There's A Hugely Broad Get-Out Clause In The Proposed Changes To Australia's Race Hate Laws

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Attorney-General George Brandis unveiled his proposed changes to the Racial Discrimination Act today. The section of the act that makes it an offence to “offend, insult, or humiliate” will be repealed, but it will remain an offence to “intimidate” a person on grounds of race or nationality.

There’s a new provision proposed that will make it an offence to “vilify”, or incite hatred, or intimidate someone or a group on the grounds of race. Brandis says these are “the strongest protections against racism that have ever appeared in any Commonwealth Act”.

The test of whether something is likely to vilify or intimidate someone will be “determined by the standards of an ordinary reasonable member of the Australian community, not by the standards of any particular group within the Australian community.”

In legislation that is intended to protect minorities, this is an important qualifier. Specifically, just because a group – say, an ethnic minority – regards a statement as vilification, it would also need to be seen as vilification to the “ordinary reasonable member of the Australian community”.

But then there’s a huge range of exceptions covered by the final paragraph, which reads:

“This section does not apply 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.”

This is much broader than the current exemptions under section 18D of the Racial Discrimination Act. It currently exempts anything in an artistic performance, any comment which is in “a fair and accurate report of any event or matter of public interest”, or is “a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief”.

The language requiring statements to be “fair an accurate” is gone, and the new section means the vilification clause cannot apply if the person involved can argue they were “participating in the public discussion” of various matters – and the list covers just about every conversation topic imaginable.

At heart here is a deep philosophical tug-of-war between those who believe the state should put no limits on how people express themselves, lest it restrict the free flow of ideas, and others who think laws can serve as an expression a country’s values – in this case, a rejection of prejudice against people on racial grounds – and actually make it an offence to not live within those rules.

There isn’t much ground for compromise between the opposing sides and this will be apparent in the debate over the weeks ahead.

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