18C proposed changes: Reactions

March 21, 2017 by J-Wire Staff
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Community organisations have reacted strongly to the Government’s plans to change Section 18C of the Racial Discrimination Act.

Victorian Coalition to Advance Multiculturalism

The Turnbull Government’s decision to pursue the watering down of protections against racial vilification is utterly shameful and at odds with the principles of multicultural Australia.

It flies in the face of the overwhelming majority of submissions presented to the Parliamentary Joint Committee on Human Rights. It ignores the views of the overwhelming majority of the ethnic, cultural and religious communities that are often the victims of abuse motivated by prejudice and xenophobia.

We will oppose this latest attempt to amend Section 18C with all the energy and resources at our collective disposal.

We regard the argument in favour of weakening the legislation to be without substance. There is no evidence to suggest that the existing legislation impedes freedom of speech. If the government was genuine about freedom of speech, why the deafening silence on the many other pieces and legislation and areas of policy which severely restrict freedom of speech and other civil liberties.

Racial and religious vilification violates the dignity of Australians, inhibits their ability to participate in Australian communal life, and severely damages the social fabric which is the indispensable bedrock on which are built our freedoms and civil liberties.

The proposal to replace ‘offend’ and ‘insult’ with ‘harass’ is fundamentally flawed. There has been no case made to amend Section 18C. The relevant cases which have reached the court, including the QUT matter, were struck down for not even breaching Section 18C. Had the Bill Leak cartoon matter been pursued, it would almost certainly have been afforded the broad protections of Section 18D. The issues which were the impetus for the inquiry only relate to matters of the processes of the Australian Human Rights Commission. To fix matters of process, the focus should be on the Australian Human Rights Commission Act.

Indeed, Section 18C already imposes demanding conditions before it is found to breached. Courts have interpreted the legislation to provide protection not for ‘mere slights’, but only for ‘profound and serious’ harms. Hurt feelings are not protected. It already requires that the harms were objectively likely to have occurred. The terms ‘insult, offend, humiliate and intimidate’ have been read by the courts as a collective phrase. The proposed amendment is therefore irresponsible, as it is designed for a fabricated legislative problem. Inserting ‘harass’ inappropriately imports terms from the criminal law in to the civil law, and will reduce the scope of protections for profoundly harmful circumstances of racial abuse. This will only create confusion in the courts and do nothing to fix the matters of process which are required to invest the Commission with public trust.

It is obvious that the opponents of 18C view its amendment simply as a temporary concession to serve as a prelude to its later wholesale abolition. We will make no such concession.

We have received bipartisan support in Victoria with both Premier Daniel Andrews and Opposition Leader Matthew Guy confirming that they back 18C in its current form. Indeed, polling over the last three years suggests that between 75 and 90 per cent of Australians see no need for change.

We call on Prime Minister Turnbull and his Government to abandon the proposed amendment, and listen instead to Australia’s ethnic and faith communities.

African Australian Multicultural Employment and Youth Services
African Music and Cultural Festival Inc
Afro-Australian Student Organisation
Australian Intercultural Society
Australasian Union of Jewish Students
Buddhist Council of Victoria
Council of Christians and Jews
The Hindu Council of Australia
The Incubate Foundation
Islamic Council of Victoria
Jewish Community Council of Victoria
Muslim Legal Network
The Online Hate Prevention Institute
Pax Christi Australia
Sikh Interfaith Council of Victoria
UNESCO Chair in Interreligious and Intercultural Relations
Uniting Church of Australia, Synod of Victoria and Tasmania
Victorian Council of Churches Vietnamese Community in Australia (Vic)

The Executive Council of Australian Jewry

The ECAJ have not released a statement but rather their submitted to J-Wire their “18C – TEN KEY POINTS TO GUIDE THE PERPLEXED”.

In their guide ECAJ pointed out:

Such as it is Section 18C of the RDA makes it unlawful to do an act, otherwise than in private, that is reasonably likely to offend, insult, humiliate or intimidate a person or group of persons by reason of their race, colour or national or ethnic origin.

Sections 18C and 18D have been applied in court cases since 1995 without controversy, except among a limited number of people in the Andrew Bolt case and the QUT Case, which was thrown out late last year. (The complaint against Bill Leak never got to court).

Sections 18C and 18D continue to enjoy wide public support (75% plus), despite the sustained media attacks against these laws.

