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Section 18C: submission to the SENATE INQUIRY INTO FREEDOM OF SPEECH IN AUSTRALIA

(edited version)

There is no need to amend s.18C.  The Rationalist Associatin of NSW does not believe that ss18C and 18D impose unreasonable restrictions upon freedom of speech. As it stands, the law in practice has been shown to be an effective means of working towards the prevention and occurrence of racist speech.

Summary

There is no need to amend s.18C.We do not believe that ss18C and 18D impose unreasonable restrictions upon freedom of speech. As it stands, the law in practice has been shown to be an effective means of working towards the prevention and occurrence of racist speech. However misunderstanding and misrepresentation of the law in relation to hate speech, has led the perceptions that the Racial Discrimination Act (‘RDA’) unduly limits free speech. It has been proposed that the words ‘offend’ and insult’ be replaced with the word ‘degrade’, to prevent trivial complaints, and unjustified criticism of the Act, but we submit the subjectivity of that term also leaves the section open to allegations being too restrictive of speech. We also note that Murray Wesson, University of Western Australia, argues that a minor change, substituting 'vilify' for 'offend' and 'insult', would bring Section 18C more in line with similar laws in other democracies without undermining its effectiveness, see here. Consequently we would support replacing the language of s.18C(a) but argue that the most effective language is that of Article 20 of the International Covenant on Civil and Political Rights (ICCPR) so that it refers to ‘acts reasonably likely, in all the circumstances, to contribute to incitement to discrimination, hostility or ‘violence.’ This would provide an objective, rather than a subjective test of what constitutes unlawful speech or action.

What could be changed

1          We recommend that sections 18C and 18D should be combined so that politicians and commentators can no longer talk about the offence of racial vilification without referencing the extensive exemptions available in the current s 18D.

2          We express our concern at the internal tension in s 18D(c)(ii) between the concept of a ‘fair comment’ and a ‘genuine belief’ and submit that this is a matter relevant to the wider consideration of free speech mentioned above.

 

Terms of Inquiry

The terms of reference of this inquiry, to which we refer, are as follows:

  1. Whether the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) (the “RDA”) imposes unreasonable restrictions upon freedom of speech [taking into account the meaning given to that phrase below in the Terms of Reference], and, in particular whether, and if so how, ss 18C and 18D should be reformed.
  2. Whether the handling of complaints made to the Australian Human Rights Commission (“the Commission”) under the Australian Human Rights Commission Act 1986 (Cth) (the “HRC Act”) should be reformed, in particular, in relation to:
    1. the appropriate treatment of:
      1. trivial or vexatious complaints; and
      2. complaints which have no reasonable prospect of ultimate success,
    2. ensuring that persons who are the subject of such complaints are afforded natural justice;
    3. ensuring that such complaints are dealt with in an open and transparent manner;
    4. ensuring that such complaints are dealt with without unreasonable delay;
    5. ensuring that such complaints are dealt with fairly and without unreasonable cost being incurred either by the Commission or by persons who are the subject of such complaints;
    6. the relationship between the Commission’s complaint handling processes and applications to the Court arising from the same facts.
  3. Whether the practice of soliciting complaints to the Commission (whether by officers of the Commission or by third parties) has had an adverse impact upon freedom of speech or constituted an abuse of the powers and functions of the Commission, and whether any such practice should be prohibited or limited.
  4. Whether the operation of the Commission should be otherwise reformed in order better to protect freedom of speech and, if so, what those reforms should be.

The Committee is asked, in particular, to consider the recommendations of the Australian Law Reform Commission report Final Report on Traditional Rights and Freedoms – Encroachments by Commonwealth Laws [ALRC Report 129 – December 2015], specifically the recommendations in Chapter 4 of that Report.

“Freedom of speech” is stated to include, but not be limited to, freedom of public discussion, freedom of conscience, academic freedom, artistic freedom, freedom of religious worship and freedom of the press.

Position Statement of the NSW Rationalists

Our position is based on the view that while one may criticise and deride someone’s ideas and what they say, no person should be the subject of derision, humiliation or vilification because of an ‘accident of birth’, i.e. their race, nationality or ethnic origin. Racist speech is destructive of the human right to equal consideration regardless of such characteristics, and not worthy of protection.

Our Submission

Regarding the terms of reference, we believe these appear to undermine the intent and proper enforcement of the RDA and the statutory role of the Human Rights Commission.

As to term 1, the operation of Part IIA of the RDA we submit that the Act as it stands does not impose unreasonable restrictions on freedom of speech, but the words ‘offend’ and ‘insult’ in s.18C(a) are broad and allows it to be misused. In line with what we understand to be the view of the President of the Human Rights Commission, we believe that the language of Article 18C(a) can be seen to set the bar too low in establishing a cause for complaint under the RDA, subjecting people to frivolous complaints and leading to misunderstanding and misrepresentation of the purpose of the Act.

As to term 2, the answer to all of the questions posed is ‘no’.

