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All of history has shown us that racism will regularly raise its ugly
head, especially whenever there is a marginalised or repressed minority. Even
people who would otherwise lead decent lives, can suddenly be caught up in
racist hysteria, saying and doing atrocious things. Society's better angels can
be silenced, suddenly, and horror visited on peace, tolerance and security.
There are many recent examples, such as America in the 1950's during the
Civil Rights Movement and Germany in the 1930's where racism became official ideology
and law. Whenever racism thrives, skin colour or religion are used to determine
how people are treated; even whether some people live or die.
Australians don't need to look too far afield to find racism. Sadly, there
is ample evidence in our own backyard. The Australian Constitution still
discriminates against Indigenous Australians. In 1967 our nation's birth
certificate was amended to allow Indigenous Australians to be treated equally under
Commonwealth laws, but even then, ten per cent of us voted against inclusion. The
'White Australia Policy' was not completely dismantled until 1973.
The drafters of our Constitution, the designers of the 'White Australia
Policy', reflected the racist ideology of their times.
Laws help set the standard of acceptable community behaviour. Once our
Constitution was amended; once the 'White Australia Policy' was dismantled;
Australians, on the whole, respected that Indigenous Australians should be
treated equally and that immigrants from non-European countries are welcome and
accepted. This powerful message has helped to make us the most successful
multicultural nation in the world.
Everyday Australians take their cues from the laws set by their Parliament.
Labor Members do not consider that any case has been made out to alter
Part II of the Racial Discrimination Act (RDA).
Twenty years of helping to prevent racial hatred
Part IIA of the RDA was introduced by the Racial Hatred Bill 1995.
The introduction of the Bill followed the handing down of three landmark
reports: Australian Law Reform Council, Multiculturalism and the Law (1991),
Human Rights and Equal Opportunity Commission, Racist Violence: National
Inquiry into Racist Violence in Australia (1991), and the Royal Commission
into Aboriginal Deaths in Custody, National Report (1991).
The Bill also reinforced Australia's international 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).
Complaints to the AHRC under Part IIA of the RDA form only a small part
of the work of the AHRC, making up only 3.8 per cent of the commission's work. There
were only 77 complaints made last year under section 18C and fewer than four
complaints a year proceed to court.
Part IIA has a wider importance than just providing a means of
redress for race hate speech. Professor Gillian Triggs, President, AHRC, told
The commission believes that sections 18C and 18D,
interpreted and applied consistently by federal courts over 20 years, strike an
appropriate balance between freedom of speech and freedom from racial abuse.
These provisions have served our multicultural democracy well in sending a
message that race hate speech is not acceptable in Australia.
Current law is settled
The overwhelming majority of witnesses with legal expertise and
experience, in their evidence to the Committee, agreed that the legal
jurisprudence around section 18C was settled.
Only the most serious offending is captured by the provision.
The construction put forward by Justice Kiefel, as she then was, in Creek
v Cairns Post Ltd
that only 'profound and serious effects, not to be likened to mere slights' has
been approved and adopted by the line of cases that have followed.
A plethora of evidence given to the Committee asserted that any change
to the wording of sections 18C and 18D of the RDA would definitely cause
uncertainty and would be likely to create even more litigation and confusion.
Mr Iain Anderson, Deputy Secretary of the Attorney-General, Senator
George Brandis' own Department said in his evidence to the Committee that:
...while 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
Professor Gillian Triggs, President of the AHRC, agreed with Mr Anderson
and went on to say:
That is a significant danger. And when we do have clear law,
and it has been applied very carefully and conservatively by the courts, I
would think you need a strong case to argue for legislative change.
Mr Gregory McIntyre SC in his evidence on behalf of the International
Commission of Jurists, Western Australia branch, said:
...the courts have developed what these words mean in the
legislation and they have done it repeatedly. That is a form of creation of law
by judicial decision-making, which has been part of our common law since its
inception. So my short answer is no, I do not think codification would assist,
and it may in fact cut off possibilities.
Dr Karen O'Connell from the Discrimination Law Experts Group said in evidence
to the Committee in Sydney:
...we would have a concern with changing the language, where
that language did not need changing. If it is to address public
misunderstanding, it is better to address that misunderstanding through
education rather than law reform that may not be warranted.
