21 May, 2014
Legal News & Analysis – Asia Pacific – Australia – Regulatory & Compliance
What You Need To Know
- On 25 March 2014, the Federal Attorney-General, Senator George Brandis, released an exposure draft foreshadowing possible amendments by the Federal Government to Part IIA of the Racial Discrimination Act 1975 (Cth) (RDA) (Exposure Draft).
- The Exposure Draft seeks to narrow the definition of racial vilification, alter the standard of determining the effect of racial vilification and broaden the existing defences for conduct that would otherwise constitute racial vilification.
- Members of the public were provided with an opportunity to make submissions on the Exposure Draft until 30 April 2014. The Federal Government is currently considering those submissions and it is anticipated that it will introduce a Bill foreshadowed as the Freedom of Speech (Repeal of S. 18C) Bill 2014 (Cth) (Bill) into the Federal Parliament during this month’s parliamentary sitting period.
- If the Bill adopts the proposed amendments in the Exposure Draft in its current form and is passed by the Federal Parliament, it will be considerably more difficult for a complainant to make good a complaint alleging racial vilification and media organisations (and others) will have greater scope to publish material without running the risk of contravening Part IIA of the RDA.
Background
Since 1995, Part IIA of the RDA has made racial vilification unlawful. Since that time, the vast majority of complaints which have alleged contravention of Part IIA have been resolved by the Australian Human Rights Commission (AHRC), usually by way of conciliation between the parties. Only a small number of complaints have resulted in court proceedings. Key court proceedings are summarised below.
In 2011, Part IIA was subjected to public attention and scrutiny when the Federal Court of Australia declared that a newspaper columnist and the publisher of a newspaper in Victoria contravened Part IIA by writing and publishing, respectively, two articles which were found to be reasonably likely to offend certain members of the Aboriginal community.
Prior to the last federal election in September 2013, the then Opposition Leader, Tony Abbott, and then Shadow Attorney-General, Senator Brandis, pledged to repeal or amend Part IIA if the Liberal-National Opposition was elected to form government.
Following the election of the Liberal-National Coalition, there has been a significant amount of public debate in anticipation of the Federal Government’s proposed reforms of Part IIA. At a high level, the debate has been engaged in by certain politicians and sections of the media who advocate for a greater protection of freedom of speech and leaders of community groups who advocate for retention of current levels of protection of minority groups from racial vilification. Of course, the arguments are more nuanced than those described above and academics and commentators have taken positions on both sides of the debate.
Exposure Draft
The proposed reforms contained in the Exposure Draft seek to repeal sections 18B, 18C, 18D and 18E of the RDA and introduce several new provisions.
Upon releasing the Exposure Draft, Senator Brandis stated that freedom of speech and the need to protect people from racial vilification are “not inconsistent objectives” and that the proposed reforms will “strengthen the Act’s [RDA’s] protections against racism, while at the same time removing provisions which unreasonably limit freedom of speech”.
A summary of the existing provisions in Part IIA of the RDA and the proposed reforms contained in the Exposure Draft is below:
| Current provisions in
Part IIA of the RDA
|
Amendments proposed in Exposure Draft
|
Comments | |
| Definition of racial vilification | Under section 18C of the RDA, it is unlawful for a person to do an act in public which is reasonably likely to:
another person or a group of people if the act is done because of the race, colour or national or ethnic origin of the other person or of the group of people.
Under section 18B, if an act is done for two or more reasons and one of those reasons is the race, colour or national or ethnic origin of a person (whether or not the dominant or substantial reason), the act is taken to be done because of the person’s race, colour or national or ethnic origin.
|
It will be unlawful for a
person to do an act in public which is reasonably likely to:
another person or a group of people if the act is done because of the race, colour or national or ethnic origin of the other person or of the group of people.
There is no provision relating to circumstances in which an act is done for two or more reasons and one of those reasons is the race, colour or national or ethnic origin of a person.
|
The Exposure Draft narrows the definition of what conduct will be unlawful conduct under Part IIA of the RDA. In order to ground a complaint alleging racial vilification:
It is unclear whether an act will considered to have been done because of a person’s race, colour or national or ethnic origin if the act is done for two or more reasons (eg one reason being because of a person’s race and another reason being unrelated to a person’s race) and whether or not the reason related to a person’s race need be the dominant or substantial reason. |
| Standard of determining racial vilification
|
In determining whether
conduct is reasonably likely to offend, insult, humiliate or intimidate, courts have assessed the effect according to the standards of an ordinary, reasonable member of the group to which the complainant belongs.
|
In determining whether the effect of an act is reasonably likely to vilify or intimidate, courts will be required to assess the effect according to the standards of an ordinary, reasonable member of the Australian community.
|
The Exposure Draft may render it more difficult to establish that conduct is reasonably likely to vilify or intimidate.
This is because it may be less likely that an ordinary, reasonable member of the Australian community will consider an act to have the effect of vilifying or intimidating compared to an ordinary, reasonable member of the particular group to which the complainant belongs.
|
| Defences | Under section 18D of the Act, an act said or done reasonably and in good faith is not unlawful if it is done:
|
Words, sounds, images or writing spoken, broadcast, published or otherwise communicated in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter will not be unlawful. | The Exposure Draft replaces the current exemption from racial vilification with a very broad exemption.