As to term 3, encouraging those who believe their relevant rights have been infringed to seek the Commission’s assistance should not be prohibited or limited.

As to term 4, it is implied that that the operation of the Commission restricts freedom of speech. We submit that the right to free speech does not allow unrestrained expression of vilification or other harmful and defamatory assertions, and the Commission is required to attend to all complaints. As stated, the Commissioner’s openness to a higher bar in admitting complaints would lead to a revision of its operation, preventing abuse of the process.

Background to Submission

Terms of Reference: We submit that the terms of reference can be interpreted to favour the use of prejudice, name-calling and hateful motivation over rational and evidence-based discussion. We concur with the ALRC that the Inquiry – whatever its outcome – gives the unfortunate negative messages that this government:

  1. wishes to protect those who engage in racist hate speech or at the very least to protect speech that amounts to race hate speech;
  2. does not support the protection of vulnerable minorities from the effects of hate speech;
  3. wishes to give people the right to vilify vulnerable minorities, not for anything they have done, but solely on the basis of the target’s supposed race or ethnicity;
  4. wishes to give politicians the right to use racist hate speech not only within parliament but also outside of the protections conferred by parliamentary privilege;
  5. sees hate speech as more important to protect than other restricted speech such as whistleblower speech;
  6. sees personal freedom of speech as superior to other human rights including freedom from discrimination, the individual and collective right to the enjoyment of social and cultural rights and the right to be free from fear;
  7. is happy to encourage racial vilification in any context including trade, commerce, investment and international affairs;
  8. does not wish to see the RDA enforced in the same way as other legislation against discriminatory activity.

Need for more appropriate and contextual review of freedom of speech: There are many other federal laws that seriously impinge upon freedom of speech that is not intrinsically harmful. It is inappropriate for the inquiry to focus only upon the RDA and the HRC Act. We note the ALRC Report (4.207) states ‘that pt IIA of the RDA, of which s 18C forms a part, would benefit from a more thorough review in relation to freedom of speech’ and that that any consideration of s 18C ‘should not take place in isolation’ (4.209 and following). We submit that the terms of reference are totally inappropriate, both because they focus solely on the RDA, and because of the implications they make as outlined above.

Attacks on Human Rights Commission: The Inquiry takes place in the context of attacks on Australian Human Rights Commissioners, particularly on Professor Triggs, (which include a degree of misrepresentation) by members of this government. We regard the terms of reference as exposing an implicit and unjustified condemnation of the Commissioners.

Misrepresentation of the RDA: We note the critical difference identified by the ALRC between the way in which the RDA is interpreted in practice by the courts, as opposed to the misconceptions of the popular media and politicians, including the unfortunately common misconception that any subjectively perceived slight will establish an offence under s.18C. 


The RDA is interpreted by the courts as requiring a reasonably high objective standard of harm (see the ALRC Report 4.189ff ). The ALRC notes that Kiefel J held in Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 that s 18C requires the harm to involve ‘profound and serious effects not to be likened to mere slights’ (at 16). Similarly, in Eatock v Bolt (2011) 197 FCR 261 at 263 Bromberg J held that s 18C is ‘concerned with consequences it regards as more serious than mere personal hurt, harm or fear,’ being:

….mischief that extends to the public dimension. A mischief that is not merely injurious to the individual, but is injurious to the public interest and relevantly, the public’s interest in a socially cohesive society.

This approach forms a further basis for our argument for reconsideration of s.18C.

Racial vilification causes harm at many levels: We concur with the argument of the ALRC that while individual occurrences of racial vilification might not appear to be dangerous or an incitement to violence, racial hatred, and the violence to which it gives life are built on the basis of multiple acts of racial vilification that have a combined or compounding effect. It is therefore important, in establishing recognition of racial equality in a multicultural society like Australia’s, to set an appropriate standard in opposing racist vilification.

As noted above, we disagree with the argument that the RDA must offset the lack of constitutional underpinning of freedom of speech and balancing of basic human rights through the current broad language of 18C(a). We point out that the Refugee Council of Australia (‘RCOA’) [1] states that words that offend, insult and humiliate have serious impacts on refugee communities and their engagement in the public sphere. It refers to the courts’ interpretation of those words and concludes that ‘This ensures that complaints brought to the court have significant merit. RCOA argues that racist behaviour does have profound and serious effects and thus often meets this threshold. RCOA also acknowledges that when complaints do not meet this requirement they are dismissed, as appropriate’ (at 4.3). It goes on to state that ‘we agree with comments made by the Human Rights Law Centre that, for clarity, additions may be included to refer to serious offences, in order to codify existing interpretations of the law’ (at 5.1).

Protecting people from that harm is a fitting object of government legislation, as recognised by the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination. Freedom of expression is not an absolute right and preventing the harm caused by racist activity is of sufficient importance to warrant appropriate restrictions on freedom of speech as in sections 18C and 18D of the RDA.

