AIJAC supports the retention of Part IIA of the Racial Discrimination Act in submission to Parliamentary Inquiry
The Australia/Israel and Jewish Affairs Council believes that PART IIA of the Racial Discrimination Act has worked effectively for over 20 years and there is no compelling reason for repeal or wholesale reform.That is the view that AIJAC has argued in its submission to the Australian Federal Parliamentary Joint Committee on Human Rights Inquiry into Freedom of Speech in Australia.
Dr Colin Rubenstein
“The legislation under section 18C has allowed people to have recourse when they have been the victims of acts that offend, insult, humiliate or intimidate on the grounds of race, while freedom of speech is protected through the wide-ranging exemptions under section 18D,” AIJAC Executive Director Dr Colin Rubenstein said.
Since its introduction, Jewish agencies in Australia have observed changes in behaviour from some organised racist groups, who have sought to avoid breaches of Section 18C.
“More recently, AIJAC believes the rise of populist, extremist groups from all wings of the political spectrum and their associated ugly rhetoric have only strengthened the necessity of maintaining strong protections against racial hatred,” Dr Rubenstein said.
In the submission, AIJAC has argued that nowhere in the world does freedom of expression supersede all other rights. Nor does Section 18C stifle free debate in Australia.
“A modern democracy must serve broad public interests while minimising any impact on freedom of speech – especially as it pertains to carrying out the essential functions of democracy, such as robustly and fully debating public policy issues or other areas of national or communal concern,” Dr Rubenstein said.
“AIJAC sees little reason to believe that free speech is Australia is not robust and well-protected nor that the balance noted above, maximising the scope for free speech while still pursuing other public interest goals, has become skewed.”
In addition, the availability of legal redress actually serves to protect the right to freedom of expression for members of vulnerable minority groups.
AIJAC further argues that the words “offend” and “insult” in 18C do not constitute a “hurt feelings” test, as some claim, as no court judgement has ever treated the legislation as such.
AIJAC does acknowledge that the process by which claims under the legislation are administered might be improved, including by making it easier and quicker for complaints that are trivial, vexatious or lacking in substance to be dismissed by the Australian Human Rights Commission.
“But this has nothing whatsoever to do with the wording of 18C,” Dr Rubenstein said.
Key points in AIJAC’s submission are:
- That, while freedom of expression is both a vital civil right and an essential precondition of liberal democracy, it is nowhere in the world completely unfettered and absolute, such that it must supersede all other rights, and override all other forms of public interest. Indeed, we identify at least nine broad ways, besides racial vilification, in which state or federal legislation already limit, prohibit or render unlawful expression in many forms and contexts.
- That, since the passage of Part IIA of the Racial Discrimination Act 1975 in 1995, we have witnessed both more circumspection and less harm by openly racist groups in Australia, and a series of legal and societal achievements which have clearly benefitted the well-being of minority groups in Australian, including the Jewish community, as well as the social cohesion of Australian society as a whole.
- That not only is the availability of legal redress against extreme or pervasive racial vilification essential to maintaining the right of Australians to live their lives free from harassment and intimidation, it actually helps serve to protect the right to freedom of expression for members of vulnerable minority groups.
- That arguments by some individuals and groups that the wording of 18C – and specifically the inclusion of the words “offend” and “insult” – creates a subjective “hurt feelings” test which is allegedly uniquely threatening to the right to freedom of speech are simply wrong as a matter of law. Furthermore, this language is similar to that used across considerable existing state and federal legislation and the practice across many liberal democracies around the world.
- That claims that 18C is stifling Australian public debate around major issues of public concern are simply incorrect – with those who make this claim unable to offer a single reasonable and valid example of a case where the law made it impossible for exponents to express a sincere viewpoint in any significant public debate. The examples that are typically offered, we argue, actually demonstrate the opposite.
- That while there have been controversies – and apparent genuine mistakes – with regard to the process of administering 18C by the Australian Human Rights Commission in a small number of recent cases, we argue that these cases do not indicate any problems with the wording of 18C per se. Moreover, there is no reason to believe that this law is any more burdensome on the parties than other similar laws – and in fact the opposite may be the case. Nonetheless, AIJAC acknowledges that improvements to the process of administering 18C might be desirable, and suggests minor reform measures which might achieve some streamlining of the law’s administration.
AIJAC’s full submission can be accessed here.
We are not a police state, like some alien countries overseas, so say what you like fellow Australians.