SHADOW attorney-general Mark Dreyfus has lashed out at the country’s top lawmaker George Brandis, describing as “extraordinary” a proposal to make inciting racial hatred a criminal offence as a proxy for Section 18C of the Racial Discrimination Act, which the government appears set to water down.
Dreyfus told The AJN Brandis’ proposal to tweak Section 80.2A of the Commonwealth Criminal Code was recognition of the gaping hole a repeal of 18C – which outlaws speech or actions “reasonably likely … to offend, insult, humiliate or intimidate because of race, colour or national or ethnic origin” – would create, and accused his opposite number of failing to understand the distinction between civil protection and criminal offence.
“Criminal law is the strongest form of legal sanction we have as a society, and it’s extraordinary that Senator Brandis would express concerns about the effect of Section 18C on ‘free speech’ and ‘liberty’, only to mark out some of the conduct regulated by Section 18C as a new federal crime,” Dreyfus said.
“It appears that Senator Brandis doesn’t understand the distinction between civil protections and criminal offences. If he did he would not be suggesting that expanding the Criminal Code could be a substitute for Section 18C.”
In its current form, 80.2A outlaws violence against groups “distinguished by race, religion, nationality, national or ethnic origin or political opinion”, but not racial vilification, with Brandis describing the section as “probably too narrowly drawn”.
He told The AJN there were no plans to repeal 18C, only “that language which constitutes an unreasonable limitation on freedom of speech”.
“I have been very careful in my language because I am, of course, intensely conscious of the sensitivities of this issue. It is a shame that Mr Dreyfus has not been equally careful in his,” Brandis said.
“Neither the Prime Minister nor I have ever said we would ‘repeal Section 18C’.
“I have undertaken extensive consultations with community leaders, including such leading representatives of the Jewish community – Peter Wertheim, Mark Leibler, Colin Rubenstein and my good friend Joshua Frydenberg MP. Their constructive input into the discussion has been immensely valuable and has contributed significantly to my thinking.”
But Dreyfus, said Brandis, “should be consulting openly about his proposed changes, not just holding a few private meetings”.
Executive Council of Australian Jewry executive director Peter Wertheim said the amendments to 80.2A could be a positive step but that the measure should not replace 18C.
“With the exception of the Western Australian Criminal Code, state criminal laws against racial vilification are effectively unusable due to an overly stringent definition of the offence, which makes it virtually impossible to prosecute,” he said.