Poynder, Nick --- "Racial Vilification Legislation" [1994] AboriginalLawB 57; (1994) 3(71) Aboriginal Law Bulletin 4
Racial Vilification Legislation
by Nick Poynder
Aboriginal groups have not been the most vocal supporters of racial vilification legislation. Thus far, there has been a muted response from Aboriginal leaders to the new Racial Hatred Bill 1994 (Cth), which was introduced into Parliament by the Attorney-General, Mr Lavarch, on 15 November 1994. Michael Mansell considers that the proposed legislation is probably, in theory, 'a good law, but agreed that Aboriginal people have been engaged in more important battles on other fronts, such as land rights and self-determination.[1] Aboriginal Social Justice Commissioner Mick Dodson has said that he is yet to be persuaded about the need for racial vilification legislation, although just prior to the new legislation he was 'that far' from being persuaded.[2] And ATSIC Chairperson Lois O'Donoghue supports the legislation but has called for more education of the Australian public.[3]
Racial vilification of Aboriginal people
There is ample evidence to suggest that racial vilification against Aboriginal people is endemic in Australia. In the period 1975-82, the Federal Human Rights Commission recorded 1193 complaints of racist statements from 72 different national groups. Of these, by far the highest number (24%, or 284 complaints) were from Aborigines.[4]
In 1992, a Committee to advise the AttorneyGeneral on racial vilification in Victoria identified people of Aboriginal background as one of the main targets of vilification.[5]
The picture is similar in NSW, where in 1993-94 racial vilification complaints made up 13% of the complaints from Aboriginal people to the Anti-Discrimination Board.[6]
Two major problem areas for Aboriginal people have been the police and the media.
In 1991, the National Inquiry into Racist Violence (NIRV) found overwhelming evidence of violence by police officers against Aboriginal people, and racist verbal abuse in particular was raised as a problem. The Report of NIRV found that complaints about constant verbal abuse by police officers were made in nearly all Aboriginal community consultations undertaken in Western Australia, with extensive evidence of the same type from other States. Fully 81% of 171 Aboriginal juveniles interviewed in NSW, WA and Qld complained of racist abuse, and racist abuse of Aboriginal women was often aggravated by grossly sexist insults.[7]
These findings were confirmed by the Royal Commission Into Aboriginal Deaths In Custody (RCIADIC), which in 1991 reported that:
... within the systemic discrimination that Aboriginal people receive from the police, language is one of the forms of violence that has most impact on relations between the two.[8]
In addition to a general recommendation in favour of racial vilification legislation (Rec213), the RCIADIC went on to recommend that the police force take all steps to eliminate verbal abuse of Aboriginal people or the use of racist or offensive language by police officers aRec.60).
During NIRV, Aboriginal groups described the media as their 'number one enemy'[9] and in 1993-94, the media was by far the largest category of offender in NSW, being the subject of 49% of racial vilification complaints to the Anti-Discrimination Board.[10]
The effect of racist media comment about Aboriginal people was cited by the Victorian Committee in a study of Aboriginal employment in the Mildura/Sunraysia area which found that negative stereotypes of Aboriginal people manifested in comments made by employers to the CES and by some local news media contributed to a prejudiced belief that Aboriginal people are inferior to white Australians.[11]
Predictably, the media has been the most vocal critic of racial vilification legislation, citing restrictions on freedom of speech as its major concem.[12]
Yet the currently availabe controls have proved to be of little value in restricting the type of racist comment which regularly appears in the media. There is no express prohibition of racially offensive material in the Broadcasting Act 1942 (Cth), and whilst the Australian Broadcasting Tribunal (ABT) lays down broadcasting standards for radio and television which include prohibitions against racial vilification, the ABT has never exercised its powers to cancel or refuse to renew a licence for breach of these standards.[13] The print media is even less regulated, being bound only by voluntary compliance with guidelines set down by the Australian Press Council.
The failure of regulatory mechanisms to inhibit racist comments in the media led the Australian Law Reform Commission, in its 1991 report, Multiculturalism and the Law, to conclude that self regulation was an insufficient safeguard, and it recommended that:
... the legislation regulating broadcasting should include a provision prohibiting the broadcast of material that is likely to incite hatred or hostility against, or gratuitously vilify, any person or group on the basis of, at least, colour, race, religion or national or ethnic origin.[14]
The content of the new bill
The Racial Hatred Bill 1994 (Cth) is very different to its predecessor, the Racial Discrimination Amendment Bill 1992, which was introduced into Parliament in December 1992, left to he over the summer recess "... to allow for the widest possible public comment and discussion on the proposals ...'.[15] but allowed to lapse when the House of Representatives was dissolved for elections in March 1993.
