Let's amend 18C to say what it means

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The debate over section 18C of the Racial Discrimination Act (18C) has gone on for far too long. It's time to bring it to a close. The Turnbull government should take resolute action proposing a principled, workable amendment to parliament.

Paul KeatingTo date, I have been silent in the present debate. In part, this is because I was a critic of such legal provisions when they were first proposed in 1992 and then again in 1994. I have since been convinced that a provision like 18C could be designed to target racial vilification, leaving offensive insults beyond the reach of the law in a robust democracy committed to freedom of speech.

Back then, Labor governments proposed legislation which would have enacted a provision like 18C, while also establishing three new Commonwealth criminal offences: threatening to cause physical harm to a person or group because of their race, colour, or national or ethnic origin; threatening to destroy or damage property because of the race, colour or national or ethnic origin of any other person or group; and doing an act which was reasonably likely to incite racial hatred.

Labor's 1992 proposals went nowhere prior to the 1993 election. After his unexpected win, Prime Minister Paul Keating expended much political energy forging the principled compromise on the Native Title Act in the wake of the High Court's Mabo decision. Some very feisty things were said by Aboriginal leaders during the native title debate, impugning the 'racist' motivation of public servants and some politicians.

No one would have contemplated using the criminal law to prosecute passionate Aboriginal leaders fighting to retain their land rights, charging them with doing an act likely to incite racial hatred. There were already criminal laws outlawing threats to cause physical harm to a person or destruction of property. There was no need to add the race card to create further criminal offences.

Once the native title law was passed, Labor again turned its attention to racial vilification, introducing the Racial Hatred Bill 1994 to the House of Representatives in November 1994. The bill was passed through the Reps very promptly but it ran into trouble in the Senate. The Senate debate on the floor of Parliament was not brought on for another nine months. Liberal Senator Nick Minchin told the Senate: 'We have Labor sympathisers like Phillip Adams and Father Frank Brennan vehemently opposed to the law brought forward by this Labor government.'

I had been a great supporter of the Keating government for its masterful negotiation of the Native Title Act. But the Racial Hatred Act was a different matter. This act was described in its title as 'An act to prohibit certain conduct involving the hatred of other people on the ground of race, colour or national or ethnic origin, and for related purposes'.

 

"It's common ground for supporters and opponents of 18C that applying the ordinary meaning of 'insult' and 'offend' results in the bar being set too low. Why not seek language which would result in the bar being set at the same level before the Human Rights Commission as it would be before the courts?"

 

Eventually, Labor was forced to abandon the provisions which would have instituted the three new criminal offences. But the parliament passed a series of measures under the title 'Prohibition of Offensive Behaviour based on racial hatred' including 18C which made it unlawful to do an act in public which was reasonably likely 'to offend, insult, humiliate or intimidate' another when the act is done because of the race of the other. Labor said it was committed to re-introducing legislation enacting the three criminal offences after the next election. Labor lost the election. But even once returned to power for a further six years in 2007, there was no suggestion of any such legislation. And no one talks about it nowadays.

When Labor was considering the form of 18C, the New South Wales Parliament had already enacted its Anti-Discrimination Act including a provision making it unlawful to do any public act 'to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group'. Introducing the Racial Hatred Bill, the Labor Attorney General Michael Lavarch told parliament:

 

The bill places no new limits on genuine public debate. Australians must be free to speak their minds, to criticise actions and policies of others and to share a joke. The bill does not prohibit people from expressing ideas or having beliefs, no matter how unpopular the views may be to many other people ... It is worthy of note that New South Wales has had similar legislation for five years and yet no-one has seriously argued that free speech has been curtailed there.

 

If only the Commonwealth's 18C were modelled on the NSW provision which had been in place for five years without causing a problem. Lavarch might then have achieved his stated purpose.

The Senate ultimately gutted Lavarch's Racial Hatred Bill in August 1995, dropping all the provisions which would have established novel criminal offences. But 18C was left in place even though it was known that its language was loose, setting too low a threshold for bringing a complaint to the Human Rights Commission.

