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Hey Mr Brandis… I hope you read this!

April 29, 2014

The Freedom of Speech debate regarding Andrew Bolt and the Racial Discrimination Act has infuriated me with its misrepresentations and its appeal to ignorance and hate. My passions were stirred to the point where I felt I had to make a submission to the Attorney General regarding his exposure draft, so here it is:

Submission to the Attorney General’s Exposure Draft Amendments to the Racial Discrimination Act 1975

I welcome the opportunity to make a submission to the Attorney General regarding the proposed amendment to the Racial Discrimination Act 1975.

Section 18C of the Racial Discrimination Act has been much discussed in the wake of the decision against Andrew Bolt: Eatock v Bolt and the Herald & Weekly Times Pty Ltd [2011] FCA 1103

I am loath to see laws made to benefit one person. That is not a position any government should take. I am just as reluctant to repeal laws for the benefit of one person.

It should be a red flag to all that this debate has arisen after one decision against one prominent Australian. Until then this section of the Racial Discrimination Act had operated without controversy.

Debate focused on Section 18C, suggesting that it was unlawful to insult on the basis of race, with little to no discussion of the protections afforded by Section 18D.

Section 18D of the Racial Discrimination Act provides protections for free speech, as demonstrated by decisions such as Kelly-Country v Beers & Anor [2004] FMCA 336 (21 May 2004). These decisions demonstrate that free speech is alive and well in Australia.

Section 18 of the Racial Discrimination Act became known as the Bolt Laws, a nonsense which never should have taken hold. Decent Australians recognise that these laws have been used to challenge Holocaust denial and other racist speech. That the then shadow Attorney General designated repeal of the “Bolt Laws” as his first task made many question the priorities of this incoming government.

It is with this in mind that I oppose the amendments as set out in the exposure draft.

“Sticks and stonesmay break my bones / But names will never hurt me”

Subsection (2)(b) of the Attorney General’s exposure draft appears to be based upon a school yard rhyme.

(2)(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.

In the real world intimidation does more than cause fear of physical harm. It can cause a person to shrink from engagement in the world around them, from engagement in public debate and from engagement in our democratic processes.

Intimidate means to make timid. That the exposure draft limits the meaning of “intimidate” to the extent of the rhyme above ignores the very real impact of racist speech.

Subsection (4) of the Attorney General’s exposure draft is broad enough as to allow all racist speech, regardless of whether it vilifies to incite hatred or intimidates to cause fear of physical harm. It provides none of the balance that the current Section 18D provides. Subsection 4 is so broad that the entire section of the Racial Discrimination Act may as well not exist at all. I can only guess that some of the critics of the RDA would prefer just that.

The current laws were drafted and passed by the Parliament after a long consultation process. In the years since their passing we can see that the Section 18 Racial Discrimination Act 1975 does not and has not stopped hateful and racist speech, but it has given individuals an avenue through which to address hateful and racist speech. Not every Australian has a website, a blog or a column in a newspaper with which to espouse their opinions or to address hate speech. Laws that allow individuals to address hateful and racist speech should be protected, not repealed.

It has been heartening to read and see that after the release of the Attorney General’s exposure draft that many Australians are speaking up to oppose the changes. Many are making submissions and I hope the government takes them seriously. I hereby make my own recommendations.

 

 

Recommendations

Recommendation 1

I recommend that the Racial Discrimination Act remain unchanged. Section 18 of the Racial Discrimination Act has operated without controversy for many years.

Recommendation 2

If changes are to be made to Section 18 of the Racial Discrimination Act I recommend that Section 18C (1)(a)should only be amended to at most only remove “offend” and “insult”. Section 18D should remain unchanged.

Recommendation 3

If the Brandis amendments are to be largely adopted I recommend that the meaning of intimidate be of the wider meaning “to make timid.”

Recommendation 4

If the Brandis amendments are to be largely adopted I recommend the Section (4) be replaced by the existing protections of Section 18D.

 

Australia deserves laws that are more mature than a school yard rhyme. Australia deserves laws that recognise the reality of racism in our society and how we best address this within multi-cultural Australia.

These laws that have served us well for many years do not need to be changed.

Sincerely,
Christopher Johnson

 

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