The current protections prohibit public conduct ‘reasonably likely to offend, insult, intimidate or humiliate’ people on the grounds of race. There are defences for genuine artistic, academic or scientific conduct and for fair reporting or fair comment in the public interest, provided the conduct is done reasonably and in good faith. Andrew Bolt couldn’t rely on these defences because, amongst other things, the court found his articles contained numerous errors and distortions of the truth.
Brandis’ proposed changes would radically alter the Federal racial vilification protections. The words offend, insult and humiliate would be removed. Vilify would be inserted but defined narrowly to mean ‘incite hatred’. Intimidate would be retained but defined narrowly to mean ‘cause fear of physical harm’.
The existing defences would be replaced with an extremely broad defence that would mean the narrowed laws would not apply to conduct ‘in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter’, whether or not it was done reasonably or in good faith.
Human rights advocates have argued that the proposed changes would effectively abolish Federal racial vilification protections. The conservative think tank, the Institute of Public Affairs, which is campaigning for the full repeal of the racial vilification protections, described Brandis’ proposal as a ‘magnificent example of how to repeal legislation without admitting you’re repealing legislation’.
The changes have been met with strong community opposition. A Fairfax-Nielsen poll in April showed 88 per cent of respondents believed that it should be unlawful to offend, insult or humiliate a person on the grounds of race. A range of Indigenous, ethnic, community and human rights organisations have spoken out against the changes. The NSW and Victorian governments, and some federal Liberal backbenchers, have opposed the changes. Over 5000 submissions were reportedly made to the consultation on the proposal, but the submissions have not been made public.
Brandis has said that he will consider the submissions and take a final recommendation to cabinet ‘in coming weeks’.
HUGH DE KRETSER is executive director of the Human Rights Law Centre, Melbourne.