FRANK BRENNAN SJ. Let’s amend 18C to say what it means

The debate over section 18C of the Racial Discrimination Act (18C) has gone on for far too long. I welcome the Turnbull government’s attempt to amend the provision, while being disappointed yet again at the petty politics played on both sides in Canberra in relation to a matter of principle which needs to be handled sensitively for the good of all citizens in our multicultural Australia.  

I was a critic of such legal provisions when they were first proposed in 1992 and then again in 1994. I have since been convinced that a provision like 18C could be designed to target racial vilification, leaving offensive insults beyond the reach of the law in a robust democracy committed to freedom of speech. Back then, Labor governments proposed legislation which would have enacted a provision like 18C, while also establishing three new Commonwealth criminal offences: threatening to cause physical harm to a person or group because of their race, colour, or national or ethnic origin; threatening to destroy or damage property because of the race, colour or national or ethnic origin of any other person or group; and doing an act which was reasonably likely to incite racial hatred.

Eventually, Labor was forced to abandon the provisions which would have instituted the three new criminal offences. But the Parliament passed a series of measures under the title ‘Prohibition of Offensive Behaviour based on racial hatred’ including 18C which made it unlawful to do an act in public which was reasonably likely ‘to offend, insult, humiliate or intimidate’ another when the act is done because of the race of the other. Labor said it was committed to re-introducing legislation enacting the three criminal offences after the next election. Labor lost the election. But even once returned to power for a further six years in 2007, there was no suggestion of any such legislation. And no one talks about it nowadays.

When Labor was considering the form of 18C, the New South Wales Parliament had already enacted its Anti-Discrimination Act including a provision making it unlawful to do any public act ‘to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group’.

If only the Commonwealth Parliament back then had modelled 18C on the NSW provision which had been in place for five years without causing a problem. With all the present clamour from the Labor side, there is no demand that long time State laws like the NSW provision be amended to include mere insult or offence.

The Senate ultimately gutted Lavarch’s Racial Hatred Bill in August 1995, dropping all the provisions which would have established novel criminal offences. But 18C was left in place even though it was known that its language was loose, setting too low a threshold for bringing a complaint to the Human Rights Commission.

So now let’s fast forward to last month’s report on 18C from the Commonwealth Parliamentary Joint Committee of Human Rights. The committee heard from numerous legal experts that 18C sets the threshold for a complaint far too low. In the past, the courts have attempted to solve the problem by lifting the bar, interpreting the words ‘offend’ and ‘insult’ in the context of racial hatred which was the subject matter of the legislation. The first key decision was given by Justice Susan Kiefel, Australia’s new Chief Justice. Back in 2001, as a single judge of the Federal Court of Australia, Kiefel had to interpret 18C when Ms Creek, an Aboriginal resident of Coen in Cape York, brought proceedings against the Cairns Post alleging that the newspaper had breached 18C without any possible defence under 18D. Ms Creek lost her case. Kiefel accepted the newspaper’s submission that ‘only very serious and offensive behaviour was intended as the subject of s 18C’. After all this was a provision in legislation entitled the Racial Hatred Act. And the provision was contained in part of the Act entitled ‘Prohibition of Offensive Behaviour based on racial hatred’. Kiefel referred to Lavarch’s second reading speech and to the explanatory memorandum of the legislation presented to parliament which stated:

The Bill maintains a balance between the right to free speech and the protection of individuals and groups from harassment and fear because of their race, colour or national or ethnic origin. The Bill is intended to prevent people from seriously undermining tolerance within society by inciting racial hatred or threatening violence against individuals or groups because of their race, colour or national or ethnic origin.

Kiefel said, ‘To “offend, insult, humiliate or intimidate” are profound and serious effects, not to be likened to mere slights’.

