This Bill makes significant changes to the Racial Discrimination Act
1975 (the RDA) and to the Australian Human Rights Commission Act 1986 (the
Inadequate time for reporting
The Bill was introduced to the Senate on Wednesday 22 March 2017, and
referred to Senate Legal and Constitutional Affairs Committee the next day.
Labor moved a sensible time for reporting of 9 May 2017 to allow a rigorous yet
timely inquiry process, but the government worked with crossbenchers to shut
down a proper inquiry, and instead demanded that the committee report on
Tuesday 28 March 2017.
Highly truncated public hearings were held on the morning of Friday 24 March
2017, less than 48 hours after the inquiry was announced. No Indigenous
Australians or representative bodies were invited to appear before the
committee. This is despite the availability of the Aboriginal Legal Service,
ACT/NSW (ALS) who sought to be heard during the hearing. Government members of
the committee denied the ALS the opportunity to speak, despite objections from
Labor members of the committee. This is yet another disgraceful example of
arrogance on the part of this out of touch government.
No compelling arguments for amendments to section 18C
No compelling arguments have been made for either of the two changes to
section 18C proposed in schedule 1 of the bill. The proposal to remove the
words 'offend, insult, humiliate' and replace with 'harass', and the proposal
to create a new objective standard for determining a breach of section 18C
weaken existing protections for Australians against racial hate speech and
Removal of 'offend, insult,
Schedule 1 of the bill proposes an amendment to the RDA to replace the
words 'offend, insult, humiliate' and replace them with the term 'harass'. At
present, section 18C makes it 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.
This proposed change reduces the protections that are afforded to
victims of racial discrimination and racial hate speech by narrowing the scope
of behaviour that may constitute offending conduct.
The Federal Court has recognised the difficulties with section 18C
applying to offensive, insulting and humiliating acts by interpreting it so
that it only applies to 'profound and serious effects, not to be likened to
It is unclear why the government has chosen to remove the word 'humiliate'
when controversy has generally only focused on the words 'offend' and 'insult'.
The government has set out no clear policy rationale as to why the word 'harass'
has been chosen instead of other options, like 'vilify' or 'degrade'.
It is unclear how the work 'harass' will be defined. The Law Council of
Australia raised concerns during the public hearing that 'harass' could denote
proximity between two people and therefore not cover situations where racial
hate speech is used, for example, in a media article.
It is also unclear if it is the government's intention to bring section
18C into line with the Federal Court's interpretation of the scope of conduct
that can be the subject of complaints to the Australian Human Rights Commission
for engaging in racial discrimination.
If passed, the changes to section 18C would result in a period of
uncertainty about the scope of the new provision, with a period of litigation
required to settle the ambit of the new test.
Labor does not support any changes to weaken protections against racial
hate speech, and opposes any change to 18C of the RDA that would have this
effect. It is almost certain that these changes would have this effect.
The provisions of 18D ensure that Australia's laws prohibiting racial
discrimination do not unduly restrict freedom of speech, and accordingly the
changes to the scope of section 18C are entirely unnecessary to protect freedom
The new objective test in section
18C of the RDA
The Bill also introduces 'a reasonable member of the Australian
community' as the objective standard for determining a breach of section 18C,
instead of the objective test that the Court currently applies; that is whether
an act is 'reasonably likely, in all the circumstances' to have the relevant
The current test enables the Court to take into account the relevant
context, for example, whether racial vilification is directed towards people of
a particular race, in assessing whether it is reasonably likely that that group
would be offended, insulted, humiliated or intimidated. The Court may also take
into account evidence that a member of a particular racial group was in fact
offended by the conduct in question. However, it is important to note that this
evidence is admissible on, but not determinative of, the issue of
The reason for the government's proposed changes is entirely unclear and
the committee received no substantive evidence to support the change. Labor members
of the committee consider that the proposed new objective test would likely
prevent the Court from taking into account the perspectives of particular
racial or ethnic groups, and notes that the proposed amendment has been
criticised by the Law Council of Australia, ethnic communities, and a number of
Labor members of the committee recommend that schedule 1 of the bill be
Procedural changes to the AHRC Act
The bill proposes a number of changes to the complaints
handling processes of the Australian Human Rights Commission set out in the
ARHC Act. It is important to note that the procedural
changes would apply to all complaints to the Australian Human Rights
Commission, not just those under section 18C. This means that these
changes will impact thousands of people with disabilities making
complaints under the Disability Discrimination Act 1992, older people
lodging complaints under the Age Discrimination Act 2004, those bringing
actions under the Sex Discrimination Act 1984, as well as
to people bringing complaints under other provisions of the RDA. The
respondents to those claims will also be affected by these changes. Yet
the Government has made no attempt to consult with these affected groups
before seeking to ram these changes through the parliament. The majority
of these amendments are welcomed by the Commission and are based on
recommendations by the Commission to the Parliamentary Joint Committee on Human
Rights (PJCHR) inquiry into Freedom of Speech in Australia.
