6 December, 2016
18C Racial Discrimination Act complaint-handling procedure should be improved but no need to repeal or tamper with 18C.
Racial Discrimination Act 1975, section 18C is in news again, and is creating quite a bit of debate, discussion and disquiet in Australia.
In 2014, the debate on it became quite intense after Federal Attorney General, Senator George Brandis, said in the Senate that “People do have a right to be bigots, you know,” and “People have the right to say things that other people would find insulting, offensive or bigoted.”
After an uproar from various groups, the plan to repeal 18C was canned by The Abbott Government in 2015.
I wrote on this matter in 2014 and my submission to the Joint Parliamentary Committee on Human Rights is attached right at the bottom of this post.
There is a fresh campaign to repeal 18C now, particularly after the Queensland University of Technology (QUT) students’ case and Bill Leak’s cartoon in The Australian newspaper.
The Parliamentary Joint Committee on Human Rights has been tasked to inquire and report to Parliament on the matter specified in the Term of reference as below.
I must admit that I am not comfortable with either the QUT students’ case or Bill Leak’s Cartoon case. The former case was dismissed by the Federal Magistrate with a comment that it did not have merits (I agree with the conclusion) and the latter complaint has now been withdrawn by the complainant(s). I believe both cases had no real merit and should not have been initiated in the first instance.
This is where I believe, and agree with, the suggestions from Julian Leeser, an MP from the Coalition.
” Repealing s 18C of the Racial Discrimination Act would throw the baby out with the bath water”, Mr Leeser said. “The real problem is the process of the Australian Human Rights Commission which forces 18C complaints into an almost compulsory conciliation process, regardless of the merits of the complaint.”
Mr Leeser recommended that the Australian Human Rights Commission Act be amended so that the Commission must initially determine whether a complaint under 18C has little prospect of success. In the event that such a determination is made, the complaint would be terminated.
The complainant could have such a determination reviewed by the Federal Court on grounds limited to jurisdictional error only. The complainant would also need to provide security for costs before exercising their right to judicial review.
“Many of the cases which have drawn wide public discussion – the Bill Leak case and the QUT Students case – may have been more swiftly determined if the Commission had been able to terminate them on the basis that they had little prospect of success”, said Mr Leeser. “The new process I am proposing would lead to greater public confidence in the handling our racial discrimination laws and, at the same time, maintain Australia’s strong protections against racism.”
Let us see what exactly is section 18C and what is exempted from 18C (Section 18D).
RACIAL DISCRIMINATION ACT 1975 – SECT 18C:
Offensive behaviour because of race, colour or national or ethnic origin:
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
(2) For the purposes of subsection (1), an act is taken not to be done in private if it:
(a) causes words, sounds, images or writing to be communicated to the public; or
(b) is done in a public place; or
(c) is done in the sight or hearing of people who are in a public place.
(3) In this section:
“Public place” includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.
RACIAL DISCRIMINATION ACT 1975 – SECT 18D:
Exemptions: Section 18C does not render unlawful anything said or done reasonably and in good faith:
(a) in the performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
(c) in making or publishing:
(i) a fair and accurate report of any event or matter of public interest; or
(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.
In summary, Section 18C of the Act makes it unlawful for anyone to do an act that is reasonably likely to “offend, insult, humiliate or intimidate” anyone because of their race colour or ethnicity. Section 18D of the Act outlines exemptions with the purpose of protecting freedom of speech. Thus, artistic works, scientific debate and fair comment on matters of public interest are exempt from section 18C, provided they are reasonable and are in good faith.
Freedom of speech vs Freedom from racial vilification:
Freedom of speech is important in a free society, but it must also be emphasized that people have a right to be free from racial vilification too.
Freedom of speech can, and is, never an absolute right. Laws applying to defamation, advertising and national security do restrict the right of freedom of speech.
Australian courts have repeatedly held that for conduct to be covered by section 18C, the conduct must involve “profound and serious” effects, not “mere slights”.
Having said that, Andrew Bolt, a conservative Journalist, was found to have breached Section 18C in regards to his article on fair-skinned Aborigines. It led to statements from Coalition leaders, promising before the 2013 Federal election to repeal section 18C of the Racial Discrimination Act “in its current form”.
Australia is a success story of multiculturalism, where almost half the population was either born overseas or has a parent who was born overseas.
This is in danger, if section 18C and 18D are tampered with, repealed or diluted.
With any change with 18C and 18D, the clear line between legitimate public debate and hate speech will be removed. “Anything goes’ will become the law.
We need protection from hate speech and racial vilification because not everyone is in a position of parity to speak back to those who denigrate them on racial grounds. Not everyone is Adam Goodes, Ben Barba and Ali Abbas, who can stand up for themselves, when racially attacked or vilified.
It is important that the average person had a way of holding others accountable for racial abuse and harassment.
I did not believe that the Federal Court’s ruling in the case involving Andrew Bolt in 2011 (which was never challenged by the way of an appeal to a higher court) provides sufficient cause for dismantling part of our system and laws of racial tolerance and harmony in 2014, and despite the QUT case and Bill Leak’s Cartoon case, I still do not believe there is sufficient grounds for repeal or dilution of 18C now.
There is however the pressing need for amendment of the Australian Human Rights Commission Act on the lines of what Julian Leeser MP has suggested.
We need to promote civility and tolerance, not bigotry, racism, racial abuse, racial vilification and racial intimidation. If Section 18C and 18D are repealed, tampered with or diluted, this is exactly what is going to happen.
I therefore do not want Section 18C repealed, tampered with or diluted, but I do not want misuse of 18C mounting cases on frivolous and trivial reasons either. “The Leeser” suggestion is a perfect method to deal with this matter.
I have had a discussion with many from various communities including Indian Australians, and know for sure that they too are opposed to the proposed repeal of Section 18C.
Freedom of speech, while important, is not absolute, superior to or nobler than protection from racist abuse and hatred.
I will be sending my submission with my opposition to the campaign to repeal or dilute 18C of RDA to;
Parliamentary Joint Committee on Human Rights
PO Box 6100
Canberra ACT 2600
By email: 18Cinquiry@aph.gov.au