Insulting People Due to Race: Should it be Legal?

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Malcolm Turnbull

Just months after ethnic minorities expressed relief about the government’s abandonment of plans to repeal section 18C of the Racial Discrimination Act, Communications Minister Malcolm Turnbull has now announced that he would support a ‘softer’ proposal that would no longer make it an offence to insult or offend a person based upon their race.

The announcement was made last on a recent episode of The Bolt Report, which is hosted by Daily Telegraph columnist Andrew Bolt.

Ironically, Bolt himself was behind a controversial campaign to amend section 18C last year, following a finding that he had breached racial discrimination laws by making derogatory comments about Aboriginal people.

Turnbull’s announcement may come as a surprise to some, as he is generally viewed as one of the more progressive Liberal politicians. And while a number of Liberal senators have already voiced their support for an amendment, segments of the public fear that it will simply open up another can of worms.

A Bit of Background

Section 18C of the Racial Discrimination Act has had a chequered past.

The section, which makes it an offence to ‘offend, insult, humiliate or intimidate’ someone because of their race or ethnicity, was introduced following the findings of the National Inquiry into Racist Violence and the Royal Commission into Aboriginal Deaths in Custody.

Since the introduction of section 18C, ethnic minorities have been afforded legal protection from racial vilification and discrimination.

While the law does not make racial vilification a criminal offence, it allows complaints to be lodged with the Australian Human Rights Commission, which has the power to resolve matters through alternative dispute resolution processes such as conciliation.

Alternatively, the current section 18C allows a person who has suffered racial discrimination to launch a civil case in the Federal court, which can award damages and other compensation.

Previous Attempts to Change the Law

Some of our previous blogs described last year’s proposals to repeal section 18C.

As discussed above, the move to repeal section 18C was orchestrated by commentator Andrew Bolt, who penned two articles in 2009 which alleged that light-skinned people who identified as Aboriginal did so for personal gain.

Following the publications, nine Aboriginal persons commenced a class action lawsuit in the Federal Court seeking an apology, costs and an order preventing the articles from being republished. This order was eventually granted.

On judgment day, Andrew Bolt contended that the outcome was ‘a terrible day for freedom of speech in this country.’

This sparked a movement to repeal the entirety of section 18C, led by Attorney-General George Brandis, who famously told parliament that people ‘have a right to be bigots,’ and that the section made it illegal to ‘hurt the feelings of others.’

Unfortunately for Brandis and Bolt, Prime Minister Tony Abbott eventually made a ‘leadership call’ to abandon the Bill in August last year, fearing that it could jeopardise ‘national unity.’

The New Proposal

Efforts to amend our racial discrimination laws have now resurfaced just months after the government announced its plans to protect section 18C.

Speaking on The Bolt Report, Turnbull suggested that ‘there is plenty of scope in the Act as it stands for there to be debate.’ He also said that in the wake of backlash against last year’s proposals, any future attempts to change the Act should be done ‘delicately.’

Turnbull also voiced his support for a proposal made by South Australian Family First Senator Bob Day to remove the words ‘insult’ and ‘offend’ from the current section 18C. This would mean that it is only an offence to ‘intimidate’ or ‘humiliate’ someone based on their race.

Dubbed the ‘Day Amendment,’ it is co-sponsored by Liberal senators Cory Bernadi and Dean Smith, as well as Liberal Democrat David Leyonhijelm – all of whom have called on the Prime Minister to revive the debate to change the Act.

Turnbull indicated that this proposal was ‘broadly supported across the board.’ Already around half a dozen Liberal senators have said that they are willing to ‘cross the floor’ to support the amendment.

The Possible Consequences

While some may believe that this ‘softer’ approach avoids some of the issues with the previous proposals, there is still a substantial risk that it could justify racial discrimination and abuse with potentially devastating consequences for the targets – especially when the racism comes from the mouths of highly influential people such as radio-show hosts and other media commentators, and from those in positions of powers such as police.

The National Inquiry into Racist Violence and the Royal Commission into Aboriginal Deaths in Custody found that racial discrimination and humiliation ‘can cause emotional and psychological harm to their targets, and reinforce other forms of discrimination and exclusion.’

Notably, they found that even ‘low-level behaviour can soften the environment for more severe acts of harassment, intimidation or violence by impliedly condoning such acts.’

And at a time where racial attacks on minority groups, particularly Muslims, including Muslim women are becoming more and more prevalent, one might argue that the need for protection against racial discrimination is paramount.

Furthermore, there is a serious concern that any erosion of racial discrimination laws could validate and even encourage racial discrimination against minority groups by law enforcement agencies.

Cases of racial discrimination by police are well documented. A 2008 study by the Australian Bureau of Statistics found that 11% of Aboriginal and Torres Strait Islander young people surveyed felt that they had been discriminated against by the police or criminal justice system in the last 12 months because of their racial background.

And in 2013, Melbourne police were accused of discriminating against African youth after they were found to have distributed racist stubby holders depicting a mudfish. ‘Mudfish’ is a derogatory term for Africans. On the other side of the stubby holder was the phrase ‘My date of birth is 01/01/?’ which references the experiences of Sudanese refugees who do not know their true date of birth, often due to warfare and other civil unrest in the region.

Several years previously, sixteen African youth sought compensation from Victorian police, alleging they were racially insulting African men and boys in Melbourne. Comments such as ‘Why do you come to this area, do you want to increase the numbers of black dogs around here?’ and ‘’Don’t act like a smartarse, we don’t want any of you black c—- around here,’ were allegedly made by police.

Those who support the proposed changes to the Racial Discrimination Act might do well to remember the words of Justice Bromberg, who oversaw the Bolt case:

‘At the core of multiculturalism is the idea that people may identify with and express their racial or ethnic heritage free of pressure not to do so.’

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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