Changing section 18C would send a dangerous message
The Castan Centre for Human Rights said in their submission:
The rolling back of a law sends a message, as does the
passage of one. It can send a message that it is acceptable to offend and
insult another person on the basis of their race.
This concern was echoed by many of the witnesses appearing before the Inquiry
including Mr Benedict Coyne, National President, Australian Lawyers for Human
Rights, Ms Sally Sievers, Anti-Discrimination Commissioner, Northern Territory
Anti-Discrimination Commission and Ms Penny Taylor, Research Fellow and PhD
Candidate at University of Tasmania.
Mr Hugh de Kretser, Executive Director of the Human Rights Law Centre told
...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 though this law.
Mr Romlie Mokak, Chief Executive Officer, Lowitja Institute, said in
evidence to the Committee in Melbourne:
Rolling it back sends a very clear message not only to
Aboriginal and Torres Strait Islander people but to others who have to deal
with these issues regularly and persistently.
Mr Thinethavone Soutphommasane, Race Discrimination Commissioner, AHRC
told the Committee:
There is a significant risk indeed of sending a signal,
perhaps even unintended, to people if there were to be a change in the Racial
Even witnesses, whose submissions supported some changes to section 18C,
expressed some concern about what message a change would send to the community.
For instance, Professor Anne Twomey said:
I am concerned about that. I think that is a real issue...
Professor Adrienne Stone, Director, Centre for Comparative
Constitutional Studies, University of Melbourne said:
...repealing section 18C and not replacing it would send a
message irrespective of what changes it effects in the world. Equally, I think
amending the law, even if only to codify what is already found in the judicial
decisions, lends the imprimatur of the parliament to it. I take that seriously,
and I think the Australian people will take that seriously. So I think that
whatever you do – whatever you do – whether you amend it or do not amend it,
whether you codify it, whether you completely change it, will send a message.
There has been a very public debate around section 18C by media
commentators calling for its repeal. Any change to the language of the
section, including codifying the judicial interpretation, is likely to be seen
as a watering down of the section. That message could cause real harm to the
community by unwittingly permitting unconstrained racist language.
Racism causes harm
The Committee has heard witness after witness, from communities spanning
the breadth and width of Australia, telling of the harm that racism causes to
the individuals who are targeted and to their communities.
Equal Opportunity Tasmania referred in their submission to a 2013 survey
of culturally and linguistically diverse backgrounds conducted by the Victorian
Health Promotion Foundation and said about the results obtained:
Importantly, those surveyed exhibited poorer mental health
and higher levels of psychological stress compared with those who had not
experienced racism; and the levels of distress increased for those who had
repeatedly been subjected to racist behaviour... levels of psychological distress
were associated with the volume of racist experiences and not necessarily the
type... experiences of everyday racism may be just as harmful to mental health as
other more severe episodes.
Associate Professor Clair Andersen, representing the National Indigenous
Education Consultative Bodies Network said in relation to the harm that could
be caused to Indigenous children by watering down section 18C:
Closing the Gap focuses on education outcomes and health
outcomes. If kids are not happy, then they will not do well at school. We
already have that going on. If you are not well educated, your health is
generally poorer. Those two things are tied up together. If we water it down,
it will only make things worse—it will not make things better.
Mr Peter Wertheim gave evidence on behalf of the Executive Council of
Australian Jewry. He said:
The contentions about political theory which are put forward
by critics of Part IIA, and of section 18C in particular, do not resonate with
the lived experience of most members of communities like ours. From the Jewish
people's own long and painful historical experience, we have learned that acts
of racially motivated violence invariably begin with racist words.
Ms Penelope Taylor, former Head Researcher at the Larrakia Nation
Aboriginal Corporation said in her evidence, which was based on the results of
a three year project which interviewed over 500 Aboriginal people residing in
Darwin about their views on race relations:
...the message that the research sent, of people feeling
excluded, and that exclusion and marginalisation has health consequences,
consequences for employment, consequences for sticking it out in education
against the odds, consequences for violence and consequences for alcohol
addiction and self-medication, because of this constant humiliation and
exclusion from society. So it is not just sticks and stones and, 'Oh, don't
say mean things'. It has huge ramifications for this thing which our society
says it cares passionately about, which is the equality of Aboriginal people
and undoing the terrible disadvantage that we have created. It is not merely
symbolic; it has a huge and profound impact on many, many practical outcomes
for Aboriginal people.
