What's wrong with racial hatred bill

May 17, 1995
Issue 

By Lisa Macdonald

On May 29, the Senate will debate the federal government's Racial Hatred Bill 1994 (RHB). According to the attorney general, Michael Lavarch, in his second reading speech to the House of Representatives, the bill "fills a gap in our laws and enhances the social compact which underpins racial harmony in Australia ... [It is] a clear demonstration of Australia's commitment to basic human rights ... [in which] free speech has been balanced against the rights of Australians to live free of fear and racial harassment."

The RHB amends the Crimes Act 1914 to provide for three criminal offences. The proposed new criminal provisions, unlike existing criminal law, which deals with actual violence and damage to property, target circumstances which are preliminary to violence — the incitement of racial hatred and threats made to a person or persons or property because of their race, colour or national or ethnic origin.

For the purposes of the bill, the definition of an "ethnic group" involves the consideration of one or more characteristics such as shared history, separate cultural tradition, common geographical origin, common language, common literature or a religion different from that of neighbouring groups. The term "race" is held to include ideas of ethnicity. Within this definition, Jews and Muslims, for example, could be considered a race.

Sections 58 and 59 deal respectively with threats against people and property (actions already covered in general terms in existing law) that are expressly made because of race, colour or national or ethnic origin. That is, the RHB re-enacts existing laws but adds to them the element of racist motivation.

The value of this change is highly questionable. As the president of the Victorian Council for Civil Liberties has pointed out, "Ironically, by adding this element, the RHB will make it harder to secure a conviction than under existing law. Furthermore, the maximum sentence of two years' jail is much lighter than sentences under existing state and federal law."

Section 60 copies legislation in Canada, New Zealand and Britain by prohibiting the intentional incitement of racial hatred. The term "incitement" is defined as "a conscious and motivated act" and therefore requires a subjective judgment on the part of the court. "Hatred" is defined as "intense dislike or enmity".

The significance of section 60 as an alteration to existing laws (criminal laws dealing with the incitement of racial hatred currently operate in NSW, WA, Queensland and the ACT) is that a person does not need to threaten physical harm to commit an offence. They only need to have acted in a way which the courts judge to have been reasonably likely to incite intense racial enmity of a kind which is likely to lead to physical harm or damage to property.

The RHB also amends the Racial Discrimination Act 1975, which deals with discrimination based on racial prejudice and intolerance. Section 18C will be inserted into the act to make it unlawful for a person to act in a way which is reasonably likely in all circumstances to offend, insult, humiliate or intimidate another person or group of people and is done because of the race, colour or national or ethnic origins of that person or people.

Legal action under this section would be initiated by the victim via a complaint to the Human Rights and Equal Opportunity Commission (HREOC). But experience with existing anti-discrimination laws shows that victims face enormous barriers to using these systems. Economic resources, educational and language barriers, fear of police and legal systems, and of community backlash, all contribute to determining which individuals and groups are likely to pursue legal action.

As Joe Wakim from the Australian Arabic Council has noted, "The best organised ethnic groups favour legislation because they are well resourced and enjoy extensive networks and senior positions that allow them to take advantage of criminal legislation. But the majority of groups who fall prey to racism and vilification are not so well organised ... We cannot pretend that the same options exist for all communities, and that just because the law exists, it is simply up to the vilified groups to activate it. This would be tantamount to blaming the victim."

Section 60 also contains extremely broad exemptions. Nothing which is said or done "reasonably and in good faith in the course of any statement, publication, discussion or debate made or held for an academic, artistic or scientific purpose, or any other purpose in the public interest" will be prohibited.

These exceptions beg the crucial question of who decides what is in the public interest and on what grounds? The implicit assumption that there is a general, homogeneous public interest is not confirmed by minority groups' experiences of vilification. It is contradicted by the reality of a society clearly divided into those who have power and those who don't.

The state is not a neutral arbitrator in deciding who is and who is not exempt from prosecution under the RHB. There is already plenty of evidence surrounding the application of laws which limit free speech (such as the use of anti-pornography laws against feminist and gay publications).

These exemptions would be used, not to safeguard free speech and open public discussion, but to protect all of the key institutions (the mass media, the education system, the film industry, government) which create the dominant ideas in society, including racist ideas.

An additional but related concern is that the application of section 60 is dependent on the HREOC making judgments about whether or not an accused has violated "community standards of behaviour".

This is the first time in Australia that the state has been empowered to lay down a minimum standard for socially acceptable behaviour, something which is very different from punishing conduct which is actually harmful rather than merely offensive. It represents a further erosion of our already limited freedom of speech.

Finally, we must question the fundamental rationale for the RHB — that racial hatred provides the climate in which violence may take place and so is in and of itself a threat to the well-being of individuals, groups and the whole community that must be confronted by the state.

Racist ideas are inextricably linked to discriminatory practices, including violence against people because of their skin colour. But to target the expression of racist ideas, regardless of whether they are accompanied by threatened or actual discrimination, ignores, and can ultimately paper over, the fact that ideas are the product of material reality, not vice versa.

Legislation which addresses the symptoms of a form of oppression has very often been used as an expedient alternative by governments unwilling to address the real causes of that oppression. The RHB is no exception. Worse, it has the potential to add yet another weapon to the arsenal of the ruling class in their ongoing efforts to control and destroy any threats to their system, an economic and social system of which racism is a cornerstone.

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