The 18 recommendations made by the Joint Parliamentary Committee on Human Rights, deal only with complaints handling and early dismissal processes and procedures. If adopted, as they should be, they will ensure no repetition of the problems associated with either the QUT case or complaint against Bill Leak.

MPs Tim Wilson and James Paterson have proposed replacing the words “offend, insult, humiliate” in s.18C with the word “harass”, so that it would be unlawful only to “harass or intimidate” people because of their race. This is bad policy and bad politics. It would substantively change the section. It would have to substantially change the sections’ construction by the courts, resulting in more litigation, not less.

The Australia/Israel and Jewish Affairs Council

AIJAC Executive Director Dr Colin Rubenstein and Jeremy Jones, Director of International & Community Affairs stated today:

“We welcome the government’s efforts to implement the Parliamentary Joint Committee Inquiry into Freedom of Speech recommendations on improving and streamlining the process by which Section 18C of the Racial Discrimination Act is administered by the Human Rights Commission.

“However, we are disappointed that, despite the Parliamentary Joint Committee Inquiry finding no consensus for making changes to 18C itself, the government is now pushing ahead with major changes anyway.

“Removing the words ‘insult’, ‘offend’ and ‘humiliate’ from Section 18C, as proposed, and replacing them with ‘harass’ will, in our view, significantly weaken legislation that has worked effectively for over 20 years.

“As we have consistently maintained, under the balance provided by Sections 18C and 18D, free speech in Australia is robust and well-protected while the legislation still addresses the most destructive forms of hate speech. Indeed, with the one exception of the 2011 case Eatock v Bolt, no finding under 18C has proven at all controversial. There is no compelling case for change to the wording of 18C, especially given the extensive case law that has been built up around the existing wording.

“While we do not see the justification for the changes to 18C that the government is requesting, we do call on all parties to move ahead with the consensus procedural changes recommended by the Inquiry.

“Two public controversies over 18C, the Leak case and the QUT case, did raise legitimate procedural issues, although neither one led to findings that anyone had breached 18C.

“We also welcome the Government’s reaffirmation of Australian multiculturalism and their position that racism and discrimination are incompatible with Australian values and society.”

From a group of ethnic organisations:

As leaders of organisations representing a wide range of culturally diverse communities in Australia, we are profoundly disappointed at today’s announcement by the Federal government of its intention to amend section 18C of the Racial Discrimination Act.

If implemented, these proposals will weaken, perhaps emasculate, existing legal protections against racist hate speech. They will give a free pass to ugly and damaging forms of racial vilification which do not satisfy the stringent legal criteria of harassment and intimidation. The publication of virtually any derogatory generalisation about an entire community group would, of itself, be permissible.

To offend, insult or humiliate a person or group because of their race or ethnic background necessarily sends a message that such people, by virtue of who they are, and regardless of how they behave or what they believe, are not members of society in good standing. This cannot but vitiate the sense of belonging of members of the group and their sense of assurance and security as citizens, and constitutes an assault upon their human dignity. This has nothing to do with a contest of ideas or free speech – which is in any event protected under section 18D – and falls far short of the mutual respect about which we have heard.

Under the government’s proposals vulnerable community groups will now have no peaceful, legal means of redress against these kinds of attacks against their dignity. This would send a signal from government of a more lenient attitude to racism and would damage social cohesion. It is especially ironic that the government has put forward these proposals on Harmony Day.

The proposal to insert a generic “reasonable person” standard into the legislation has superficial appeal, but is unfair and unworkable. The proverbial person in the pub or on the “Bondi tram” does not have the background knowledge and insight into the particularities of a minority group that would be needed to make a fair and informed assessment of what is reasonably likely to “harass or intimidate” members of that group.

Under the existing law, the assessment is made by a reasonable member of the targeted community, that is, by a member of that community who is neither overly sensitive nor overly thick-skinned. This is both more logical and more just.

A generic reasonable person test would also create the possibility that members of a group that happens to be unpopular at any time for any reason would be unfairly treated. Section 18C is not needed to protect members of minority groups who are popular in the wider community. It is needed to protect members of unpopular minorities, and also vulnerable minorities, especially our First Peoples, Aboriginal & Torres Strait Islanders.

We support the idea of improving the process for handling section 18C complaints, so that trivial or spurious complaints are terminated quickly.

We note that the Parliamentary Joint Committee on Human Rights was unable to reach a consensus, or even a majority opinion, in favour of any of the government’s proposals to amend the substantive law. Its recommendations were all limited to suggested reforms to the complaints- handling process.