So now let's fast forward to last month's report from the Parliamentary Joint Committee of Human Rights. The committee heard from numerous legal experts that 18C sets the threshold for a complaint far too low. In the past, the courts have attempted to solve the problem by lifting the bar, interpreting the words 'offend' and 'insult' in the context of racial hatred which was the subject matter of the legislation. The first key decision was given by Justice Susan Kiefel, Australia's new Chief Justice.

Back in 2001, as a single judge of the Federal Court of Australia, Kiefel had to interpret 18C when Ms Creek, an Aboriginal resident of Coen in Cape York, brought proceedings against the Cairns Post alleging that the newspaper had breached 18C without any possible defence under 18D. Ms Creek lost her case. Kiefel accepted the newspaper's submission that 'only very serious and offensive behaviour was intended as the subject of s 18C'. After all this was a provision in legislation entitled the Racial Hatred Act. And the provision was contained in part of the Act entitled 'Prohibition of Offensive Behaviour based on racial hatred'. Kiefel referred to Lavarch's second reading speech and to the explanatory memorandum of the legislation presented to parliament which stated:

 

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 ethnic origin. 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.

 

Kiefel said, 'To "offend, insult, humiliate or intimidate" are profound and serious effects, not to be likened to mere slights'.

On 8 November 2016, Professor Gillian Triggs, President of the Australian Human Rights Commission told the ABC Radio National Breakfast program that the commission's preferred position was to retain 18C unamended. But she then went on to say that 18C could be strengthened by replacing the words 'offend' and 'insult' with the word 'vilify'. She said, 'There's always ambiguity about what you mean by offending and insulting'. She told listeners, 'The bar, if you like, for the Federal Circuit Court and general Federal Court has always been very high on this question. No mere slight will constitute a breach of 18C. The view, the way the commission deals with matters is at a much lower level and that is why we'd like to see reform there.'

Preparing for the parliamentary inquiry, she said, 'We're open to seeing what the inquiry might suggest — whether the language could be clarified and in our view strengthened that enables us to support the multicultural society that we are.' When asked if she thought 18C could be made stronger by replacing 'offend' and 'insult' with 'vilify', she replied: 'I would see that as a strengthening, it could be a very useful thing to do.'

By the time the parliamentary committee was concluding its inquiry, Triggs withdrew this suggestion noting in her final appearance before the committee on 17 February 2017:

 

[A]fter considering all of the evidence that is provided to this committee, the commission's position on 18C remains a consistent position. Sections 18C and D have been interpreted and applied consistently by federal courts over 20 years. We believe at the commission that the law strikes an appropriate balance between freedom of speech and freedom from racial abuse. These provisions have served our multicultural democracy well in sending the message that racial vilification is not acceptable in Australia.

 

It's common ground for supporters and opponents of 18C that applying the ordinary meaning of 'insult' and 'offend' results in the bar being set too low. Why not seek language which would result in the bar being set at the same level before the Human Rights Commission as it would be before the courts? There is no point in maintaining language in such a contested statute which no longer means what it says.

The Human Rights Commission and the parliamentary committee have accepted that the bar should be set at the level set by Federal Court judges following Kiefel's approach — where offensive insult amounts to vilification. The bar could be set at the same level in court and before the commission by abandoning words such as 'insult' and 'offend' which have such variable meanings depending on the sensitivity of a listener rather than the motivation of the speaker. I agree with those legal scholars like Professor Sarah Joseph who have suggested that 18C be amended to read:

 

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

Such an amendment would allow us to honour the noble commitment expressed by Attorney General Michael Lavarch at the conclusion of his second reading speech for the Racial Hatred Bill in 1994:

 

We are fortunate in that Australia has a significant degree of social cohesion and racial harmony. This bill is an appropriate and measured response to closing the identified gap in the legal protection of all Australians from extreme racist behaviour. It strikes a balance between the right of free speech and the other rights and interests of Australia and Australians. It provides a safety net for racial harmony in Australia and sends a clear warning to those who might attack the principle of tolerance. And importantly this bill provides Australians who are the victims of racial hatred or violence with protection.

 

Simply leaving 18C unamended is not a sensible option. It's broke, so fix it! The Murdoch press and some of those mourning the death of Bill Leak will continue to agitate the case for abolition. A principled amendment might allow the Liberal Party to draw the line on this conflict and provide the parliament with an opportunity to affirm across party lines the need to stamp out racial vilification while upholding freedom of speech even when people are insulted or offended.

