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Freedom of speech and Part IIA of the Racial Discrimination Act 1975 (Cth)
This chapter focuses on the first term of reference of the inquiry:
Whether the operation of Part IIA of the Racial
Discrimination Act 1975 (Cth) [(RDA)] imposes unreasonable restrictions upon
freedom of speech, and in particular whether, and if so how, ss. 18C and 18D
should be reformed.
The committee received extensive and substantial evidence from
submitters in relation to this term of reference. The evidence included
submissions both for and against amending Part IIA of the RDA. A number of
submitters also provided evidence about experiences of racism in contemporary
Australia and whether, and to what extent, the RDA provided protection from
such racism. The scope afforded to freedom of expression also emerged in
evidence as a serious issue. The range of views provided to the committee
reflected different underlying concerns about the balance between protection
from racial discrimination and freedom of expression as well as legal
principles such as the rule of law and constitutionality.
The views of submitters in favour of repealing or changing Part IIA of
the RDA demonstrated a range of concerns. These concerns included the scope
afforded to freedom of speech, but also a separate concern that the extent of
confusion about the scope and effect of Part IIA could undermine its purposes.
In particular, from a rule of law perspective, concerns were expressed that the
scope of conduct prohibited under section 18C of the RDA was not clear and
accessible on the face of the provision.
The views of submitters in favour of retaining the existing protections
under Part IIA also demonstrated a range of concerns. Many multicultural and
community groups considered that Part IIA of the RDA has an important symbolic
role and provided protection against forms of racially discriminatory speech.
These groups were concerned that repealing or amending Part IIA would send a
negative message that racism was acceptable. It was also argued to
the committee that in legal terms the application of the law is well settled
and concerns were expressed that any changes to the law would give rise to
significant uncertainty as to the meaning and scope of any new law.
The first and second parts of this chapter describe the background to
the enactment of Part IIA of the RDA, and the scope of conduct caught under
Part IIA of the RDA, including how it has been interpreted by the courts.
The third part of this chapter outlines the wide range of views of
submitters in relation to Part IIA of the RDA, including proposals for reform. It
canvasses the case for repeal, the case for change, the case for retaining the
existing protections and the role that increased education could play.
The fourth part of this chapter sets out the committee's views on the
question of the need for reforming Part IIA of the RDA and recommendations
based on evidence received.
Background to, and enactment of, Part IIA of the RDA
The introduction of legislative protections against certain forms of
racially discriminatory speech in the 1990s were informed by recommendations
and findings by a number of significant inquiries which had identified gaps in
legal protections available to victims of racism:
The National Inquiry into Racist Violence in Australia prepared
by the predecessor to the AHRC, the Human Rights and Equal Opportunities
The National Report of the Royal Commission into
Aboriginal Deaths in Custody;
The Multiculturalism and the Law Report of the Australian
Law Reform Council.
The introduction of such legislative protections was also informed by
Australia's obligations under the International Convention on the Elimination
of All Forms of Racial Discrimination (CERD) and the International Covenant on
Civil and Political Rights (ICCPR) which impose specific obligations on states
to prohibit certain serious forms of racially discriminatory speech. Australia
ratified the CERD and the ICCPR in 1975 and 1980 respectively.
Protection against forms of discriminatory speech on the basis of race
were introduced into Part IIA of the RDA in 1995 through the passage of the Racial
Hatred Bill 1994 (Racial Hatred Bill).
The Racial Hatred Bill was the subject of extensive parliamentary debate.
It was also subject to substantial amendment prior to finally passing both
houses of parliament.
Specifically, the bill was amended to remove provisions which would have
amended the Crimes Act 1914 to create three criminal offences
prohibiting the making of motivated threats to a person's property because of
their race, and intentionally inciting racial hatred.
The explanatory memorandum to the Racial Hatred Bill 1994 (EM 1994)
explained that the Racial Hatred Bill was intended to support social cohesion
and close a gap in legal protection for victims of racist speech which had
been identified by significant inquiries:
The Bill closes a gap in the legal protection available to
the victims of extreme racist behaviour. The Bill is intended to strengthen and
support the significant degree of social cohesion demonstrated by the
Australian community at large. The Bill is based on the principle that no
person in Australia need live in fear because of his or her race, colour, or
national or ethnic origin.
While acknowledging the importance of freedom of speech, the EM 1994
states that 'the right to free speech must be balanced against other rights and
The EM 1994 further states that the provisions now contained in Part IIA
of the RDA were intended to provide a balance between freedom of speech and the
protection of individuals and groups from harassment and fear because of their
race, colour or national or ethnic origin.
The 1994 EM noted that the drafting of the Racial Hatred Bill was intended to
allow scope for public debate about important issues:
...not intended to
limit public debate about issues that are in the public interest. It is not
intended to prohibit people from having and expressing ideas. The Bill does not
apply to statements made during a private conversation or within the confines
of a private home.
The Bill maintains a
balance between the right to free speech and the protection of individuals and
groups from harassment and fear because of their race, colour or national or
The Bill is intended to prevent people
from seriously undermining tolerance within society by inciting racial hatred
or threatening violence against individuals or groups because of their race,
colour or national or ethnic origin. 
Part IIA of the RDA has not been amended since its enactment through the
passage of the Racial Hatred Bill in 1995.
Current anti-vilification laws at the federal level
At the federal level, Part IIA of the RDA is the source of legislative
protection against racial vilification. Part IIA (comprising sections 18A–18E)
of the RDA provides the framework for protecting against forms of speech on the
basis of race.
In particular, section 18C of the RDA contains the operative provision
making specified conduct unlawful, as a civil wrong. It provides:
- It is unlawful for a person to do an act, otherwise than
in private, if:
- the act 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 the
race, colour or national or ethnic origin of the other person or of some or all
of the people in the group.
Many submitters to the inquiry noted that the terms in section 18C are
subject to judicial interpretation to determine their legal meaning in context.
The scope of section 18C cannot be understood without consideration of
section 18D. Section 18D operates to provide some 'exemptions' or defences from
section 18C of the RDA. Section 18D of the RDA provides:
Section 18C does not render unlawful anything said or done
reasonably and in good faith:
- in the performance, exhibition
or distribution of an artistic work; or
- 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
- in making or publishing:
- a fair and accurate report of
any event or matter of public interest; or
- 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.
Meaning and scope of conduct
The meaning and scope of section 18C of the RDA has been the subject of
judicial consideration, which is essential to understanding its application. While
this is unremarkable in a legal context, in this instance statutory
interpretation plays a particularly important role because in general usage the
words 'insult' and 'offend' may be employed in relation to conduct with effects
that range from slight to severe. However, the breadth of application for legal
purposes is significantly narrower than the senses in which the words 'offend,
insult, humiliate or intimidate' are generally understood. This is especially
important in the context of section 18C as it is concerned with public conduct
engaged in because of the subject's race.
Legal meaning of 'offend, insult,
humiliate or intimidate'
The Federal Court in Jones v Scully explicitly set out the
dictionary definitions of the terms 'offend, insult, humiliate or intimidate' in
an attempt to establish the meaning to be given to each word individually.
The ordinary meaning of the words provided in Jones v Scully provide
some guidance, but must also be consistent with the threshold established by Kiefel
in Creek v Cairns Post Pty Ltd,
that section 18C only applies to conduct having 'profound and serious effects,
not to be likened to mere slights'. This standard has been affirmed in the case
It is worth noting, however, that the Court generally does not consider
each term in isolation. Although in McGlade v Lightfoot the relevant
conduct was found to be reasonably likely to 'offend' and 'insult', the Court
made it very clear that it was not reasonably likely to humiliate or
This means that the legal meaning of 'offend, insult, humiliate or intimidate' does
not wholly correspond with the ordinary or 'common sense' meaning of the terms.
In other words, as interpreted by the courts, conduct that is merely offensive
or merely insulting will not be captured by section 18C of the RDA, but only
more serious forms of conduct on the basis of race. While some submitters
suggested that the words used in section 18C created uncertainty, the committee
received evidence from other witnesses that the legal meaning and judicial
interpretation of section 18C was well settled as applying only to conduct at
the more serious end of the range.
Nature of the test
Under section 18C of the RDA the conduct complained of must be 'reasonably
likely, in all the circumstances, to offend, insult, humiliate or intimidate'.
This has been judicially interpreted as importing an 'objective test' rather
than a 'subjective test' in relation to conduct.
This means that the determinative question is not whether subjectively the
particular complainant was 'insulted, offended, intimidated or humiliated': the
question is whether the act is reasonably likely to have a 'profound and
serious effect', in all the circumstances.
An objective test is often applied with reference to how a reasonable
member of the Australian community or reasonable person would respond. However,
the form of the 'objective test' that has been applied by the courts in the
context of section 18C of the RDA is one in which the 'reasonable person' is
the member of a group: the 'objective test' applied in section 18C requires
assessing the likely effect of the conduct on a reasonable hypothetical member
of a particular racial or ethnic group which is the target of the alleged
A number of witnesses suggested this test should be broadened to the reasonable
member of the Australian community, which is discussed in [2.80].
Application to public conduct
Part IIA only applies to conduct 'otherwise than in private'. This means
that there is no prohibition on expressing views that 'offend, insult,
humiliate or intimidate' on the basis of race, colour or national or ethnic
origin in private.
