Putting balance back into the racial discrimination debate

Secondly, complete repeal would almost certainly lead to the ALP declaring its intention to reinstate the section if it were returned to government and the Greens joining in. This would create a new and divisive issue that would run and divert the Government's attention and energy from other issues on which it would clearly prefer to concentrate.

Thirdly, a simple repeal would serve to antagonize and alienate some ethnic community groups. This would be socially divisive and electorally unwise.

Finally, the Australian community as a whole would probably want the law to outlaw some types of racially based conduct short of incitement to racial violence. Some such prohibitions that are outlawed by the present provision would be legitimated if s 18C were entirely repealed without something else being put in its place.

It therefore seems we would be well advised to look at the main defects in the present law and concentrate on replacing them with something better, rather than pursuing complete repeal. What, then, is the major flaw in Section 18C that could be remedied by amendment?

The current, subjective test is flawed

The present Section 18C makes it unlawful for a person to do an act, otherwise than in private that is reasonably likely in all the circumstances to offend, insult, humiliate or intimidate another person or a group of people, and the act is done because of their race, colour or national or ethnic origin. This test is essentially a subjective one, based on how the individual or group feel or would feel about the act as determined not by them but by a Judge.

The test is flawed because it tells us little about the community's view of the conduct in question, when the community's view should at least be a factor and it tells us little about whether the community thinks that conduct should be punished.

Rather, it imposes a test where the judge has to put him or herself in the position of the complainant and ask whether an act would have offended, insulted, humiliated or intimidated a person or group in light of their own particular sensitivities. Clearly there must be cases where the complainant may well have been offended by what was said about him, but where the community would itself not regard the conduct as justifying the feeling of outrage held by the complainant or any punishment of the respondent (the originator of the conduct) for engaging in the conduct. As the Section stands at the present the originator would be guilty in such cases, even if the community view on any fact situation were that the conduct should not be illegal.

It is true, of course, that the Judge did not use an unrestricted subjective test, as he invoked the notion of whether the "target " would be "reasonably likely in all the circumstances" to be offended, although this is still a subjective test.

In any event, there are also the twin questions of whether a judge, sitting alone, would have any idea of whether the complainant "should" have been so incensed and whether judges should be passing judgment on such questions, which are essentially questions of personal conduct and reaction.

The present subjective test also gives scope for false or even honest outrage, but outrage based on events about which a mature, responsible adult in a society that is committed to freedom of expression should not complain. In other words, the present test enables complainants to bring proceedings and to say, yes, they certainly were offended, insulted, humiliated or intimidated or perhaps all of them and for the Judge to say that they were or should have been so offended, insulted, humiliated or intimidated, whether the community as a whole believes they were not offended or should not have been offended.

There is then a clear danger under the present test that what traditionally would have been thought of as no more than a demonstration of robust freedom of expression becomes illegal, no matter what the community as a whole thinks of it.

The subjective test therefore prevents a proper role being given to the principle that we should strive to give as much rein as possible to freedom of expression as seen by the community. The subjective test of liability is a major defect in the present law and one that calls out for reform.