Confusions over Section 18C of the Racial Discrimination Act 1975

I hadn't intended to comment on the current debate about the proposed changes to Section 18c of the Australian Racial Discrimination Act 1975, but I got so annoyed listening to some of the interviews with the no-change proponents that I thought that I should at least educate myself.

For those who would like to educate themselves, I recommend reading the Parliamentary Joint Committee on Human Rights report "Freedom of speech in Australia - Inquiry into the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) and related procedures under the Australian Human Rights Commission Act 1986 (Cth)". While there was disagreement within the Committee, the report provides the best overview of the issues, far better than you will get from the reporting or commentary.

Legal Framework

As the report title indicates, there are two Commonwealth Acts involved. 

Part IIA of the Racial Discrimination Act deals with prohibition of offensive behaviour based on racial hatred. Section 18C states:

18C Offensive behaviour because of race, colour or national or
ethnic origin
 (1) It is unlawful for a person to do an act, otherwise than in private, if:
 (a) the act is reasonably likely, in all the circumstances, to
offend, insult, humiliate or intimidate another person or a
group of people; and
 (b) the act is done because of the race, colour or national or
ethnic origin of the other person or of some or all of the
people in the group.   

(2) For the purposes of subsection (1), an act is taken not to be done in
private if it:
 (a) causes words, sounds, images or writing to be communicated
to the public; or
 (b) is done in a public place; or
 (c) is done in the sight or hearing of people who are in a public
place. 

(3) In this section: public place includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.  

Four things to note about 18C:

• It focuses on offensive behaviour. Other forms of racial discrimination relating to property or employment are dealt with in other sections of the Act
• Unlawful behaviour is not the same as criminal behaviour. No formal penalties are attached. However, in the event of a court ruling that the behaviour is unlawful, other civil action may follow 
• The scope of "offend, insult, humiliate or intimidate" because of the "race, colour or national or ethnic origin of the other person or of some or all of the people in the group" is broad
• The scope does not include offensive behaviour on the grounds of religion unless this can be linked in some way to the defined categories.    

Section 18D then provides a defence:

18D Exemptions
 Section 18C does not render unlawful anything said or done
reasonably and in good faith:
 (a) in the performance, exhibition or distribution of an artistic
work; or
 (b) in the course of any statement, publication, discussion or
debate made or held for any genuine academic, artistic or
scientific purpose or any other genuine purpose in the public
interest; or
 (c) in making or publishing:
 (i) a fair and accurate report of any event or matter of
public interest; or
 (ii) a fair comment on any event or matter of public interest
if the comment is an expression of a genuine belief held
by the person making the comment.  

The second Act, the Australian Human Rights Commission Act 1986 provides for the processes to be followed in handling complaints. These processes are reasonably complex and I'm not sure that I have them exactly right. However, in summary complaints must be in writing, they are reviewed by the Human Rights Commission who may reject them on because they are vexatious or trivial, there is provision for a conciliation process to try to reconcile the process. If agreement cannot be reached, the process is terminated. Where a complaint is rejected or the process terminated because agreement cannot be reached, complainants may then choose to take court action.

The Proposed Changes

The proposed changes announced by the Prime Minister and Commonwealth Attorney Brandis would:

• Remove the words "offend, insult, humiliate" from section 18C of the RDA and insert the word "harass". It would also introduce the "reasonable member of the Australian community" as the objective standard by which contravention of section 18C should be judged.
• Amend the AHRC Act to facilitate the disposal of unmeritorious complaints and ensure fairness is accorded to both complainants and respondents. The legislation would raise the threshold for the Commission to accept a complaint, provide additional powers for the Commission to terminate unmeritorious complaints and limit access to the courts for unsuccessful complaints.
• Also include minor technical amendments, identified by the Commission itself, to improve the Commission's reporting obligations, its conciliation processes, and governance arrangements.

The Arguments

Section 18C has become a hugely symbolic issue to the point that the arguments about the changes tend to get lost in arguments about racism and free speech in a pluralist society.

Those arguing for legislative change fall into a number of groups. There are those who want 18C deleted in total. because it infringes the general principle of free speech. This includes libertarians, as well as some of those on the right of the Liberal Party. Some oppose 18C in principle, others because of the "chilling" effect it has on debate when combined with the dispute processes; some combine the two to justify opposition.  

There are then those who want the scope of 18C narrowed to improve clarity. This includes those who suggested the replacement of the current words with vilify or harass or indeed both. Then there are those who would like to see the scope of 18C widened to include religion with "race, colour or national or
ethnic origin." 