On 8 November 2016, Professor Gillian Triggs, President of the Australian Human Rights Commission told the ABC Radio National Breakfast program that the commission’s preferred position was to retain 18C unamended. But she then went on to say that 18C could be strengthened by replacing the words ‘offend’ and ‘insult’ with the word ‘vilify’. She said, ‘There’s always ambiguity about what you mean by offending and insulting’. She told listeners, ‘The bar, if you like, for the Federal Circuit Court and general Federal Court has always been very high on this question. No mere slight will constitute a breach of 18C. The view, the way the commission deals with matters is at a much lower level and that is why we’d like to see reform there.’ Preparing for the parliamentary inquiry, she said, ‘We’re open to seeing what the inquiry might suggest — whether the language could be clarified and in our view strengthened that enables us to support the multicultural society that we are.’ When asked if she thought 18C could be made stronger by replacing ‘offend’ and ‘insult’ with ‘vilify’, she replied: ‘I would see that as a strengthening, it could be a very useful thing to do.’

It’s common ground for supporters and opponents of the existing 18C that applying the ordinary meaning of ‘insult’ and ‘offend’ results in the bar being set too low. It is sensible to seek language which would result in the bar being set at the same level before the Human Rights Commission as it would be before the courts. There is no point in maintaining language in such a contested statute which no longer means what it says. The Human Rights Commission and the parliamentary committee have accepted that the bar should be set at the level set by Federal Court judges following Justice Kiefel’s approach – where offensive insult amounts to vilification. The Turnbull government has now introduced a bill to parliament proposing that 18C now read:

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 harass 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. 

The key problem with retaining the words ‘insult’ and ‘offend’ (and perhaps also ‘humiliate’) is that the Human Rights Commission or a court on receipt of a complaint needs to have primary concern for the subjective view of the complainant that he or she was offended, insulted or humiliated. In this area of law where you are imposing restrictions on free speech, it is preferable to have a threshold test that depends not so much on the subjective view of the complainant but on the objective view of the fair minded observer who would be in a position to state that behaviour was vilifying or harassing. I preferred ‘vilify’ to ‘harass’ because I thought it a term more frequently used by courts and administrators. For example, the character test for deportation in the Migration Act allows the minister to consider whether the prospective deportee has vilified a segment of the Australian community. And courts when considering contempt of court can be asked to make an assessment whether the wrongdoer has vilified a witness. But to my mind, ‘harass’ is an acceptable term, once again because it requires the commission or the court to make an initial objective determination on whether the complainant has been harassed rather than having to make the initial subjective inquiry whether the complainant was offended, insulted or humiliated.

I suggest that the Turnbull government is simply engaging in internal party room shenanigans when they seek to add to s 18 C this unnecessary provision:

(2A) For the purposes of subsection (1), the question of whether an act is reasonably likely, in all the circumstances, to have the effect mentioned in paragraph (1)(a) is to be determined by the standards of a reasonable member of the Australian community.

Given that a court or the commission will already have to decide whether an act ‘is reasonably likely, in all the circumstances, to harass or intimidate’, nothing is to be gained by adding ‘the standards of a reasonable member of the Australian community’. That’s just Tory political correctness.

This proposal came from the Liberal Party’s right wing Senator Concetta Fierravanti-Wells, Minister for International Development and the Pacific, when she wrote: ‘The test would be what ordinary Australians think those should be. I believe by adding this test we can obviate much of the negativity we are seeing at the moment and deliver the appropriate balance between freedom of speech and freedom from racial vilification.’ But Fierravanti-Wells made it clear that this test was to apply primarily to reign in subjective terms like ‘offend’ and ‘insult’. She said, ‘It raises the threshold for determining what constitutes offensive behaviour based on racial hatred: to offend, insult, humiliate or intimidate.’