 


Frank BrennanFrank Brennan SJ is the CEO of Catholic Social Services Australia.

Topic tags: Frank Brennan, 18c, racial discrimination


 

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Existing comments

Recently a young man in South East Queensland was sentenced to six years imprisonment for punching a man in retaliation for having been called a "black bastard". The man later died as a result of the blow. If section 18C of the Racial Discrimination Act is to be amended I sincerely hope that our brilliant legislators think very carefully about how it is amended.
Paul | 14 March 2017


Thank you Frank. Very sensibly argued. It Is difficult not to conclude the inconsistency and intransigence of G. Triggs has detracted from the HRC purpose and, at best significantly disrupted it workings and at worst, permanently damaged its reputation. it is hard to see the HRC improve its performance with Ms. Triggs remaining at the helm..
Luke | 15 March 2017


Prof Joseph's suggested amendments make good sense, going a long way to remedy the demonstrably unsatisfactory looseness of the current 18C wording.
John | 15 March 2017


Herein lies the main problem: "The Murdoch press and some of those mourning the death of Bill Leak will continue to agitate the case for abolition." The Murdoch press has consistently lied about the RDA ever since its employee Andrew Bolt was found to have breached it in 2011. Had they not done so, there would not be the confusion, concern and conflict in the community today. The appropriate response isn't to change the Act - which has not given rise to any miscarriage of justice or material loss - but to resist and condemn the Murdoch media's malicious misrepresentation - which clearly has.
Alan Austin | 15 March 2017


And, at the end of the day, ever the peacemaker, bless you, Frank!
Michael furtado | 15 March 2017


Sensible proposals. The law should be amended so as to make actionable only those intended or negligent acts or omissions that a reasonable person might anticipate to cause harm (actual or potential) rather than hurt feelings.
Ian Bowie | 15 March 2017


"Luke" -- whoever he is [correspondents really should be required to use their full and real names] plainly has a marked animus towards Professor Triggs. When she has a Bachelor's degree, a Master's degree and a PhD, why would he seek to demean her be his use of "Ms Triggs"? On the more substantive question, the suggestion that Fr Brennan advances *after Professor Joseph seems perfectly reasonable, though (pace the closing paragraph) concern that "The Murdoch press and some of those mourning the death of Bill Leak will continue to agitate the case for abolition." seems entirely irrelevant to a principled course of action. The truth is that, contrary to the posturing of those zealots, we do not (and should not) have unlimited "freedom of Speech" in Australia -- the libel laws attest to that. The social and political challenge is to decide where limits should reasonably be set. Sincere people can have honest disagreements about that and they will be more nettlesome in a muiti-racial, multi-cultural and multi-religious society like contemporary Australia than in the Australia of 100 years ago (where, admittedly, some seem to have a preference to live).
John CARMODY | 15 March 2017


Interesting and useful article by Father Brennan but it would have helped if he had explained just what he means by "vilify"
Griff Lewis | 15 March 2017


I suggest that Professor Triggs is far more constructive in her comments on possible amendment of Section 18C than are many of the opponents who simply want Section 18C abolished completely. It is there for a reason. My understanding (as a complete non-lawyer) is that the very few cases that have made it to court, while high profile, are a tiny percentage of the total complaints lodged with the HRC and the complaints settled by mediation. I also understand that in the very few cases to have made it to court the Bench considers the complete phrase “offend, insult, humiliate or intimidate” in total rather than breaking it up into individual parts. There may be sound legal reasons to replace “offend, insult” with “vilify” and our legislators will no doubt consider them. But I have to question Frank Brennan’s final opinion “It’s broke, so fix it!” and suggest it isn’t broke at all. Section 18D provides sufficient safeguards for freedom of expression that by any pub test would be offensive or insulting. Are we just giving ground to those who want to go further?
Brett | 15 March 2017


