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2016
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
RACIAL DISCRIMINATION LAW AMENDMENT (FREE SPEECH) BILL 2016
EXPLANATORY MEMORANDUM
(Circulated by authority of Senators Leyonhjelm, Burston, Culleton, Day, Hanson, Hinch and
Roberts)
RACIAL DISCRIMINATION LAW AMENDMENT (FREE SPEECH) BILL
2016
OUTLINE
The Racial Discrimination Law Amendment (Free Speech) Bill 2016 repeals Part IIA of the
Racial Discrimination Act 1975 (the Act).
Part IIA -- inserted into the Act in 1995 -- is nominally concerned with the 'Prohibition of
Offensive Behaviour based on Racial Hatred'. However, its provisions make no mention of
racial hatred, and accordingly the courts have not interpreted the provisions as relating
specifically to racial hatred.
Instead, the provisions of Part IIA outlaw public acts that:
are reasonably likely, in all the circumstances, to offend, insult, humiliate or
intimidate another person or a group of people, and
are done, at least in part, because of the race, colour or national or ethnic origin of a
person.
The provisions of Part IIA include a defence for acts that are done reasonably and in good
faith and meet at least one of three other conditions. However, the courts have interpreted this
defence such that it provides protection only if the values of the Act are honoured
conscientiously, and sufficient care and diligence is taken to minimise offence and guard
against the reinforcement of racial prejudice.
A peer-reviewed article in an academic journal replete with qualifications, footnotes and
citations may benefit from such a narrowly-interpreted defence, but it is unlikely that a
newspaper column, blog post or comment on social media would.
The provisions of Part IIA discourage public discussion on matters of public importance.
This is particularly the case in light of the court's interpretation of the provisions to date, and
the inherent uncertainty as to how courts will interpret them in the future.
For instance, articles by Andrew Bolt discussing affirmative action policies were ruled
unlawful under Part IIA. The articles may well have been flawed and insensitive, but they
were not a manifestation of racial hatred, and the topic they addressed is a matter of public
importance. Outlawing publication of the articles discourages further public discussion of
affirmative action policies, including discussion carried out with greater sensitivity and less
error.
The repeal of the provisions of Part IIA will remove this discouragement of public discussion
on matters of public importance, such as affirmative action policies.
The repeal of Part IIA will also enable the Australian Human Rights Commission to focus
resources on its role with respect to the raison d'etre of the Act, namely Part II, concerning
the prohibition of racial discrimination.
Through the retention of Part II of the Act:
it will continue to be unlawful to do any act involving a distinction, exclusion,
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restriction or preference based on race, colour, descent or national or ethnic origin that
impairs the enjoyment of any human right or fundamental freedom;
there will continue to be specific prohibitions of racial discrimination with respect to
equality before the law, public access, accommodation, the provision of goods and
services, and employment; and
incitement to carry out such discrimination will remain prohibited.
The repeal of Part IIA may also facilitate cuts in funding for the Australian Human Rights
Commission, to the benefit of taxpayers.
With the repeal of Part IIA, a significant range of related law at the State and Territory level
would remain. Each State and Territory has enacted laws prohibiting racial vilification or
harassment. State and Territory laws also prohibit offensive behaviour and intimidation --
prohibitions that are not restricted to acts based on race, colour, national or ethnic origin.
An alternative proposal to simply remove 'insult' and 'offend' from the provisions of
Part IIA would be an improvement on the current law. However, the articles by Andrew Bolt
were considered to 'humiliate' as well as 'insult' and 'offend'. This indicates that the
retention of 'humiliate' in the Act would mean that those articles would still be outlawed, and
public discussion on matters of public importance would continue to be discouraged. Simply
removing 'insult' and 'offend' would also continue the duplication with State and Territory
law with respect to 'intimidation'. Further, it would not facilitate a refocussing of resources at
the Australian Human Rights Commission, or reductions in its funding.
NOTES ON CLAUSES
Clause 1: Short Title
1. This clause provides for the Act, when enacted, to be cited as the Racial
Discrimination Law Amendment (Free Speech) Bill 2016.
Clause 2: Commencement
2. This clause provides that the Bill commences on the day after the Bill receives the
Royal Assent.
Clause 3 - Schedules
4. Each Act specified in a Schedule to this Act is amended or repealed as is set out in the
applicable items in the Schedule. Any other item in a Schedule to this Act has effect
according to its terms.
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Schedule 1 -- Amendments
Part 1 - Repeal of Part IIA of the Racial Discrimination Act 1975
Racial Discrimination Act 1975
Item 1 - Part IIA
6. This item repeals Part IIA of the Racial Discrimination Act 1975.
Part 2 - Consequential Amendments
Australian Human Rights Commission Act 1986
Item 2 - Subsection 3(1) (paragraph (b) of the definition of unlawful discrimination)
7. This item removes a redundant reference to Part IIA from the definition of unlawful
discrimination in the Australian Human Rights Commission Act 1986.
Item 3 - Subsection 46PF(3)(note)
8. Section 18E of the Racial Discrimination Act 1975 is a provision of Part IIA. This
item removes a redundant reference to this section 18E in the note to subsection 46PF(3) of
the Australian Human Rights Commission Act 1986, which is a subsection concerned with
adding a respondent to a complaint.
Racial Discrimination Act 1975
Item 4 - Subsection 6A(2)
9. This item removes redundant references to Part IIA in subsection 6A(2) of the Racial
Discrimination Act 1975, which is a subsection that removes an entitlement to make a
complaint under the Australian Human Rights Commission Act 1986 in certain
circumstances.
Item 5 - Paragraph 20(d)
10. This item removes a redundant reference to Part IIA in paragraph 20(d) of the Racial
Discrimination Act 1975, which confers on the Australian Human Rights Commission a
function of preparing guidelines on how to avoid infringing the Racial Discrimination Act
1975.
Item 6 - Section 26
11. This item removes a redundant reference to Part IIA in section 26 of the Racial
Discrimination Act 1975, which notes that, in making something unlawful, the Act does not
make it an offence.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Racial Discrimination Law Amendment (Free Speech) Bill 2016
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
The Bill repeals Part IIA of the Racial Discrimination Act 1975 so that it no longer
discourages public discussion on matters of public importance, such as affirmative action
policies.
Human rights implications
The Bill engages the right to freedom of expression by removing a prohibition on certain
speech.
The right to freedom of expression is closely related to the rights of freedom of association,
assembly, thought, conscience, religion and participation in public affairs.
Conclusion
The Bill is compatible with human rights because it advances the protection of the right to
freedom of expression.
Senators Leyonhjelm, Burston, Culleton, Day, Hanson, Hinch and Roberts
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