Thank you for the opportunity to comment on the Exposure Draft of the proposed amendments to the Racial Discrimination Act 1975 (Cth). My comments focus on the differences and similarities between the Commonwealth law and the ACT Discrimination Act 1991, which also prohibits racial vilification and racial discrimination.
I note that the Exposure Draft proposes to shift the Commonwealth protections to align more closely with the ACT protections. I wish to emphasise that I do not support such a move. In fact, I have consistently advocated that the ACT legislation should be amended to align with the current Commonwealth protections. Recent events in the ACT have highlighted the importance of having strong protections for racial minorities. I address these recent events below.
The ACT and Commonwealth each have legislation covering racial vilification and racial hatred respectively. Both laws implement Article 20(2) of the International Covenant on Civil and Political Rights which provides that:
‘any advocacy of national, racial or religious hatred which constitutes incitement to discrimination, hostility, or violence shall be prohibited by law’.
Both laws also implement Article 4(a) of the Convention on the Elimination of All Forms of Racial Discrimination which requires Member States to:
‘declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour of ethnic origin.’
While the proposed exposure draft Federal amendments would more closely align the definition of vilification at the Commonwealth level with the ACT definition, the very broad exceptions would render many alleged acts of racial vilification lawful.
In my view, current Federal racial hatred provisions have a legitimate and proportionate limitation of freedom of expression in order to protect the rights of all people to equality, including racial minorities. As the Human Rights and Discrimination Commissioner in one of only two Australian jurisdictions to have enshrined freedom of expression and the right to equality in legislation, I have a unique perspective on how such a balance should be struck.
Recent events in the ACT have reaffirmed my strong view that we must never underestimate the profound damage that racism, and racial hatred causes to individuals and society.
I believe that the amendments proposed in the Exposure Draft should not be adopted.