Section 18C does not make the targeted speech a criminal offence:  Contrary to popular perceptions and implications, the Commission acts as a mediator between parties, and most cases are settled this way.  Whether the matter is taken to court is in the hands of the parties involved, not the Commission. It is statutorily independent of court involvement.

The aim of the legislation is misunderstood: It is not to facilitate “successful” court cases by victims of racial vilification, but rather to encourage conciliation. Indeed, the decision to prosecute a court action against an alleged perpetrator is irrelevant to the Commission’s educative and conciliatory role. Trivial and vexatious complaints appear to be already covered under sections 20(2)(c)(ii) and 46PH (1)(c).

There is no reason to reform the complaints-handling procedures of the Commission: We submit that the questions raised by second of the terms of reference are unnecessary, as there is no justification for their consideration absent clear evidence of maladministration. They are administrative matters and are normally covered by statutory role of the Commissioner to ensure natural justice, that complaints are dealt with without unreasonable delay, in an open and transparent manner, fairly and without unreasonable cost. The context of the Inquiry appears to us to be political manipulation, as any consideration of reforming the complaints-handling procedures of the Commission is best left to the Commission itself.

As pointed out by the ALRC, ‘the Commission’s procedures generally work satisfactorily and with minimum cost and inconvenience to all parties’. Despite misrepresentation of the Commission’s actions in relation to Prior v Queensland University of Technology & Ors (No.2) [2016] FCCA 2853, the Commission does not involve bringing action in the courts, but rather assists in resolution of complaints brought to it. Action in the courts does not involve the commission, but is at the discretion of the parties to a dispute[2].  

Misrepresentation of ‘soliciting’ complaints: We agree with the ALRC when it states that encouraging those who believe their relevant rights have been infringed to seek the Commission’s assistance should not be prohibited or limited.  Surely that is part of the Commission’s role. The term ‘soliciting’ is a derogatory reflection on, and misrepresentation of, the role of the Commission in encouraging victims of racist speech to seek the remedies to which they are entitled at law has an adverse impact upon freedom of speech. The reference to ‘third parties’ is unclear. There is no indication as to whether this refers to lawyers, teachers, and/or others fulfilling their professional services. Restricting lawyers from advising clients about redress for racial vilification or advertising such services would be to restrict free speech of lawyers and their overriding duty to the court. It would thus undermine the rule of law and the objects and administration of the RDA.  Victims of racial vilification would be left without legal assistance. As the ALRC says,

It is extraordinary that the Attorney General’s terms of reference appear to suggest that there should be any kind of prohibition or limitation in Australia upon any person - in any capacity - who encourages a person to pursue avenues of redress that are legally open to them.  That would indeed be to restrict free speech.  It would also be to undermine the rule of law. We trust that we have misunderstood the question but cannot find any other meaning in it.

Conclusion

  1. reedom of expression is not an absolute right and preventing the serious harm caused by racist speech is of sufficient importance to warrant appropriate restrictions on freedom of speech as currently contained in sections 18C and 18D of the RDA.

The Inquiry’s Terms of Reference are inappropriate. The terms of reference for this inquiry appear to suggest that the right to freedom of speech is superior to the right to freedom from discrimination, in particular in the form of racist vilification.

There is no need to amend s.18C.We do not believe that ss18C and 18D impose unreasonable restrictions upon freedom of speech. We submit that the Committee’s Terms of Reference are based on misunderstanding and misrepresentation of both the purpose of the legislation and its administration by the use of the words ‘offend’ and insult’. We believe that as it stands, the law in practice has been shown to be an effective means of working towards the prevention and occurrence of racist speech.[3]

Nevertheless, to prevent this misunderstanding and misrepresentation, we would support replacing the language of s.18C(a) along the lines of Article 20 ICCPR so that it refers to ‘acts reasonably likely, in all the circumstances, to contribute to incitement to discrimination, hostility or ‘violence.’

We also believe that sections 18C and 18D should be combined so that politicians and commentators can no longer talk about the offence of racial vilification without referencing the extensive exemptions available in the current s 18D.

We express our concern at the internal tension in s 18D(c)(ii) between the concept of a ‘fair comment’ and a ‘genuine belief’ and submit that this is a matter relevant to the wider consideration of free speech mentioned above.

Dr Meg Wallace

President

 

[1]     Refugee Council of Australia, Submission on Changes to the Racial Discrimination Act, https://www.refugeecouncil.org.au/r/sub/1404-RDA.pdf AT 4.5

[2]     The Commission has no judicial powers, and it makes no legally binding determinations as to whether unlawful acts have occurred. The Commission has no statutory power to prevent a complainant proceeding to court once the Commission terminates the complaint. https://www.refugeecouncil.org.au/r/sub/1404-RDA.pdf AT 4.5

[3]      Ibid. The average time it took the Commission to finalise a complaint was 3.8 months In 2015-16 and 94% of those surveyed were satisfied with the Commission’s service. 

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