Economic cost of racism
The Diversity Council Australia gave evidence to the Committee in
Darwin. They represent 400 members including all the major Australian banks and
many of the international global banks, major retail groups including Myer and
Coles, IBM Australia, Google, Microsoft, Orica, Rio Tinto and many government
departments. Their members' employees comprise about ten per cent of the Australian
labour market. Their evidence considered the economic cost of racism to their
member organisations. The Chief Executive Office, Ms Lisa Annese in her
evidence to the Committee said:
...when we create inclusive workplaces, so when workplaces tap
into and value the differences between people – and that could be differences
based on race and culture but also other areas of diversity such as disability,
LGBTI identity, Indigenous identity or gender... individuals feel more engaged in
their workplace. They are more likely to be productive, and they are more
likely to be present. There is less absenteeism. And then, if you follow the
money on that one, it leads to greater profitability and productivity.
In relation to proposals to change the existing legislation, Ms Annese
...organisations have created their workplace structures,
policies and training, and the way they demonstrate their vicarious liability
is centred around the existing legislation. For those organisations that are
committed to that it appears to be working very well. It would then follow
that, if that were watered down, organisations may have to deal with issues in
their workplace that they currently do not have to deal with at the moment.
There is no substantive evidence of a 'chilling effect'
A few witnesses before the Committee claimed that section 18C had a 'chilling
effect' on free speech. The Committee did not hear any substantive evidence to
back up such a claim.
Mr Justin Quill appeared before the Committee in his capacity as legal
representative for Nationwide News. His evidence was that he approved the
content of between 200 and 300 articles a week on behalf of Nationwide News. He
said that out of that number there may only be ten where he would need to turn
his mind to section 18C.
Mr Quill said that he had been practising for 20 years exclusively in
media law but only six cases in that time, including the Bolt case and the Leak
case, had 'gone on to some sort of hearing or conciliation'.
When pressed by the Committee about what articles Nationwide News had
been unable to publish because of section 18C, Mr Quill eventually admitted
that only a series of articles written by Mr Bolt had not been published.
Mr Paul Zanetti, cartoonist, told the Committee that he had published 'hundreds
of thousands' of cartoons but had only ever had one claim against him under
Mr Jonathan Holmes, former presenter of ABC TV's Media Watch, and
practising journalist for more than 40 years, gave evidence to the Committee in
relation to his time on Media Watch:
Ninety per cent of what I said had to be based on very solid
factual evidence that we very carefully researched, and it was then my fair
comment on those facts. We never got sued while I was in that chair. But
that, you can call it a chilling effect, I do not think was unhealthy. I think
it is actually quite a good thing. I do not remember ever being in the least
concerned about the Racial Discrimination Act in the work that I was doing... To
be honest, Senator, I do not know of any particular instance that I could point
to, with the exception of Andrew Bolt and Bill Leak, where people have been
constrained in what they say.
Free TV Australia was represented at the hearing in Adelaide by their
Chief Executive Officer, Mr Brett Savill. When asked if he was able to give
some examples of content that their legal teams have stopped them from airing
because of concerns about section 18C, he said:
This is one that we have been wrestling with. One of the
issues we raised in our submission was that this act and this section do not
exist in isolation... When we have gone around it we cannot point to specific
single instances where this alone was the issue.
Even some speech which has been found to be unlawful under section 18C
is still available to be viewed. Andrew Bolt's article, the subject of the
complaint against him under section 18C, is still available online in the
original format with the addition of a notice declaring that his article is
unlawful under section 18C.
Removing or watering down section 18C may have an isolating effect on
The Committee heard many witnesses tell of the isolating effect that
racism has on the targeted individual. Ms Robin Banks, the Anti-Discrimination
Commissioner at Equal Opportunity Tasmania, explained the effects of racist
speech and behaviour:
...they end up being silenced, which is an anathema to freedom
of speech. It causes people to feel that they have to hide from society, shut
themselves down, withdraw from active engagement and not speak out because of
fear of being further attacked for being different.