I agree with Professor Sarah Joseph and Fr Frank Brennan. Simply leaving 18C unamended is not a sensible option. It is broken, and should be fixed. A closer reading of The Merchant of Venice, may shed further light why. Regardless of what Shakespeare's authorial intent may have been, the play has been made use of by antisemites throughout the play's history. In the trial Shylock represents what Elizabethan Christians believed to be the Jewish desire for "justice", contrasted with their obviously superior Christian value of mercy. The Christians in the courtroom urge Shylock to love his enemies, although they themselves have failed in the past. Jewish critic Harold Bloom suggests that, although the play gives merit to both cases, the portraits are not even-handed: "Shylock's shrewd indictment of Christian hypocrisy delights us, but … Shakespeare’s intimations do not alleviate the savagery of his portrait of the Jew... Have not a Jew eyes?
AO | 16 March 2017


Leaving Shakespeare out of it for a moment, how is Section 18D inadequate in protecting freedom of speech? It's all very well to say it is broken and should be fixed but a relevant justification would be useful. Putting it another way, what would the critics of Section 18C like to say that they can't say now?
Brett | 16 March 2017


Frank, what amendments do you suggest? SECT 18C Offensive behaviour because of race, colour or national or ethnic origin (1) It is unlawful for a person to do an act, otherwise than in private, if: (a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group. Compare ECTR MODEL : (a) "Hate crimes" means: any criminal act however defined, whether committed against persons or property, where the victims or targets are selected because of their real or perceived connection with - or support or membership of - a group as defined in paragraph (a). (b) "Tolerance" means: respect for and acceptance of the expression, preservation and development of the distinct identity of a group as defined in paragraph (a). This definition is without prejudice to the principle of coexistence of diverse groups within a single society. Coexistence of diverse groups within a society requires, knowledge of local language as a means of communication with authorities and the social environment.
Francis Armstrong | 17 March 2017


Frank Brennan's seconding of recommended tightening to the language of 18C by inserting 'vilification' seems well argued and as a clarification that contributes to eliminating a void between the AHRC and our Federal Courts it obviously is an encouragement to those that have a real grievance and does not discourage freedom of speech. It also leads to a more robust society as those that do have their sensitivities triggered will be clearly able to perceive that the addressing of that matter does not lie with having the other party change, but in creating change in their own domain. John Frawley and Pam covered this a few days ago in commenting on Andrew Hamilton's "pub test ....", and Ian Fraser's explanation for 18C and the summary "... broadening of perspective of the majority group can only help unify our culturally diverse Australian society." seems like a slam-dunk for a sensible society. Francis Armstrong's comment today is clear. My question is why is not 'culture' included in (b), though, it may be encompassed in the "a group" of (a) ?
MichCook | 17 March 2017


In my Oxford understanding vilify = abusively disparaging which places the onus on the motivation of the speaker and clarifies what offend and insult might consist of hence seems to make more sense vis tightening the language by reducing the ambiguity that's even noted by Prof. Triggs. And while I generally agree John @15 March that correspondents really should be required to use their full and real names because it's how I know your recent letter to the Herald misinterpreted mine, there may be instances where an alias or first name only protect an identity that is vulnerable.
Gordana Martinovich | 18 March 2017


Respect for the Dignity of Persons. Respect for the souls of others: Scandal is an attitude or behaviour which leads another to do evil. The person who gives scandal becomes his neighbour's tempter. He damages virtue and integrity; he may even draw his brother into spiritual death. Scandal is a grave offence if by deed or omission another is deliberately led into a grave offence. Scandal takes on a particular gravity by reason of the authority of those who cause it or the weakness of those who are scandalised.....Scandal is grave when given by those who by nature or office are obliged to teach and educate others.... Scandal can be provoked by laws or institutions, by fashion or opinion. Therefore, they are guilty of scandal who establish laws or social structures leading to the decline of morals and the corruption of religious practice, or to social conditions, intentionally or not..... This is also true of business leaders who make rules encouraging fraud, ..... or manipulators of public opinion who turn it away from moral values. Anyone who uses the power at his disposal in such a way that it leads others to do wrong becomes guilty of scandal and responsible for the evil that he has directly or indirectly encouraged. Source: Catechism of the Catholic Church. Respect for the Dignity of Persons, page 550 - 551
AO | 18 March 2017


