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The AHRC and the Racial Discrimination Act: setting the record straight

Race Discrimination

Federal racial hatred legislation and the complaints-handling processes of the Australian Human Rights Commission (AHRC) are currently the subjects of an inquiry by the Parliamentary Joint Committee on Human Rights. The Committee’s ‘Freedom of speech in Australia’ inquiry, due to report by 28 February 2017, is giving particular attention to sections 18C and 18D of the Racial Discrimination Act.

It is a sign of a healthy democracy that our laws and institutions are subject to scrutiny from parliament. However, ongoing public debate about freedom of speech and racial vilification laws has been characterised by misconceptions about the Racial Discrimination Act and the AHRC. There is a need for clearer public understanding of how the Act and the AHRC in fact operate.

How did we get here?

Section 18C of the Racial Discrimination Act makes it unlawful to do an act that offends, insults, humiliates or intimidates someone because of their race. Since the Federal Court’s judgment in the Eatock v Bolt case (2011), which found newspaper columnist Andrew Bolt to have breached the Racial Discrimination Act, there have been regular calls for repeal or amendment of section 18C.

In 2014, the federal government attempted to repeal section 18C, following an election pledge to do so. The proposed legislative change was abandoned after widespread public opposition to the government’s proposal. One Fairfax poll in March 2014 found that 88 per cent of people agreed that it should remain unlawful to offend, insult or humiliate someone because of their race. Other research indicated very strong majority support for the retention of the current section.

More recently, numerous parliamentarians have advocated the deletion of ‘offend’ and ‘insult’ from section 18C. Advocates of legislative change argue that the current provision places an unreasonable limitation on freedom of speech.

Throughout my time as Race Discrimination Commissioner, I have consistently said there is no persuasive case for changing section 18C of the Racial Discrimination Act. The law should remain in its current form. As it stands, the law strikes an appropriate balance between freedom from racial vilification and freedom of speech. It is important that Australian society sends a strong message that racial vilification can be held to account, while guaranteeing freedom of speech.

This has been the effect of the racial hatred provisions of the Racial Discrimination Act. While the Racial Discrimination Act was introduced in 1975, it was not until 1995 that it covered acts of racial hatred in public. These provisions were introduced in response to the recommendations of three major reports and inquiries: the National Inquiry into Racist Violence, the Royal Commission into Aboriginal Deaths in Custody, and the Australian Law Reform Commission’s Multiculturalism and the Law report. These inquiries found that targets of racist violence or harassment had little recourse to existing civil remedies under common law.

Why is section 18C worth keeping in its current form?

The rationale for section 18C was clear from the outset. Racial vilification provisions were needed because racial abuse and harassment could escalate to racial violence. It was important that the law step in.

It is essential that the law continues to play this role. The law reflects our values as a society; it sets a standard for acceptable behaviour. If, as a society, we repudiate racism, it is only right to have laws that express that commitment. In philosophical terms, the current law is a recognition that acts of racial hatred may inflict harms on certain people.

There is the personal harm that can take place when someone is racially abused or vilified. A significant body of research, done in particular with respect to Aboriginal and Torres Strait Islander people in Australia, demonstrates the link between regular experience of racial abuse and poor health, both physical and mental.

There are also social harms associated with racial vilification. Racial vilification generates fear and distrust. It feeds conflict and ugliness. If left unchecked, it can embolden or validate discrimination. It can undermine the entitlement that every member of our society should have to being treated equally – that we can all go about our business and not have to apprehend that we will be subject to abuse, hatred or intimidation.

Racial vilification damages our cohesion and decency as a society. Having a law that covers acts that offend, insult, humiliate or intimidate because of race is aimed at nipping racial hatred in the bud – at preventing it from escalating into acts that cause graver harm.

Does section 18C unjustly restrict free speech?

Many of the Act’s critics have said that section 18C goes too far – that it is too broad in scope and does too much to stifle freedom of speech. Such criticism ignores how section 18C is accompanied by section 18D, which protects any fair comment or reporting on a matter of public interest, and any sentiment expressed ‘in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose’. Provided something is done reasonably and in good faith, any fair comment or public discussion will be exempt from being in breach of section 18C.

Indeed, the Racial Discrimination Act is one of the few legislative instruments in Australian law that contains an explicit protection of free speech. Given the broad protection of free speech in section 18D, we are entitled to ask: Why is that people want to make it acceptable to racially offend or racially insult others in ways that are not done reasonably or in good faith, in ways that have no genuine purpose in the public interest? What is it that people want to say, which they can’t already say?

Has section 18D actually worked in practice?

There have been numerous cases considered by the courts, where something has caused racial offence, insult, humiliation or intimidation, but has been held to enjoy the protection of section 18D.

For example, in the case of Bropho, cartoons published in the West Australian newspaper, about which Aboriginal people had complained, were deemed to have been artistic work and fair comment enjoying the exemption of section 18D. The section has also prevailed in the Kelly-Country v Beers case, which involved a satirical performer who purported to be an Aboriginal person called ‘King Billy Coke Bottle’. This was similarly the case involving a book published in Pauline Hanson’s name (Walsh v Hanson), where a court found that racially offensive material was protected as it involved a good faith engagement in public debate.