As set out above, section 18D of the RDA contains a number of defences or
'exemptions' to conduct that would otherwise be captured by section 18C of the
RDA. These exemptions cover acts done 'reasonably and in good faith.' It
includes artistic works, statements made for any genuine academic, artistic or
scientific purpose or in the public interest. These 'exemptions' also extend to
publishing a fair and accurate report of any event or matter of public interest
or a fair comment on any event or matter of public interest if it is a genuine
belief held by the person making the comment.
The scope of the defences established by section 18D, and its importance
for protection of the right to freedom of expression, was the subject of
testimony during the inquiry and is explored further below.
Civil-complaint based model
The model adopted at a federal-level in Australia under the RDA is a
civil‑complaint based model rather than a criminal model. This means that
proceedings are initiated by individual complainants rather than the government.
If a respondent is found to have engaged in unlawful conduct under Part IIA
they are liable to civil rather than criminal sanctions.
Case study—Bropho v HREOC
The case of Bropho v
HREOC is a key decision for interpretation of the scope of section 18D
exemptions and was important to some areas of evidence given to the committee.
The AHRC has described the key elements of the case as follows:
In Bropho v HREOC, the Full Court of the Federal
Court considered a cartoon published in the West Australian newspaper in 1997.
The cartoon dealt with the return from the United Kingdom of the head of an
Aboriginal warrior, Yagan, who had been killed by settlers in 1833. There was
debate within the Aboriginal community about who had the appropriate cultural
claims, by descent, to bring the remains back to Western Australia.
The Nyungar Circle of Elders
had lodged a complaint with the Commission about the cartoon. At the time the
complaint was lodged, the Commission had the power to conduct hearings and make
determinations about whether or not there had been unlawful discrimination. The
Commission no longer has the power to make determinations about whether conduct
amounts to unlawful discrimination. The
complaint was dismissed by the Commission. The complainant sought judicial
review of the Commission's decision.
When the case came before
the court, Justice French noted that the cartoon:
reflected upon the mixed ancestry of some of the Aboriginal
implied an unseemly desire on the part of some of them to travel
to England on public money;
suggested that their conduct had caused disunity among the
Nyungar people of the Perth area;
showed a frivolous use by an Aboriginal leader of a dreamtime
serpent to frighten a child who was sceptical about the trip; and
showed Yagan's head in a cardboard box expressing a desire to go
back to England.
The Commission had found
that the cartoon was reasonably likely to be offensive to a Nyungar person or
to an Aboriginal person more generally. There was little doubt that at least
one of the reasons for the publication of the cartoon was the Aboriginality of
the people involved.
However, the Commission
found that the cartoon was an artistic work and that the newspaper had
published it reasonably and in good faith. As such, it came within the
exemption in section 18D(a) of the RDA. The Commission also found that the
cartoon came within the exemption in section 18D(b) because it was a
publication for a genuine purpose in the public interest, namely the discussion
or debate about the return of Yagan's head to Australia. The issue was an issue
of importance for the West Australian community. The context in which it was
published suggested that the newspaper had taken a balanced approach.
The application for review
of the Commission's decision was unsuccessful, in a case which took seven years
to resolve. The cartoonist, Dean Alston, has written about the impact of the
legal action on his life.
AHRC, Submission 13, 29.
The case for change – repealing sections 18C and 18D
Some submitters to this inquiry argued strongly for Part IIA to be
repealed in its entirety and not replaced by any other racial vilification laws
at a federal level. For example, Mr Simon Breheny, Director of Policy, the
Institute of Public Affairs (IPA) argued that Part IIA should be repealed in
its entirety on the basis of the restrictions it imposes on free speech:
Section 18C of the Racial Discrimination Act is one of the
most significant restrictions on freedom of speech in this country. Along with
the rest of the provisions of Part IIA of the Racial Discrimination Act,
section 18C ought to be repealed outright. It is an excessive, unnecessary and
counterproductive restriction on Australians' liberties. Alternative proposals
for reform would not solve the problems with the legislation that have been
identified in particular by recent court cases involving section 18C. In our
analysis, simply removing some of the words from the section—or worse,
replacing those words with new words—would be ineffective or redundant, or
would create even more uncertainty about the scope of the law.
A number of submitters, particularly journalists and lawyers employed to
represent them, argued that section 18C had a 'chilling effect' in relation to
freedom of speech.
For example, Dr Augusto Zimmerman identified that, as an academic, he has come
across people 'who are intimidated and afraid of expressing their opinions', and
...even on radio interviews that I have given I have asked the
person conducting the interview if he feels comfortable to say certain things. People
are getting really worried these days about making comments.
Dr Sev Ozdowski, a former Australian Human Rights Commissioner and also
Disability Discrimination Commissioner, stated that:
With any act likely to offend, insult, humiliate or
intimidate a person because of race, I believe the bar is high and we need to
look at it. In particular, I believe this because I have seen the chilling
effects of that legislation on the discussion of any cultural characteristics.
Questions about cultural practices are risky to ask. It also builds resentment
and distrust. It creates a 'them and us' attitude. In my view, it may put
multiculturalism at risk. It also creates enormous repercussions that damage
the respondent to a complaint, regardless of whether the allegation is proved
or not. Being accused of racism is a similar thing to being accused of sexual
violence. It is having a very negative impact on people who are accused of
Mr Justin Quill, a lawyer for Nationwide News, stated that section 18C
...there is a hidden cost of the legislation, and I think I
have an unusual insight into it. The committee may not have heard of it. Every
week, I ...[review] hundreds of articles—newspaper articles, radio editorials and
TV reports; it is literally hundreds a week. Every single day, 18C is having an
impact. It is not the sort of impact that we read about in the Bill Leak case,
the Andrew Bolt case or the [Queensland University of Technology (QUT)]
case—the headline-grabbing cases. Those are three big, headline-grabbing cases
where everyone can see a real impact. They are very serious cases with real
impacts and are really important. But there is a hidden thing that happens
every day in Australia. It is a result of 18C and the very low bar that 18C
Mr Bill Leak, an editorial cartoonist at The Australian newspaper
who was subject to an 18C complaint, shared his concerns about the impact of
his case on other cartoonists:
I think that that hypothetical person working for some
magazine that might be online - goodness knows - or whatever but does not have
the backing of an organisation like News Corp is going to look at what happened
to me and say: 'That bloke really got into a lot of trouble for telling the
truth. I better not tell it myself.' If that is not a dampener on freedom of
expression and freedom of speech, I do not know what is. To me, I think it is
Mr Paul Zanetti, also a cartoonist subject to an 18C complaint, shared
I am more exposed than Bill because I am an independent
syndicator. It is a concern because it is designed to stifle freedom of
thought, freedom of speech, freedom of expression. It is a form of thought
police, where if you dare to step outside certain boundaries we have this law
where anybody is entitled to come after you and drag you in front of a
government institution. It could send you broke. You could lose your house—the
ramifications of the rest of it where you are held personally liable. There is
no protection for anybody who wants to exercise real freedom of speech or
When asked to respond to how the chilling effect impacts the work of a
media organisation, Ms Sarah Waladan, Head of Legal and Regulatory Affairs from
Free TV Australia said:
...media organisations are likely to advise against publication
of material where 18C is likely to be an issue. The implication of that is
obviously a moderation of reporting and a stifling of commentary around the
social issues of the day, which can then lead to a distorted view of the issue
In contrast, the committee also received evidence from Professors
Katharine Gelber and Luke McNamara who had examined ten years of section 18C
complaints from 2000–2010 which questioned whether section 18C had a 'chilling
effect' on freedom of expression although neither of them had been subject to a
complaint under the RDA.
In addition, other submitters argued that they found that forms of racially
discriminatory speech themselves had a 'chilling' or silencing effect in
relation to their exercise of freedom of expression and in dissuading people
affected from pursuing legal remedies (discussed further below at [2.83]).
Another basis for arguing that Part IIA should be repealed that was
explored before the committee is that criminal and other laws provided
sufficient protection in relation to serious forms of threating or
For example, Mr Graham Young, Executive Director, Australian Institute for
Progress argued that words which fall short of a threat of physical injury or
violence should not be actionable, and that there is sufficient protection in
existing laws, such as defamation law: 
Intimidation in various forms beyond a certain point
certainly ought to be illegal, but it is illegal in a lot of cases, like
harassment in various places and forms. It should not be in an act like this
for the use of a particular number of subgroups. In fact, we would argue it is
adequately covered in other legislation. If it is not adequately covered in
other legislation then you should look at that other legislation. You do not
need to have it in here.
However, the committee was given examples that demonstrated that these laws
do not address some key forms of racial hatred, do not necessarily provide
sufficient remedies, were not well targeted to address discrimination and would
not be comprehensive.
For example, it was noted that while all other states and territories have some
form of anti-vilification laws, the Northern Territory (NT) does not and
therefore any complaints of racial vilification in the NT must be brought under
section 18C of the RDA.
Additionally, the committee received evidence that Federal anti-discrimination
laws were needed because state and territory anti‑discrimination laws did
not cover conduct by the Commonwealth or Commonwealth officers. For example, Ms
Robin Banks, Tasmanian Anti‑Discrimination Commissioner, explained that a
Commonwealth officer engaging in racially discriminatory conduct in Tasmania
would not be coved by the Tasmanian legislation:
My act does not cover everything that happens in Tasmania; it
covers everything but actions of the Commonwealth. And that can be a staff
member of part of the Public Service that exists—a Commonwealth public sector
employee in Tasmania. I guess that the most important thing is state and
territory laws do not cover Commonwealth entities. If the Commonwealth were to
engage, either as an entity or through one of its employees, in conduct that
potentially breached the act, I cannot deal with it; I have to reject that on
the basis that it is out of my jurisdiction.
