| by Dr. Lionel Bopage

Following article based on the submission made by the author before the Human Rights Policy Branch of the Attorney-General's Department, in Australia.

( April 30, 2014, Sydney, Sri Lanka Guardian) I am an Australian of Sri Lankan background and a proud Australian. I have examined the proposed amendments to the Racial Discrimination Act 1975 (the Act) of the Commonwealth. The Act was first enacted in 1975, and racial vilification was included in the Act, following recommendations made later in 1994. The legislative purpose of the Act was to offer opportunity of legislative protection to the most vulnerable members of the Australian society. The Act prohibits racial discrimination and provides the opportunity to victims of discriminatory practices to lodge a complaint with the Australian Human Rights Commission and seek redress. Section 18 C of the Act deems it unlawful to say or do something that is reasonably likely to “offend, insult, humiliate or intimidate” another person or a group of people because of their race, colour or national or ethnic origin. Nonetheless, the scope of application of Section 18C is made relative in that Section 18D of the Act postulates that something said or done “reasonably and in good faith” will not be unlawful. The Act has worked well and there has not been any controversy so far about the Act.

In a nutshell, the amendments proposed are: to retain the word “intimidate” and remove the words “offend, insult, humiliate”. The amendments intend to introduce a new provision against vilification, with a narrow scope defined to associate with causing fear of physical harm to persons or property. The proposed criterion for assessment whether an act is reasonably likely to be an act of vilification or intimidation “is to be determined by the standards of an ordinary reasonable member of the Australian community, not by the standards of any particular group within the Australian community”. The proposed amendment is also reinforced by a free speech exemption, which refers 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”.

My considered view is that the proposed amendments would lead to creating more racial tension within the Australian social fabric, breaking down the inclusive and harmonious nature of our social interaction. The free speech exemption in particular gets rid of the requirement for responsibility, accuracy and good faith, which should be characteristics of any free speech. This is an extraordinary allowance that may reach dangerous grounds.

The Act has played a critical role in managing and controlling racial hatred that exists in our society. I have both first hand and indirect experience regarding racial hatred and racial discrimination that exist in the wider Australian community and the covert manner in which it operates. In my day to day life, in the workplace, education and public life, and even as a consumer, I have personally encountered and experienced discrimination and racial hatred in the form of verbal abuse and vilification, simply due to my accent and skin colour. My personal experiences include bouts of overt verbal and physical attacks on public transport; covert and subtle comments and hostility in everyday interactions and conversations; and even being excluded, ignored and paid differential attention. As a community activist, I am personally aware of instances where migrant professionals from non-English speaking background were and are being subjected to racial hatred and discriminated against. In some such instances, the Act has helped in redressing the situation and protected them. As such, I believe that the Act in its current form has been effective in managing direct racial vilification and protecting individuals and communities from being subjected to racial hatred.

On the other hand, recent surveys appear to indicate that racism is on the increase at all levels: individual, institutional and political. As a member of the ACT Multicultural Council and the Multicultural Consultative Council of the Chief Minister, ACT, I have been aware of the increase in racist attitudes since mid-1990s, against students and immigrants in the Australian community. It is hard to understand the current reactive response against one judgement, when, despite many incidents reported to law enforcing agencies and judicial bodies, regarding the increasing trend of racial hatred, intimidation and attacks on students and immigrants from non-English speaking backgrounds, particularly from Asia, no action had ever been taken or thought of, to further strengthen the provisions of the Act.

I am seriously concerned about the future that will be generated by repealing Section 18C of the Act, which would result in diluting its strength. The amendments as proposed would certainly endanger the social peace Australia has so far maintained and engender divisiveness and conflict. In many other parts of the world, we have been witnessing how opening the flood gates of racism and chauvinism has destroyed whole societies. Sri Lanka, from where I originally came from provides a specific example regarding this situation. The opening of floodgates of racism and chauvinism six decades back led to the creation of a political conflict, which ended up in an armed conflict that took three decades to stop in mid-2009. However, even to date, the political conflict continues unabated. As Australians no one would be prepared to open up our society to such an eventuality; especially because of a single judgement made against a columnist for the comments made on light-skinned aboriginal people.

The proposed amendments will bolster racism and chauvinism. Such negative developments would not only affect the first inhabitants of this land, but also most segments of our society. To a certain extent, they have so far been protected by the provisions of the existing Act. Our society will become increasingly open to discrimination, exclusion and prejudice against people because of their gender, sexual orientation, race, colour, descent, linguistic, ethnic or national origin, social standing, age, marital status, special needs, pregnancy etc. This will be a recipe for future disasters.

Discrimination will continue to exist, but we need to endeavour to ensure that the rights of all people and communities are respected. Unless we work towards creating a culture that recognises diversity as an asset and respects and values the differences among people, full participation in our society would not be possible. With the proposed dilution of the Act, full participation in society will be much harder. The Act needs improvement enabling it to effectively tackle persistent discrimination, without placing an unnecessarily high burden in terms of legal costs on a victim of discriminatory practices. To pursue a discrimination claim through the complex judicial procedures is extremely costly. As most racial discrimination incidents are settled in private, these incidents continue to remain away from the public scrutiny. Possible improvements to procedural aspects may include ensuring victims receive appropriate services and support, so that they can pursue their claims against the perpetrators.

The proposed amendments to the Act would adversely impact the lives of many people and communities. They would subject many in our community to mental distress, and a poorer quality of life, and ultimately lead to an unhealthy society. With the other changes intended to be proposed by the government, this would mean more people may, due to fear of discrimination itself, evade accessing health and community services required to alleviate the negative outcomes brought on as a result of the proposed amendments. The impending danger is that the proposed dilution could easily pave the way for a society full of social, political, economic and cultural conflicts. Though the Act has been effective in eradicating occurrences of blatant discrimination, there is a case for improvement and reinforcement of the legislation. Hence, rather than diluting the Act with these proposed amendments, all endeavours should be made to further strengthen the provisions of the Act.

I hereby record my strong opposition to the proposed amendments to the Racial Discrimination Act 1975 of the Commonwealth.

  •  For example, the recommendations of the Royal Commission into Aboriginal Deaths in Custody
  •  For example, refer Marcus A. 2013, mapping social cohesion: the Scanlon foundation surveys national report, Monash University, Victoria, viewed 25 April 2014, www.scanlonfoundation.org.au/docs/2013_SocC_report_final.pdf