18C and Australia multiculturalism

November 8, 2016 Agencies
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The Australia/Israel & Jewish Affairs Council (AIJAC) has commenter on the announcement by Attorney-General George Brandis QC of a parliamentary inquiry into freedom of speech, including sections 18C and 18D of the Racial Discrimination Act 1975 (Cth) and how the Australian Human Right Commission (the Commission) handles complaints. 

Dr Colin Rubenstein

Dr Colin Rubenstein

AIJAC Executive Director Dr Colin Rubenstein said, “Section 18C plays an important role in supporting Australian multiculturalism, which is so intrinsic to the cohesion of our society. However, that is not to say that the section and the way it is administered can’t be improved. It has been in operation for over twenty years, and elements of the QUT case have shown that aspects of its application process can be problematic.

“We agree with comments by the Attorney-General in his press release announcing the inquiry that it is important to strike ‘the right balance between laws which protect social harmony and mutual respect, and the fundamental democratic value of freedom of speech.’ In striking that balance, it is important to give due weight to the right of all Australians to live free from vilification, to remember the many positive accomplishments of Section 18C in successfully resolving issues of discrimination in many cases, including Holocaust denial and other extreme forms of racism, and to remember that many other cases have been successfully resolved by conciliation.”

Dr Rubenstein added, “While there have been many claims that 18C unreasonably inhibits freedom of speech and expression, it is important not to ignore the exemptions in Section 18D, which protect statements and other expression made reasonably and in good faith, and to bear in mind that the courts have always read the words ‘offend’ and ‘insult’ in Section 18C together with the words ‘humiliate or intimidate’, and applied the test to a normal person of the claimant’s heritage, so mere offence or insult has never been sufficient to lead to a finding that the Section has been breached.”

“We trust that the inquiry will focus on ways to refine and improve this important legislation, and will not be dominated by the misguided ideologues who are determined to have it repealed,” he concluded.

Senator George Brandis

Senator George Brandis

Senator Brandis said : “I have today asked the Parliamentary Joint Committee on Human Rights to inquire and report on two issues relating to freedom of speech in Australia. The first is whether the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) (including ss. 18C and 18D) impose unreasonable restrictions on freedom of speech. The second, related, matter, is whether the complaints-handling procedures of the Australian Human Rights Commission should be reformed. The reference has been made under s. 7(c) of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).

Among other things, the Committee will examine whether the existing processes of the Commission are sufficient to ensure that trivial or vexatious complaints to the Commission, and complaints which have no reasonable prospects of success, are identified and dismissed at an early stage. It will also examine ways to ensure that complaints are dealt with in an open and transparent way, without unreasonable delay, and in a manner which ensures those subject to complaints are afforded natural justice.

The review of provisions of Part IIA of the Racial Discrimination Act was recommended by the Australian Law Reform Commission in its Report on Traditional Rights and Freedoms – Encroachments by Commonwealth Laws, released earlier this year. The review of the Commission’s complaints-handling procedure was invited by the Commission itself.

It is important that Australia strikes the right balance between laws which protect social harmony and mutual respect, and the fundamental democratic value of freedom of speech. The purpose of the inquiry is to ensure that we have that balance right. Equally, it is important that the machinery for human rights protection in Australia operates in such a way as to ensure procedural fairness, and that it cannot be used as a vehicle for vexatious complaints.

I encourage all interested groups to put their views before the inquiry in a constructive and mutually respectful discussion.

I have asked the Committee to report by February 28 2017.”