Advocates of repealing section 18C argued that its removal would better
support social cohesion and combat racism because it would be out in the open
and able to be addressed and responded to, both by victims of racism and their
advocates and allies.
However, other submitters to the inquiry argued against this proposition on the
basis that it assumed an 'equal playing field' and that people who experience
racism would not feel marginalised or unsafe in expressing their views and
would have equal access to the media.
Councillor Jacinta Price indicated to the committee that while she did
not agree with the inclusion of the terms 'offend', 'insult' and 'humiliate'
in section 18C she still considered that there should be protection against 'hate
I do not think that any racial abuse is acceptable. Regarding
the words 'offend', 'humiliate' and 'insult', offence is something that people
feel, so, again, it is about who determines that level of offence. I think
that, absolutely, there should be no exceptions for hate speech, which can
obviously lead to violence. I do not agree with that whatsoever.
The case for change – amending sections 18C and 18D
The committee received evidence from many submitters that amendments to
Part IIA of the RDA (rather than repeal) would assist to address concerns
regarding freedom of expression while continuing to provide protection against
serious forms of discriminatory speech.
While the courts have interpreted section 18C of the RDA as not covering
conduct that is merely 'offensive' or 'insulting' but only conduct that has 'profound
and serious effects' on the basis of race, the committee received substantial
evidence that there was confusion about the meaning and scope of section 18C of
This mirrored some of the arguments raised by the Australian Law Reform
Commission (ALRC) in its Final Report on Traditional Rights and Freedoms‑Encroachments
by Commonwealth Laws (Freedoms Inquiry) referred to in the inquiry's terms
This report stated 'there are arguments that [section] 18C lacks sufficient
precision and clarity, and unjustifiably interferes with freedom of speech by
extending to speech that is reasonably likely to "offend"'.
Professor Rosalind Croucher, President of the ALRC, clarified, however, that these
comments were restricted to the words of section 18C on the face of the
legislation rather than how those words had been interpreted by the courts:
The comments are about the wording of the provision, not as
it has been interpreted in the courts. The focus of our analysis is the
requirement under the international convention in relation to protection of
freedom of speech in the International Covenant on Civil and Political Rights,
particularly the provision which accompanies that. But the essence of the right
to freedom of expression is in article 19 of that particular convention—to
which Australia, of course, is a signatory. But in article 20 of the
convention, there is a limitation that is allowed in relation to freedom of
expression and so the racial discrimination legislation is a limitation on
freedom of expression in the way that it is described in those terms.
Professor Sarah Joseph, of the Castan Centre for Human Rights Law,
argued that the judicial interpretation of section 18C may save it from 'crossing
the line' with respect to interference with the right to freedom of expression,
but that a layperson is not necessarily going to understand this:
The fact is that the courts have given a narrow
interpretation to the relevant words—for me, 'offend' and 'insult'—and that may
in fact save the provision from crossing the line, as it were, under
international human rights law...
'Offend' and 'insult'—they have not actually been interpreted
as 'offend' in the everyday way that we think of 'offend', or 'insult' in the
everyday way that we think of 'insult'...But you are not necessarily going to
know that as a lay person looking at the law.
In this context, the committee received evidence that there was a rule
of law argument that laws should be clear and accessible on their face.
The significant gap between the judicial interpretation of section 18C of the
RDA and the ordinary meaning of the words has given rise to serious
misunderstanding about the scope of the law and, for some, worrying uncertainty
about its application. Mr Martyn Iles, Legal Counsel, Australian Christian
Lobby stated in evidence to the committee that 'It is a rule of law question.
It is unknown which issues can be spoken or cannot be spoken.'
Professor Adrienne Stone, Director, Centre for Comparative
Constitutional Studies, University of Melbourne also argued in favour of codifying
the case law on section 18C of the RDA based on rule of law concerns:
...there is a case to amend section 18C so that its actual
terms reflect better what is its current legal effect. I think the fact that
the section invites misunderstanding is actually a problem from a rule of law
perspective. It is better if our laws more closely resemble on their first reading
their actual operation...I think there is at least a significant gap at the
moment between the wording of section 18C as it might appear to a lay reader
and the actual effect of section 18C that I think this committee should give
serious consideration to...codifying the judicial interpretation of section 18C
to the section. It might seem unimportant or symbolic, but I do actually think
there are very significant rule-of-law values generally when the law is not
readily understandable by a person who reads it, and I think there might be
particular problems when a law governing speech has that quality, because if
you do not understand really what are the limits of your capacity speak there
is a risk of self-censorship, and I think that is something that all of us interested
in robust debate in a vibrant democracy would want to protect.
A number of submitters identified ways to address the difficulties and
confusion arising from this situation, including proposals for legislative
amendment that seek to retain the effect of the law, while making its scope
apparent from a plain reading of the text. For example, the Gilbert + Tobin
Centre for Public Law suggests possible amendments to address misconceptions
about Part IIA of the RDA which may, in its view, act to undermine the
objectives of Part IIA of the RDA and lead to a chilling effect.
Noting that section 18C had been interpreted as only applying to more serious
forms of conduct, the Gilbert + Tobin Centre for Public Law proposed one option
for codifying the judicial interpretation:
...section 18C(1)(a)...might be amended to reflect the judicial interpretation
of the current language, which would read:
the act is reasonably likely, in
all the circumstances, seriously to offend
insult, or humiliate or intimidate another person or a group of people;
The committee received a range of evidence in support of codifying the
judicial interpretation of section 18C of the RDA in some form.
However, other submitters were of the view that such an amendment carried with
it other risks and uncertainties, such as the potential for unintended
consequences and the need for fresh interpretation to understand the precise
scope of any new law.
Mr Peter Wertheim, Executive Director, Executive Council of Australian Jewry,
outlined some of the risks associated with codification:
...codification is usually used when there is an ambiguity or a
gap in the law or some conflict in the judicial opinions. That is not the case
with regard to [P]part IIA. The judicial decisions are remarkably consistent,
so I do not see the need for codification. The other danger I see in proceeding
down that path is that what may begin as an intention to codify existing case
law does not actually get translated as such by the parliamentary drafts person
[sic] and you end up with a de facto amendment with unintended consequences.
Mr Hugh de Kretser, Executive Director, Human Rights Law Centre
similarly noted that codification may lead to unintended consequences:
The cons are that when you amend a piece of legislation you
risk changing the interpretation of that legislation, and courts may change
their interpretation by raising the threshold higher. They may not do that, but
that is a risk. The bigger risk, in my mind, is that the debate around section 18C
over the past few years is so highly charged and politicised that any perceived
weakening—we may call it a codification, but ethnic communities will see that
as a weakening—of the law will also be seen by those who are against 18C as
enabling the kind of racial vilification that we try to prohibit through this
law. So, on balance, that is why we have come to the conclusion that, while
there are arguments in favour of codification and clarifying the meaning as it
has been sensibly interpreted by the courts, overall it is better at this stage
not to amend 18C.
The Attorney-General's Department raised further potential
considerations in relation to codification:
...on the one hand the committee has had evidence and has
formed some views as to whether the existing provisions are well understood by
the community, on the other hand they are well understood judicially. We do
have very clear jurisprudence on what they mean taken together as a package. As
a matter of generality, in my experience any time you change a judicially well
understood set of terms, you will create an incentive for people to then
relitigate those matters because no matter how well the drafters do their job,
there will always be question as to have they managed, in trying to change
words or codify or whatever, to actually still capture the right intention? I
think you would find more litigation and uncertainty as to what any new terms
Other suggestions for legislative amendment sought both to clarify the
face of the legislation and somewhat alter the current scope of the law. For
example, some submitters to the committee suggested that the words 'offend' and
'insult' in section 18C be replaced with the word 'vilify'.
The media section of the Media, Entertainment Arts Alliance, an organisation
representing journalists, argued that such an amendment would 'elevate the
threshold' and strike a balance between protecting freedom of speech while
making 'hate speech' unlawful:
The position supported by our media section members,
following a period of careful consideration, is to replace the words 'offend'
and 'insult' with the word 'vilify'...elevating the threshold for enlivening the
provision. ...section 18D we do not believe requires any amendment.
...every day vigorous journalism provokes. At times, it can
offend or insult. That is the nature of public debate. But, because vigorous
journalism is provocative, or because it can offend or insult at the time, that
does not mean it intends to vilify. If such journalism does intend to vilify on
the particular basis of race, then it deserves to be condemned, particularly as
it is outside what is considered ethical journalism.
...we believe that a balance needs to be struck between making
hate speech unlawful, while protecting and preserving freedom of speech.
This approach is consistent with the proposal by the NSW Council for
Civil Liberties (NSW CCL):
NSWCCL recommends amending s 18C(1)(a) by repealing the words
'to offend', and possibly to 'insult', and replacing them with conduct of a
more demanding standard.
Specifically, 'vilify' could be used as a substitute for 'offend'
and/or 'insult'. To vilify is to defame or to traduce, and it incorporates the notion
of inciting hatred or contempt. It would also coincide with both the original
intention and the public purposes the RDA.
