Out: “offend” “insult” “humiliate” In: “harassment”
The Government Party Room has agreed to reforms to the Racial Discrimination Act 1975 and the Australian Human Rights Commission Act 1986, which will strengthen Australia’s anti-vilification laws, enhance freedom of speech and improve the complaint-handling processes of the Australian Human Rights Commission.
Prime Minister Malcolm Turnbull released a statement saying “These reforms follow the release of the Report into Freedom of Speech in Australia by the Parliamentary Joint Committee on Human Rights on 28 February.
The legislation will remove the words “offend, insult, humiliate” from section 18C of the RDA and insert the word “harass”. It will also introduce the “reasonable member of the Australian community” as the objective standard by which contravention of section 18C should be judged.
Amendments will also be made to the AHRC Act to facilitate the disposal of unmeritorious complaints and ensure fairness is accorded to both complainants and respondents. The legislation will raise the threshold for the Commission to accept a complaint, provide additional powers for the Commission to terminate unmeritorious complaints and limit access to the courts for unsuccessful complaints.
Minor technical amendments, identified by the Commission itself, are also included to improve the Commission’s reporting obligations, its conciliation processes, and governance arrangements.
There has been a great deal of public discussion in recent times about the protection of freedom of speech in Australia. That discussion has focussed, in particular, upon s. 18C of the RDA, and on the way in which the Commission deals with complaints. The recent cases of the students at QUT, and the complaint against the late cartoonist Bill Leak, have brought the issue to even greater prominence.
In its report Traditional Rights and Freedoms, tabled in March 2016, the Australian Law Reform Commission said that “Part IIA of the Racial Discrimination Act, of which s. 18C forms part, would benefit from a more thorough review in relation to freedom of speech”. In November last year, the Australian Human Rights Commission asked the Government to propose “amendments to streamline the processes by raising the threshold for accepting complaints”.
The Government’s reforms strike the right balance by strengthening the protections against hate speech based on race, whilst enhancing freedom of speech. They ensure that unmeritorious complaints are terminated and respondents are not put to great personal and financial cost.
Reforms to the Commission’s complaint handling procedures are sensible and the overwhelming majority are supported by the Commission itself. These measures will restore public confidence in the Commission’s processes, whilst reducing its regulatory burden.
Legislation will be introduced into the Senate this week.”
When facing a media conference, the Prime Minister said: “The language, the new language will better and more clearly protect people from racial vilification, in a more generic term, from harassment or intimidation because the language is clearer.
The problem with the language at the moment – using the language insult and offend – the problem is that, of course, on its face, its natural and ordinary meaning, it includes very small slights. So people have said: “Oh, well, you know, there are court cases that say it only means really serious insults.” Well isn’t it better that laws actually say what they mean? Isn’t it better that laws are clear? Isn’t it better when you’re dealing with freedom of speech and you’re dealing with protecting people from racial vilification, that the law is clear and in language people can understand? That’s what we’re doing.”
One journalist asked: “Ethnic and community groups like the Executive Council of Australian Jewry have said there is no need to change these laws, the wording of the laws are sufficient as they currently stand. What is your message to them?
Malcolm Turnbull responded: “Well we beg to differ with them. We believe that the law has lost its credibility. I mean, all of you have seen the criticism that has come around recent cases, the QUT and the Bill Leak case being classic examples. When a law loses its credibility, it lacks its ability to achieve any of its objectives.
So this is why it’s important to restate the language in terms that better reflect the objects of the legislation. As the Attorney said, right from the outset, if you go back decades, it better reflects the object of the legislation then, and it clearly prohibits conduct of a kind that we condemn, that we abhor, that we do not accept.
We are the most successful multicultural society in the world. It’s built on a foundation of mutual respect, and that mutual respect – that foundation – is strengthened by stronger, clearer, fairer laws.”
Malcolm Turnbull repeated in parliament during question time that “Section 18C has lost its credibility”.
Shadow Attorney-General Mark Dreyfus said: “I am shocked that on Harmony Day, on the day on which we are celebrating the International Day against Racial Discrimination, that the Prime Minister of Australia and the Attorney-General of Australia can stand up and try to explain, and fail to explain, a change to the law against racist hate speech in our country. Make no mistake, the change that has just been announced is a weakening of the Racial Discrimination Act. It is a weakening of the protections which have served Australia very well for more than 20 years.
