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Let's amend 18C to say what it means

Tuesday, 11 April 2017  | Frank Brennan


The debate over section 18C of the Racial Discrimination Act (18C) has gone on for far too long. It's time to bring it to a close. The Turnbull government should take resolute action proposing a principled, workable amendment to parliament.

To date, I have been silent in the present debate. In part, this is because 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.

Labor's 1992 proposals went nowhere prior to the 1993 election. After his unexpected win, Prime Minister Paul Keating expended much political energy forging the principled compromise on the Native Title Act in the wake of the High Court's Mabo decision. Some very feisty things were said by Aboriginal leaders during the native title debate, impugning the 'racist' motivation of public servants and some politicians.

No one would have contemplated using the criminal law to prosecute passionate Aboriginal leaders fighting to retain their land rights, charging them with doing an act likely to incite racial hatred. There were already criminal laws outlawing threats to cause physical harm to a person or destruction of property. There was no need to add the race card to create further criminal offences.

Once the native title law was passed, Labor again turned its attention to racial vilification, introducing the Racial Hatred Bill 1994 to the House of Representatives in November 1994. The bill was passed through the Reps very promptly but it ran into trouble in the Senate. The Senate debate on the floor of Parliament was not brought on for another nine months. Liberal Senator Nick Minchin told the Senate: 'We have Labor sympathisers like Phillip Adams and Father Frank Brennan vehemently opposed to the law brought forward by this Labor government.'

I had been a great supporter of the Keating government for its masterful negotiation of the Native Title Act. But the Racial Hatred Act was a different matter. This act was described in its title as 'An act to prohibit certain conduct involving the hatred of other people on the ground of race, colour or national or ethnic origin, and for related purposes'.

‘It's common ground for supporters and opponents of 18C that applying the ordinary meaning of 'insult' and 'offend' results in the bar being set too low. Why not 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?’

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'. Introducing the Racial Hatred Bill, the Labor Attorney General Michael Lavarch told parliament:

The bill places no new limits on genuine public debate. Australians must be free to speak their minds, to criticise actions and policies of others and to share a joke. The bill does not prohibit people from expressing ideas or having beliefs, no matter how unpopular the views may be to many other people ... It is worthy of note that New South Wales has had similar legislation for five years and yet no-one has seriously argued that free speech has been curtailed there.

If only the Commonwealth's 18C were modelled on the NSW provision which had been in place for five years without causing a problem. Lavarch might then have achieved his stated purpose.

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 from the 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’.

By the time the parliamentary committee was concluding its inquiry, Triggs withdrew this suggestion, noting in her final appearance before the committee on 17 February 2017:

[A]fter considering all of the evidence that is provided to this committee, the commission's position on 18C remains a consistent position. Sections 18C and D have been interpreted and applied consistently by federal courts over 20 years. We believe at the commission that the law strikes an appropriate balance between freedom of speech and freedom from racial abuse. These provisions have served our multicultural democracy well in sending the message that racial vilification is not acceptable in Australia.

It's common ground for supporters and opponents of 18C that applying the ordinary meaning of 'insult' and 'offend' results in the bar being set too low. Why not 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 Kiefel's approach — where offensive insult amounts to vilification. The bar could be set at the same level in court and before the commission by abandoning words such as 'insult' and 'offend' which have such variable meanings depending on the sensitivity of a listener rather than the motivation of the speaker. I agree with those legal scholars like Professor Sarah Joseph who have suggested that 18C be amended to 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 vilify, 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.

Such an amendment would allow us to honour the noble commitment expressed by Attorney General Michael Lavarch at the conclusion of his second reading speech for the Racial Hatred Bill in 1994:

We are fortunate in that Australia has a significant degree of social cohesion and racial harmony. This bill is an appropriate and measured response to closing the identified gap in the legal protection of all Australians from extreme racist behaviour. It strikes a balance between the right of free speech and the other rights and interests of Australia and Australians. It provides a safety net for racial harmony in Australia and sends a clear warning to those who might attack the principle of tolerance. And importantly this bill provides Australians who are the victims of racial hatred or violence with protection.

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 might allow the Liberal Party to draw the line on this conflict and provide 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.

Frank Brennan SJ is the CEO of Catholic Social Services Australia.

This article was first published by Eureka Street at https://www.eurekastreet.com.au/article.aspx?aeid=50857 on 13th March 2017. Reproduced with permission.


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