Free speech law will affect SBS

Last month the Attorney General, Senator George Brandis, QC, said, “People do have a right to be bigots you know. In a free country people do have rights to say things that other people find offensive or insulting or bigoted.” He was defending the Abbott Government’s proposed repeal of section 18C of the Racial Discrimination Act 1975 in the Freedom of Speech Bill 2014.

Section 18C currently makes it “unlawful for a person to . . . offend, insult, humiliate or intimidate another person or a group of people . . . because of the race, colour or national or ethnic origin”, except in private. The government wants to remove these provisions saying ‘they unreasonably limit free speech.’

However the Chair of the Federation of Ethnic Communities’ Councils of Australia (FECCA), Joe Caputo, said,

Offend, insult and humiliate would be replaced with “vilify” complemented by “intimidate”, both defined very narrowly. The changes would introduce a community test to assess whether an act would constitute vilification or intimidation. Apart from lacking definitional clarity, the test in itself is discriminatory as it implies that a particular group within the Australian community is somehow unequal to ordinary reasonable members of the Australian community.

On 20 March, FECCA issued a statement that said,

FECCA is deeply concerned by the Federal Government’s mooted changes to the racial vilification protections in the Racial Discrimination Act.

Last December more than 150 leading community organisations wrote to the Attorney-General urging him not to repeal the racial vilification provisions.

An exposure draft of the changes show that section 18C would be repealed as well as 18B, 18D and 18E. They define the circumstances of an unlawful act when based on race, colour or national or ethnic origin when offending, insulting, humiliating or intimidating – subject to exemptions of academic, artistic or scientific purpose and matters in the public interest or if a fair and accurate report or fair comment is made as an expression of a genuine belief held by the person making the comment. Under the draft, these would be repealed but it would be illegal to vilify or intimidate a person due to their race, colour or ethnicity, however the test for that would be based on “the standards of an ordinary reasonable member of the Australian community, not by the standards of any particular group within the Australian community.”

A person who was the subject of racially offensive insults in public, for example on a bus, would not be protected under the proposed changes in law, and if intimidated, they would need to demonstrate cause for fear of physical harm. If the victim felt vilified, feelings alone would be irrelevant. It would need to be established that the insults incited hatred against the person – according to ordinary members of the public – not the distressed victim. Sympathy from onlookers on the bus, may be regarded as evidence that hatred had not occurred.

The exposure draft reveals it would not be unlawful to intimidate or vilify anyone due 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.”

Such broad exclusions would seem to have great relevance to most broadcasters, but SBS in particular, where it might be possible for someone from one ethnic community to incite prejudice against another without recrimination. Potentially SBS may not legally be able to have policies in place to prevent this.

As a loyal supporter of the nation’s multiethnic broadcaster with its rightful policy of social cohesion – SBS – Save Our SBS concurs with that expressed by FECCA, being-

strong opposition to weakening the provisions that are critical in eliminating intolerance in Australia’s culturally diverse society through effective protections of vulnerable groups.

The government has invited public submissions from stakeholders to the proposed changes to the Racial Discrimination Act. The closing date for submissions is 30 April, emailed to

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