In particular, there is no longer a requirement that the act be said or done “reasonably and in good faith” or be a “genuine” purpose or belief of the person.
|
| Vicarious liability
|
Under section 18E, a person (eg employer) is liable for an act of racial vilification by their employee or agent if the employee or agent does the act in connection with his or her duties unless the person (eg employer) took all reasonable steps to prevent the employee or agent from doing the act. | There is no provision covering vicarious liability for an act of racial vilification.
|
It is unclear whether an employer will be liable for an act of racial vilification by an employee or agent. It is likely, however, that
media organisations will continue be liable in respect of material which vilifies or intimidates a person or group of people as publishing and broadcasting material should satisfy the element of doing an act in public. In addition, employment contracts may include clauses pursuant to which employers may indemnify employees in respect of certain acts and omissions. |
It should be noted that the Exposure Draft does not seek to displace section 80.2A of the Commonwealth Criminal Code (contained as a Schedule to the Criminal Code Act 1995 (Cth)) which creates an offence of urging the use of force or violence against groups distinguished by race, religion, nationality, national or ethnic origin or political opinion and is punishable by up to seven years imprisonment.
Key Decisions Under Current Legislation
Under the existing legislation, media organisations have been the subject of a number of complaints alleging racial vilification and have achieved mixed success. A number of these complaints proceeded to proceedings before the predecessor to the AHRC, the Human Rights and Equal Opportunity Commission (HREOC) and/or the Federal Court of Australia. A snapshot of these cases are as follows:
- In 1997, the HREOC found that the publisher of a newspaper in Queensland did not breach the RDA by publishing articles and letters which referred to English people as “Poms” or “Pommies” on the basis that it was unlikely that an ordinary, reasonable member of the English community would be reasonably likely to be offended.
- In 2008, the HREOC found that a television station did not breach the RDA by broadcasting a program entitled “Darkest Austria” which included a segment on white Europeans living in Austria on the basis that it was unlikely that an ordinary, reasonable member of the white European community would be offended.
- In 2001, the HREOC found that the publisher of a newspaper in Western Australia breached the RDA by publishing a cartoon depicting certain members of the Aboriginal community. However, Inquiry Commissioner Innes found that the publisher was not liable as the cartoon was an “artistic work” published reasonably and in good faith and in the course of a discussion made for a genuine purpose in the public interest.
- In 2001, the HREOC, found that a radio talk show host in Western Australia and the proprietor of the station breached the RDA by making comments about Aboriginal people in relation to protests surrounding the redevelopment of a brewery site. Inquiry Commissioner Innes ordered that the host and proprietor pay the complainants a total of AUD 50k in damages.
- In 2011, the Federal Court of Australia found that the publisher of a newspaper in Queensland did not breach the RDA by publishing an article concerning the custody of an Aboriginal toddler as the article was not published “because of” the race of the toddler.
- As referred to above, in 2011 the Federal Court of Australia found that a newspaper columnist and the publisher of a newspaper in Victoria breached the RDA by writing and publishing, respectively, two articles about members of the Aboriginal community. The substance of the articles were that some “fair-skinned Aboriginal people” were motivated to falsely identify themselves as members of the Aboriginal community in order to further their careers or for political gain. Justice Bromberg ordered that the columnist and publisher be restrained from republishing the contravening articles, and ordered that corrective notices be published in the print and online versions of the newspaper.
- In 2012, the Federal Court of Australia found that the publisher of a newspaper in Western Australia had breached the RDA by publishing four readers’ comments below two online articles which were reasonably likely to offend members of the Aboriginal community. Justice Barker ordered that the publisher take down the contravening comments from its website and pay the complainant AUD 12k in damages.
Impact On State Legislation
Pursuant to the Exposure Draft, State legislation regulating racial vilification, such as the Anti-Discrimination Act 1977 (NSW) (ADA), would continue to operate alongside the RDA.
The timing of the Exposure Draft, however, coincides with developments at a State level.
On 3 December 2013, the New South Wales Legislative Council’s Standing Committee on Law and Justice tabled its report entitled Racial Vilification Law in New South Wales (“Report“). Among other things, the Report contains 15 recommendations to amend section 20D of the ADA which regulates racial vilification in New South Wales.
The recommendations in the Report primarily address procedural issues and includes recommendations that:
- the President of the NSW Anti-Discrimination Board be permitted to refer serious racial vilification complaints directly to the NSW Police Force without having to seek the prior consent of the NSW Attorney-General; and
- the NSW Police Force be authorised to prepare a brief of evidence for the NSW Director of Public Prosecutions following the referral of a serious racial vilification complaint.
The above recommendations are designed to encourage prosecutions. The 27 complaints referred to the NSW Anti-Discrimination Board for criminal prosecution since 1998 have not resulted in any criminal prosecutions.
There have been a number of cases in recent years involving alleged breaches of the ADA by media organisations. Most recently, the NSW Court of Appeal granted a Sydney radio talk show host and the proprietor of the station leave to appeal a decision by the NSW Administrative Decisions Tribunal which had earlier found that the host and proprietor had incited hatred of Lebanese Muslims in the course of a broadcast in 2005. The complaint has been remitted to the NSW Administrative Decisions Tribunal for redetermination.
Next Steps
Members of the public were provided with an opportunity to make submissions on the Exposure Draft until 30 April 2014. The Federal Government is currently considering those submissions and it is anticipated that it will introduce the Bill into the Federal Parliament during this month’s parliamentary sitting period.
The Labor Opposition and the Greens have indicated they will not support the amendments proposed in the Exposure Draft. It is unclear whether the Coalition Government will obtain the support of the minor parties and independents in the Senate in order to pass the Bill.
For further information, please contact:
Sophie Dawson, Partner, Ashurst
[email protected]
Ben Teeger, Ashurst
[email protected]
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