The final form of the Racial Hatred Bill 1994 is largely the result of an extensive redrafting which was apparently designed to maximise the divisions between Liberal moderates and conservatives,[16] and allay Cabinet fears that wide restrictions could be struck down as unconstitutional as a result of recent High Court decisions which have placed a heavy emphasis on the principle of free speech.[17]
The 1994 bill is split into two parts. The first contains three new offences under the Crimes Act 1914 (Cth): threatening to cause physical harm because of race cl.4, proposed s58 of the crimes Act); threatening to destroy or damage property because of race (cl.4, proposed s59); and inciting racial hatred (cl.4, proposed s60(1)). The latter provision states:
A person must not, with the intention of inciting racial hatred against another person or a group of people, do an act, otherwise than in private, if the act:
(a) is reasonably likely, in all the circumstances, to incite racial hatred against the other person or group of people; and
(b) 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.
The second part provides a civil remedy under the Racial Discrimination Act 1975 (Cth) (the RDA), declaring that:
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. (cl.6, proposed s18C of the RDA.)
The bill also contains provisions declaring that race need not be the dominant reason for doing an act, as long as it was at least a 'substantial reason' (in relation to the criminal provisions) (d.4, proposed s57 of the Crimes Act) or 'one of the reasons' (in relation to the civil provision) (cl.6, proposed sl8B of the RDA), and it defines when acts are not done in private and would therefore attract the legislation (a.4, proposed s60(2) of the Crimes Act; c1.6, proposed sl8C of the RDA). The bill also provides exemptions from civil liability on the grounds of artistic performances, academic and scientific reporting, and fair reporting or fair comment in the public interest, but extends the latter to include:
... making or publishing:
(i) a fair and accurate report of any event or matter of public interest; or
(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment. (cl.6, proposed s18D(c) of the RDA.)
The declaration of unlawfulness under the civil remedy provides a victim with access to the conciliation procedures of the Human Rights and Equal Opportunities Commission (HREOC) under the RDA, and ultimately referral to a Commissioner whose determination can be enforced by the Federal Court of Australia (s25ZAB of the RDA).[18]
At the time of writing, the fate of the 1994 bill is far from certain, with the Coalition vowing to oppose the bill and promising to produce a better one on its own.[19]
Points in favour of the bill
A major factor in favour of the new legislation is that the primary racial vilification mechanism (proposed s8C of the RDA) will provide a remedy which is out of the hands of the courts - which have so often proved to be a fruitless avenue for Aboriginal and Torres Strait Islander peoples - and vests it in HREOC, a specialist body with an excellent record in dealing with other aspects of racial discrimination.[20] There is little doubt that Aboriginal and Torres Strait Islander peoples see almost no point in attempting to make formal complaints about racist harassment by police offcers[21] and, with a lack of access to criminal sanctions,[22] the major weapon left to Aboriginal complainants of racial vilification is the conciliation mechanisms under the RDA.
In terms of changing wider community attitudes, whilst not possible overnight with legislation, it is fair to say that the vast majority of people are law-abiding, and:
The simple fact that an act is known to be unlawful will dissuade most citizens from performing that act unless they have a strong economic or personal interest in so doing. Laws can also change attitudes over time and it is not necessarily the case that an overall attitudinal change has to precede a change in the law. Indeed often when the major proportion of the population accepts that a particular behaviour ... is not acceptable, a law restraining the practice will then be highly effective in convincing the remainder of the population to conform to the new social standard.[23]
This tendency of laws to educate can be expected to be particularly significant in the case of public officials such as members of the police force, whose employment is dependent upon their observance of the law [24] Thus, 'whilst it would be naive to expect all police officers to fully observe the law at all times, it is likely that the introduction of racial vilification legislation may contribute to an improvement in police behaviour toward Aboriginal people.
Points against the bill
One potential problem for Aboriginal people with racial vilification legislation is that it could be turned against them. As Frank Brennan has suggested in relation to the Mabo debate:
For every mining magnate who claimed that Aborigines were stone-age people with uncivilised ways there was an Aboriginal leader alleging that white members of the Liberal Party were like members of the Ku Klux Klan crusading for blood.[25]
Whilst the US author Mari Matsuda advocates that hate speech by 'subordinated-group members' against 'dominant-group members' should be allowable 'because the attack is not tied to the perpetuation of racist vertical relationships ...',[26] in the world of practical politics this recommendation is unlikely to receive much sympathy.
However, by far the biggest problem with the new legislation is with the exemption provisions, which have been drawn widely with an eye to the High Court's pronouncements on freedom of speech.
Whilst the Explanatory Memorandum to the new bill has stated that "... the onus ... rests on the respondent to show, on the balance of probabilities, that his or her action falls within one of the exemptions in section 18D", in practice the exemption contained in subparagraph (ii) in particular is so wide as to be almost meaningless. The Explanatory Memorandum makes the extraordinary claim that:
It is not the intention of [the racial vilification] provision to prohibit a person from stating in public what may be considered generally to be an extreme view, so long as the person making the statement does so reasonably and in good faith and genuinely believes in what he or she is saying.
