Threat to racial discrimination law is a threat to sex discrimination law too

By Fran Hayes

Recent weeks have seen a fierce community debate over the extent to which certain types of racist behaviour should be prohibited under Australian anti-discrimination laws.

Specifically, the Abbott Government is proposing to amend Section 18C of the Racial Discrimination Act 1975 to remove prohibition of certain negative behaviours targeting people because of their race, colour or national or ethnic origin.

Section 18C of the Racial Discrimination Act – Offensive behaviour because of race, colour or national or ethnic origin – currently provides that:

(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.

Taken from Gabrielle Chan's twitter feed (@gabriellechan)

Taken from Gabrielle Chan’s twitter feed (@gabriellechan)

The government proposes to remove the references in S18C to acts which “offend, insult or humiliate” people because of their race, stating these provisions impose unreasonable restrictions on free speech for Australians. The government sees such provisions as examples of “political correctness” gone too far.

Australia’s current anti-discrimination laws (federal laws cover race, sex, disability and age discrimination) have a solid foundation in international human rights conventions to which Australia is a freely consenting party. Much of the wording of these acts is drawn from the terms of the international conventions on which they are based.

Each of these laws was passed by Parliament, often surviving vigorous debate about their impact on the social fabric of Australian society. For example, the debate about the Sex Discrimination Act in the Australian Parliament in 1984 featured claims that equality for women in working life would mean that babies would be torn from their mothers’ breasts and placed in communist-style crèches while their mothers would be forced out to work against their will. Despite this scaremongering, the law was passed and thirty years on, there is no sign of routine forced separation of children from their mothers in Australia today.

George Brandis, the Australian Attorney-General, is the prime sponsor of the amendments to the RDA. This is the man who, in the context of parliamentary exchanges about the proposed amendments, recently declared that Australians have “a legal right to be bigots”.

What has brought the federal government to the point of seeking to amend the Racial Discrimination Act in this way? Incredibly, it seems to be a reaction to the fact that a prominent Australian conservative journalist, Andrew Bolt, was successfully prosecuted in 2011 for breaching S 18C of the RDA in a series of articles which he published about fair-skinned Aboriginals in 2009. Nine fair-skinned Aboriginal persons experienced these articles as offensive and took the case against him. Incidentally, it has been claimed that the effect of the Bolt articles on some of the Aboriginal people concerned has been, and continues to be, devastating.

The Attorney-General regularly refers to Bolt’s case when arguing why Section 18C of the RDA must go. Interestingly, Brandis’ position on Section 18C is causing disquiet even within the Coalition. Backbenchers and now some Cabinet members are expressing concern about the matter, particularly those representing multicultural electorates. Cabinet leaks suggest that Brandis had a much more extreme set of amendments in his original proposal, which were rejected by his Cabinet colleagues.

 Although the proposed RDA amendments reflect a particular obsession with the Andrew Bolt case, they are part of a bigger picture of the Attorney-General’s views on freedom of speech being constrained by Australian discrimination laws generally. The Attorney-General is openly critical of the Australian Human Rights Commission’s focus on freedom from discrimination on the grounds of race, sex, disability and other attributes. The consequence, he says, has been that “the classic liberal democratic rights that in my view are the fundamental human rights have been almost pushed to the edge of the debate”. Instead of directly attacking the AHRC, Brandis has adopted a strategy of broadening the Commission’s ambit to include protection of “freedom of speech”. Brandis has already unilaterally appointed a new “Freedom Commissioner” to the AHRC, whose job it will be to monitor and guard against infringements of the “traditional rights” - including freedom of speech, religion and association- that he believes have been eroded.

savetherda

These developments show that not only the Racial Discrimination Act, but other federal anti-discrimination laws (i.e. the sex, disability and age discrimination laws) could be under threat. The current attack on the provisions of the RDA should alert feminists to the possibility that the Sex Discrimination Act 1984 could also be targeted for change by the Government. For example, who is to say that the landmark provisions against sexual harassment in the workplace contained in the Sex Discrimination Act 1984 could not possibly be portrayed as yet another example of “political correctness” by the Government? It will be important for feminists to monitor closely any proposed Government action on the federal anti-discrimination laws, and to participate in any community consultation opportunities that may be offered in relation to any proposed changes.

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  1. […] Fran Hayes writes on the fcollective that the proposed amendment to the Racial Discrimination Act also means the Sex Discrimination Act could be under threat too. […]



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