The paper examines the legal implications of the four proposed changes to the Racial Discrimination Act 1975 suggested by the Attorney-General, Senator Brandis.
Executive summary
The paper examines the legal implications of changes to the Racial Discrimination Act 1975 (the RDA) suggested by the Attorney-General, Senator Brandis. It does not investigate the policy issues which have been the subject of general discussion, such as the impact of the changes on reconciliation, the proposed constitutional changes or the Close the Gap project, nor does it explore the relative benefits of ensuring more forms of free speech. These issues have been examined extensively elsewhere.
There are four changes made by Senator Brandis’ proposed amendments and these are examined in some depth. Of primary significance is the extension of the pre-existing ‘free-speech’ provision, which currently provides that relevant speech acts done ‘reasonably and in good faith’ are not regulated under the RDA. The proposed extension would protect a very much broader range of public speech, including speech which would incite racial hatred. To fall outside the proposed section’s regulation the communication must simply form part of the ‘public discussion’ in a very broad range of categories (including, for instance, discussion of a ‘political, social or cultural’ matter).
Next, there is the narrowed definition of vilification and intimidation. The requirement that intimidation involve a fear of physical violence would duplicate existing criminal law and tort law provisions. The forms of abuse that would be regulated under the proposed vilification provisions are limited. The examination of these provisions includes an exploration of the nature of race-based insults, which evoke or endorse a significant history of discrimination and prejudice—the difference between such insults and the ‘garden‑variety’ of insults which lack this racial patina is explored.
The other two changes are more technical, involving a change to the definition of who sets the standard of a ‘reasonable’ response to racial abuse—the proposed changes would require the judges to cease their current practice of taking race into account when determining what ‘reasonably’ constitutes a breach of the RDA. Finally there is a proposal to delete the section of the Act which recognises that, in determining whether an act is racially motivated, race may be established as simply one of a range of motivations. With this current provision deleted the new section would thus require race to be proved as a more central element of any breach of the Act’s racial vilification provisions.
The paper concludes with a brief examination of the interplay between defamation law and the regulation of speech under the RDA. Both are part of a variety of regulatory mechanisms governing speech acts, and both regulate speech which can cause damage, but their history, rationale and processes are different
