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Racial vilification laws protect those who are silenced by hate speech

Race Discrimination

Parliament’s human rights committee has spent the past four months examining Australia’s laws against racial vilification.  It travelled to every capital city and heard stories of how racism impacts on the lives of everyday Australians.

Leaders of multicultural communities spoke about the experiences of verbal abuse on public transport, on-line hate speech and race-based violence.

Researchers gave evidence of the profound harms of racism, ranging from social exclusion to psychological and physical impacts.  Dr Jackie Huggins, co-chair of the National Congress of Australia’s First Peoples said that ‘sometimes Aboriginal people just wear it as a second skin because we are so used to it’.  This speaks to the resilience that many people have in the face of racism.

It is important that we teach our children to be strong and to speak out for the values that are important to them.  At the same time, it is important that we have legal protections in place where people are silenced by hate speech or don’t have the power to speak back.  The Commission’s conciliation process offers a neutral environment where those involved in alleged incidents of racism can have respectful conversations and, hopefully, resolve their differences.

The committee considered whether our racial vilification laws imposed unreasonable restrictions on freedom of speech.  The Commission’s view, supported by the vast majority of submissions, is that the law has served Australia well over the last 20 years in sending the message that racial abuse will not be tolerated in our multicultural society.  Ultimately, there was no consensus from the committee on whether any reform was necessary and, for the moment, the racial hatred laws remain as they are.

The committee also considered the Commission’s process for handling complaints.  It made a number of recommendations, many of which were proposed by the Commission.  We welcome the recommendations to raise the threshold for complaints and to strengthen the powers of the Commission to terminate unmeritorious complaints.  We remain concerned that some of the recommendations may unfairly restrict access to justice by the most vulnerable in our society, for example by imposing fees and costs on the conciliation process.

The evidence to the committee was that the Commission’s process works well in the overwhelming majority of cases.  Experienced conciliators deal with more than 2,000 formal complaints each year.  Through conciliation, the parties are able to reach an agreed outcome in 76% of cases.  Both complainants and respondents report very high levels of satisfaction with the process – 94% say that they were satisfied, with 73% rating the service as ‘very good’ or ‘excellent’.

Much of the committee’s time was taken up discussing two high profile complaints.  It is worth remembering the old saying that ‘hard cases make bad law’. The QUT case was difficult for both the complainant, Ms Prior, and the students of the Queensland University of Technology. The Commission deeply regrets the anxiety, reputational damage and costs that resulted from the lengthy processes in that case.

The Commission has changed its processes since this case and now ensures that, where there is more than one respondent to a complaint, each respondent is notified of the complaint at the same time. We welcome the committee’s recommendation to formalise that process in legislation.

It is important to understand that the Commission’s role in seeking to conciliate complaints prior to court is a limited one.  Parliament passed the laws, and the Commission’s job is to apply them as fairly as possible.  The Commission cannot stop parties from going to court if agreement is not possible, regardless of the merits of the complaint.  It is not involved in any subsequent court case that may be commenced. 

An essential aspect of the conciliation process is that it is voluntary.  One example is the complaint about the cartoon by Mr Leak in The Australian.  As I have said in my evidence to two parliamentary committees, we asked Mr Leak twice through his lawyers if he wanted to make a submission explaining why the free speech exemptions in section 18D of the Racial Discrimination Act applied. 

His lawyers wrote to us saying that Mr Leak ‘does not intend to make any submission’ to the Commission.  We were told that Mr Leak instead wanted a public hearing where he could appear and give evidence about his motivations.  There was no obligation on Mr Leak to make a submission, but it would have helped us to assess the merits of the matter more quickly.  Ultimately, the complaints against him were withdrawn.

The Commission is encouraged by many of the recommendations made by the committee.  We hope that any legislation to strengthen our processes will ensure access to justice for all Australians, while also allowing the Commission to deal efficiently with complaints that are frivolous or insubstantial.

Published in The Guardian