I believe Fr Brennan's "it's broke. So fix it!" statement is true in so far as the politics of 18C goes but, even though I'm not the lawyer, it would seem to me that the defence provided under 18D is adequate for the purposes of ensuring freedom of speech. I can't imagine anything a person might want to say in good faith would fail the 18D test, noting that Andrew Bolt's articles on fair-skinned Aboriginals did fail the test in Eatock v Bolt. That said, the 18C bar is lower in the Human Rights Commission than the bar applied in the courts, a point Professor Triggs accepts, and it could easily be made consistent. Despite the good record of the HRC, its abolition would probably remain a cause in certain ideological quarters, but an amended 18C would no longer be dragged in to prop the cause up. Section 18C could do with being defused, so defuse it.
Paul Begley | 20 March 2017


Griff Lewis (15 March) raised a pertinent point with his request for a clearer explanation of what “vilify” means in the context of the proposed “vilify, humiliate or intimidate”. I suspect the intent is to set the bar in the legislation far higher than it is now, even allowing for the range of exclusions in Section 18D, which seems almost forgotten in the discussion. Some correspondents believe it is the victims, not their potential critics, who have to change. If the intent is to raise the bar of the HRC higher in practice then the change is unnecessary. All that is required is for the HRC to interpret the legislation on a basis consistent with the Courts. Can’t be too hard to do that. I take Paul Begley’s point that it is the politics of Section 18C that is broken. If the intent of amending Section 18C (still ignoring Section 18D?) is to protect freedom of speech then a wider ranging discussion should be had. We don’t have a First Amendment like the Americans and Constitutional change is hard in Australia, but legislation specifically protecting freedom of speech should be doable. But this is almost pointing to a Bill of Rights and I doubt the critics really want that.
Brett | 20 March 2017


I would be happy with 'harass' rather than 'vilify', though I would still prefer 'vilify'.
Frank Brennan SJ | 21 March 2017


Not one person ever explains why this law that has been around for decades is suddenly so objectionable, and not one person who is not white thinks it's objectionable.
Marilyn | 21 March 2017


Spare a thought for Cindy Prior, the Aboriginal complainant in the QUT case. She ended up with nothing but a costs order against her, lots of her own legal expenses, and untold trauma. If 18C were amended, I daresay Ms Prior’s lawyers would be in a position to advise her on the wisdom of instituting proceedings for objectively demonstrable vilification or harassment, and the wasted effort involved in instituting proceedings based only on a subjective claim of offence or insult. No one would doubt that Ms Prior felt offended or insulted, but that’s not enough to get her over the hurdle set by the courts. So what’s the point in having the bar set low before the Human Rights Commission, such that respondents could decline to be involved in the commission processes, confident that a complaint of offence or insult is not sufficient to engage court processes.
Frank Brennan SJ | 26 March 2017


In response to Frank's comment of 26 March, this is an unfortunate outcome but it does not indicate a problem with Section 18C, but with the processes of the Human Rights Commission if it is somehow giving false hope to the aggrieved (which by the way I doubt in the majority of cases coming before the HRC, although I'm sure some examples will be cited). Would not the answer be to raise the HRC bar to the same standard as the Courts, rather than changing the Act to raise the bar of the Court? Also, why is there no corresponding discussion about a review of Section 18D which is often ignored and so far has provided a high level of protection to respondents on many grounds? If the legislative bar is to be raised, should not the scope of exclusions also be tightened?
Brett | 29 March 2017


In the QUT case the students were trying to be 'funny'... If challenged by the minority person or an observer, perpetrators will often defend their microaggression as a misunderstanding, a joke, or something small that should not be blown out of proportion. Wiki- microaggression.
AO | 29 March 2017


I assume legally speaking harass is better Frank (could you expand as to why?) and I have been assured by a senator the inclusion of intimidate covers 'one-off' remarks.
Gordana Martinovich | 30 March 2017


An (objective) onlooker can assess whether A is being harassed or vilified by B. The onlooker cannot assess whether A is being offended or insulted by B. Only A can offer that (subjective) assessment. But the courts have made clear that it’s not every offence or insult as perceived or felt by A that can be treated as an offence or insult for the purposes of the legislation. So why not replace the subjective terms ‘offend’ and ‘insult’ with a more objective term like ‘harass’ or ‘vilify’?
Frank Brennan SJ | 30 March 2017


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