And for the Prime Minister to stand up and pretend, and it is only a pretense, because he’s had his chain yanked by the right wing of his party, for the Prime Minister to pretend that this is a strengthening of the law is simply nonsense. The Prime Minister gave the game away when he was unable to explain, in answer to a direct question, what successful claim under the law as it stands warrants this change to the law.
He did not offer one single example of a successful claim under Section 18C as a reason for changing the law. Instead, he went to failed claims. It is the first time I have ever seen law reform in this country being conducted with reference to claims which have failed. Claims which have failed to meet the standards we’ve set in the law. The line we’ve drawn against racist hate speech. This is a weakening of the law. The Attorney-General gave the game away as well. He described the new term that they are going to introduce to the law, “harass”, as a “stronger term”, as a “more powerful term”. And what happens when you introduce a stronger and more powerful term to the law is that you raise the bar. You make it harder for people to complain against racist hate speech.
It is a betrayal of Australia’s multicultural communities. It is a betrayal of the Prime Minister’s statements, frequent statements, that the law wasn’t going to be changed, of the Prime Minister saying at the election that this law wasn’t going to be changed. It’s a betrayal of the Aboriginal community in Australia, the Jewish community in Australia.
Every single ethnic community in Australia has been betrayed by this Government and no-one should believe in any way that this is, as the Prime Minister has untruthfully attempted to suggest, a strengthening of the law. It is not. It is a weakening of the law. It’s a shameful thing to be doing on, of all days, Harmony Day, when schools around Australia, school children are having explained to them, why we set our face against racial discrimination and why we set our face against racist hate speech in our community. This is a dreadful step back. I am, however, hopeful of working with the crossbench in the Senate, who have already expressed clear views about this, to make sure that even if this legislation, which we have not seen yet, passes through the House of Representatives, it will not pass through the Senate.
Tony Burke, Shadow Minister for Multicultural Australia added: In every school in Australia at moment, there are children, many of them wearing orange, celebrating harmony and being taught about respect. And here in Canberra, we have a Government wanting to give permission for more racial hate speech. Yesterday, this Government released its multicultural policy. It didn’t even survive 24 hours before they walked all over it.
There is no way of looking at today’s announcement without this one fact in mind. The Government intends to give permission to forms of racial hate speech that are currently not permitted.
Now, that might not be real for George Brandis or Malcolm Turnbull. But it is real for the person who gets humiliated on public transport on the way home. It is real for the child who has to stand there while his or her parents are being abused in a shopping centre. It is real for many, many Australians.
And this Government, on Harmony Day of all days, on an international day to eliminate all forms of discrimination on race, on this day, the Government has chosen to lower the bar and allow forms of hate speech which are not currently permitted. Well, the Government needs to answer one question – what is it that they want to be allowed to say that they’re not allowed to say now? What forms of racial hate speech that are currently not permitted do they want to give permission for? Because be in no doubt, when you remove the words that they’re removing, there are forms of racial hate speech which will be given licence to.
And the farce of a media conference that the Prime Minister just held. As if we’re meant to believe this is a strengthening of the law. As if we’re meant to believe, after all the complaints that they’ve been making over the last couple of years from the hard right of the Liberal Party, how on earth are we meant to believe that they’ve then come up with a law reform pushed by the hard right of the Liberal Party and it’s all about giving more protections against racial hate speech? No-one will fall for that. And this change today is the first time in a long time a country like Australia could be seen to be taking a backward step on racial hate speech, and they’ve chosen Harmony Day to do it.”
Graham Perrett, Parliamentary Joint Committee on Human Rights Deputy Chair showed media the Human Rights Committee report on freedom of speech and section 18C saying: “I brought it along because the Prime Minister obviously wasn’t familiar with it, nor was the Attorney-General. We went to every capital city, received over 400 submissions, consulted widely, received 11,000 individual submissions.
We didn’t just talk to a couple of people in Point Piper or Brighton. Instead, we spoke to the people who would be affected by this change.
And what did we say? The committee where Senator James Patterson used to be in the IPA…all the committee agreed to with the Liberal majority was that we would not change section 18C. Instead, we’ve got the party room, I don’t know what the vote was, but the party room came out from the Coalition and said we’re going to change it. They’re not listening to the report at all. We clearly stated that there would be consequences, particularly for those one in four Australians who are either born overseas or had parents born overseas. Malcolm Turnbull should hang his head in shame. This is a day of infamy for Malcolm Turnbull.”