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

Mar 27, 2017

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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