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2013-2014
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
RACIAL DISCRIMINATION AMENDMENT BILL 2014
REPLACEMENT EXPLANATORY MEMORANDUM
(Circulated by authority of Senators Day, Bernardi, Leyonhjelm and Smith)
THIS MEMORANDUM REPLACES THE EXPLANATORY MEMORANDUM
PRESENTED TO THE SENATE ON 25 SEPTEMBER 2014
RACIAL DISCRIMINATION AMENDMENT BILL 2014
Outline
The Racial Discrimination Amendment Bill 2014 amends paragraph 18C(1)(a) of the Racial
Discrimination Act 1975 to omit the words "offend" and "insult".
The current paragraph 18C(1)(a):
(a) is inappropriately modelled upon the Sexual Discrimination Act 1994;
(b) is contrary to the International Covenant on Civil and Political Rights to which
Australia is a party; and
(c) is much broader than racial discrimination legislation in countries comparable with
Australia.
Consequently, the current paragraph 18C(1)(a) goes too far in curtailing Australian citizens'
freedom of speech, expression and opinion.
The current Federal Government has recently withdrawn its commitment to amend the
Racial Discrimination Act. As a result, this Bill is introduced in its stead. However, unlike
the Government's original intentions, this Bill only makes a very minor amendment.
NOTES ON CLAUSES
Clause 1 - Short title
1. This is a formal provision specifying the short title as the Racial Discrimination Amendment
Act 2014.
Clause 2 - Commencement
2. This clause provides that the Bill commences on the day after the Bill receives the Royal
Assent.
Clause 3 - Schedule
3. This clause is a formal provision specifying that amendments or repeals are made to the
provisions set out in the sections in the schedule.
1
SCHEDULE 1 - AMENDMENTS
Racial Discrimination Act 1975
Item 1
4. Item 1 amends paragraph 18C(1)(a) of the Act.
Item 2
5. Item 2 details the application of the amendment.
2
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Racial Discrimination Amendment Bill 2014
This Bill is compatible with the human rights and freedoms recognised or declared in the international
instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
The Bill amends paragraph 18C(1)(a) of the Racial Discrimination Act 1975 (RDA) to remove the
words 'offend' and 'insult' to restore an appropriate balance between outlawing racial discrimination
while preserving freedom of speech, expression and opinion.
Human rights implications
Background: Australia's Human Rights obligations
Australia has binding legal obligations under the International Covenant on Civil and Political Rights
(ICCPR) and International Convention on the Elimination of All Forms of Racial Discrimination
(ICERD).
These instruments require the complementary protection of the right to freedom of expression and the
responsibility to enact laws against racial hatred.
Article 19(2) of the ICCPR provides that 'everyone shall have the right to freedom of expression'. As the
United National Human Rights Council has stated:
"The exercise of the right to freedom of opinion and expression is one of the essential
foundations of a democratic society, is enabled by a democratic environment, which offers,
inter alia, guarantees for its protection, is essential to full and effective participation in a free
and democratic society, and is instrumental to the development and strengthening of effective
democratic systems."1
The right to freedom of expression should 'be understood to be an essential instrument for the promotion
and protection of other human rights'.2 As the UN Special Rapporteur on Freedom of Expression has
stated:
"The importance of the right to freedom of opinion and expression for the development and
reinforcement of truly democratic systems lies in the fact that this right is closely linked to the
rights to freedom of association, assembly, thought, conscience and religion, and participation
in public affairs. It symbolizes, more than any other right, the indivisibility and interdependence
of all human rights. As such, the effective enjoyment of this right is an important indicator with
respect to the protection of other human rights and fundamental freedoms." 3
The right to freedom of expression is of fundamental importance however, it is not an absolute or
unfettered right and therefore may be subject to certain restrictions.
Accepted restrictions to the right of freedom of expression are set out in Article 19(3) of the ICCPR.
Other restrictions are also required by Article 20 of the ICCPR and Article 4 of the ICERD in order to
ensure that rights of others are protected.
1
UN Human Rights Council, Resolution 12/16, preamble.
2
La Rue, F, 2010 Annual Report of the Special Rapporteur on the promotion and protection of the right to
freedom of expression and opinion, UN Doc: A/HRC/14/23, 20 April 2010, para 28.
