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18C: Necessary protection Against Racist Violence and Intimidation or Unecessary Barrier to Freedom of Speech?

On 28 February 2017 the Federal Parliament’s Joint Committee on Human Rights tabled its report into freedom of speech in Australia.

The Committee was asked to consider whether Part II A of the Racial Discrimination Act 1975 was operating effectively and, specifically, whether Sections 18C and 18D of the Act provide unreasonable restrictions on freedom of speech in Australia.

Section 18C of the Act makes it an offence to do anything that causes others to feel offended, insulted, humiliated or intimidated because of their race, colour or nationality or ethnicity.

The Committee was unable to reach a consensus.  The Committee’s report referred to a number of proposals that had the support of at least one Committee member including no amendments to section 18C and 18D, replacing the terms “offend”, “insult” and “humiliate” in Section 18C with “harass” and the introduction of an objective test for 18C such as “reasonable member of the Australian community.

Some argue there is a perceived lack of objectivity of the current legislative framework and there is scope for frivolous and vexatious claims.

The section was considered in the recent Queensland University of Technology Case where an administration officer attempted to sue three students pursuant to Section 18C for $250,000 in damages in relation to comments they posted on social media about being asked to leave an Indigenous only computer room.  A Federal Court judge dismissed the case in November 2016 on the grounds that there were not reasonable prospects of demonstrating racial hatred.

The former Race Discrimination Commissioner Irene Moss, who was in charge of the initial Inquiry that led the Keating government to introduce Section 18C, has said that the legislation went beyond the recommendations of the initial report.  Ms Moss stated that the legislators at the time had ignored the Inquiry’s warnings that a section drafted too broadly would lead to problems:

In 1991, the report of the national­ inquiry into racist violence­ recommended that the legislation should not be about hurt feelings or injured sensibil­ities but should focus on incitement to racial hostility.

There are strong arguments  against amendment of Section 18C based on concerns that it would remove a necessary safeguard against racist acts and that a small number of highly publicised vexatious claims under 18C did not justify repeal of that section of the legislation.

Update

Recently, the Government announced that it would support alteration to the wording of Section 18C, retaining the words “intimidate” on the basis of race, but replacing the words “insult”, “offend” and “humiliate” with the word “harass”.

However, the latest development in the debate, is that on Friday 31 March, the Senate defeated the proposed change to section 18C.

It is unlikely that this will be the last we hear of the contentious section 18C.

Katherine Driscoll, Solicitor
Josephine Heesh, Partner

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