Late last night a Senate majority comprising crossbenchers, Labor and Greens voted down the government's push to amend Section 18C of Australia's racial discrimination laws.
Ahead of the vote, Fiona McLeod SC made an address last week to the Senate Legal and Constitutional Affairs Committee, outlining why proposed changes to Australia’s race hate laws are not necessary.
The Law Council of Australia (LCA) president told the committee, which had quickly convened last Friday (24 March), that the law already strikes an appropriate balance between freedom of expression and protection from racial vilification.
This position is the same as that taken by the LCA in 2014, when a so-called ‘Freedom of Speech Bill’ had been proposed to scrap S 18C of the Racial Discrimination Act 1975 (Cth).
Ms McLeod said the case had not been made to accept any of the proposed changes in a new bill currently before the Senate and warned against watering down the language contained in Section 18C.
She drew special concern to the suggestion that existing words contained in Section 18C of the Racial Discrimination Act 1975 (Cth) be replaced with the word ‘harass’ and said that as a matter of interpretation, this change could have the effect of limiting the scope of the provision. Potential difficulties with the definition of ‘harass’ also exist.
“Omitting the words ‘offend, insult and humiliate’ and replacing them with ‘harass’ assumes a direct personal relationship. It may have the effect of carving out media or publications where the author has no person in mind to ‘harrass’,” Ms McLeod told the committee.
“Further, it is unclear what meaning should be given to the term ‘harass’. In the Equal Opportunity Act 1984 (WA), for example, racial harassment can include threatening, abusing, insulting or taunting another person. Accepting that the WA definition is a statutory definition, and that ‘harass’ is not otherwise defined in the proposed amendments, it may be that ‘harass’ covers conduct that is intended to be removed from 18C,” she said.
Writing for The Conversation earlier this month, University of New South Wales law academic Professor Luke McNamara said that 18C detractors who fixate on replacing the words ‘offend, insult and humiliate’ lose sight of an important objective of the provision.
Professor McNamara said that calls to reform the provision misunderstands the harm threshold in 18C.
“The courts have consistently held that the bar is not a low one. To fall within 18C the speech must have profound and serious effects, not to be likened to mere slights,” Professor McNamara said.
The legal academic pointed to an explanation provided by the federal court in Eatock v Bolt which says:
The definitions of ‘insult’ and ‘humiliate’ are closely connected to a loss of or lowering of dignity. The word ‘intimidate’ is apt to describe the silencing consequences of the dignity denying impact of racial prejudice as well as the use of threats of violence. The word ‘offend’ is potentially wider, but given the context, ‘offend’ should be interpreted conformably with the words chosen as its partners.
During last week’s hearing, Ms McLeod told the senate committee that if Parliament was minded to see the changes through, despite expert recommendations to the contrary, more satisfactory alternatives were available to replace the words ‘offend, insult and humiliate’.
Ms McLeod referred to a suggestion made by acting NSW Supreme Court Judge Ronald Sackville that if the existing words are removed, they should be replaced with ‘degrade, intimidate or incite hatred or contempt’.
Another option, she suggested is to keep the stronger term ‘humiliate’ so that the current formulation of the act is replaced with ‘humiliate, intimidate or incite hatred or contempt’.
“Whatever words are ultimately adopted by Parliament, they should be consistent with the prevention of harm and social cohesion objects of the Racial Discrimination Act,” Ms McLeod said.
The LCA also expressed concern about the vague test offered by the newly proposed test held up against the ‘standards of a reasonable member of the Australian community’, describing it as a vague and changeable concept.
The legal body however did express support for some changes proposed in the bill, subject to some technical amendments. These changes include efforts to tighten up the complaints handling process and the introduction of a new subsection under Section 18C.
Following Thursday's Senate vote, it is believed the government's proposal for procedural changes to the complaints handling process overseen by the Australian Human Rights Commission will succeed. Those changes are intended to make it easier to dismiss vexatious complaints under the legislation.