Reworked Racial Discrimination Act takes away the meaning

The Human Rights Commission is an interesting microcosm through which to understand the debate over amendments to the Racial Discrimination Act.

One commissioner, Tim Soutphommasane, is a staunch defender of the act in its current form. He argues that it writes into law the cohesion on which Australian society depends.

Another, Tim Wilson, maintains the views held by his former employer, the Institute of Public Affairs, and supports the repeal of section 18C. The right-wing think tank where Wilson worked was one of the key supporters of columnist Andrew Bolt when he was martyred by the Racial Discrimination Act over his abuse of fair-skinned Aborigines.

“These issues aren’t just about Andrew Bolt, they’re about a principle that we universally share,” Wilson has said on the matter. “We need an open contest of ideas, we need free speech. The only way to challenge and tackle offensive speech is to have more speech and for people to openly mock and ridicule things that people say they find offensive.”

On Tuesday, after a board meeting, the commission published a unanimous communication on the exposure draft released earlier that day by Attorney-General George Brandis.

The communication noted Brandis’s concern for free speech, while at the same time raising concerns over the narrowness of definitions and the broad range of exemptions in the draft. Its sense of equilibrium is welcome in what has become a polarising debate. “Finding a balance between these important issues is challenging and appropriately a matter for community debate,” it said.

Brandis’s exposure draft runs to a single A4 page. It suggests the repeal of section 18C, which makes it unlawful to “offend, insult, humiliate or intimidate” a person on the basis of race. It also suggests the repeal of sections 18B, 18D and 18E of the act. These sections would be replaced by legislation that makes it unlawful to vilify or intimidate a person on the basis of race. Offence and humiliation would no longer be covered by the act. But the definition of vilify is alarmingly narrow: “to incite hatred”. Intimidation, under the act, would mean to “cause fear of physical harm” – ignoring other harms intimidation could rightly create.

The exemptions, once balanced under section 18D to allow for debate in good faith, now extend to ‘‘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”.

It is hard, in all this, to know to whom the act applies. Perhaps Brandis was not jesting this week when he said, “People do have the right to be bigots.”

The other right, the right not to be offended, always sat uneasily. It seemed too broad a term, and one moderated effectively by defamation laws. Outlawing a loathsome opinion, as Wilson has argued, is not necessarily the best way of combating it.

But the response proposed by the Abbott government is too broad again. In clarifying the act, they have made it near useless. In trimming away at freedom from offence, they have lopped off sensible definitions of intimidation.

The balance is more nuanced than perhaps either side of the debate will allow, and this exposure draft does nothing to help that.

This article was first published in the print edition of The Saturday Paper on Mar 29, 2014 as "Reworked act takes away the meaning".

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