Simply leaving 18C unamended is not a sensible option. It’s broke, so fix it! The Murdoch press and some of those mourning the death of Bill Leak will continue to agitate the case for abolition. A principled amendment could spare future complainants the unnecessary cost and fruitless public conflict experienced by Cindy Prior who was the unsuccessful Aboriginal complainant in the QUT case. It might allow the Liberal Party to draw the line on this conflict and it could have provided the parliament with an opportunity to affirm across party lines the need to stamp out racial vilification while upholding freedom of speech even when people are insulted or offended. That now won’t happen. Turnbull having placated and delighted the right of his party by abandoning his earlier commitment to leave 18C well alone may now have carved out sufficient space and brownie points with the right to allow him to bring the question of the plebiscite for same sex marriage back to the party room for reconsideration before the next election. Given the Senate’s stand on 18C, that might be the only tangible outcome of this whole exercise. And maybe that’s all that some in the Liberal Party wanted to get out of it anyway. That’s life around Canberra at the moment!

Frank Brennan SJ is CEO of Catholic Social Services Australia. This is part of his address at the second annual St Aloysius’ College Law Lunch in Sydney on 24 March 2017.  

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10 Responses to FRANK BRENNAN SJ. Let’s amend 18C to say what it means

  1. Frank Brennan says:

    Spare a thought for Cindy Prior, the Aboriginal complainant in the QUT case. She ended up with nothing but a costs order against her, lots of her own legal expenses, and untold trauma. If 18C were amended, I daresay Ms Prior’s lawyers would be in a position to advise her on the wisdom of instituting proceedings for objectively demonstrable vilification or harassment, and the wasted effort involved in instituting proceedings based only on a subjective claim of offence or insult. No one would doubt that Ms Prior felt offended or insulted, but that’s not enough to get her over the hurdle set by the courts. So what’s the point in having the bar set low before the Human Rights Commission, such that respondents could decline to be involved in the commission processes, confident that a complaint of offence or insult is not sufficient to engage court processes.

  2. Peter Dixon says:

    The article shows that the courts have already set the bar at an appropriate level. The section worked well for 20 years until The Australian was offended and humiliated.

  3. Peter Lynch says:

    Frank Brennan argues that we need to have wording for 18c that leaves “offensive insults [with regard to a person’s race] beyond the reach of the law in a robust democracy committed to freedom of speech”. Why is free speech necessary in a democracy? It is because we need the right to fearlessly discuss ideas, propositions, policies, objectives and so on . These are all things that we can decide or be persuaded to change or modify. But we can’t change our race or ethnic origin. Racial abuse is therefore just gratuitous with no other purpose than to offend, to hurt. It has nothing to do with democracy. If, every time I go down the street, I take the opportunity to throw “offensive insults” at people I see of whatever particular race I happen to hate, I am doing them harm. Brennan’s view amounts to saying: “It’s only trivial, so suck it up”. I have no problem with Bill Leak’s cartoon despite its offensive nature because it could be argued that it was drawing attention to a problem in some aboriginal communities which may be a legitimate topic of discussion. Similarly, Andrew Bolt’s comments would not have been objectionable if they had not been untrue. Sections 18c and 18d taken together seem to me to strike the right balance of prohibiting serious race hate abuse, as judged by a reasonable person, while exempting legitimate discussion. Brennan’s suggestion of “vilify” has the advantage that it could be argued that it implies an intention to hurt which is the key. But the word’s definition is to speak about someone in an “abusively disparaging manner” and this suggests “belittling” speech which may not cover all categories of race-hate speech. The problem is that the section, as it stands, doesn’t refer to the key element of intention to harm. It refers to acts that are “reasonably likely, in all the circumstances, to offend” etc. This wording should be changed to acts which are “intended to offend” etc. This would solve the problem.