It is also supported by the NSW Young Liberal Movement in the following
The NSW Young Liberals support changes to Section 18C and [section]
18D of the Racial Discrimination Act as outlined in the Governments Exposure
Draft. Specifically we support the removal of the terms 'offend, insult' and
the inclusion of the term 'vilify'.
While arguing that sections 18C and 18D of the RDA in its current form is
compatible with human rights, Dr Murray Wesson, Adjunct Professor Holly
Cullen and Ms Fiona McGaughey also agreed that there is a case for replacing
'offend' and 'insult' with 'vilify' to reflect the judicial interpretation of
There is a case for amending s 18C so that its text is
brought in line with its actual operation in the Federal Court e.g. by
substituting the word 'vilify' for 'offend and 'insult.' Furthermore, given the
controversy surrounding s 18C this would clarify the meaning of the
provision in the public mind. It would also be a minor amendment would allow s
18C to continue to perform its important function in limiting hateful acts in
Australia's multicultural society.
This submission also indicated that such an amendment would be
compatible with international human rights obligations.
Similarly, Professor Sarah Joseph gave evidence to the committee that,
while she would want to hear evidence from the groups the amendments are most
likely to affect, speaking 'purely as a lawyer' she would 'probably replace "offend"
and "insult" with another word such as "vilify"' and 'keep "intimidate"
and "humiliate"' to strengthen the scope afforded to freedom of
expression on the face of the legislation.
Professor Joseph also argued that this would be compatible with human rights
As can be seen from the above, the proposal to make such a change generated
considerable support, which gives rise to some technical considerations
including whether replacing 'offend' and 'insult' with 'vilify' would raise the
bar with respect to conduct caught under section 18C and whether it would
actually clarify the terms of the provision.
For example, The Gilbert + Tobin Centre for Public Law suggested using
an alternative to 'vilify' on the basis that it is a technical term and may be
less understood by the community, instead it suggested the legislation be
amended to say that:
...the act is reasonably likely, in all the circumstances, to
insult demean, degrade, humiliate or intimidate another person or
group of people, or to promote hatred; and
The Caxton Legal Centre and Townsville Community Legal Service suggested
replacing 'offend' and 'insult' with vilify, but noted that it should have an
ordinary rather than technical meaning:
The replacement of offend and insult with vilify is a
sensible means of adjusting the threshold of offending conduct to the standard
settled at common law, that is, the 'profound and serious' test.
We are concerned, however, that there may be unintended
consequences flowing from such an amendment unless it made very clear that vilify
takes its common meaning and not (or not only) the concept of vilification as
is found in other legislation including the Anti-Discrimination Act 1991
Mr Gregory McIntyre SC, President, Western Australian Branch,
International Commission of Jurists expressed concern with removing the term 'offend'
from section 18C on the basis that it may have an impact on cases that, in his
view, were properly decided as involving racial vilification:
...to remove the word 'offend' will have an impact on some of
the cases which I have just mentioned. In my view, for cases such as the Clarke
v Nationwide News case, and also a case which I was not involved in but
which is mentioned in the report, where terms such as 'nigger', 'black mole'
and 'black bastard' were used, do fit within the concept of 'offence' but would
not fit within any of the other concepts which are in the present version of
A number of advocates of change, however, noted that there would likely
be no meaningful legal effect of replacing the words 'offend' and 'insult' with
'vilify' as these words have interchangeable meaning. They argued that if the
purpose of reform is to broaden the scope of free speech, this proposal should
not be pursued.
An alternative suggestion was made by Mr Joshua Forrester, Dr Augusto
Zimmermann and Ms Lorraine Finlay to replace sections 18C and 18D with a
criminal offence of inciting racial enmity. They suggest:
...a more narrowly focused law that makes intent to incite
racial enmity a crime. Enmity is defined as hatred or contempt creating an
imminent danger of physical harm to persons or property.
The proposal is explained in more detail as follows:
The law prohibits incitement to enmity. We have used 'enmity'
deliberately, as it connotes the severity of the conduct required to breach the
law. Portraying a group as an enemy suggests one wants them destroyed. We have
defined enmity to mean hatred creating an imminent danger of violence. This
means that hatred and contempt that does not create an imminent danger of
violence isn't prohibited. However, given the importance of freedom of
expression, and the risk that an overbroad law may be unjustly applied, we have
erred on the side of freedom.
A further suggestion was submitted by Mr Tim Wilson, the Federal Liberal
Member for Goldstein and former Human Rights Commissioner. Mr Wilson suggests
that section 18C of the RDA is currently flawed and argues that:
The correct test is not 'offend, insult or humiliate'. The
correct test is harassment, which includes high‐level, or serious,
humiliation and denigration causing intimidation. Harassment does not make challenging
ideas unlawful. Harassment stops one person using their freedom to diminish the
worth of another alongside their own ability to exercise their freedom.
The committee received limited evidence from other submitters about this
However, the committee notes more generally that the 1991 Report of the
National Inquiry into Racist Violence in Australia specifically recommended
that the RDA be amended to prohibit 'racist harassment'.
It noted that:
It is desirable that there be a clear statement of the
unlawful-ness of conduct which is so abusive, threatening or intimidatory as to
constitute harassment on the ground of race, colour, descent or national or
ethnic origin. It is also desirable that individuals who have been the victims
of such words or conduct be given a clear civil remedy under the Racial
Discrimination Act in the same terms as those subjected to other forms of
racial discrimination covered by the Act.
A submission from the Australian Lawyers for Human Rights cites examples
of racial harassment laws from comparable jurisdictions and notes that:
...although Australia has no comparable federal racial
harassment law, s.18C of the RDA currently operates so as to capture some of
the forms of racial harassment discussed above because it captures acts which
'humiliate' and 'insult'.
In a similar vein, while stating that it was of 'profound importance
that Australia has national laws that provide protection not only against
anti-Semitic speech but other forms of hate speech', Justice Ronald Sackville proposed
amending section 18C to ensure that the right to freedom of expression is 'not
unduly curtailed' by:
...substituting for the current language ("to offend,
insult, humiliate or intimidate") a more demanding standard which could be
"to degrade, intimidate or incite hatred or contempt".
This proposal was supported by some other submitters, who argued that it
would provide a better balance with freedom of expression.
Suggested amendments were also made in relation to other elements of
section 18C. Some submitters argued that the current 'objective test' applied
in section 18C, which requires an assessment of the likely effect of the
conduct on a reasonable hypothetical member of a particular racial or ethnic
group or sub-group, in effect introduces subjective elements.
As Justice Sackville explained in evidence to the committee:
...the subjective element in 18C introduces the opportunity for
evidence from people or groups that have been affected and in practice the
evidences to subjective reactions to the hate speech has been of very great
importance in determining whether there has been a contravention of 18C and,
indeed, whether the exemption in 18D applies.
Ms Sarah Waladan, Head of Legal and Regulatory Affairs from Free TV Australia
shared their experience with the committee:
It is extremely difficult to provide legal advice on the
legislation because of the subjective test, because it is impossible to know
whether or not someone will be offended. That in turn means that media
organisations are likely to advise against publication of material where 18C is
likely to be an issue...
Justice Sackville proposed that section 18C 'should incorporate an
objective test for determining whether the hate speech is likely to have the
prohibited effect, thus requiring the courts to have reference to the standards
of a reasonable member of the community at large.'
In evidence to the committee Justice Sackville explained how he thought this
proposed test would operate:
I do not think that a test that focuses upon what a
reasonable member of the community would think requires you to consider how
would that reasonable member of the community react to the particular slight.
The test would be: how would a reasonable member of the community view this
particular attack on this particular minority group, having regard to the
characteristics of that minority group and the nature of the speech or even
actions that are directed towards that group? I think that distinction is
actually quite important.
I do not think that there is as much difficulty as many
people consider in interposing that kind of objective test. What it does is to
move away from regarding the subjective impact upon the group as more or less
determinative of the outcome at least where the subjective impact can be
regarded as serious or some other adjective being satisfied.
A number of submitters supported this proposal.
However, others considered that the current test is objective, only narrower in
scope than a general 'reasonable person' test. Proponents of the current test
argued that this was appropriate given the type of harm the provision is aimed
at addressing, which 'accrues to people by virtue of their membership of a
It was also argued that a general community standard test could risk importing
'prevailing prejudice' in the general community into the test:
...a general community standard test might inadvertently import
prevailing prejudices in the community into the test so that one of the protective
functions of 18C would be abrogated. One of those protective functions is to
protect vulnerable and, in particular, unpopular minorities. So if there is
prevailing prejudice against a minority community which happens at the time to
be unpopular—and many of our communities that I mentioned earlier have been, at
various stages of Australian history, in that category—then there is a danger
that the application of a more general community standard test will undermine
the basic protective function of the legislation.
Some submitters argued that while section 18D is intended to establish a
foundation for defences, or 'exemptions' in particular circumstances for action
that would otherwise constitute a breach of section 18C, they provide
insufficient or unclear protection for freedom of expression. For example, Mr Justin
Quill, a lawyer for Nationwide News, explained that the defences under section
18D are only available once the person complained about proves that they apply,
The onus shifts to you, and you have to justify why it is
that you should be entitled to say this. That reverse onus of free speech does
not sit well in my view of a democratic society, and it ought not to.
