On 25 March 2014 Attorney-General George Brandis QC released an exposure draft of changes to the Racial Discrimination Act. The stated motivation was to enhance protection for freedom of speech, but the changes are broadly regarded as being a response to the Andrew Bolt litigation. The Secular Party of Australia is a strong supporter of free speech, and agrees with some aspects of the proposed legislation, but finds it unacceptable that it allows exemptions for anyone contributing to ‘political, social, cultural, religious, academic or scientific’ pursuits. These exemptions are so broad that they effectively emasculate the Racial Discrimination Act.

The Secular Party proposes two modifications to the draft legislation. Firstly, the criteria specifying what is illegal should be strengthened by including the concept of intent. Specifically, it is unlawful to do an act that is intended and reasonably likely to vilify or intimidate another person or group of persons. Secondly, with this extra requirement for determining what is illegal, the clause giving exemptions for specific activities should be removed. In essence society expects that political, social, cultural, religious, artistic, academic or scientific pursuits lack the intent to vilify or intimidate, and if this were not the case they should be subject to prosecution under the Racial Discrimination Act.

The concept of intent is well established in law, and is routinely used by courts to assess culpability for offences. The inclusion of intent also protects minors or people with diminished responsibility. Such individuals may not be aware of the potential for their words or actions to vilify or intimidate, and should not be held accountable for them.

May 19, 2014