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Proposed Changes to Racial Discrimination Act Agenda Item 9.3 REPORT Report No. 131/14ccs TO: CORPORATE AND COMMUNITY SERVICES – 14 JULY 2014 SUBJECT: PROPOSED CHANGES TO RACIAL DISCRIMINATION ACT AUTHOR: DIRECTOR CORPORATE AND COMMUNITY SERVICES – CRAIG CATCHLOVE EXECUTIVE SUMMARY This report discusses proposed changes to S18C of the Racial Discrimination Act 1975 (The Act). RECOMMENDATION That it be a recommendation to Council: That this report be noted. REPORT 1. DISCUSSION A motion without notice was put to Council at the CCS Committee Meeting of 12 May 2014 seeking Council to write to the federal government objecting to proposed changes to S18C of the Racial Discrimination Act 1975 (the Act). The Act was amended in 1995 by the Keating Government. S18.C was included in these amendments. S18.C states: RACIAL DISCRIMINATION ACT 1975 - SECT 18C Offensive behaviour because of race, colour or national or ethnic origin (1) It is unlawful for a person to do an act, otherwise than in private, if: (a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group. (2) For the purposes of subsection (1), an act is taken not to be done in private if it: (a) causes words, sounds, images or writing to be communicated to the public; or (b) is done in a public place; or (c) is done in the sight or hearing of people who are in a public place. Report No 131/14ccs .2/ (3) In this section: "public place" includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place. These amendments were strongly opposed at the time by the Liberal Party and although the Greens joined with the Liberals in the Senate to reject similar changes to the Crime Act, they allowed passage of the amendments to the Racial Discrimination Act. The Keating government was expressly warned by the then Human Rights and Equal Opportunity commissioner, Irene Moss, not to legislate against the causing of offence. In her influential 1991 report on HREOC’s National Inquiry on Racist Violence, Moss advised against following the model adopted in New Zealand where section 9C of the Race Relations Act had been “widely used and even abused by individuals complaining of insults or remarks of a relatively trivial nature”. Acts of racial violence should be treated as “distinctive, serious criminal offences” under the Crimes Act. Civil remedies under the Racial Discrimination Act should be restricted to “the incitement of racial hostility”. “The inquiry is not talking about protecting hurt feelings or injured sensibilities,” wrote Moss. “The threshold for prohibited conduct needs to be higher than expressions of mere ill will.” Public statement by the then Prime Minister Keating show that he believed it was never intended to stifle public debate on issues of race (see Attachment A). EATOCK vs BOLT There have been two cases involving the use of S18C that have made the section controversial. The first in 2011 involved conservative commentator and columnist Andrew Bolt (Eatock vs Bolt). He was sued by a group of fair skinned Aborigines claiming offense at an article he wrote in which he argued that they, because of their colour and features as well as non-aboriginal ancestry, had options as to how they identified and questioned their validity to claim race–based subsidy/opportunity designed to overcome disadvantage or develop Aboriginal role models. This case was presided over by Judge Mordecai Bromberg. Prior to being made a judge, Bromberg ran unsuccessfully for pre-selection as the Australian Labor Party (ALP) candidate for the seat of Burke seat in 2001. Andrew Bolt was arguably the most effective critic of the Rudd/Gillard (ALP) governments. Bromberg found in favour of the complainants (see Attachment C), stating that Bolt made imputations that the complainants: “have chosen to falsely identify as Aboriginal; and fair skin colour indicates a person who is not sufficiently Aboriginal to be genuinely identifying as an Aboriginal person” Bolt emphatically denies this (see Attachment D), stating that: “In those articles I wrote that I did not question the genuineness of their identification. Report No 131/14ccs .3/ I did not even go as far as did Professor Larissa Behrendt, one of those who took me to court, who nine years ago declared that the definition of Aboriginality needed to be tightened, or "you run the risk of having the parameters stretched to the ludicrous point where someone can say: 'Seven generations ago there was an Aboriginal person in my family, therefore I am Aboriginal'." (See also Attachment E for similar arguments put forward by Aboriginal commentators, also citing examples and names, that have not resulted in legal proceedings) To be clear: not once did I say that these people had no right to call themselves Aborigines. I've always accepted that they do.” With regards to the protections alleged to be afforded by S18D, Judge Bromberg wrote: “The inclusion of untruthful facts, the use of inflammatory and provocative language and the failure to minimise the potential harm to those likely to be offended denied to Bolt and the HWT, both the ‘fair comment’ exemption provided by s 18D(c)(ii) and the genuine purpose exemption provided by s 18D(b) of the RDA” The “untruthful facts identified by Judge Bromberg (http://www.fedcourt.gov.au/publications/judgments/judgment- summaries#20111103) were: 381 In the first article (1A-21), Mr Bolt wrote that Ms Heiss had won “plum jobs reserved for Aborigines” at each of three named institutions or enterprises. Each of those assertions was erroneous. Mr Bolt accepted that they were wrong because they were exaggerated. One of the positions that Mr Bolt claimed Ms Heiss had won as a “plum job” was a voluntary unpaid position. The other two positions were not reserved for Aboriginal people but were positions for which Aboriginal people were encouraged to apply. 382 Mr Bolt wrote that Ms Eatock “thrived as an Aboriginal bureaucrat, activist and academic” (1A-28). The comment is unsupported by any factual basis and is erroneous. Ms Eatock has had only six to six and a half years of employment since 1977. In the case of Ms Eatock, Mr Bolt also suggested in the first article that she identified as an Aboriginal for political motives after attending a political rally (1A-27). That statement is untrue. Ms Eatock recognised herself to be an Aboriginal person from when she was eight years old whilst still at school and did not do so for political reasons. 383 Further, Mr Bolt intimated that Ms Cole chose to identify as an Aboriginal motivated by access to “political and career clout” (1A-4). This is a comment. The facts upon which the comment is based are not stated, referred to or notorious. There has been comment made after this case that the errors were not of a significance to invalidate the “fair comment” protections of S18D (see Attachment F): testimony “Bolt was criticised for errors in his writings. Yet all he had done was what all journalists and bloggers do – he had used the internet for research. It also seems extraordinary to an observer of the trial that the biographical statements made by the nine applicants were accepted by the judge without testing by the court.” This latter comment pertains to the evidence given by Cole that she was brought up by her Aboriginal grandmother and father (see Attachment G). Report No 131/14ccs .4/ MORTIMER VS AITKIN The second involved a left leaning academic, former University of Canberra Vice- Chancellor and former Chairman of the National Capital Authority Professor Don Aitkin who is being sued for $6 million for alleged racial discrimination. Ngambri Aboriginal elder Shane Mortimer alleges the adjunct professor's blog contravenes Section 18C of the Racial Discrimination Act and has lodged an application for damages in the Federal Magistrates Court. Mr Mortimer said he was offended by an article from August 27 that says: ''He looks about as Aboriginal as I do, and his constant references to his 'ancestors' makes me scratch my head.'' (See attachment H). PROPOSED CHANGES TO S.18C The Abbott government has indicated it will move passage of a Bill to amend S18.C as indicated in the media release by the Attorney General, George Brandis, below: Racial Discrimination Act 25 March 2014 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.
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