18C changes “fundamentally flawed”
THE Executive Council of Australian Jewry (ECAJ) has described the government’s draft legislation for its proposed repeal of parts of the Racial Discrimination Act as “fundamentally flawed” and argued there is no evidence to support the case for repeal.
It detailed its assertion in a submission to the federal government in response to an exposure draft from Attorney General George Brandis outlining changes to the Racial Discrimination Act.
The exposure draft repeals sections 18B, 18C, 18D and 18E of the Act, removing the words “offend”, “insult” and “humiliate” and replacing them with “vilify”.
“The government has asserted, but not demonstrated, that those provisions constitute an unjustified limitation on freedom of expression” ECAJ’s submission said.
The submission stated that three national inquiries concluded that there is a nexus between racial vilification and racially-motivated violence and other forms of social dysfunction and that two recent
surveys indicate that the existing sections 18C and 18D enjoy wide support in the Australian community.
The ECAJ stated that the protections in the exposure draft are unreasonably narrow and the exceptions are unreasonably wide and open to abuse.
It said the most objectionable part of the exposure draft is that there is no requirement for the respondent to a complaint to have acted reasonably and in good faith, unlike the current legislation.
“This would mean that even the very limited protections that would ostensibly be conferred against conduct which incites hatred on the basis of race, or which causes fear of physical harm, would not apply, merely because the conduct of the respondent to the complaint occurred in the course of participating in a public discussion.”
The ECAJ stated that this would send a message that even certain types of behaviour which are criminal under state law may be acceptable.
It said that by removing the words offend, insult and humiliate it would leave severe gaps in the protections provided.
It noted that in 2003 the federal government, with John Howard as prime minister, intervened in a court case, Toben v Jones, to defend the validity of the words “offend, insult, humiliate and intimidate” in the Racial Discrimination Act.
In a court submission the Commonwealth argued “that acts done in public which are objectively likely to offend, insult, humiliate or intimidate and which are done because of race, colour or national or ethnic origin are likely to incite other persons to racial hatred or discrimination or to constitute acts of racial hatred or discrimination”.
JOSHUA LEVI
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