The media furore over Section 18C of the Racial Discrimination Act recently dragged Dr Tim Soutphommasane (pictured) into its narrative, moving him to respond to the suggestion that he had in some way solicited complaints.
The news reports in question took a dim view of the commissioner’s response to a cartoon drawn by the late Bill Leak, depicting an Aboriginal father who did not know the name of his own child.
At the time that the cartoon was published last August, the commissioner shared a link to an article from one of News Corps’ competitors on Twitter, saying “Our society shouldn’t endorse racial stereotypes of Aboriginal Australians — or, for that matter, of any other group.”
According to News Corp papers, The Australian and The DailyTelegraph, Dr Soutphommasane later gave advice to the public about how to make a complaint to the Australian Human Rights Commission (AHRC) if they felt they were subjected to the conduct contravening Section 18C of the Act.
Taking aim at both papers, Dr Soutphommasane said he rejected any suggestion that he acted to urge or encourage complaints and he played no role in the investigation or conciliation of complaints as Race Discrimination Commissioner.
He added that the promotion of understanding and acceptance of the Act was in fact part of his mandate as Race Discrimination Commissioner.
“It is my function, as stated in the Racial Discrimination Act, to promote public understanding and acceptance of the Act,” Dr Soutphommasane said.
“This includes informing people about their right to lodge a complaint if they believe they have experienced racial hatred. It is wrong to suggest that giving this information amounts to soliciting complaints,” he said.
Between 2015 and 2016, a total of 77 racial vilification complaints were made to the AHRC under Section 18C of the Act. Of those complaints, 12 per cent of complaints were withdrawn, 52 per cent were resolved at conciliation, and one proceeded to court, the statement said.
The commissioner said his public comments about the Act have been consistent and that he has always made a point of highlighting both sections 18C and 18D together. Both sections of the Act deal with racial vilification.
Dr Soutphommasane clarified that it was the view of the AHRC that the courts have adopted a balanced interpretation of both sections 18C and 18D.
“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 be likened to mere slights’,” the commissioner said.
“The test for whether an act breaches Section 18C is also an objective one. The provision refers to an act that is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate on the grounds of race.
“The fact that someone feels they have been racially offended, insulted, intimidated or humiliated does not necessarily mean the legal standard has been met,” he said.
Dr Soutphommasane said the AHRC was committed to engaging with any legislative reforms that can further improve the complaint handling process. Access to justice was also an important focus for the commission.
The commissioner’s statement provided the following explanation of both sections 18C and 18D of the Racial Discrimination Act:
Section 18C of the Act makes it unlawful to offend, insult, humiliate or intimidate someone because of their race or ethnicity.
Exemptions under Section 18D of the Act ensure that artistic works, scientific and academic inquiry, and fair comment on matters of public interest are exempt from Section 18C, provided they are done reasonably and in good faith.
As Professor Luke McNamara from the University of New South Wales points out in a piece written for the Conversation, the AHRC has a neutral role to play in the legislative regime.
"The Human Rights Commission is a neutral facilitator, not an enforcer. And, wherever possible, the aim is to resolve things via conciliation,” Professor McNamara said.
The legal academic argues that it would be wrong to regard Section 18C as capable of being a lone-fix for the problem of racism in Australia.
“It would be wrong to see it as a magical panacea. But it is equally wrong – and unsupported by the available evidence – to regard 18C as a threat to Australia’s liberal democracy," he said.
Liberal senator Cory Bernardi this week announced plans to introduce a private member’s bill to curtail 18C.