This is the sensible way forward. The problems identified by the QUT case and the Bill Leak complaint all related to deficiencies of process. The government’s reforms should, as the Inquiry recommended, address that problem specifically, and not be distracted with an abstract ideological debate, divorced from the social realities.

Rod Little and Dr Jackie Huggins, Co-chairs, National Congress of Australia’s First Peoples
John Kennedy, President, United Indian Association
George Vellis, Co-ordinator, and George Vardas, Secretary, Australian Hellenic Council NSW
Peter Wertheim, Executive Director, Executive Council of Australian Jewry
Patrick Voon, Immediate Past President, Chinese Australian Forum Tony Pang, Deputy Chair/Secretary, Chinese Australian Services Society
Randa Kattan, CEO, Arab Council Australia
Vache Executive Director, Armenian National Committee of Australia

Morris Tobias President B’nai B’rith Australia/New Zealand: ” B’nai B’rith Australia/New Zealand expresses its strong support for the retention of 18C. and commends the Government for its support of our multicultural society delivered by the Prime Minister.

The law in its present form makes clear that Australia is a nation that opposes insulting, offending or humiliating people based on their race, religion or ethnicity. We see no persuasive argument for weakening this provision.

Arguments that 18C inhibits freedom of speech ignore that the following clause 18D provides sufficient protection for people if they are engaged in artistic expression or political debate.

Some of the arguments calling for amendment of 18C are based on assertions that the processes leading to the enforcement of 18C in the courts, i.e. the processes adopted by the Human Rights Commission, are faulty.

To this, we offer two responses.

Firstly, over the two decades since the legislation was adopted by Parliament, the Human Rights Commission has handled many hundreds of complaints. Nearly all have been handled quietly, without publicity, and have led to reconciliation between the offender and the aggrieved
party. This does not indicate any need for the law to be changed.

Secondly, to the extent that there are flaws in the Human Rights Commission’s procedures, then B’nai B’rith would support ongoing review and evaluation, as it would for any aspect of the nation’s civil administration. If such flaws exist, they can be addressed without the need to amend the law under which the Commission operates.

Dr Dvir Abramovich, Chairman of the ADC said: “Obviously, the ADC is heartened that Prime Minister Turnbull and the government are fully committed to protecting Australians from racial vilification , though we are deeply disappointed that our recommendation, and that of a broad array of community organisations, not to make any amendments to the wording  of 18C was not heeded.

The ADC has always maintained that although freedom of speech is a cornerstone of our democracy and a fundamental human right, it has never been an absolute right, and must always be weighed up and balanced against the rights of all citizens to be protected from racial attacks and discrimination. Replacing the words insult’, ‘offend’ and ‘humiliate’ with ‘harrass’ will water down and weaken, rather than strengthen, the current legislation that has worked consistently well over the last two decades.  It may also send the very wrong, and dangerous message, that in our society, it is part of acceptable  discourse to racially offend, insult, and humiliate anyone who is perceived as different. Through our work fighting hatred we have found that bigotry, prejudice and intolerance are on the rise in Australia, and we will continue to contend that 18C— which is fundamental to safeguarding individuals and communities in the rich tapestry of our inclusive nation— should not be diluted in any way.

Nonetheless, we welcome the proposed reforms to the procedures by which the Human Rights Commission will handle complaints in the future.”


3 Responses to “18C proposed changes: Reactions”
  1. Daniel Jones says:

    I deal with the public on mass in my profession. You can quite often say something inadvertently without even trying to insult some people. Even if you are just making pleasant conversation or small talk and talking about a travel show on television. That just happens to visit an ancient distillery you can put your foot in it. The current legislation is about making a certain group walk on eggshells, whilst empowering protected groups to pursue legal action against the affore mentioned and destroy their lives. Stop being precious.

  2. Lynne Newington says:

    It brings to mind the Holocaust denying bishop when he applied for a Visa….the same 18C changes were in the air. He was told to re-apply later some believing the call for it to be changed would be successful and he would be free to say what he liked. George Brandis, Tony Abbott and Cori Bernardi were all for it remember?

  3. Gil Solomon says:

    Who really gives a damn what the ECAJ and other ethnic and faith communities think?

    18C needs to be abolished immediately. There is no valid explanation for its continued existence. It was legislative “feel good” nonsense from Day 1.

    In regard to the ECAJ, this organisation seems to think it reflects majority Jewish opinion on this topic when in fact if they conducted a poll, they would find, I would guess, thousands like me who want it terminated.

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