Some submitters to the inquiry noted that while 'fair comment' was a
defence to some conduct under section 18C of the RDA, 'truth' was not
specifically a separate defence.
Mr Joshua Forrester argued in evidence to the committee that 'truth' should be
included as an additional defence alongside existing exemptions in section 18D.
By contrast, the Attorney-General's Department told the committee that there
may be some public policy reasons in the context of anti-vilification laws not
to include a truth defence.
Mr Peter Wertheim, Executive Director, Executive Council of Australian Jewry, cautioned
that 'if you make truth a prerequisite for a defence under section 18D, you
would be setting the bar impossibly high for the respondent.'
While not seeking to alter the current content of the law in this
respect, the Gilbert + Tobin Centre for Public Law proposed an amendment that would
merge the provisions of sections 18C and 18D of the RDA into a single
provision. This would have the effect of emphasising the 'relationship between
the protections in s 18C and the "exemptions" in
Studies in relation to public views about section 18C
During the course of the
inquiry, the committee was presented with results from two contrasting studies
in relation to public support for changes to section 18C of the RDA.
The Institute of Public
Affairs commissioned a study by Galaxy Online Omnibus on 11 December 2016,
the results of which were tabled at the public hearing in Melbourne on 31
January 2017. As part of the study, a sample of 1,000 Australians aged 18 years
and older, distributed throughout Australia, were asked to respond to two
First, participants were
asked how important freedom of speech was to them, and were asked to choose one
of the following five responses: very important, important, unimportant, very
unimportant, and don't know. The results indicated that 95% of Australians
surveyed said that freedom of speech is important to them, with 57% saying it
is very important. Of the remaining, 3% said freedom of speech is not important
to them, and 2% said they don't know.
Participants were also asked
about their attitudes towards a proposal to change the RDA, such that it would
no longer be unlawful to 'offend' or 'insult' someone because of their race or
ethnicity, noting that the prohibition to 'humiliate' or 'intimidate' someone
because of their race or ethnicity would be retained. The results showed that
48% of Australians surveyed approved of the proposal to change the RDA, while
36% disapproved and 16% said they don't know.
This mirrored results of an
Essential Research poll conducted in November and September 2016.
In contrast, a study by
Essential Research, commissioned by the Cyber Racism and Community Resilience
Research Project (CRaCR) during the week of 8 February 2017, found that a high percentage
of respondents (over 90%) either strongly disagreed or disagreed with
statements relating to whether people should be free to offend, insult,
humiliate or intimidate someone on the basis of their race, culture or
The sample varied across the
four substantive questions in the study, ranging from 882 to 903
Australians aged 18 years and older, distributed throughout Australia. The
statements people were asked were whether they disagreed, agreed, or neither
agreed nor disagreed with the following:
- People should be free to offend someone on the basis of
their race, culture or religion
- People should be free to insult someone on the basis of
their race, culture or religion
- People should be free to humiliate someone on the basis
of their race, culture or religion
- People should be free to intimidate someone on the
basis of their race, culture or religion
Document tabled at a public hearing in Melbourne on 31 January 2017 by the
Institute of Public Affairs – Galaxy research poll, 8; Document provided
as additional information following public hearing in Adelaide on 2 February
2017 by the Cyber Racism and Community Resilience Research Project – Reporting
The case for retaining the existing protections in sections 18C and 18D
The committee heard evidence from a range of community groups,
multicultural and legal organisations and social researchers that Part IIA of
the RDA is viewed as being an important protection against forms of racially discriminatory
speech and racism in Australia.
For example, Dr Colin Rubenstein, Executive Director, Australia/Israel and
Jewish Affairs Council explained in evidence to the committee:
The availability of legal redress against extreme or
pervasive racial vilification, we would argue, is essential to maintaining the
right of Australians to live their lives free from harassment, from
psychological intimidation, from the hurt, anger, anxiety and loss of
self-esteem which comes with the reality of bigotry and racism that many
Australians still experience. We are probably the most tolerant and
multicultural society on earth but, nonetheless, we can do better, and there
are those elements that still exist in Australian society. In fact, this also
helps to protect the right to freedom of expression for members of vulnerable
groups who otherwise can be marginalised in a society even like ours.
In its submission to the Committee the Executive Council of Australian
Jewry outlined the importance of protections in section 18C and cautioned about
gaps in the law which would be left without such protections:
To offend or insult a person or group because of their "race,
colour or national or ethnic origin", necessarily sends a message that
such people, by virtue of who they are, and regardless of how they behave or
what they believe, are not members of society in good standing. This cannot but
vitiate the sense of belonging of members of the group and their sense of
assurance and security as citizens. To offend or insult a person or group
because of their "race, colour or national or ethnic origin" thus
constitutes an assault upon their human dignity. In our view, this is the evil
which the legislation was enacted to address.
The case law (including the QUT case) therefore contradicts
the contention that the use of the word "offend" in s.18C sets the
bar too low. Further, the word "offend" or "offensive"
appears in a variety of other laws, including the criminal law, yet the effect
is not considered to be controversial. Indeed, the words "offend", "humiliate"
and intimidate" in section 18C were copied from the definition of sexual
harassment in sub‑section 28A(1) of the Sex Discrimination Act 1984
(Cth). The word "offensive" is also used in sections 471.12 and 474.17
of the Criminal Code 1995 (Cth), which make it unlawful to use a postal
service or a carriage service to menace, harass or cause "offence".
State criminal laws also proscribe certain types of "offensive"
The removal of any of the words, "offend" and "insult,"
would therefore leave severe gaps in the protections provided compared to those
provided by the current legislation. For example, in certain cases there would
be no remedy, as is available under the current legislation, for victims of
gross negative stereotyping and serious instances or repetitions of written or
verbal abuse on the basis of race or ethnicity.... This could deny the victims
the protection currently offered by the legislation. From a public policy
perspective, it would signal to the Australian public that the impact on the
victims and the wider community is insufficient to warrant legal protection and
that the conduct is now to be tolerated.
Similarly, Ms Tasneem Chopra, chairperson of the Australian Muslim Women's
Centre for Human Rights, argued that:
It is important to recognise that the existing complaint
mechanisms provide a recourse for individuals who are experiencing
discrimination to feel that they are being heard. This promotes a stronger,
more understanding nation, and that is our bottom line here. Retaining 18C as
is assists individuals to participate in civic life and contribute confidently.
There is a cost to society, which our organisation has seen,
where discrimination leads to stress, isolation, health problems and social and
economic downfall. This is a cost, both to the state and to individuals, that
is born [sic] when we do not protect our citizens.
Mr Ramdas Sankaran, President of the Ethnic Communities Council of WA Inc.,
noted that although members have not exercised their rights under section 18C
of the RDA frequently, it was important to community members that such
protections were there:
What is more important is the symbolic value that legislation
like this has, in terms of tempering racist speech and actions, to the extent
it can. We know it would eliminate it and there is plenty of evidence on a
daily basis in the media, on the internet and in the parliament itself. We know
it is not going to go away but, at least, there is a moral exemplar, in terms
of the standards we set as a society.
The committee heard extensive evidence from submitters regarding the serious
impact of racism, including racially discriminatory speech, on the well-being
For example, the Northern Territory Anti-Discrimination Commissioner, Ms Sally
Sievers, explained the serious health and other impacts of racism including
I want to briefly go through was what the actual impact of
this experience of day-to-day racism is on people. We know that it is accepted
that... [people] experience impacts on people's mental health and causes
psychological distress, but we are also finding now from the health research
that it moves into physical symptoms. The sorts of physical symptoms that have
come up...are lower birth weights, cardiovascular disease and possible links to
obesity and diabetes. Contrary to the old adage that you or I might have been
brought up with—'sticks and stones will break your bones, but names will never
hurt you'—the medical research is now strongly saying that this day-to-day
experience of racism is making the groups it happens to sick. Last week on the
phone, when I was taking an inquiry from an Aboriginal person who was telling a
story about their experience of racism, that is how the phone call ended: 'This
is making us sick.'
Associate Professor Daphne Habibis, Deputy Director, Institute for the
Study of Social Change, University of Tasmania explained the findings of a
recent study that examined the impact of racism on Aboriginal people in Darwin:
Almost three-quarters—84 per cent—of survey respondents
agreed that the way white people behave makes them sick and tired of
everything. One-fifth of respondents said it was always true that the way white
people behave makes them sick and tired of everything.
The atmosphere of racism and disregard also affect
self-esteem. Forty-three per cent of survey respondents agreed that it was only
rarely or never that the way that white people behave makes them feel good
about themselves as an Aboriginal person. Only a fifth had a positive view of
how the behaviour of white people makes them feel about themselves. It also
affects self-efficacy. In the same set of questions we asked how the behaviour
of white people affected their capacity to achieve their goals. Over a quarter
responded that it made it difficult to achieve their goals.
Mr Romlie Mokak, Chief Executive Officer of the Lowitja Institute,
explained research the Lowitja institute had conducted in Victoria about rates
and experiences of racism for Aboriginal people:
The experiences of racism survey 2010-2011 was undertaken
here, surveying 755 Aboriginal Victorians aged 18 years and older living in two
rural locations and two metropolitan locations...Ninety-seven per cent of those
surveyed had experienced racism in the previous 12 months, and more than 70 per
cent of respondents had experienced eight or more racist incidents in that
period. The types of racism included: 92 per cent of those surveyed had been
called racist names, teased, heard jokes and comments that relied on
stereotypes about Aboriginal people; 85 per cent had been ignored, treated with
suspicion or treated rudely because of their race; and 84 per cent—over four
out of five surveyed—had been sworn at, verbally abused or subjected to
offensive gestures because of their race.
