashing racial hate speech in Australia, no matter how unreasonable and lacking in good faith.
It is hard to envisage any conduct that will be caught by this emasculated legislation. Certainly, it is unlikely that any of the cases which the ECAJ has successfully brought under s18C over the years, could have been instituted, under this proposed legislative regime.
The ECAJ will be making submissions to the Government on the proposed reforms.”

Draft Amendments to Racial Discrimination Act are dissappointing

From AIJAC, 25 Mar 2014, by Dr Colin Rubenstein:

AIJAC is disappointed by the exposure draft of the Freedom of Speech (Repeal of S. 18C) Bill 2014 releasedby Attorney-General George Brandis today. In his bid to balance freedom of speech with the right of Australian citizens to go about their lives with dignity and free from racial harassment and vilification, it is our view that the Attorney-General has gone too far and failed to adequately safeguard the latter important rights and values.

The proposed amendment to section 18C of the Racial Discrimination Act removes any protection against public insults and humiliation on the grounds of race. While the insertion of the word 'vilify' is welcome , it is narrowly defined in the exposure draft as merely "to incite hatred against a person or a group of persons," and, as a result, its inclusion would likely fail to strengthen protections against racism.  

The definition is narrower than existing state provisions in NSW, Victoria, South Australia, Queensland, Tasmania, and the ACT, which forbid  inciting "hatred towards, serious contempt for, or severe ridicule of" a person or group.

Similarly, the definition of "intimidation" as merely to "to cause fear of physical harm" is drawn too narrowly and would exclude the many forms of intimidation which do not necessarily involve a direct fear of physical harm.

Finally, the exemptions presented in the proposed draft as an alternative to the current section 18D appear to be written so broadly that it would be difficult to imagine any act which would not be exempt.

To pass the amendments as they stand would risk  emboldening  racists, threatening the quality of life of ethnic minorities in Australia and seriously straining the fabric of our social cohesion and harmony. 

AIJAC welcomes the upcoming community consultations regarding the exposure draft. We look forward to working constructively with the government in order to achieve an outcome which avoids seriously diluting Australia's legal safeguards against racial vilification and abuse without unduly limiting freedom of speech or opinion. 

...and an analysis, 25 March 2014, by Daniel Meyerowitz-Katz:

Federal Attorney-General George Brandis has released an exposure draft of his proposed changes to section 18C of the Racial Discrimination Act, which currently forbids doing an act done because of someone's ethnicity which is reasonably likely to 'offend, insult, humiliate or intimidate' that person, as well as section 18D, which provides public interest exemptions to 18C. The government has opened the draft to community consultation and called for submissions. Here is AIJAC's initial analysis of the legal implications of the exposure draft.

Subsection (1) of the draft provision makes unlawful an act done otherwise than in private which 'vilifies' or 'intimidates' a person or group of persons when that act is done because of the race, colour or national or ethnic origin of that person or group. On the face of it this looks essentially the same as 18C, except with the words 'offend', 'insult' and 'humiliate' replaced with 'vilify'. However the meaning has been substantially narrowed by subsection (2).

In subsection (2), 'vilify' is defined as 'to incite hatred against a person or a group of persons' and 'intimidate' is defined as 'to cause fear of physical harm' to a person, their property, or members of a group of persons (emphasis added).

Limiting 'vilify' to incitement of hatred substantially narrows the proposed provision beyond the existing racial vilification laws in NSW, Victoria, South Australia, Queensland, Tasmania, and the ACT, which forbid inciting 'hatred towards, serious contempt for, or severe ridicule of' a person or group.

Limiting intimidation to fear of physical harm to person or property would exclude cases where persons were fearful for their dignity or quality of life, but not necessarily of violence. For example, it would make legal the incident in Kanapathy v In De Braekt, in which a Singaporean security guard at a court was viciously abused by a lawyer after trying to conduct a routine security check on her. It is unlikely that he would have felt fearful of physical harm and she most likely did not incite hatred towards him, but the incident was sufficiently serious to have her stricken from the roll of legal practitioners for bringing the profession into disrepute, and to cause him to suffer significant psychological harm.

