​Racial Discrimination Act: committee reports on 'freedom of speech'

Analysis

​Racial Discrimination Act: committee reports on 'freedom of speech'

A parliamentary committee has not recommended any changes to sections 18C and 18D of the Racial Discrimination Act. It had been asked to determine if they imposed "unreasonable restrictions on freedom of speech".

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“Possible” changes to the controversial sections 18C and 18D of the Commonwealth Racial Discrimination Act 1975 were canvassed by a government-commissioned parliamentary committee review of the Act, but the report avoids specifically recommending changes to those two sections.

It does recommend changes to the complaint-handling procedures of the Australian Human Rights Commission (AHRC), most of which seek to make it more difficult to make complaints.

The report, prepared by the Parliamentary Joint Committee on Human Rights, was tabled on 28 February 2017. The next step is for federal cabinet to discuss its contents to determine the government’s official response. 

Proposals relating to sections 18C and 18D


The inquiry’s terms of reference specifically asked the committee to review the operation of sections 18C and 18D to determine whether they “impose unreasonable restrictions on freedom of speech”.

These provisions have resulted in much public debate in recent years and a previous proposal by the government to amend them was withdrawn. Chapter 2 of the report covers this part of the review and analysed arguments presented both for and against making changes to the sections.

The current section 18C uses the words ”offend, insult or humiliate”. Submissions to replace those words with either “vilify” or “harass” were discussed.

Other proposals that were supported by at least one member of the committee, but are not specifically recommended by the report itself, included:
  • amending sec 18D to also include a “truth” defence similar to that of defamation law alongside the existing sec 18D exemptions 
  • changing the objective test from “reasonable member of the relevant group” to “the reasonable member of the Australian community” 
  • criminal provisions on incitement to racially motivated violence be further investigated on the basis that other federal and state legislation has failed to result in successful prosecutions against those seeking to incite violence against a person on the basis of their race.
The report noted there was “confusion regarding the scope and meaning of sec 18C and 18D”. It also noted that court decisions have required unlawful conduct to go beyond being merely being “offensive” or “insulting”, but to have “profound and serious effects” on the victims.

The committee said that if any changes to the current provisions are proposed, they should be accompanied by community education programs and presented as “a strong endorsement of the value of protections for serious forms of racially hateful or discriminatory speech”. 

Complaint handling and administration


The report made the following recommendations:
  • The parliamentary joint committee should become an oversight committee of the AHRC, with bi-annual meetings in public session to discuss the AHRC's activities, including complaints handling, over the preceding six-month period.
  • The AHRC should offer assistance to respondents to complaints consistent with the level of assistance it provides to complainants.
  • Time limits for processing each stage of the complaint handling and resolution process should be implemented. 
  • Section 46P of the Australian Human Rights Commission Act be amended to require complaints lodged to contain more detail, and to provide for payment of a lodgment fee.
  • Increased power for the AHRC to reject complaints deemed to be frivolous or having no reasonable prospects of success.
  • Courts to have discretion to order a complainant to pay the respondent’s costs if a complaint is unsuccessful.
The most important aspect of the committee’s report is that it made NO specific recommendations to amend sections 18C or 18D. It outlined several alternative proposals and discussed the pros and cons of each, but did not recommend (nor specifically reject) any of them.

At the time of publishing this article, the federal government has not formally responded to the report. But if it chooses to introduce legislation to amend sections 18C and 18D, critics can argue that it is dismissing the findings of an independent committee that stopped short of recommending specific changes. 

The government could choose to introduce legislation to implement the recommended changes to the AHRC’s complaint-handling and administrative procedures. This remains to be seen.

In an employment context, it has been very rare for cases involving sections 18C or 18D to arise. Anti-discrimination legislation has separate provisions covering discrimination in employment situations and that is what most employees lodge complaints under.

All jurisdictions except the Northern Territory also have provisions outlawing racial vilification and harassment.

Further information

Freedom of Speech in Australia, Parliamentary Joint Committee on Human Rights Inquiry Report
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