The survey presented results that link racism to health.
Participants were assessed through a version of the Kessler-6 scale, a well
established assessment tool which screens for psychological distress. High psychological
distress is an indicator or increased risk of mental illness and, overall, it
found that those who had higher incidences of racism were more greatly
distressed. It is not a conclusion that anyone would not draw.
Mr George Vellis from the Australian Hellenic Council spoke to the committee
of the deep and lasting impact of racism on individuals and older community
members in particular:
...you could see with a lot of the elderly that, once I brought
up racism, they were pretty much teary eyed, and you could feel the emotion in
that room, and it was going back decades.
What I mean by that is that racism is something that sticks
with you for decades. It is not something that can heal within two to three
weeks. It is not a bruise or a broken arm, for example. It is something, as
you know, that makes a person feel inferior.
The committee received evidence that
experiences of racially discriminatory speech may have a 'chilling' or
silencing effect in respect of the right to freedom of expression of those who
experience such discrimination. Dr Andre Oboler, speaking about examples from
the work of the Online Hate Prevention Institute, informed the committee that:
The impact at the lowest level is that people do not feel
safe having their views, expressing their views or speaking on social media. So
we are actually seeing that racism and discrimination is removing people's
freedom of speech. It is making some people unable to participate in the civic
life of the country...
Ms Penelope Taylor gave evidence to the committee that research by the
Larrakia Nation Aboriginal Corporation indicated that changes to section 18C of
the RDA was likely to negatively affect the freedom of speech of members of the
Larrakia Nation community:
The overwhelming evidence arising out of the recent Larrakia
Nation research project indicates that, far from promoting freedom of speech,
the removal of parts of section 18C is more likely to negatively affect the
freedom of speech of many segments of our community, those very segments which
often go unheard and unrepresented in public discourse, resulting in the
exclusion of important information and perspectives from public discussion.
These groups, including Aboriginal people, are in far greater need of having
their freedom of speech supported and protected than those dominant racial
groups whose freedom of speech a weakening of section 18C would theoretically
These views contrast with the views of other submitters who considered
that Part IIA of the RDA had a 'chilling effect' on their freedom of speech (discussed
further above at [2.29] to [2.35]).
The committee heard that the public debate about section 18C often fails
to take into account the role played by section 18D of the RDA:
An unfortunate feature of the public debate surrounding Pt
IIA has been the making of the unqualified claim that s 18C makes it unlawful
to 'offend or insult' a person on the grounds of their race. Such claims
overlook the extensive defences provided by s 18D...the defences may be relied
upon by artists, academics, journalists, public commentators — indeed, anyone
who can show a 'genuine purpose in the public interest.' They thus qualify the
operation of s 18C in contexts critical to public debate. In fact, provided a
defence is available, it is
entirely possible, and lawful, to engage in offensive, insulting and
even humiliating and intimidating speech on the grounds of race.
Similarly the Gilbert + Tobin Centre for Public Law noted the importance
of discussing the law in the context of its judicial interpretation:
It is our view and primary submission that the current
statutory protections contained in ss 18C and 18D of the Racial
Discrimination Act 1975 (Cth), when read in the context of their judicial
interpretation, provide an appropriately robust protection for vulnerable
racial minority groups against hate speech while also providing appropriate
exemptions for free and fair speech on race-related topics.... Some will have
an a priori disagreement with our view on Part IIA because of the
extremely high priority they attach to free speech. However, we also believe
that in much of the recent public debate on this issue, a singular focus on the
term 'offend' and/or 'insult' in s 18C, divorced from the statutory context
(including s 18D) and from judicial interpretation, has fed an exaggerated
perception amongst many about the impact that s 18C has on free speech.
A number of submitters, opposed changes to weaken section 18C of the RDA
on the basis that it would send a 'negative signal' that racial discrimination
and racist speech was acceptable.
For example Professor Anne Twomey said:
The reform of s 18C of the Racial Discrimination Act raises
not only legal issues, but also cultural and social ones. In the best of all
possible worlds, the abuse of people on the ground of their race, or indeed any
other grounds, would be so socially unacceptable that no law on the subject
would be necessary. However, because we do have such a law in relation to
offensive racial communications, there is a considerable risk that if it is
repealed or altered, this will have the effect of sending out a cultural
message that such abuse is now acceptable and given legal sanction. The
difficulty facing the Committee and the Parliament is essentially that even if
s 18C warrants reform, the message sent out by undertaking the reform might
itself result in damage that outweighs the benefits of the reform.
A number of submissions were made on this point by multicultural
organisations and human rights organisations. For example, Mr Romlie Mokak, expressed
serious concerns about any changes to weaken section 18C of the RDA:
The institute is gravely concerned, given high levels of
prevalence of racism and its impact on health and wellbeing, that amendments to
section 18C of the Racial Discrimination Act would send a very negative signal
that it is acceptable to offend, insult, humiliate or intimidate another person
or group of people on the basis of race. Many arguments that have been put
forward for the change centre on the right to have freedom of speech as if it
is an absolute right. We note that section 18C of the RDA is not the only area
of Australian law that limits freedom of expression, and the committee would be
well aware of that.
Similarly, in evidence to the committee Dr Andre Oboler from the
Victorian Multicultural Faith and Community Coalition explained such concerns:
...any change to the act, even changes that could improve it,
carr[ies] a risk at this point in time. Any change would create an impression
that there is some feedback from the parliament that the sort of hate we are
seeing and the sorts of comments that have been saying that this law should be
removed, which have been tied largely to those promoting that hate, have
traction, and I think that is actually quite dangerous.
Ms Adrianne Walters, Director of Legal Advocacy, Human Rights Law Centre
stated that moves to weaken section 18C would send a 'dangerous message':
Any move to weaken sections 18C or 18D of the Racial
Discrimination Act will send a dangerous message, particularly at a time when
we know that more people are reporting experiences of racial discrimination.
Experiences of racism...are all too common for Aboriginal and Torres Strait
Islander people and those from culturally and linguistically diverse
communities. Racism is incredibly harmful. It has negative impacts on mental
and physical health and a chilling effect on the freedom of expression and
public participation of minority groups.
The Very Reverend Dr Keith Joseph, Dean of the Christchurch Anglican
Cathedral in Darwin, informed the committee at its public hearing in Darwin
that, if section 18C is repealed, 'self-labelled white nationalists and alt-right',
with whom he has come into contact through his ministry, 'will be able to say
more outrageous things politically because there will be fewer safeguards'.
Some submitters to the inquiry shared stories of their experiences of
racism with the committee.
For example, Mr Burhan Zangana, Refugee Communities Advocacy Network, Refugee
Council of Australia explained:
I and many of my fellow community members have experienced
racism and hate speech in Australia. We have been subjected to name-calling and
racial slurs while we were waiting for the bus, while we were walking in the
streets, in workplaces and in many other public places. We were told to go back
to where we came from and labelled as terrorists. These incidents can shake you
and are hard to forget. After 16 years I very clearly remember the racist
behaviour directed at me by two men shortly after the September 11 attacks. I
remember clearly another incident that happened a couple of years ago in
another workplace where I was told I am black haired and a wog and was laughed
at. Knowing that a law exists that supports you can act as a good psychological
support. I always choose to let those incidents pass, but it is good for me to
know that I am protected by the law, even if I may never consider using it to
make a complaint.
Mr Justin Mohamed, Chief Executive Officer of Reconciliation Australia
explained the lifelong impacts of racial discrimination on many Aboriginal
people and his own personal experience:
A lot of Aboriginal people still feel as a fringe-dweller in
their own communities in rural and regional Australia and maybe in their
suburbs, and feel they do not quite fit because they have been told that they
It has a long-lasting effect and it takes a lot of support
and strength from individuals to encourage them. It is an ongoing thing; it has
not stopped. As a father of five, I see my children faced with different sorts
of racism but racism challenging who they are and what they do through their
education right through to university, where a couple of them are now. So it
The committee also received evidence about the prevalence of racism in
Australian society including evidence indicating potential increasing rates of
For example, the Refugee Council of Australia pointed to finding by the Scanlon
Foundation, Mapping Social Cohesion, released in November 2016,
the highest level of reported experience of discrimination (20%)
since the surveys began [in 2007];
with 27% of people from non-English speaking backgrounds
reporting an experience of discrimination in the past year;
31% of those experiencing discrimination reporting experiencing
it about once a month or most weeks in the year; and
55% of those experiencing discrimination were verbally abused,
17% were not offered work or were not treated fairly at work; 10% had their
property damaged; and 8% were physically attacked, and 2225% of people
consistently report a personal negative opinion of Muslims.
In respect of the most recent annual youth survey conducted by Mission
Australia, Ms Jacquelin Plummer, Head of Policy and Advocacy at Mission
We discovered that over one-quarter of young people had
experienced some form of unfair treatment or discrimination in the last 12
months. Of those young people, race or cultural background was the reason for
discrimination in over 30 percent of these cases. This was the second most
common reason after gender. In addition, half of young people surveyed had
witnessed someone else being unfairly treated or discriminated against in the
last 12 months. The discrimination they witnessed was most commonly on the
basis of race or cultural background.