However, in evidence the Commission raised concerns about a number of
items in the bill on the basis that they do not adequately reflect the
recommendations of the PJCHR, would result in additional red tape for the
Commission, would be likely to cause additional delay and added costs for
parties to complaints, and would impede access to justice in relation to
These changes will impact on thousands of complainants and
respondents who use the Commission's complaint handling services each year, and
should be subject to amendment or removal from the bill.
The need to apply the new procedures to all
current matters will impose an enormous burden on the Commission, which is
already struggling for resources as a consequence of repeated cuts to its
funding by this Government. The effect of this retrospectivity will
therefore be the opposite of the Bill's intent, increasing delays for
both complainants and respondents engaged in complaint processes before the Commission.
Labor members of this committee are also
concerned about changes in items 49 and 57 of Schedule 2, because these
changes will undermine the efficacy of the conciliation process by
allowing settlement offers made during those processes admissible as
evidence in costs determinations should that matter proceed to court. This
change is inconsistent with the confidentiality under which the alternative
dispute resolution is carried out by the Commission. This would be a
highly undesirable outcome, as it would significantly undermine the
largely informal conciliation processes by which the large majority of matters
currently the subject of complaints before the Commission are
currently resolved. Once again, these procedural changes proposed by
the Government are likely to increase costs and delays, rather than decreasing
Labor members are also very concerned about the impact of proposed items
31, 36 and 43, as well as items 27, 53. Proposed item 31 introduces a mandatory
accept/reject phase into the Commission's process for dealing with complaints
of unlawful discrimination. A similar regime is currently in place in Tasmania,
which has caused additional delay and added costs for parties because it
encourages them to litigate decisions made during the conciliation phase of
Proposed item 36 makes changes to the President's obligations to notify
respondents, which does not reflect the recommendation of the PJCHR. It also
inserts an obligation to notify a person who is 'the subject of an adverse
allegation', which is likely to be onerous and appears unnecessary,
particularly at an early stage when complaints may be dismissed. It also
inserts a requirement that the President act 'fairly' and 'expeditiously' in
dealing with complaints, which could be enforceable in Court or may affect the
President's obligation to observe rules of natural justice.
Proposed item 43 introduces a mandatory termination provision, which
could have the effect of encouraging parties to a complaint to engage in
judicial review of a decision to terminate or not to terminate on this ground
during the complaint handling stage. As has been the case in Tasmania, Labor
members of the committee consider that this would be likely to lead to
additional delays and added costs for parties to complaints, undermining the
purpose of the Commission to provide a free, informal means to resolve
complaints under the RDA.
The language of this proposed provision is also unclear. Subsection
46PH(1) of the AHRC Act already permits the President to terminate a complaint
on the basis that there is no reasonable prospect of the matter being settled
Labor members of the committee note that the Commission gave evidence to
the committee that, in their current form, proposed items 27 and 53 may have
undesirable unintended consequences and should be amended.
The procedural changes contained in schedule 2 of the bill proceed only
with significant amendments to ensure that they do not increase red tape,
delays, and costs, or reduce access to justice.
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