3
Ibid., para 27.
3
Article 19(3) of the ICCPR requires that three conditions be met when assessing whether restrictions on
freedom of expression are permissible:
(a) they must be provided for by law;
(b) they must be necessary; and
(c) they must pursue one of the legitimate aims set forth in the article, ie, (i) the respect of the
rights or reputations of others; (ii) the protection of national security or public order; or (iii)
the protection of public health or morals.
The UN Special Rapporteur on the promotion and protection of the right to freedom of expression and
opinion has developed a set of principles to assist in determining what constitutes a legitimate restriction
or limitation of freedom of expression, and what constitutes an 'abuse of that right'.
Generally, the Rapporteur notes that 'permissible limitations and restrictions must constitute an
exception to the rule and must be kept to the minimum necessary to pursue the legitimate aim of
safeguarding other human rights'. 4
Certain very specific limitations of freedom of expression will be legitimate if 'they are necessary in
order for the State to fulfil an obligation to prohibit certain expressions on the grounds and they cause
serious injury to the human rights of others'. 5
Article 20(2) of the ICCPR sets a high threshold for hate speech it requires States to prohibit by law.
This provision relates to advocacy of hatred that also constitutes incitement to discrimination, hostility
or violence. The Special Rapporteur on the promotion of the right to freedom of expression and opinion
notes:
"advocacy of national, racial or religious hatred is not a breach of article 20, paragraph 2, of the
Covenant on its own. Such advocacy becomes an offence only when it also constitutes
incitement to discrimination, hostility or violence; in other words, when the speaker seeks to
provoke reactions (perlocutionary acts) on the part of the audience, and there is a very close link
between the expression and the resulting risk of discrimination, hostility or violence. In this
regard, context is central to the determination of whether or not a given expression constitutes
incitement." 6
The UN Human Rights Committee has also clarified that 'a limitation that is justified on the basis of
article 20 must also comply with article 19, paragraph 3'. That is, while States are required to impose the
prohibitions described in Article 20, these prohibitions must also satisfy the requirements set down in
Article 19(3).
The ICERD provides for a broader range of racial hate speech that may be limited and still be regarded
as consistent with Article 19 of the ICCPR.
Article 4(a) of the ICERD requires States to take actions to prohibit four main areas of conduct:
Dissemination of ideas based upon racial superiority or hatred;
Incitement to hatred, contempt or discrimination against members of a group on grounds of
their race, colour, descent or national or ethnic origin;
Threats or incitement to violence against persons or groups;
4
La Rue, F, 2010 Annual Report of the Special Rapporteur on the promotion and protection of the right to
freedom of expression and opinion, op.cit, para 77.
5
Ibid., para 79(h).
6
La Rue, F, 2011 Annual Report of the Special Rapporteur on the promotion and protection of the right to
freedom of expression and opinion, UN Doc: A/66/290, 10 August 2011, para 28.
4
Expression of insults, ridicule or slander of persons or groups or justifications of hatred,
contempt or discrimination, when it clearly amounts to incitement to hatred or discrimination. 7
Australia has a reservation to Article 20 of the ICCPR which relevantly provides that: 'Australia
interprets the rights provided for by Articles 19, 21 and 22 as consistent with article 20; accordingly, the
Commonwealth and the constituent States, having legislated with respect to the subject matter of the
article in matters of practical concern in the interest of public order (ordre public), the right is reserved
not to introduce any further legislative provision on these matters'.
Australia also has a reservation to Article 4(a) of ICERD which relevantly provides that, 'The
Government of Australia ... declares that Australia is not at present in a position specifically to treat as
offences all the matters covered by article 4(a) of the Convention'.
The reservation in relation to Article 4(a) of ICERD is explicitly limited to the creation of offences
contemplated by that article, rather than the creation of civil prohibitions, such as those contained in
Part IIA of the RDA.8
Section 18C of the RDA
The Racial Hatred Act 1995 (Cth) was adopted by the Federal Parliament in 1995 following extensive
debate. The Act inserted Part IIA (comprising sections 18B-18E) into the RDA.