Subsection (3) codifies the 'community standards' test, which has been accepted jurisprudence in 18C cases. The wording is a little unusual in that it specifically refers to 'the standards of an ordinary reasonable member of the Australian community' as opposed to 'the standards of any particular group within the Australian community'. This suggests that there is a class of 'ordinary' Australians who are not members of 'any particular group' and, by implication, that members of particular groups might not be 'ordinary' Australians.

Finally, subsection (4) appears to replace the current section 18D. The subsection exempts any communication 'in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic, or scientific matter.'

Unlike 18D or defamation defences such as 'fair comment', the proposed provision does not require any degree of factual accuracy or reasonableness in order for an act to be exempt. Consequently, any communication at all which purports to be a part of a public discussion on essentially any issue would be exempt. In virtually all previous decisions under 18C, the respondent could have claimed to have been engaging in public discussion on one of the included categories.

For example, in Clarke v Nationwide News, commenters on the perthnow.com.au website (cite case with link) could claim they were making comments in the course of public discussion over whether the people of Perth were 'fed up of' the crime, drunkenness and bad behaviour of Aboriginal Australians, and whether or not Aboriginal Australians could behave themselves at their children's funerals. This is of no real value to public life in Australia, but is nevertheless a public discussion of social issues.

Australian Jewish students celebrate Israel's diversity

This week the Australasian Union of Jewish Students are launching a campaign to celebrate diversity in Israeli society.

The campaign, titled I am an Israeli, highlights the stories of ten Israelis—ranging from a Muslim former army officer to an observant Jewish artist and storyteller.

Each individual describes themselves through key identifying attributes, and then finishes by stating that they are an Israeli.

The campaign integrates campus and online elements. At universities across the country there will be hundreds of posters, Israeli speakers, as well as various stalls and events celebrating Israel. There is also a detailed website that includes profiles and facts about Israeli society, and an extensive social media campaign targeting hundreds of thousands of young Australians.

"This project shows that Israelis are Jewish and Christian, black and white, gay and straight, while simultaneously being proud Israelis with equal rights," said Matthew Lesh, political affairs director of the Australasian Union of Jewish Students.

"Israel like any modern immigrant society, including Australia, are people of wide interests, passions, backgrounds, and ethnicities," Mr Lesh said.

Raya Azmi, 29, is one individual in the campaign. She is a radio anchor, a wife and expecting mother, a Druze, an Arab, an Israeli. Raya is a politics student at Haifa University, editor at Arabic Kol Israeli (Voice of Israel) radio, and has been married for 8 years to the first Druze to complete an IRONMAN race.

Raya Azmi said that she is living proof of co-existence as a Druze-Israeli-Arab.

"People all over the world need to see how beautiful it is to be able to practice your own religion, language and traditions in Israel” Raya Azmi said. "A democracy that provides me the right to ask for my rights, and to live free, safe, and happy!"

Tomer Naor, 29, also features in the campaign. He is a backpacker, a lawyer, a social activist, an Israeli. Tomer is a man of contrasts, between his political views that vary left and right, his religion that varies traditional and secular, his jobs as a tour guide and a lawyer, and his fashion of suits and dreads.

Tomer Naor said that he feels there is a disconnect between some perceptions and the reality of Israel.

“There is a complex collage of Israelis from different backgrounds, different experiences,” Tomer Naor said. "Those are the people that in a different reality could be our best friends, or even in a way, we could find ourselves in them.”

Violent antisemitism on university campuses was clearly foreshadowed by the BDS movement

From Hansard, 18 March 2014 (page 66):