Importantly, for Aboriginal and Torres Strait Islander young
people the burden was unevenly distributed. One in five Aboriginal and Torres
Strait Islander young people reported experiencing discrimination on the basis
of race or culture background—more than three times the proportion of non‑Indigenous
While some submitters argued that continuing levels of racism indicated
that section 18C should be repealed or weakened on the basis it was
a number of submitters rejected this view.
For example, Professor Katharine Gelber argued that:
My comment on that is it would be a shame to blame section
18C for the ongoing continuation of racism and other types of marginalisation
in this country. The reasons for such types of marginalisation are complex.
Dr Colin Rubenstein, Executive Director of the Australia/Israel and
Jewish Affairs Council, also supported the existing provisions:
...we would say that 18C and 18D provide a very important
substantive, as well as symbolic, framework of enhancing Australian harmony and
cohesion—particularly important at a time of growing populism and xenophobia
internationally, and even elements of that within our happy, multicultural
Australia. We cannot think of a worse time to dilute these modest legislative
protections, which we would suggest are working very well.
The Race Discrimination Commissioner, Dr Tim Soutphommasane, noted a
recent Canadian study which found there had been a 600 percent increase in
online hate incidents in the period between November 2015 and November 2016,
following the repeal in 2013 of a Canadian law providing civil redress for
Specifically, if we were to view the Canadian situation, I
believe it is an illustration of the important message that the law can send to
society about what should be acceptable standards when it concerns racial
hatred and abuse. The Canadian experience would indicate that there are some
dangers when you do weaken legal protections against hate speech, including of
a racial kind. It may have the effect of emboldening people to believe that
they have greater freedom to inflict racial hatred and bigotry onto others. It
is worth noting that, in that research from the CBC [Canadian Broadcasting
Corporation], I believe that there was some indication that white supremacist
messages, among others, had increased substantially. That should be a
consideration for the committee in its deliberations on the signal issue of
The committee received evidence from a significant number of submitters,
including those who work at the intersection of legal and community
representation, who considered that the current law provided an appropriate
balance between protecting against serious forms of racially discriminatory
speech and freedom of expression.
For example, Professor Simon Rice from the Discrimination Law Experts Group
stated in evidence to the committee that:
In essence, we advocate a conservative position. No change
needs to be made to 18C... We say that 18C and 18D and the related case law operate
together to limit free speech only insomuch as is necessary to protect against
racially discriminatory speech. At the same time—and this is an important point
of policy—this balance protects the right to free speech of people who would
otherwise be silenced by offensive language. So it operates notoriously to
limit free speech to an extent, but it needs to be kept in mind the work that
it does to enable free speech among those who would otherwise be oppressed.
Ms Stephanie Cousins, Advocacy and External Affairs Manager from Amnesty
International Australia also considered that the current provisions strike the
correct balance between these rights:
We are satisfied that the balance struck by the RDA is
consistent with...Australia's international human rights obligations and we do
not see a reasonable justification for amending the legislation. Indeed, to do
so could have profound and serious consequences for those in our community who
experience racism. To embolden those who would seek to denigrate others on the
basis of their race would be a reckless move for this parliament, in our view,
and we urge the committee not to go down that road.
Professor Anna Cody, representing Kingsford Legal Centre and the
National Association of Community Legal Centres, stated their position that 'the
racial vilification provisions strike the right balance between freedom of
speech and freedom from racial vilification.'
Many submitters were concerned by, and acknowledged, that difficulties
arose in some difficult high‑profile cases that were brought to the AHRC in
recent years. While these warrant consideration in terms of reviewing important
matters of process (discussed in more detail in Chapter 3), it was argued to
the committee that these were not representative of the vast majority of
thousands of matters and that the issue was not with the fact of, or threshold
of, protection currently afforded. For example, Mr Jonathon Hunyor, Chief
Executive Officer, Public Interest Advocacy Centre argued:
If we look at something like what happened to Lindy
Chamberlain, that was a gross miscarriage of justice yet our criminal justice
system continues—we have not taken murder off the books. We have to recognise
that any legal system sometimes gets it wrong—that is why we have appeals.
Ms Lisa Annese, Chief Executive Officer of the Diversity Council
Australia (DCA), a not-for-profit independent diversity adviser to businesses
in Australia, which has approximately 400 members (including ANZ Bank, AMP,
Boral, Coles, IBM Australia, Myer, Orica, Rio Tinto and Westpac) gave evidence
to the committee regarding the impact of section 18C and section 18D of the RDA
on its members. Ms Annese noted that DCA consulted with its membership
about changes to sections 18C and 18D of the RDA, and 'have been uniformly
supported' in the view that no changes are required and that DCA's members:
...have developed a framework for appropriate behaviour within
their workplaces which is based around the current legislation, and this works
very well for them. They also acknowledge that cultural diversity and the
capacity to operate in a workplace where difference is treated with respect and
people are afforded the opportunity to be valued in terms of their
diversity—and all of the research and the evidence research demonstrates
this—is really good for business. 
In respect of the QUT case, Professor Simon Rice, from the Discrimination
Law Experts Group, stated that 'you so rarely get a QUT case that to hang
public policy on it would be, with respect, a huge mistake because it does not
represent a problem that needs to be addressed'. Professor Rice commented that
the QUT case was 'unremarkable', as it 'represents what happens in cases', and
further noted that '[t]he QUT case does not represent the way things might go
wrong in the commission processes with all the other complaints. It really does
distort an understanding of how the commission exercises its powers.'
Further, Mr Bill Swannie, Chair of the Human Rights/Charter of Rights
Committee at the Law Institute of Victoria, similarly argued that:
There is an old saying that tough cases make bad law and that
we should not amend the law because of one case—for example, the [QUT case].
Proposals to strengthen Part IIA of
Although the first of the terms of reference has an emphasis on limits
on freedom of speech, consideration of the balance between it and protection
from racially hateful speech led some submitters to argue for amendments to
strengthen Part IIA of the RDA. Kingsford Legal Centre suggested that section
18(1)(b) of the RDA be amended to cover conduct based on both presumed or
Further, a number of submitters suggested that section 18C should be amended to
include religion as a ground for protection.
However, some other submitters argued against such an extension.
Noting that Part IIA is a civil regime, there were some submitters who
argued that a federal criminal offence of racial hatred could be created.
Other submitters argued that the current criminal law did not afford sufficient
For example, Mr Peter Wertheim, Executive Director, Executive Council of
Australian Jewry stated:
The demonstrated ineffectiveness of federal and state
criminal provisions which are intended to proscribe the urging of violence on
the basis of race further underlines the need for strong and effective civil
As these matters were beyond the terms of reference of the inquiry they
did not receive much attention from the committee, however, it may be useful
for such laws to be re-examined.
The role for education
The committee received substantial evidence about the critical role that
education can play both in tackling racism; properly understanding legal
mechanisms and rights; and to reassure people about the limits to what is seen
by some as unjustifiable encroachments on freedom of speech.
For example, Ms Roxanne Moore, Indigenous Rights Campaigner at Amnesty
International Australia stated in evidence to the committee that human rights
education 'goes to both making sure that people who have had their rights
violated know about the process to begin with and then also that they are able
to access it as well.'
Similarly, in its submission to the inquiry, Legal Aid NSW expressed its
support for the Commissioners' consultative and educational activities:
...which protect and promote human rights in the Australian
community. When individuals understand their right to lodge a complaint with
the Commission, they are more likely to bring genuine and meritorious
complaints about acts or practices inconsistent with human rights. Where an
individual or client raises circumstances which could give rise to a complaint
under the AHRC Act, it is wholly appropriate that they be advised of their
right to make a complaint and be assisted to do so.
The Victorian Government noted that 'Racially motivated hatred will not
be effectively addressed by legal restrictions alone. Education is also vital
to promote a culture of shared responsibility and respect.'
Many submitters were very supportive of education programs to address issues
of racism, such as, the 'Racism. It Stops with Me' campaign and similar
Noting common and significant misunderstandings about the meaning and
scope of section 18C of the RDA as judicially interpreted, a number of
submitters suggested that education programs could be further developed to
ensure that the legal interpretation of Part IIA is better understood.
For example, Ms Robin Banks, Tasmanian Anti-Discrimination Commissioner stated:
...we can engage in public discourse about matters relating to
race, immigration and other things without falling foul of 18C or its
equivalents in states and territories. I think there is a difference between
the public perception of the law—and this is sometimes heightened by people
building it up, feeding the fire—and what the law actually does. That says to
me that what we need perhaps is to do more education about what the proper
balance is and when speech is entirely okay and when it may, in fact, fall foul
of the law. So I think there is an educational role for all of us to play.
Some submitters were of the view that education in itself may be
sufficient to address the significant misunderstandings about the scope and
effect of section 18C of the RDA.
