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So, what went wrong with section 18C?

By John de Meyrick - posted Tuesday, 10 January 2017


According to the 1992-93 Federal Cabinet papers of the Keating Government, just released by the National Archives, section 18C of the Racial Discrimination Act 1975 (Cth),when introduced as a proposed amendment of that Act by the (then) Attorney-General, Michael Duffy, was intended to make racial vilification an offence in relation to "conduct that is likely to lead to incitement to hatred, contempt or ridicule and should not be relatively minor or be of the nature of a lighthearted racist joke".

It also seems that an act of racial vilification under the (then) proposed s18C was intended to be defined as "inherently offensive [with] actual offensive intent [and likely to cause] hostility or ill-will", and to be illustrated by "a series of defined conditions to be met".

Had those proposals been the way section 18C was drafted and came into legislation then the contentious cases that have arisen under that section and all of the political, legal and media attention involving its threat to freedom of speech may never have seen the light of day.

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But none of what the (then) Government appears to have intended or proposed is what section 18C says or does; nor is it because it has been wrongly interpreted or applied by the courts or the Australian Human Rights Commission.

The AHRC has the power to dismiss complaints of racial discrimination which are found to be trivial or vexatious, but the fact that it has pursued some such complaints, advisedly or otherwise, is entirely within the scope and authority of section 18C as it presently stands. It can not only take up complaints that may be "relatively minor or be of the nature of a lighthearted racial joke", but also any kind of conduct imaginable from a mere slight, slur or raised eyebrow to an act of utter degradation provided the complainant asserts that he or she has been offended, insulted, humiliated or intimidated by that conduct.

So what went wrong somewhere along the way between the policy intentions of the (then) Government and its Attorney-General, Michael Duffy in 1993, and the actual amendment that was passed through Parliament later in 1995 by his successor Attorney-General, Michael Lavarch?

The presently released Cabinet documents do not cover the later period, assuming they would throw some further light on this 'riddle'. But it seems from reports of Mr Duffy (who retired from the Parliament in 1996) that he is of the (dubious) opinion that, whilst 18C does not reflect what was intended by his submission to Cabinet, it doesn't "contradict the basic thrust of the matters raised in [his] Cabinet submission".

Michael Lavarch (who also left Parliament in 1996) is yet to comment, although he may feel constrained by reason of Cabinet confidentiality, as any papers for 1994-95 are yet to be released.

The threat that section 18C holds for freedom of expression and free speech remained a 'sleeper' issue between its enactment in 1995 and the now notorious Andrew Bolt Case in 2011. Although that case is not a worthy example of the insidious effect of 18C, it raised alarm as to its potential harm.

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The Coalition Government came back into office in 2013 with Attorney-General George Brandis vowing to repeal section 18C before becoming embroiled in controversy over the right to be a bigot. The (then) Prime Minister, Tony Abbott, dismissed the matter qua the Bolt Case as an aberration unlikely to occur again. But much more serious cases have arisen meanwhile and since, and the issue has become a sustained political and media topic of concern.

The Government, with its present precarious one-vote majority in the Lower House and requiring the support of a querulous cross-bench for the passing of its legislation in the Senate, has shuffled the matter off to a Parliamentary Joint Committee for an Inquiry into Freedom of Speech in Australia, the Operation of Part IIA of the Racial Discrimination Act [ie, including 18C] and the Complaints Handling Procedures of the Australian Human Rights Commission. The Committee is to report by the end of February this year.

Meanwhile, the Opposition and a number of interested organisations are 'playing down' the seriousness of the issue and suggesting that nothing needs to be changed, and that the provisions of 18C are entirely justified in appropriate cases, whilst freedom of speech is said to be protected by the defences and exemptions set out in section 18D of the Act.

In this, the Shadow Attorney-General Mark Dreyfus QC, in a statement issued on 10 November 2016, asserts that s18D provides "the balance between protection from racial hate speech and freedom of speech" and something which "those who attack section 18C usually fail to mention". He is wrong.

The defences set out in s18D, as applicable to defamation (ie, good faith, fair comment, genuine academic, artistic or scientific purpose, etc) do not provide protection for ordinary free speech, any more than (say) the defence of provocation would serve as an answer to a parking ticket.

The shadow attorney, who also claims in his statement on 10 November 2016 that those who seek the repeal or amendment of s18C are a "tiny and vociferous band of opponents" (with whom I am pleased to be in very good company) asserts further,that "opponents of 18C…pretend cases are judged by four separate tests against each word – intimidate, humiliate, insult and offend – [which] demonstrates an ignorance of how the law works [because] it is a single test, not four separate tests". He is wrong again.

The shadow attorney needs to look more carefully at the section which provides that, prima facie, an unlawful act is "to offend, insult, humiliate or [not and] intimidate…"

It is unlikely the Inquiry referred to will come to any consensus or satisfactory recommendation in relation to s18C. The task requires a large degree of acuity and understanding of legal concepts and legislative drafting, as well as political impartiality. In any case, can anyone really imagine any recommendations passing the present Senate unabated?

The Joint Committee comprises ten members. Five Coalition, four Labor, and one Greens. There has been 135 submissions made (including one by me). About 30 percent of these submissions are by organisations concerned with ethnic affairs; 25 percent by political and activist groups; 23 percent by 'neutral' bodies; 12 percent by informed legal interests; and 10 percent by academic and expert advisers.

Most submissions are well reasoned. However, few directly address the core issues. Few relate to the larger question of ensuring freedom of speech. Few provide any viable suggestions or solutions. And very few go to the essential reason why we are having the inquiry: That is the need for a clear understanding of the difference at law between conduct that only hurts a person's feelings and conduct that causes some actual harm. That is the question. That is the real issue. That is the problem with 18C.

The AHRC has provided a self-serving submission in defence of its handling of complaints and of its record. Much of it is disculpative and self-denying. For example, in par 21 of its submission it states:

The Commission observes that there is some confusion about the legal meaning of sections 18C and 18D, and the Commission's role in administering the RDA. It is important to make clear that the RDA does not prohibit speech or conduct that merely hurts a person's feelings.

But that is precisely what s18C does; and it is precisely what the AHRC has been prepared to take up by way of complaints from people who claim that their feelings have been hurt, offended, insulted or humiliated (whilst seeking compensatory damages).

There is no confusion about the legal meaning of sections 18C and 18D, nor is there any confusion about the AHRC's role in administering the Racial Discrimination Act, other than exist in the 'mind' and the processes of the AHRC itself.

The Inquiry should start by noting the view of the High Court, that: "The law is not primarily concerned to provide redress for those who are subject of disparaging expressions of opinion; freedom of opinion (subject to necessary restrictions) is a basic democratic right". (Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at [35], adopting the obiter of Lord Bingham in a case dealing with the defence of fair comment.)

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About the Author

John de Meyrick is a barrister (ret’d), lecturer and writer on legal affairs.

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