Boycotts, Divestment and Sanctions Movement
Senator SESELJA (Australian Capital Territory) (18:50): I would like to bring to the attention of the Senate tonight recent reports in The Australian of anti-Semitic incidents at university O weeks around Australia, including at the Australian National University here in Canberra. They have included verbal and racial slurs as well as someone throwing a paper plane at the Jewish Students' Association orientation week stall which said, 'Death to the Zionist entity. Love from Hamas.' There is another incident under investigation. A student at the University of New South Wales was harassed and verbally intimidated by two men for carrying an Australasian Union of Jewish Students bag, until a third party stepped in. This most recent abuse comes after research by the Executive Council of Australian Jewry found the number of anti-Semitic incidents reported had skyrocketed to the second highest on record. These attacks are to be condemned in the strongest terms.
What is most alarming is that the vile and detestable Boycotts, Divestment and Sanctions Movement has made it seemingly acceptable for some to single out and attack members of the Jewish community. This is a campaign in recent years that has seen activists boycott and harass Israeli linked businesses, including cosmetic companies Seacret, L'Oreal and Jericho, as well as Caterpillar, because its bulldozers are used by Israeli authorities.
This is a campaign that has been openly supported by some senators in this place and by a number of unions, including the Victorian Trades Hall Council; the South Coast Labor Council; various state branches of the ASU, the Teachers' Union; LHMWU; CFMEU; MUA, branches of the AMWU; CEPU; ETU; FSU; HACSU; RTBU; the Geelong Trades Hall Council; Newcastle Trades and Labor Council; Queensland Council of Unions; and, importantly, Unions ACT. While the New South Wales Greens now equivocate about BDS the motion passed by them in 2011, shepherded through by Senator Lee Rhiannon, specifically said that the Greens of New South Wales call upon all Australians and the Australian government to:

... boycott Israeli goods, trading and military arrangements, and sporting, cultural and academic events.

This harassment and victimisation of Jewish people at these academic events were clearly a part of the BDS movement's game plan and was specifically foreshadowed in the motion pushed through the New South Wales Greens State Council by Senator Rhiannon.
Time after time, coalition senators have come into this place to express deep concern about this movement and about the support it has had from the Greens and some Labor members and senators. But now that this has transcended to violence and threatening acts it is time for the Greens and Labor to join with the coalition to strongly oppose these vile actions. It is interesting that those who actively push for human rights and equality in parts of the left are some of the strongest backers of this movement. Interestingly, when you look at the treatment of gays and lesbians, and women, in Israel in comparison to other parts of the region, you see they get support from those who claim to be strong supporters of gay and lesbian rights and of women's rights. It is also worth noting Canadian Prime Minister Stephen Harper's comments, which sum things up reasonably well:

Those who scorn modernity, who loathe the liberty of others, and who hold the differences of peoples and cultures in contempt.
Those who often begin by hating the Jews. But, history shows us, end up hating anyone who is not them.
Those forces, which have threatened the state of Israel every single day of its existence, and which, today, as 9-11 graphically showed us, threaten us all.

He goes on:

And so, either we stand up for our values and our interests, here, in Israel. Stand up for the existence of a free, democratic and distinctively Jewish state. Or the retreat of our values and our interests in the world will begin.

The behaviour that we have seen most recently on university campuses but also in the community with vile attacks against Jewish Australians must be condemned in the strongest possible terms.
Tonight I call on both Senator Lee Rhiannon and Unions ACT to condemn these , which they support...  

Netanyahu set to visit Australia soon

From Times of Israel, 17 March 2014, by Yifa Yaakov*:

Prime Minister Benjamin Netanyahu will visit Australia in June and meet his counterpart, the pro-Israel Tony Abbott, an Israeli political blog reported Monday.

Prime Minister of Australia Tony Abbott (left) meets with Prime Minister Benjamin Netanyahu during a the annual meeting of the World Economic Forum (WEF) in Davos, January 23, 2014. (Photo credit: Kobi Gideon/GPO/Flash 90)

According to political blogger Tal Schneider, Netanyahu will visit Colombia and Mexico in April, and, two months later, head to Australia for an official visit, accompanied by a large delegation.

It will be Netanyahu’s first official visit to Australia, a 24-hour flight away from Israel. Economics and Diaspora Affairs Minister Naftali Bennett (Jewish Home) has already visited the continent.

A government source would only confirm to The Times of Israel that Netanyahu and Abbott had met on the sidelines of the World Economic Forum in Davos in January, with both leaders expressing interest in visiting each-others’ countries.

Netanyahu’s relationship with Abbott, who was elected as Australia’s prime minister in 2013, has been good.

When he assumed office, Abbott, who had previously served as the head of Australia’s opposition, said he would improve ties with Israel during his tenure.

