Putting balance back into the racial discrimination debate

What the present proposal is and why it is good

For all the talk of whether "offends/insults" sets the bar too low, another question that has not been discussed in sufficient detail is whether the test should be a subjective one at all.

As Chris Merritt asked in the Australian: 'What, for example, should be done about a procedure that requires a judge to determine liability not according to community standards, but according to the feelings of those who claim they have been wronged. And is it appropriate for the law to impose duties on judges that, to many, look more like those of an editor?'

A better approach than this subjective test would be, instead, to determine liability under the Act according to community standards of propriety generally accepted by and expected of reasonable adults. This is the test that has been applied in the past where conduct that effects the community as a whole has been under consideration, in particular, censorship law.

And who better to determine whether an act offends against community standards than the community itself, by way of a jury trial? That is the best place and probably the only place to locate standards of propriety generally accepted by and expected of reasonable adults and the only place where the inner and outer limits of those standards can be accurately defined.

This would have a number of possible advantages. It would have the democratic effect of tethering case outcomes to what the community views as unacceptable, rather than the value-laden editorial decisions of a judge who must determine whether an act should have offended/insulted/humiliated/intimidated a person/group in light of their own particular sensitivities.

Australians tend to possess a fair amount of common sense and hold their right to speak freely in high regard. In practice, jury members would most likely only find a person in breach of s 18C for unambiguously egregious displays of racial vilification. They wouldn't take too kindly to plaintiffs using courts as a forum for identity politics or the silencing of opponents.

Conclusion

With proper amendments along these lines, rather than a root and branch repeal of the Section, it will be possible to say, rightly, that the amended law will prevent incitement to racial vilification and yet at the same time that it will not impose unjustified restrictions on freedom of expression that were, after all, the reason why repeal of the Section "in its current form" was advocated in the first place. A reform along the lines proposed here would remove what is a major cause for concern arising from the Bolt decision.