Ms Kate Eastman SC explained the potential role for education in clarifying the
way section 18C operates:
I am an expert in the area, but I do agree that the law
should be clear and simple, so if clarification to reflect the way the courts
are interpreting the law would assist, then I would support that approach. But
I am not sure it would need it if there were sufficient education about how
these provisions are intended to operate and the impact they have on ordinary
Mr Kevin Kadirgamar, President of the Multicultural Council of the
Northern Territory, explained that misconceptions about the scope of section
18C have led some people to being fearful about openly discussing matters that
are not actually covered by the section 18C and there was an important role for
education to play in addressing such issues:
...it is not the legislation that needs fixing, rather it is
education and awareness as to what that means to both sides...If those people
were properly educated on what 18C really means and on the kinds of comments
that can be made and cannot be made, those concerns would not exist.
Northern Territory Anti-Discrimination Commissioner, Ms Sally Sievers, was
supportive of an education campaign so that there was better understanding
within the wider community about the limits of section 18C:
In any of these spaces, people knowing what their rights are
and what their obligations are is what we are all about. It is a jurisdiction
which is preventative. So anti-discrimination law is all about the fact that we
do not want people complaining to us. If we have done our job really well, if
we have gone out and talked to employers and we have told them, 'You need to
put these things in place, all this training, all this education for your
employees; you need to be on the lookout for this,' then it does not happen.
That is the real focus of antidiscrimination.
The committee also heard evidence that further education is required as
many people were not aware of the scope of protections under section 18C of the
RDA or the ability to complain to the Commission.
For example, in its submission to the inquiry, the Refugee Council of Australia
...more could be done to increase community awareness regarding
the process for making a complaint to the [Commission]. Most people consulted
for this submission were not aware of the process for making a complaint and
how such an issue is resolved. More education sessions, community engagement
activities and dissemination of fact sheets could help towards increasing
community understanding of the conciliation process of the Commission.
Speaking about a recent research project, Telling It Like It Is:
Aboriginal Perspectives on Race and Race Relations in Darwin, Associate
Professor Daphne Habibis, chief investigator for the study, explained that the
research findings indicated a lack of knowledge in remote communities about the
...we do not think 18C is going to be used very much by
everyday Aboriginal people; it is more that it provides an opportunity for
Aboriginal leaders, and perhaps other people on their behalf, to take action.
There is a degree of a lack of understanding of the law. Some people who live
in remote communities but who were visiting Darwin were picked up in the
interviews; their understanding may not be so great. Amongst other urban
Aboriginal people, their understanding was good.
Mr Rodney Little, Co-Chair, National Congress of Australia's First
Peoples stated in evidence to the committee that:
Certainly we have an obligation to our membership and our
communities to inform people; that is why we see more and more of our peoples
using the process of 18C and being more informed about the legislation...
I think that we all in our society have an obligation to
inform our brothers and sisters and our families. I also think that all
Australians have that obligation to inform all Australians of the process that
is available to all Australians when they feel as though they have been
discriminated against or they have been hurt—and of the views of some that may
be called the 'privileged' against others who are different.
Some submitters indicated that the potential risks of sending a 'dangerous
message' through an amendment to the RDA could be minimised through a public
For example, Professor Adrienne Stone stated that:
My own view is that, well handled, I would hope that risk
would be minimised, and in a sense I think there would be a very strong message
that would come out of the fact that this section has been up for review and
possible amendment twice. If what is done is codification, I think it is
actually a strong reinforcement of the value of section 18C as an important law
in our multicultural democracy. I would hope that that message could be
communicated in those circumstances.
Similarly, Professor Sarah Joseph while discussing a possible amendment
to replace the words 'offend' and 'insult' in section 18C with 'vilify', and
what message such an amendment would send, stated:
I think the government could then maybe accompany [an
amendment]with a campaign to even support 'Racism: It Stops With Me'—the Human
Rights Commission. So maybe, in that respect, that could be a good idea.
Committee views and recommendations
The committee thanks the many submitters who have given their time and
expertise to provide thoughtful contributions to the inquiry into this
There is an important role for what might be termed civility, common
human decency, social norms and education in preventing the use of racist
language and recognising shared humanity. Providing due consideration and
civility to others and engaging in respectful dialogue is an important task
with which all members of Australian society can assist.
Unlike the United States of America, which has a tradition of
unrestrained free speech protected by the First Amendment, the Anglo-Australian
tradition has been that there can be reasonable fetters on free speech: the
question for Parliaments has been to determine where the balance lies.
The committee acknowledges that Part IIA of the RDA is considered to be
an important protection against forms of racially discriminatory speech and
racism in Australia by many, including multicultural organisations and
Aboriginal and Torres Strait Islander groups. It is also consistent with
Australia's international human rights obligations.
The committee was deeply concerned to hear extensive evidence about the
range and extent of daily experiences of racism in Australian society. This is
a concern for individuals, for businesses and for society. The evidence
illustrated the serious, profound and lasting impacts of racially discriminatory
forms of speech, including on the mental and physical health of those affected.
At the same time, the right to freedom of expression is of fundamental
importance. The committee considers there needs to be scope for dialogue on
serious and difficult questions, including matters of race. The committee has
also received considerable evidence on this issue.
Part IIA of the RDA cannot be viewed without consideration of the
decided cases. In the two decades since the enactment of sections 18C and 18D,
the case law has provided a limited but important protection against Holocaust
denial and serious racial abuse against Aboriginal and Torres Strait Islander
groups and ethnic communities, while allowing, among other things, some
artistic expression through cartoons and satire. Similarly the complaints about
Part IIA need to be viewed in the context of concerns about the processes of
the AHRC and appeals to the Court following a termination by the AHRC (these
matters are covered in Chapter 3).
While the courts have interpreted section 18C of the RDA as not covering
conduct that is merely 'offensive' or 'insulting', but only applying to conduct
that has 'profound and serious effects' on the basis of race, the committee
received substantial evidence that there was confusion regarding the meaning
and scope of sections 18C and 18D of the RDA.
From a rule of law perspective there is a persuasive argument that the
meaning of the law should be sufficiently apparent from the words of the
legislation. However, the scope of the current formulation of section 18C and
the accompanying section 18D 'exemptions' as applied by the courts is not clear
and accessible on the face of the provisions.
This problem has significant implications for understanding what conduct
is prohibited by Part IIA and what is protected, particularly as the words
'offend' and 'insult' in section 18C are not applied as generally understood in
common usage. The committee considers that there is a significant and
substantial case for addressing such confusion.
In addition, the committee has received evidence that the law
unjustifiably limits freedom of speech.
The committee has received evidence from a wide range of submitters of
ways to rectify these problems, including the important role that education
could play to raise awareness of the scope of the current law, as well as
possible amendments to Part IIA of the RDA.
One suggested amendment that emerged consistently in evidence was to
codify the judicial interpretation of section 18C as meaning 'profound and
serious effects'. Another amendment which was suggested was to replace the
words 'offend', 'insult' and 'humiliate' with 'harass'. Many of these
amendments may assist to both clarify and enhance the weight afforded to
freedom of expression in Australia particularly noting the importance of this
right. These ideas are relatively new developments in the context
of the debate on section 18C and require further consideration. In particular,
while there has been a broad debate on removal of the words 'offend' and 'insult'
there has been less detailed consideration of removing the word 'humiliate' or
its replacement with the word 'harass'. The committee also considers that
education has a critical role to play in this respect.
The committee is cognisant of the evidence presented to it that even
changes that could improve understanding of the existing law risk being taken
as an indication that racism is acceptable to the Parliament. In canvassing
possible amendments to Part IIA, the committee does not intend to signal acceptance
of any licence for racism in Australia. The committee considers that should any
amendments to Part IIA of the RDA proceed they should be accompanied by
education programs to ensure that such amendments are properly understood—both
by the Australian community at large and by those communities that are
particularly affected—as a strong endorsement of the value of protections for
serious forms of racially hateful or discriminatory speech.
The committee recommends further supporting, strengthening and
developing education programs including those:
addressing racism in Australian society;
addressing the scope of conduct caught by Part IIA of the Racial
Discrimination Act 1975 as judicially interpreted; and
about the meaning and scope of any amendments to Part IIA of the Racial
Discrimination Act 1975.
Recognising the profound impacts of serious forms of racism, the
committee recommends that leaders of the Australian community and politicians
exercise their freedom of speech to identify and condemn racially hateful and
discriminatory speech where it occurs in public.
The committee received evidence about a number of proposals in
relation to Part IIA of the Racial Discrimination Act 1975. Given the
nature and importance of the matters considered by the committee for this
inquiry – primarily the right to freedom of speech, the right to be free from
serious forms of racially discriminatory speech, and the importance of the rule
of law – views varied among members of the committee as to how to balance these
appropriately. The range of proposals that had the support of at least one
member of the committee included:
- no change to sections 18C or 18D;
amending Part IIA of the Racial Discrimination Act 1975 to
address rule of law concerns and to ensure that the effect of Part IIA is clear
and accessible on its face, by codifying the judicial interpretation of the
section along the lines of the test applied by Kiefel J in Creek v
Cairns Post Pty Ltd that section 18C refers to 'profound and serious
effects not to be likened to mere slights';
removing the words 'offend', 'insult' and 'humiliate' from
section 18C and replacing them with 'harass';
amending section 18D to also include a 'truth' defence similar to
that of defamation law alongside the existing 18D exemptions;
changing the objective test from 'reasonable member of the
relevant group' to 'the reasonable member of the Australian community';
criminal provisions on incitement to racially motivated violence
be further investigated on the basis that such laws have proved ineffective at
the State and Commonwealth level in bringing successful prosecutions against
those seeking to incite violence against a person on the basis of their race.
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