The liberal party leader told reporters in August that the last two governments had not maintained Australia’s strong relationship with the Jewish state, a situation he would attempt to rectify.

“There’s been a bit of wobbling under the current government but I would expect our standard rock-solid friendship with Israel to resume should the coalition win the election,” he said, referring to the bloc of opposition parties seeking to unseat then-prime minister Kevin Rudd.

Abbott’s platform includes an unfriendly stance toward the Boycott, Divestment and Sanctions campaign aimed at Israel. His government has also pledged to take a harder line toward terror suspects and to crack down on extremists seeking to enter Australia, while making it easier for Israelis to receive entry visas.

“I’m a friend of Israel — always have been, always will be,” he said.

In July, Abbott stumped for a group of Jewish business leaders in Melbourne, praising the community for its acumen.

“Jewish people have succeeded because they’ve never taken anything for granted. Better products, new services, more effective salesmanship, and above everything, relentless curiosity have been the hallmarks of Jewish people in Australia, especially business people, and we have not held their success against them, but honored them for it,” he said, according to the Australian Jewish News.

Australia has historically been considered one of Israel’s strongest allies. However, a decision to abstain on, rather than vote against, a Palestinian statehood bid at the United Nations last year led some to accuse Canberra of abandoning the Jewish state...

*AP and Times of Israel staff contributed to this report.

Formation of the Queensland Parliamentary Friends of Israel

From the Queensland Parliament Record of Proceedings, 4 March 2014:

Speech by Steve MINNIKIN (MEMBER FOR CHATSWORTH) 

(9.09 pm): I wish to speak this evening on the formation of the Queensland Parliamentary Friends of Israel, of which I am honoured to be the inaugural chairperson.

Steve MINNIKIN (MEMBER FOR CHATSWORTH)

In a spirit of bipartisanship, many of my parliamentary colleagues met on 16 October last year to hold our launch and annual general meeting in order to form this important parliamentary group. I wish to place on record my gratitude that this group was established in a bipartisan manner, as no political party has a mortgage on culture or religion. 

We were honoured to be joined by many prominent members of the Jewish community such as Dr Colin Rubenstein AM and Mr Jason Steinberg from the Board of Jewish Deputies. The inaugural keynote speaker was world renowned Professor Efraim Inbar, who is the director of the Begin-Sadat (BESA) Centre for Strategic Studies.

The bipartisan charter of the Queensland Parliamentary Friends of Israel group includes: fostering cultural links and opportunities between Israel and Queensland; encouraging the development of friendly relations and ties between the Queensland Parliament and Israel; and enhancing interaction between Queensland and Israel through meetings and discussions with Israel representatives and Israeli communities in Queensland.

Australia has always had a particularly close bipartisan relationship with Israel. We were one of the first countries to vote in favour of the 1947 United Nations partition resolution—a precursor to the creation of the state of Israel in 1948.

The relationship between our two countries was made even stronger when Australia gave official recognition to the state of Israel on 27 January 1949. In 2008 the Australian parliament congratulated Israel on 60 years of statehood. The trade ties between our two countries have become stronger, especially with the formation of the Australia Israel Chamber of Commerce (AICC). The AICC regularly leads delegations to Israel to encourage stronger trade ties between these two countries. In the period 2012-13 Australia and Israel enjoyed a good commercial relationship with two-way trade worth $899 million. It is important that Queensland continue to seek further economic trade opportunities with this strategically important ally, who has technological expertise across many fields. Indeed, there is much we can learn from one another, given our respective harsh geographical features in parts and dependence on cutting-edge technology.

Over the next year, the Queensland Parliamentary Friends of Israel will host events to encourage interaction between parliament and Israeli communities in this state. With the invaluable help of the Australia/Israel & Jewish Affairs Council (AIJAC), we look forward to fostering stronger economic, cultural and educational ties between the nation state of Israel and our wonderful state of Queensland. The Queensland Parliamentary Friends of Israel will work with the Queensland Jewish community to encourage the development of stronger ties between the Queensland parliament and Israel. Together as a group, all members look forward to fostering greater cultural and economic opportunities between our state and Israel. Shalom.