SPENCER ZIFCAK. From Imbroglio to Fiasco: Malcolm Turnbull Loses the Plot on S.18C

Mar 27, 2017

The argument about the terms of Sections 18C and 18D of the Commonwealth Racial Discrimination Act (RDA) began with the case brought against the journalist, Andrew Bolt, now some six years ago. The temperature of the debate has risen and fallen during that time, but one aspect of it has remained constant.  

Each new attempt by the Federal Government to reform the RDA has been a political, legal and societal failure. Political divisions have intensified, legal argumentation has become ever more confused, and society’s fabric has been rent rather mended.

Now with Malcolm Turnbull’s sudden conversion, as the front page headline in The Australian put it, into the nation’s ‘free speech crusader’, it’s all about to happen again. Yet another amendment bill is to be put before the parliament. It’s as bad and retrograde as every one of its hapless predecessors.

Two principal reforms are proposed. First, the RDA and the Australian Human Rights Commission Act will be amended to remove the words ‘offend, insult, and humiliate’ from S.18C. They will be replaced by the word ‘harass’. Secondly, whether a person has been harassed or intimidated by another on the grounds of his or her race, will be judged by reference to whether a ‘reasonable member of the Australian community’ would have felt harassed or intimidated in the same circumstances. There are grave problems with both of these changes.

Presently, s.18C of the RDA provides that it is unlawful for a person to do an act if it is reasonably likely to ‘offend, insult, humiliate or intimidate’ another person and the act is done because of the person’s race. If the proposed amendment is accepted it will become unlawful to do an act only if it is reasonably likely to ‘harass or intimidate’ another person because of their race.

The Prime Minister has argued that this will strengthen the protections of the RDA because three words – offend, insult and humiliate – will be replaced with one clear, overarching word – harass. But the inclusion of the word ‘harass’ will create many more problems than it solves.

To begin with, harassment is inherently difficult to define. There is no bright line demarcating when objectionable behaviour of one kind or another takes on the character of harassment. It depends on the circumstances. This is a problem the law has struggled with for years in the context of sexual harassment, stalking and bullying for example.

Next, harassment can have many different meanings dependent on the context within which it is applied. A quick look at the Shorter Oxford Thesaurus illustrates the point clearly. With which of the following synonyms should the word harass be most closely identified once it is situated in a reformed s.18C? : bother, pester, nag, badger, annoy, bait, exasperate, agitate, vex, stress out, hound, harry, plague, bedevil, molest, torment or persecute? The judges of the Federal and High Court should have a great time working that out. It may take years.

Another significant problem is that, as properly defined, the term harassment refers to a succession of actions, not just one. Here, for example, is the definition in the Shorter Oxford Dictionary: ‘harass/ trouble by repeated attacks, subject to constant molesting or persecution.’ There are two things to note here.

If the inclusion of the word ‘harass’ in s.18C means that in order to make a complaint of racially discriminatory behaviour under the RDA, that behaviour must be constituted by a succession of acts rather than just one or two, the threshold for bringing a complaint will have been lifted substantially. No one who engages in one or two acts of harassment (whatever that means) will be caught by the legislation. And for complainants, proving three, four or five successive acts of alleged harassment will be far more difficult than, as now, demonstrating the occurrence, for instance, of one serious act of humiliation. Complaints will drop like a stone. Far from enhancing the protections provided for by the RDA, the inclusion of the word harassment will seriously weaken them.

Further, it is proposed that to engage in act that ‘humiliates’ a person on the grounds of their race will no longer constitute an offence. This is a serious omission. Speech of this kind is an attack on a person’s self esteem and belief. And it is an attack on a ground that the person cannot change. To say, for example, that a person is black and therefore something less than human is to cut a person’s sense of self to the quick. The injury here is psychological but no less severe for that. Racial humiliation should remain legally impermissible.

Note here that I do not make the same argument with respect to the words ‘insult and offend’. I have argued for a very long time that these constitute too great an incursion on freedom of speech and should be removed from s.18C.

The second major reform relates to the test to be applied in determining whether a person has suffered harassment or intimidation within the terms of s.18C. As judicially interpreted, the test is objective. Whether or not a person has suffered offence, insult, humiliation or intimidation is to be judged by reference to the following criterion. ‘Would a reasonable person who is a member of the same race or ethnic origin as the complainant, have felt humiliated etc. in the same or similar circumstances that prevail in the case?

The legislative amendment proposed would narrow this test dramatically. There would still be an objective test but it would be different. The question to be asked would be ‘would a reasonable person, being a member of the Australian community, have felt humiliated etc. in the same or similar circumstances?

The difference is crucial. In the first case, a judgment as to how a person would feel if subject to an alleged act of racial discrimination, is made by comparing his or her reaction to that of a reasonable person to whom the person is racially or ethnically similar. In the second case, a judgment as to how a person would feel would be made by comparing his or her reaction to that of a reasonable person who is racially or ethnically dissimilar. How is this possibly fair?

The problem with which we are concerned is racial discrimination. And yet the test for determining whether or not an act humiliates a person on the ground of their race is to be altered to one that determines that question by reference to the reactions and feelings of people who have no experience of being indigenous or ethnically/culturally quite different from the ‘ordinary, reasonable’ Australian. One could say that the test is discriminatory in and of itself.

In the absence of such experience, the result is highly likely to be that the number of cases in which it will be found that a person has been harassed or intimidated on racial or ethnic grounds will fall very significantly.

As a reasonable Australian, I do not, for an instant, presume to know how it feels for an indigenous person to be racially slurred. Just as I do not presume, for an instant, to comprehend how it feels for a woman to be abused or molested on the ground of her gender.

To propose that the relevant test be altered in the way that is proposed is a categorical error. It should not be given serious consideration for a minute.

In introducing his ill-conceived crusade, the Prime Minister said the following:

We know that the language of s.18C at the moment has lost its credibility…it has been widely criticised…It has lost the confidence that a law of this kind needs. So, recasting it in clearer language makes it stronger. A clearer law is a stronger law”

No, Prime Minister. This proposal will cloud and confound the law.

Worse still it will weaken and diminish it and, in so doing, will deprive racial and ethnic minorities in this country of the rigorous legal protections against discrimination to which they, like all Australians, are morally entitled.

Spencer Zifcak is Allan Myers Professor of Law and is Immediate Past President of Liberty Victoria.   

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