In the noted Eatock v Bolt case, the Federal Court concluded that the conduct of the journalist and newspaper was not exempted by section 18D of the RDA because the respondents had not acted reasonably and in good faith.

But if we believe in free speech, why is it a crime to say things that may offend or insult others?

No right or freedom is ever absolute. One person’s freedom ends where another person’s freedom begins. Where acts impinge upon the rights and freedoms of others, it is only right that we hold it to account. We accept many limitations of what people can say – for example, those imposed by national security laws, defamation laws, trade practices laws, and criminal summary offence laws. Laws against racial vilification reflect our society’s commitment to civility, respect and tolerance.

Section 18C is concerned with acts that offend, insult, humiliate or intimidate because of someone’s race or ethnicity. This is a different thing to acts that merely offend or insult. There is a difference between someone insulting you or offending you because you support a certain football team or because of your political ideology. That’s because racial offence and racial insult can strike at the heart of a person’s being and their dignity, the part of their identity that comes from their background and ancestry.

Moreover, section 18C is a civil provision, not a criminal one. Racial vilification is not made a criminal offence under the Racial Discrimination Act. All the Act does is enable someone to lodge a complaint to the Australian Human Rights Commission, which conciliates complaints. Only when conciliation fails may someone take a matter to a federal court. No one can be convicted for breaching the Act, or be criminally prosecuted for racial vilification.

Shouldn’t section 18C avoid protecting subjective hurt feelings?

The courts have held that the standard to be met for section 18C to be contravened is conduct that has ‘profound and serious effects’, which are ‘not to be likened to mere slights’. This standard was originally articulated by Kiefel J in Creek v Cairns Post, and has been followed by the Federal Court in decisions since. This can now be regarded as settled law.

The test for whether an act breaches section 18C is also an objective one. The provision makes it unlawful to do an act that is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate on the grounds of race and ethnicity. The fact that someone feels they have been racially offended, insulted, intimidated or humiliated is not enough to mean that there has been something unlawful. Whether section 18C has been contravened is judged by a court according to the reasonable person of the target ethnic or racial group.

What is the role of the Australian Human Rights Commission, and of lawyers?

The President of the AHRC investigates and conciliates complaints from individuals who allege racial vilification. The AHRC is not a judicial body or tribunal. It does not make judicial determinations about the Racial Discrimination Act or any other piece of legislation. Conciliation is not a court hearing.

As Race Discrimination Commissioner, I play no role in the conciliation of complaints. However, it is a function of the Race Discrimination Commissioner to promote understanding and acceptance of the Act (which naturally extends to giving the public information about how they can make a complaint about unlawful discrimination).

Such functions of the AHRC are not always well understood; it can be assumed that the AHRC actively pursues complaints against parties, including at court. This is incorrect. The AHRC’s role is to investigate and conciliate complaints, and if conciliation fails at the AHRC, a complainant can pursue the matter at the Federal Court or Federal Circuit Court. This happens in a very small number of cases. In 2015-16, the Commission finalised 86 complaints about racial hatred. Only one complaint about racial hatred proceeded to court. In the majority of complaints where conciliation takes place, the outcome involves a mutually agreed result such as an apology or a settlement.

Lawyers and advocates can play a role in the AHRC’s conciliations. Lawyers and advocates may assist their clients in conciliation by providing them with advice about the law and the strengths and weaknesses of their case, the benefits and risks of pursuing a claim in court, and other matters. While conciliation takes place, lawyers and advocates may be permitted by the conciliator to attend.

Hasn’t section 18C in practice seen trivial cases reach court?

The President of the AHRC has the power to terminate complaints that are trivial, vexatious, misconceived or lacking in substance. However, the Commission has recommended to the ongoing parliamentary inquiry a number of amendments to the legislation that deals with complaints-handling. Namely, the legislation should require complainants to provide more information when lodging a complaint, and it should provide that if a complaint is terminated on one of a number of grounds, then an application to court cannot be made unless the court grants leave.

That aside, the typical cases involving section 18C that courts have considered indicate the kind of racial hatred that attracts the attention of the law. These include cases where Aboriginal people have been described as ‘criminal trash’ and ‘scum’ that should be used as landfill (Clarke v Nationwide News), where a man was verbally abused in a building foyer and called a ‘Singaporean prick’ and told to go back to Singapore (Kanapathy v In De Braekt), or where a website published material denying the Holocaust and expressing virulent anti-Semitism (Jones v Toben).

Where to from here?

Public debate about the Racial Discrimination Act is unlikely to abate any time soon. Nothing in a democracy is ever off limits from debate. But we can only hope that any public discussion of the Act is based on an accurate understanding of what it means and how it operates. And we can only hope that our society will remain committed to racial tolerance, non-discrimination and equality. No law can ever, on its own, secure such aspirations. That is no reason, however, to believe that weakening the Racial Discrimination Act will not do harm. Human rights legislation is nothing if not an embodiment of our values.

Published in The Law Society Journal