Attorney-General George Brandis this week announced controversial plans to repeal Section 18C of the Racial Vilification Act.
Under the planned changes, section 18C will be repealed and a new section will be inserted to outlaw racial vilification and preserve the existing protection against intimidation.
The government said the changes were intended to provide greater protection against racism "while at the same time removing provisions which unreasonably limit freedom of speech."
How is racial hatred currently defined?
Under the Racial Discrimination Act, it is illegal to insult, humiliate, offend or intimidate a person or group in public, based on their race. Section 18C (1) of the Act states:
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 group of people, and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or some or all of the people in the group.
A number of different modes of communication can constitute racial hatred under the Act, including speaking, singing and written publications.
To qualify as racial hatred, the act must be carried out in public, be reasonably likely to insult, humiliate or intimidate and be based on the race, colour or national or ethnic origin of the person to whom it’s directed.
A public place is defined as "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." The internet is captured by this definition.
Any communication in a private situation such as inside a home or on the telephone does not qualify.
That's at a federal level, what about the states?
All the states in Australia have racial discrimination legislation in place.
The Northern Territory does not have any racial vilification provisions in place, but does prohibit racial "harassment" as set out in the Anti-Discrimination Act (NT), section 20(1)(b).
Find out more about state-based racial vilification law on the Australian Human Rights Commission website.
Are there exemptions?
Yes. The Act is subject to freedom of expression and there are certain instances where expressions do not constitute racial hatred despite falling into the definition. This is only true when the person who carried out the act did so reasonably and in good faith.
Academic and scientific works, art and debates or comments on matters of public interest are generally exempt. The media is able to publish reports on racially offensive behaviour, for example, because such information is published in good faith without the intent to incite.
What stands to change?
Under the government's proposed changes to the Act, section 18C will be repealed along with sections 18B, 18D and 18E, and the following section will be inserted:
1. It is unlawful for a person to do an act, otherwise than in private, if
a) the act is reasonably likely:
i. to vilify another person or a group of persons; or
ii. to intimidate another person or a group of persons,
b) the act is done because of the race, colour or national or ethnic origin of that person or that group of persons.
Attorney-General George Brandis said in a statement that the changes sent a clear message.
"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."
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