Professor Andrew Jakubowicz, Chief Investigator, Cyber Racism and
Community Resilience Research Project commented on the effect of watering down
...if you have a community standard that exists, as we do in
Australia with 18C, making a decision to remove one of those provisions is
actually a very strong signal. Essentially, what that does is open up...
opportunities for people to push it further... If you make intercultural
communication more stressful and threatening than it has been, then people
withdraw. That means that the basis of cohesion in society starts to erode,
which I would have thought is exactly the opposite of what government would want
to be doing at the moment.
Ms Penelope Taylor, former Head Researcher at the Larrakia Nation
Aboriginal Corporation told the Committee:
...the reality is that groups such as Aboriginal people – and
it varies within the Aboriginal population, of course – do not have the same
level of freedom of speech as the groups that we seem to be advocating for by
talking about amending this provision.
Hard cases make bad law
The vast majority of media attention around section 18C in recent years
has centred on two complaints made under s18C: Prior v Queensland University
of Technology & Ors (QUT case) and a complaint about cartoonist,
Mr Bill Leak.
The QUT case is currently on appeal from a decision of the Federal
Circuit Court to dismiss the complaint.
One aspect of the public criticism over the QUT case was that not all of
the students had been notified before the conciliation conference took place. The
AHRC has recommended a change in that regard, that all respondents be notified
The complaint against Mr Bill Leak was withdrawn.
In both of these cases the AHRC has been criticised over its handling of
Neither the QUT case, nor the Bill Leak case, provides any cogent reason
for amending section 18C. As Professor Triggs said in her evidence, "hard
cases make bad law".
Importance of Access to Justice
Labor Members of the Committee agree that current procedure adopted by
the Australian Human Rights Commission (AHRC), in processing claims under Part
IIA RDA, could be amended to ensure the process is as efficient as possible.
Indeed, the AHRC have themselves recommended amending their procedures in their
own submission to this Inquiry.
However, Labor Members are concerned that any changes to the current
procedures should not restrict access to justice for people seeking to assert
their human rights.
While agreeing to the premise of the recommendations in the report, it
is imperative that the implementation of those recommendations continues to
uphold access to justice as a fundamental tenet of our legal system.
Resourcing of the AHRC
Some of the recommendations in the report will impact the workload of
Labor Members of the Committee are concerned that any recommendations
that increase the workload of the AHRC should be coupled with appropriate
funding measures to ensure the AHRC is able to fulfil those additional
Labor Members also note that Recommendation 1 of the Report requires an
increased education program around racism and Part IIA. Labor Members are
concerned that if the AHRC is to be responsible for that education campaign,
appropriate funding should be provided to the AHRC to carry out that function.
Consideration of law reform requires careful consideration not rushed
Labor Members were very concerned about the rushed timeframe of this
Ms Sally Sievers, Anti-Discrimination Commissioner from the Northern
Territory Anti-Discrimination Commission commented in her submission to the
Many people had not heard of the Inquiry or the time frame to
comments. To enable full consultation across the breadth of the NT a time
frame much longer than two months is required.
If an issue is considered important enough to be referred to Committee
for an Inquiry, and Commonwealth resources are utilised to conduct that
Inquiry, it is incumbent on the Government to ensure that all relevant
stakeholders and interested members of the public are given the opportunity to
contribute their views.
Labor Members of the Committee consider that a period of 112 days
between the date of referral and the reporting date, with 62 of those days
being in December and January when most Australians are spending some time with
their families, is not enough time for serious community consultation about law
Politicians and law-makers for civilised society should be wary of
making laws in haste that are later regretted at leisure. This is particularly so
when those laws are least likely to cause harm to the general population and more
likely to cause harm to minority groups in the community.
There have been many changes since Part IIA was introduced more than 20 years
ago. The emergence of online communication, in particular social media, has
made it much easier for hate speech to be instantly communicated, even when not
truthful or relevant, and then widely distributed. The current political
climate has created racial tensions both in Australia and around the world.
Racists do not care what harm is visited on those they wickedly try to
victimise with their vile hate speech. However, condemnation should be poured
on those apologists for racists and those who enable their vile work. All sensible
members of a tolerant society must remain vigilant and ensure that any rise in
racism is always controlled.
The current well established and well supported provisions strike the
appropriate balance between freedom of speech and freedom from racial abuse and
should be retained and strongly supported by all Australians.
Mr Graham Perrett MP Senator
Deputy Chair Committee
Ms Madeleine King MP Senator
Committee member Committee
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