    • richard le sarcophage says:

      Leake’s scrawlings, in my opinion, were race hatred pure and simple. His plethora of similar cartoons, with Indigenous men drawn akin to the manner in which Jews were depicted in Die Sturmer, and represented as violent sub-humans, and their culture explicitly blamed for this condition, proved the point about his motivations, and that of the vile rag that published them, as did many other cartoons that vilified gays and Gazans having their children murdered by Israel. In the Gazan case Leake, despicably, blamed the Gazans for their children’s deaths, at the same time that one could see pictures of child victims among the hundreds slaughtered, cradled in their distraught parents’ arms. In short, no matter how talented Leake was, or how ‘nice’ he appeared to his rich friends like Trumble, by the time of his death he had long been, in my opinion, an odious Rightwing hate-monger, typical of the type that mourned his death.

  4. David Brown says:

    boring
    get on with something more important

  5. Dr John CARMODY says:

    The government’s real; cynicism was shown by two things.
    The first is the fact that the Bill was introduced into the Senate (yes, I know that Senator Brandis is the Attorney -General, but that’s hardly the point: the PM has been talking about it the most) where it is likely to be defeated, thereby allowing Turnbull the hollow claim (to the Tory Right of his Party Room) that he did his best by presenting it to Parliament. I suspect that the “reasonable member of the Australian community won’t be greatly impressed.
    The second is the “raising of the bar” by that new provision (which does not exist in the present Act) about the “reasonable member of the Australian community”. It effectively displaces the ‘case law” test which was introduced by Justice Bromberg when he was deciding the “Bolt Case”: in attempt to read the Act intelligently and sensitively he used the criterion of a “reasonable member of the relevant community”. Who else could fairly decide? The Government — plainly in “bad faith” — wants to sweep that aside; that fact alone should ensure the defeat of the amendment in the Senate.
    Otherwise, Fr Brennan’s comments on Section 18C — especially vis-a-vis the NSW Act — seem perfectly sensible. However, the use in the Amendment of “harass” — a word which (as Professor Zifcak and others have reminded us) implies repeated insults and importuning — but to write in Law that, paradoxically, it can be a singly instance, seems intended to confuse and promote legal argument. The insincerity is blatant.

  6. Frank Carter says:

    I found this post very upsetting. I’d previously respected Frank Brennan as a man of correct views, but article gives support to the very many racist, homophobic and Islamophobic white Australians who infest this land.

    18c needs to be strengthened, not weakened. The word “criticism” should be added to what speech is prohibited. This would have covered the notoriously evil cartoon Bill Leak drew of the Aboriginal father, as well as giving greater support to Cindy Prior.

  7. Jim KABLE says:

    A disappointingly casuistic “analysis” Frank B. S.J. and not in line with the compassionate Society of Jesus personnel I know. In this case I am with Frank Carter and his comment. I also think as I read earlier in the SMH to-day that we need a Bill of Rights like all other civilised countries! Sink your teeth into that Frank B – or are you already opposed to that as well – mind all made up?

  8. The states have offensive language laws that carry a 6 month prison term.

    . The Office of Economic and Statistical Research reports that around 8,000 to 10,000 people come before Queensland Magistrates’ Courts for such offences each year.[3] Since so many people are affected by these laws, they are worthy of investigation. http://www.austlii.edu.au/au/journals/UQLawJl/2005/5.html

    If 18c is amended the only folk who are protected from offensive language is the cops.

    Anyway, we should call this amendment ‘Bolt’s Amendment’.

  9. Frank Brennan says:

    I have no interest in giving ‘support to the very many racist, homophobic and Islamophobic white Australians who infest this land’ and I don’t think I have, any more than I did when opposing the Racial Hatred Bill back in 1994. Putting the politics to one side for the moment, my statutory interpretation point is fairly simple.
    An (objective) onlooker can assess whether A is being harassed or vilified by B. The onlooker cannot assess whether A is being offended or insulted by B. Only A can offer that (subjective) assessment. But the courts have made clear that it’s not every offence or insult as perceived or felt by A that can be treated as an offence or insult for the purposes of the legislation. So why not replace the subjective terms ‘offend’ and ‘insult’ with a more objective term like ‘harass’ or ‘vilify’?

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