Submission – Racial Discrimination Act

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Human Rights Policy Branch
Attorney-General’s Department
3–5 National Circuit

By email:

Dear Sir/Madam

RE: Freedom of speech (repeal of s.18C) Bill 2014 – Exposure draft

The Lesbian Gay Bisexual Trans Intersex Legal Service was incorporated in 2009 after a need was identified within the LGBTI community for a specialised community legal service. The service seeks to assist Queensland LGBTI communities to gain access to justice through the provision of legal and social welfare services.

Since opening, we have provided over 350 instances of legal advice and assistance to members of the LGBTI community. We have 40 volunteers maintaining the service. Our service is a recognised and accredited community legal service. In addition to these submissions, we support the submissions of the Queensland Association of Independent Legal Services and the Anti Discrimination Commission Queensland.

We provide legal advice on various matters including discrimination and vilification. Vilification on the basis of sexuality is particularly damaging when combined with vilification on the basis of race. Accordingly, we believe that any reforms of the federal Racial Discrimination Act 1975 should achieve the objectives of strengthening protections against racism.

After consideration of the exposure draft, our concerns include that the proposed amendments require intimidation ‘to cause fear of physical harm.’ We are concerned that emotional and psychological damage is excluded from this definition and have seen first-hand that such damage causes lasting and significant effects.

The amendments also propose that whether an act is reasonably likely to be unlawful, will be judged by the standards of an ‘ordinary reasonable member of the Australian public, not by the standards of any particular group’.

The LGBTI is a group within the community which has historically not been supported by ‘ordinary, reasonable’ members of the Australian public. Although this is changing in contemporary times, it is of concern that the standard of lawful treatment is based on this standard, rather than the standard of the group that is affected. We believe this sets the bar too low.

We also support retention of s18E in order to ensure workplaces remain responsible for acts done where reasonable actions have not been taken to prevent the action.

We believe that the proposed exemptions in the exposure draft are too broad and instead support a provision similar to the Queensland equivalent, namely, section 124A (2) (c) of the Anti-Discrimination Act 1991 (Qld) which exempts acts done reasonably and in good faith. The Supreme Court of Queensland has noted that this exemption strikes an appropriate balance between the effects of section 124A and the implied right to freedom of free speech in the Constitution (Owen v Menzies [2013] 2 Qd R 327).

We believe that the existing provisions in the RDA provide an important protection and support retaining the existing section 18C.

Any amendments to the Racial Discrimination Act 1975 should achieve the objectives of strengthening protections against racism.

We thank you sincerely for taking the time to consider these submissions.

LGBTI Legal Service Inc