Some of those arguing for legislative change would maintain 18C as is, but wish to see the procedures amended to improve simplicity and clarity and reduce vexatious claims.  

Those arguing against the proposed legislative changes generally make one or a combination of four main points:

• They believe that the current legislation is in fact working well, although there may be a case for improving procedures
• The broad wording of the current 18C has in practice been read down by the courts to limiting, thus reducing the case for change. A change of the type proposed would invalidate this case law, creating uncertainties and difficulties of interpretation
•  The new "reasonable person" test is wrong because it shifts the judgment on the offence from the aggrieved person or group to a broader community who may never have experienced racial abuse and are therefore not in a position to make a judgement on the degree of offence or hurt caused.  
• The proposed changes send the wrong signals and may encourage racism. Some of those arguing this line support their point with claims about the continuing prevalence of racism in  Australia.  

Among the main protagonists of these views are the Human Rights Commission itself, the Labor and Green Parties and organisations representing particular ethnic groups.

Discussion

My own views about Section 18C have fluctuated. The main Racial Discrimination Act was introduced by the Whitlam Government in 1975. Section 18C came later, introduced by the Keating Government to Parliament in November 1994. At the time, I thought that it was an infringement on free speech, another of a parcel of symbolic measures so beloved by then Prime Minister Keating that greatly infuriated me at the the time.

That was twelve years ago. With time, the section became embedded. I didn't see it as necessarily doing much good in addressing racism, but until recently I didn't see it as having significant problems either. It was just there. I couldn't quite understand the continuing heat in the issue.

I guess that makes me out of touch. The dispute over Section 18C has now become so enmeshed in conflicts over symbols, values, ideology and perceptions that that it is difficult to disentangle the issues involved that bear specifically on the legislation itself. Indeed, I'm not sure that those specific issues matter anymore in what has become a stark two tone debate where the role of 18C is primarily symbolic.

Based on the evidence presented so far, I don't think there is any doubt that the combination of 18C with the dispute handling procedures has had, to use News Corporation's word, something of a "chilling" effect on public discussion. The problems are that you don't know who will be offended and what action might be taken. Even if a matter does not proceed to court, there are still costs involved in time and legal expenses. If a matter does proceed to court, further expenses are involved. The response is a degree of self-censorship.

It is not clear to me to what degree this problem is due to the current wording of 18C as compared to the procedures to be followed should a complaint be submitted.

A linked problem lies in the present very broad wording of 18C, the use of  "offend, insult, humiliate" if the public expression is based on the grounds of "race, colour or national or ethnic origin of the other person or of some or all of the people in the group". I don't know where to draw the boundaries with those words.

During the debate over the proposed changes, Labor spokesman kept asking for examples where the current legislation stopped free speech. Leaving aside the problem that giving such examples might themselves lead to complaints under the Act, here are a few generalised examples::

• "The Armenian genocide came about because of ethnic, cultural and religious prejudices deeply embedded in Turkish society, prejudices that continue to this day." Alternatively, "the Armenian genocide is a myth perpetrated by Armenian nationalists smearing Turkey and the Turkish people for their own political end." 
• "Racism is deeply embedded in white society."  Alternatively, "there is something deeply racist in the way Aboriginal  people seek to exclude non-Aboriginal people  from even commenting on Aboriginal issues." 

I am not saying that these are perfect examples, just that each one is likely to offend, insult or even humiliate someone on the grounds of race, colour or national or ethnic origin. I am sure that you could think of other examples.

Three related questions arise: what is the purpose of the legislation, the problem being addressed; what is the scope of the legislation; and is 18C the best way of addressing the identified problem? 

The intent of the Government's proposed changes is to narrow the scope of the legislation by focusing on harass. Part of the argument against this is that the courts have already narrowed the scope of the legislation to limit it to more serious cases, a second part is that any change would send a signal that racism is okay. A more significant argument is that the meaning of harass itself is unclear. 

A simpler change that might meet objections on both sides would be the deletion of the word offend, thus reflecting what the courts already appear to have decided.  

While there is no agreement on the scope of 18C, there does appear to be at least a measure of agreement that the complaint processes do need reformation. I do not know whether the Government's proposals here are the best result. I haven't seen much discussion on this since attention has been so strongly focused on the change to 18C. 

On the surface, a sensible fall back position for all parties would seem to be changes here. That would then allow changes to 18C itself to be further considered in the light of subsequent case experience.

As things stand at the moment, it seems the the Government's proposed legislation will be defeated in the Senate, so all this discussion is perhaps a little pointless given that maintenance of the status quo seems the most likely outcome.