The width of the exemption provisions do little to address Aboriginal concerns with the media, and leave open the possibility of media organisations free to pander to racist feelings in the community. Given this comparatively privileged position, the community in turn is entitled to expect the media to justify this exclusion from the obligations imposed on the conduct of ordinary citizens,[27] and if the media cannot improve their performance in relation to racial issues, there will be strong reasons to advocate removal or at least restriction of their exemptions, and take the chance of a High Court challenge.
Conclusion
No-one could reasonably argue that two hundred years of injustice are about to be swept aside by the new racial vilification laws. Given the odious history of the treatment of indigenous peoples by successive Australian governments, there will be an obvious problem to convince an understandably skeptical Aboriginal population that there is in fact something for them in the new racial vilification provisions. Ultimately, however, despite the flaws in the 1994 bill, the Australian Government is at least to be commended in its considered and principled attempt to control racist speech with this legislation, which has the potential to take its place amongst the many weapons in an armoury currently being developed to assist Aboriginal people to seek justice in this country.
[1] Conversation with the author, 31 October 1994.
[2] Address to UNSW Masters Course, 6 October 1994.
[3]“ Courts to define scope of race hate law", The Australian, 2 November 1994, p3.
[4] Human Rights Commission, Report No.7: Proposal for Amendments to the Racial Discrimination Ad to cover Incitement to Racialhatred and Racial Defamation, ALPS, Canberra, November 1983.
[5] Racial Vilification in Victoria: Report of the Committee to Advise the Attorney-General on Racial Vilification, AttorneyGeneral's Department, Melbourne, March 1992, ppll-12.
[6] Anti-Discrimination Board of NSW, Annual Report, 199394, ADB, Sydney, 1994, pp22 and 33.
[7] HREOC, Report of the National Iruiu ry into Racist Violence in Australia, AGPS, Canberra, 1991, p99 note 188.
[8] Elliot Johnston, Royal Commission Into Aboriginal Doahs In Custody: National Report, AGPS, Canberra, 1992, Vol.4, p71.
[9] Laster, K., "A Justified Omission? Racial Vilification Laws and the Media", (1989)14 Legal Service Bulletin 258.
[10] NSW Anti-Discrimination Board, op cil, p32.
[11] Racial Vilification in Victoria, op cit, p19.
[12]See, for instance, the comments by the Australian Press Council cited in Ch'ang, S., "Legislating Against Racism: Racial Vilification Laws in New South Wales", in Coliver, (ed) , Striking a Balance Hate Speech, Freedom of Expression and Non-Discrimination, Article 19: Essex, 1992,p100
[13] Australian Law Reform Commission (ALRC), Report No57: Multiculturalism and the Law, Alken Press, Smithfield, 1992, p142.
[14] ALRC, op cit.
[15]Duncan, P. (Parliamentary Secretary to the AttorneyGeneral), House of Representatives, Hansard, 16 December 1992, p3888.
[16]"New anti-racist laws aimed to divide Libs", Sunday Age, 11 September 1994, p3.
[17] Theophanous v the Herald and Weekly Times; Stephen v West Australian Newspapers, Unreported decision of the High Court of Australia, 12 October 1994. See "Court Extends Free Speech", The Australian, 13 October 1994, p1.
[18] Note, however, that this provision is currently under challenge in the High Court of Australia. Brandy v Commonwealth of Australian and Others, High Court, 4 October 1994, decision reserved. See "Court appeal may void discrimination rulings", Sydney Morning Herald, 4 October 1994, p1.
[19]Seccombe, M., 'Sticks and Stones: Michael Lararch finds a way to make WORDS hurt", Sydney Morning Herald, 12 November 1994.
[20] See comment by Goldberg, A., in "Criminal or Civil Sanctions? Legislating to Proscribe Incitement to Racial Hatred", Wit our Prejudice No.1, September 1990, p27 at p30.
[21] See, for example, HREOC, op it, at pp109-110 and 211
[22] Despite the existence of criminal sanctions under s2OD of the NSW Anti-Discrimination Act 1977 and ss7680 of the WA Criminal Code, there have been no prosecutions in either State.
[23] Human Rights Commission, op cit, p13.
[24] Ibid, p13.
[25] Brennan, F., "Thought Police and Racial Vilification", Eureka Street, Vol.4, No.6, August 1994, p5.
[26] Matsuda, Mari J., "Public Response to Racist Speech: Considering the Victim's Story", (1989) 87 Michigan Law Review 2321, p2361
[27] Laster, K., op cit.