The NSW and Victorian Governments today announced they had lodged formal submissions opposing changes to the protections against racial vilification contained in the Federal Racial Discrimination Act 1975.
NSW Minister for Citizenship and Communities Victor Dominello and Victorian Minister for Multicultural Affairs and Citizenship Matthew Guy said:
“We consider it vital that the Commonwealth does not weaken protections in place against racial vilification.
“The proposed changes threaten the social cohesion and well-being of not just our states’ culturally and religiously diverse communities, but also the wider Australian community.
“We support the protections currently in place under the Federal Racial Discrimination Act and emphasise the practical and symbolic importance of these protections – particularly for our Aboriginal, multicultural and multi-faith communities.
“Successive NSW and Victorian Governments have worked hard to foster socially inclusive and cohesive communities.
“This is the basis for the Victorian Equal Opportunity Act 2010 and Racial and Religious Tolerance Act 2001 and the NSW Anti-Discrimination Act 1977.
“Unlike the Commonwealth laws, the NSW and Victorian statutes also include criminal prohibitions for serious racial vilification.
“Vilification on the grounds of race or religion is always wrong and we should never allow it to be sanctioned, whether intentionally or otherwise.”
The Federal Government’s Exposure Draft on the Freedom of Speech (Repeal of s.18C) Bill 2014 was released on 25 March and public submissions closed on Wednesday.
NSW Government’s submission
All Australians deserve strong protections against racial vilification. For reasons detailed below,
the NSW Government considers that the Commonwealth Government should not make the
proposed changes to the Racial Discrimination Act 1975 (Cth)(RDA) that are in the Freedom of
Speech (Repeal of s18C) Bill 2014 (Bill).
There is no place for racial vilification within Australian society and all Australians should be able to
live their lives free from the harm caused by the dissemination of racial prejudice.
The law has an important role to play in promoting racial tolerance. Effective laws to combat racial
vilification are essential in a democratic multicultural society such as Australia.
The NSW Government recognises the importance of preserving and protecting freedom of speech
as an essential component of a democracy. Freedom of speech, however, is not absolute. It has
been qualified by exceptions otherwise provided by law, including the law of defamation, contempt
of court, legislative provisions dealing with obscenity and Commonwealth and State legislation that
prohibit misleading and deceptive conduct in the course of trade. These qualifications ensure that
free speech is exercised responsibly.
Protection from racial vilification is another exception that qualifies freedom of speech.
The Commonwealth Government’s Bill proposes changes to the civil protection from racial
vilification in the RDA. The NSW Government is concerned that the proposed changes by the
Commonwealth in the Bill do not strike the right balance between freedom of speech and
protection from racial vilification.
There is an unacceptable risk that the Commonwealth’s proposed changes will sanction public
statements that incite racial hatred.
The impact of the Commonwealth’s proposed changes must be considered within the overall
framework of racial vilification and anti-racial discrimination law across Australia, including in the
States and Territories.
New South Wales is a diverse multicultural society. New South Wales has the highest number of
Aboriginal people of any State or Territory in Australia, with most living in major cities or regional
areas. People from around 200 birthplaces have made New South Wales their home. At least one
in five people in New South Wales speak a language other than English at home.
New South Wales has enacted strong civil and criminal laws to combat racial vilification. These are
contained in the Anti-Discrimination Act 1977 (NSW). The continued operation of laws like this will
be critical to protecting individuals from the harm of racial vilification and preventing incitement
The NSW Government notes that the Commonwealth Government is not proposing any changes
to the protections against racial discrimination provided in the RDA. The NSW Government
supports the retention of protections against racial discrimination.
The Commonwealth’s proposed changes remove the prohibition on public acts that “offend, insult,
humiliate or intimidate” on the basis of the race, colour or national or ethnic origin of a person or
group. Instead, the prohibition will only apply to public acts that “vilify” or “intimidate.”
The proposed definitions of vilify and intimidate, however, are significantly more confined than the
ordinary dictionary meaning of the terms, and overall, the proposed scope of the prohibition reflects
a substantial narrowing of the current civil prohibition contained in section 18C of the RDA.
Most importantly, under the changes proposed by the Commonwealth, statements which vilify or
intimidate a person or group on the basis of race would be permissible if those statements were
made in the course of a “public discussion of any political, social, cultural, religious, artistic,
academic or scientific matter.”
As a result, virtually any racially vilifying or intimidating remarks uttered in the course of public
discussion would be sanctioned. Notably, there is no requirement that the statements be made
reasonably and in good faith.
The narrowness of the protection that will be provided under the proposed Commonwealth
changes can be illustrated in relation to persons who deny that the Holocaust occurred in a manner
that involves racial vilification and the act is done unreasonably and in bad faith.
Enclosed is advice provided by Mr Arthur Moses SC who concludes that, under the proposed
Commonwealth laws, it would be permissible for Holocaust deniers to publish their opinions on
websites in the course of public discussion.
There is already significant overlap between existing Commonwealth, State and Territory racial
vilification and anti-discrimination laws. The Bill proposes to make no changes to section 18F of
the RDA which provides that the Commonwealth’s racial vilification laws is not intended to exclude
or limit the concurrent operation of any law of a State or Territory. The NSW Government supports
this position, but notes that it will not guarantee the continued validity of State and Territory laws. The NSW Government opposes the proposed changes to the RDA.2