Section 18C provides that it is unlawful for a person to do an act, otherwise in private, if the act is
reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a
group of people, and the act is done because of the race, colour or national or ethnic origin of the of the
other person or some or all of the people in the group.
Section 18D provides for a number of exemptions from the prohibition in section 18C. The exemptions
cover anything done reasonably and in good faith in three contexts:
a. in the performance, exhibition or distribution of an artistic work
b. in the course of any statements, publications, discussion or debate made or held for any
genuine academic, artistic or scientific purpose or any other genuine purpose in the public
interest
c. in making or publishing:
i. a fair and accurate report of any event or matter of public interest;
ii. a fair comment on any event or matter of public interest if the comment is an
expression of a genuine belief held by the person making the comment.
Removal of 'offend' and 'insult'
There has for some time been significant debate about the scope of the conduct prohibited in section
18C, namely, acts done because of someone's race that are reasonably likely to 'offend, insult, humiliate
or intimidate' them.
Justice Robert French (as he was then) noted in Bropho v HREOC:
"The lower registers of the preceding definitions [in 18C] and in particular those of 'offend' and
'insult' seem a long way removed from the mischief to which Art 4 of CERD is directed. They
also seem a long way from some of the evils to which Part IIA [of the RDA] is directed as
7
UN Committee on the Elimination of Racial Discrimination, General Comment 35 - Combating racist hate
speech, UN Doc: CERD/C/GC/35, 26 September 2013, para 13.
8
See the reports submitted by Australia to the United Nations Committee on the Elimination of Racial
Discrimination pursuant to Art 9 of CERD on 20 July 1999 (CERD/C/335/Add.2) at [416]; and on 7 January 2010
(CERD/C/AUS/15-17) at [26].
5
described in the Second Reading Speech." 9
Julian Burnside AO QC, prominent human rights lawyer, has publicly stated that:
"the mere fact that you insult or offend someone probably should not, of itself, give rise to legal
liability. My personal view is that 18C probably reached a bit far so a bit of fine-tuning would
probably be OK". 10
The Australian Human Rights Commission in its submission to the Attorney General's Department on
the exposure draft of the Freedom of speech (Repeal of S. 18C) Bill 2014, considers 'that the legislation
could be clarified so that it more plainly reflects the way in which it has been interpreted in practice'.11
Sarah Joseph, Director of the Castan Centre for Human Rights Law at Monash University goes further
in saying that:
" ... the prohibitions on that which offends and insults, even on the basis of race, go too far.
Feelings of offence and insult are not serious enough to justify restrictions on the human right to
freedom of speech...It is true that the terms, "offence" and "insult" have been interpreted so that
they mean more than "mere" offence and insult. It is arguable that judicial interpretation has
saved these provisions from actually breaching the right to free speech. However, the law
should mean what it says. If "offence" and "insult" do not mean what they say, the prohibitions
should go." 12
This Bill amends section 18C by removing the words 'offend' and 'insult'. It keeps the protection against
speech that 'humiliates' or 'intimidates' another person on the grounds of race. In this way, the Bill
maintains the protection against racial hate speech.
Removing the words 'offend' and 'insult' from section 18C, will align the ordinary meaning of the words
used in the section with the way in which those words have been interpreted in practice by the courts.
As a result, the law will be clearer on its face and the intention of the Parliament will be reflected in the
proper drafting of the provision.
It is never appropriate to prohibit speech that is merely offensive or insulting. By removing the words
'offend' and 'insult' from section 18C the Bill is consistent with Australia's human rights obligations as
expressed by the ICCPR and the ICERD and reduces the restrictions on people's freedom of expression
and freedom of speech in Australia.
These amendments restore the balance between the right to freedom of expression while continuing to
outlaw racial discrimination. This balance is reasonable, necessary and proportionate in pursuit of the
legitimate objective of freedom of speech.
9
Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 at 123[68].
10
'Human rights lawyer says 18C went too far', Sydney Morning Herald, 29 March 2014.
11
Australian Human Rights Commission submission to the exposure draft of the Freedom of Speech (Repeal of
S.18C) Bill 2014, para 73.
12
'Rights to bigotry and green lights to hate', The Conversations, 28 March 2014.
6
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