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Hobby Forum Index » Arts - Books - Reviews » Book Review - Regulating Racism (in Australia)
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| Danny Yee |
 Posted: Mon Aug 11, 2003 2:31 am |
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Regulating Racism
- Racial Vilification Laws in Australia
Luke NcNamara
Sydney Institute of Criminology 2002
337 pages, references, index
A book review by Danny Yee
http://dannyreviews.com/h/Regulating_Racism.html
In the last fifteen years, racial vilification laws have been passed in
Australia by the Commonwealth and most states. In _Regulating Racism_,
Luke McNamara begins with a brief introduction to racial vilification
and motivations for its regulation: multiculturalism, international
obligations, specific local events, and its direct and indirect harms.
He then looks in turn at the Federal, New South Wales, Western Australian,
and South Australian laws, covering the events and debates that shaped
them and the details of their operation, rather than focusing narrowly on
legal issues. Central themes are the effects of free speech concerns and
the different models for legislation.
At the Commonwealth level, anti-vilification clauses were pulled from the
1974 Racial Discrimination Act (RDA), following Coalition opposition in
the Senate. When legislation was revived in the 1990s, opposition from
Coalition and Green senators, again on freedom of speech grounds, saw
criminal provisions removed. In the end the Racial Hatred Act 1995 set up
a civil rights-based complaints driven system, making unlawful, "otherwise
than in private", acts "reasonably likely, in all the circumstances, to
offend, insult or intimidate another person or group of people", if done
"because of" their "race, colour or national or ethnic origin" -- with
exemptions for actions done "reasonably and in good faith", artistic,
scientific, etc. works, "fair comment" on matters of public interest.
Complaints under the RDA are handled by the Human Rights and Equal
Opportunity Commission (HREOC), through a process involving confidential
conciliation, adjudication, and as a last resort the court system.
McNamara presents statistics of the 618 complaints lodged to 2001
and brief accounts of the 25 that resulted in HREOC public inquiries
or Federal court cases. These addressed issues such as constitutional
validity, standing to lodge a complaint, the public/private distinction,
the harm threshold (and "reasonable likeliness"), the "because of"
requirement, and the breadth of the exemptions.
New South Wales passed the first anti-vilification legislation in
Australia, in the form of the 1989 Racial Vilification Amendment Act
(RVAA), modifying the Anti-Discrimination Act 1977. Section 20C declares:
"It is unlawful for a person, by a public act, to incite hatred
towards, serious contempt for, or severe ridicule of, a person
or group of persons on the ground of the race of the person or
members of the group."
This sets a higher harm threshold than the Commonwealth law, with a
requirement for "incitement". Again, there are a series of defenses;
the trigger is a complaint to the Anti-Discrimination Board. The RVAA
also created, in Section 20D, a criminal offense of "serious racial
vilification".
The first of the anti-vilification laws in Australia, the RVAA has
the longest history: as a snapshot of that, McNamara analyses the 165
complaints finalised between 1993 and 1995. The most prominent feature is
the low success rate, with nearly 80% of complaints declined, withdrawn,
or not pursued. Thirteen cases had resulted in tribunal decisions by
2001, with similar issues arising as with the Commonwealth legislation.
McNamara also looks at reports into the operation of the RVAA in 1992
(the Samios report) and 1999 (the NSW Law Reform Commission).
The West Australian legislation came in response to a racist campaign
by the Australian Nationalist Movement. It is unique in criminalising
racial vilification generally, not just a narrower "aggravated" category.
There have as yet been no cases -- and comparison with a similar Canadian
law suggests the barrier to criminal prosecution is too high.
In South Australia legislation had bipartisan support, with disagreements
only about its form: the results were criminal sanctions for aggravated
cases and the creation of a new statutory tort, allowing civil actions
through the ordinary court system. Neither of these have been used yet,
with South Australians instead lodging complaints with HREOC under the
Commonwealth legislation -- and comparison with a similar tort approach
by the Canadian provinces of Manitoba and British Columbia highlights
its weaknesses.
One of McNamara's central interests is the free speech issue. He does
not focus on the central debate here, let alone take sides in it, but
rather looks at the way it has influenced legislation, resulting in
narrowed or weakened laws, and tribunal and court decisions (though no
racial vilification statute has yet faced court challenge). Rhetoric has
dominated:
"Just as the absence of an agreed definition of free speech
under Australian law has allowed some opponents of legislative
regulation to draw on a very broad or absolutist conception of
free speech, so too can the lack of definition be 'manipulated'
by proponents of legislative regulation who ... define free speech
in narrow or restricted [terms] so as to marginalise free speech
concerns on the basis that the proposed regulatory system will
have no impact on this (narrowly defined) sub-set of expressions."
And McNamara suggests that constitutional or statutory recognition of
free speech in Australia might actually assist regulation of racial
vilification, by defining with a greater degree of precision the
constraints on such regulation.
On the options for enforcement procedures, McNamara concludes that
criminal laws are mostly symbolic, that statutory torts are unlikely
to be widely used, and that the civil human rights approach involving
complaints to an agency is most effective. There are however, flaws in
the systems that exist in Australia, including an inappropriate emphasis
on conciliation, a failure to achieve public education goals through
open proceedings, and unnecessary complexity and other barriers to access.
--
%T Regulating Racism
%S Racial Vilification Laws in Australia
%A McNamara, Luke
%I Sydney Institute of Criminology
%C Sydney
%D 2002
%O paperback, references, bibliography, index
%G ISBN 1-86487-467-8
%P iv,337pp
%U http://www.law.usyd.edu.au/~criminology/publicat/monogra/Mono16.htm
%K civil liberties, law, Australia
6 August 2003
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Copyright (c) 2003 Danny Yee http://danny.oz.au/
Danny Yee's Book Reviews http://dannyreviews.com/
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