Racial Discrimination Act  changes: will it affect you?

Analysis

Racial Discrimination Act changes: will it affect you?

What is the relevance of the proposed repeal of sections 18B, 18C, 18D and 18E of the Racial Discrimination Act to employers?

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Part 2 of a series of articles on proposed changes to the Racial Discrimination Act
 
What is the relevance of the proposed repeal of Sections 18B, 18C18D and 18E of the Racial Discrimination Act to employers? A previous article in this series discussed the act’s current provisions and the context in which the proposed changes have arisen.
 
This article examines the Exposure Draft that contains the new proposals and discusses what the proposed changes are and how they might affect employers.

The Government released the Exposure Draft in late March, and submissions commenting on its contents can be lodged up until 30 April 2014.

What’s in the Exposure Draft?

The draft proposes to repeal sections 18B, 18C, 18D and 18E and replace them with a single section that makes it unlawful to do an act “otherwise than in private” that is reasonably likely to "vilify or intimidate" another person or group of people, and the act is done because of the other person’s or people’s race, colour, national or ethnic origin.

Vilify is defined as inciting hatred against the other person or group. Intimidate means causing fear of physical harm to the person/people or to their property. 

Whether an act is reasonably likely to vilify or intimidate someone is to be determined “by the standards of a reasonable member of the Australian community”, not by the standards of any particular group within the Australian community.
 
For example, whether Aboriginal people had been vilified or intimidated would be determined not by whether members of that community believed they had been, but whether the overall Australian community judged that they had been.

The Attorney General has stated the current provisions “unreasonably inhibit free speech”, but that introducing the offence of vilification will strengthen the protections against racial discrimination — although racial vilification is already unlawful under separate state and territory legislation everywhere except in the Northern Territory.

Exclusions

Possibly the most controversial content of the draft is what the new provisions will specifically exclude. It will not apply 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”.

The above exclusion would clearly have applied in the case involving media commentator Andrew Bolt that appears to have been the catalyst for proposing changes to the act. This case, discussed in the previous article in this series, would presumably come within the scope of “public discussion” and its subject matter was “political” and “cultural”.

The current s18C covers situations where words, sounds, images or writing are communicated to the public, or the act is done in a public place or within the sight or hearing of people in a public place.

Changes from current provisions

The current s18C makes it unlawful to “offend, insult, humiliate or intimidate” another person or group of people. So “offend”, “insult” and “humiliate” would no longer apply and will be replaced by the more serious conduct threshold of “vilify”.
 
It would appear that someone will be able to insult or offend someone else based on the other person’s race, but if a “reasonable member of the Australian community” would not regard that conduct as serious enough to be vilification, the provisions in the Exposure Draft will not be breached.

Section 18B provides that the person’s race, etc. need only be one of the reasons (not the only one) for doing the act. While it is proposed to repeal this section, there is a similar general provision in s18 of the act that will remain.
 
Although the latter relates to a different part of the act (the part covering prohibition of racial discrimination generally), the practical effect is likely to be no change in this respect.

The current exemptions provided by s18D will also be repealed. These include exemptions from s18C if the person was making a fair and accurate report of any event or matter of public interest, or a fair comment on such an event or matter if the comment expressed a “genuine belief” held by the person who made it. 

There is also an exemption from s18C if the act is done “reasonably and in good faith”. It would therefore appear that, provided they do not “vilify” the other person/people (as defined above), statements do not have to be “fair and accurate”, nor do acts have to be done “reasonably and in good faith” to be excluded from coverage by the new proposals. 

However, such actions may run foul of other laws such as those relating to defamation, advertising standards, etc — and if they occur in the course of employment, they may be unlawful under other provisions of anti-discrimination legislation, depending on their context. 

Are workplaces covered?

The draft refers to acts being done “otherwise than in private”. This continues the definition used in the current s18C and s18D. As discussed in the previous article, the Australian Human Rights Commission has indicated that the scope of a public place (logically the opposite of “in private”) is intended to include workplaces, so it can be argued the new provisions are intended to cover workplaces as well.

However, it remains to be seen whether a verbal, written or online exchange at a workplace involving a person’s race, etc would come within the scope of a “public discussion” as noted above, and thus be excluded from the new provisions.

Other anti-discrimination provisions still apply

Regardless of the eventual fate of the Exposure Draft, all workplaces and employers will remain covered by various other provisions of the Racial Discrimination Act and other anti-discrimination laws. The draft seeks to repeal four sections of the Racial Discrimination Act, but does not amend any of its other provisions.

Note that all states and the Australian Capital Territory have their own legislation making racial vilification, hatred or harassment unlawful, and compliance with those laws is still required. Unlike the federal legislation, some of these provisions have criminal sanctions for breaches.

Mistreatment of an employee for a reason that included his/her race, etc would amount to unlawful discrimination in employment on the ground of race, but would be dealt with under other sections of the Racial Discrimination Act.
 
Anti-bullying and anti-harassment provisions also apply to employment situations, and will continue to do so.

For the above reason, the changes proposed by the Exposure Draft will have few implications for employers. The need to comply with other legislation will continue, as will the requirements to have policies and practices that seek to prevent unlawful discrimination, harassment or bullying, and to proactively address matters if they occur. 

Even if an incident occurred and the provisions of the Exposure Draft did not make it unlawful, the potential remains for adverse publicity to damage the employer’s reputation and image, and for costs to increase via increased employee turnover, loss of productivity, etc.
 
 


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