The New Offence And Insult Regime


Back in 1973, Professor Fred Hollows and his medical team were travelling in outback New South Wales treating the endemic trachoma problems of the local Aboriginal population. 

In November of that year, the team was working near Bourke and were booked in at a local hotel, the Oasis. The party decamped to the bar looking for refreshment after a day’s work, only for the Indigenous members of the team to be refused service based on their colour.

Fred Hollows promptly wrote an outraged letter of complaint to the federal Attorney-General, Lionel Murphy. Later the same month, Murphy introduced into the Federal Parliament a bill which later became the Racial Discrimination Act 1975, one of the most important acts ever passed.

At the same time, Australia ratified the International Convention on the Elimination of All Forms of Racial Discrimination ("the convention") which came into effect two days before the act. This treaty provided the constitutional basis for the parliament’s power to legislate in the area of racial discrimination. Together, the two documents brought to an end almost two centuries of racial discrimination in Australian law — if not in fact.

In the 37 years since it came into effect, the parliament has overridden the RDA very few times, chiefly when the Howard government watered down the Native Title Act in the late 1990s and again when it introduced its Northern Territory Emergency Response legislation in 2007 (the Northern Territory Intervention).

Last November, federal Attorney General Nicola Roxon released an "exposure draft" of the bill intended to consolidate the existing anti-discrimination regime: the Human Rights and Anti-Discrimination Bill 2012.

The government has added further protected attributes to the list of those currently protected, including sexual orientation, gender identity, industrial history, medical history, and nationality or citizenship in the area of work.

However, other changes have been made which take the law of racial discrimination further than the convention would indicate is necessary, and some others hand to the government and the Human Rights Commission significant discretionary powers which may result in the watering down that some critics were concerned about.

Perhaps the most formidable critic of the new bill is James Spigelman, the former NSW Chief Justice who is now the Chairman of the ABC. He was a key adviser to Prime Minister Whitlam until 1975, and when the Racial Discrimination Act was passed, was the head of the federal Department of the Media. As a student in the 1960s he was one of the participants in the famous Freedom Rides.

Spigelman, in a speech last month to the Human Rights Commission, pointed out that the key test of discrimination proposed in clause 19(2) of the draft bill substantially widens the range of conduct which may lead to a finding of discrimination, by counting as discrimination conduct which merely offends or insults the complainant.

The test for offence in the RDA, previously the objective legal test requiring conduct "reasonably likely to offend", has been removed. "It appears to me the new Bill contains a subjective test of being offended," Spigelman said in his oration. Clause 19(2) also applies to all the other discrimination grounds and therefore considerably widens the language or conduct caught.

The history of the current race hate provisions of the RDA are relevant. When the RDA was passed in 1975, it had no provisions in it which prohibited racial hatred, contrary to the requirement in clause 4(a) of the convention, which requires ratifying countries to introduce criminal sanctions against such conduct. Not only were there no criminal sanctions, there were no civil prohibitions either.

In 1995, the parliament inserted a new section 18C in the RDA which contains the so-called race hate provisions but crucially, these amount to civil prohibitions only. There are still no criminal sanctions.

But as Spigelman points out, neither the convention nor any other international human rights treaty we have ratified, requires the parliament to prohibit language which merely insults or offends.

What motive would the government have for doing this? In relation to racial hate speech, after the success in 2011 of the civil case against Andrew Bolt, who had questioned the Aboriginality of several Indigenous leaders, some federal Labor MPs in marginal seats with high numbers of Middle Eastern or Islamic migrants realised their electorates supported a tough line against offensive or insulting racial comment.

Where is the balance is to be drawn in this respect? Australians generally enjoy robust debate and few people seek a change to that. This is Australia, not Iran or Pakistan and in any event Australia is bound under international law to respect freedom of speech. Where that freedom may possibly conflict with the convention’s desire to outlaw hate speech, a balance needs to be struck. It is difficult to see how the government has struck the right balance in this bill, when the convention and the other human rights treaties do not even require the prohibition of offensive or insulting words or conduct.

Apart from that objection, Labor’s National Platform not only requires the government to comply with the convention and the treaties we have signed, it goes further, to require an audit of all federal legislation to ensure that it complies with Australia’s human rights obligations. On that basis alone, one would have thought that the government would, in the consolidation process involved in this bill, seek to confine the words prohibited by current Section 18C, to the Convention approach, not widen them.

There are several other provisions of this bill which are of concern. The first is clause 23 which introduces a general exception of justifiable conduct, not only relating to race but also to all the other protected attributes. The test is vague and subjective and has been criticised by, among others, the peak body of the legal profession, the Law Council of Australia in its submission to the current Senate Inquiry into the bill.

To allow a vague and rather subjective test to be introduced for conduct or words which can be excepted from the act may allow substantial departures from the discrimination principles in the current Discrimination Acts in the future.

A further concerning provision is the re-definition of "special measures" which allow a government to positively discriminate in favour of a race to redress the damage caused by past racial discrimination. The new definition widens the special measures which could be taken and there is a suspicion that this, and the absence of any need to consult the affected race, may derive from a desire to protect the Northern Territory Intervention legislation, based as it is on alleged special measures, some of which discriminate against indigenous people.

On the other hand many conservatives oppose positive discrimination, and the widening of that definition just supplies them with further ammunition. Why that is good politics is not clear. The RDA in particular uses the definition in the Convention and there seems no good reason why that definition should not be used in the new bill, especially when Labor’s National Platform requires it.

Another provision attracting criticism is clause 83 which gives the Human Rights Commission the power to grant "temporary" exemptions for up to five years for conduct otherwise prohibited by the proposed act. It is difficult to see any justification for such a power in relation to racial discrimination. This proposed power and the commission’s power to determine what are "special measures" (clause 80) effectively delegate law-making powers to the commission. Is this a good idea? We are dealing with fundamental rights here.

The bill also continues previous provisions exempting religious schools and institutions from many of the sanctions imposed on others. This is a political hot potato of course, but even some of the churches are now conceding that, for example, gay children and teachers should not be excluded from their schools. Perhaps it is time now for further consideration of at least some of these exemptions.

What may be happening here is that the government is pursuing political objectives and in the process may be unintentionally undermining its adherence to human rights standards. What Fred Hollows would make of this one wonders. He was buried in 2003 at Bourke Cemetery, not too far from the Oasis Hotel, in the region where he spent so much time trying to redress the effects of past racial discrimination. The federal Parliament should do the same — a good start would be to get this bill right.

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.