The battle lines have been drawn over Australia’s racial discrimination laws, with black and white leaders divided over whether they need to be changed and human rights advocates clashing with those pushing for greater freedom of speech.
Attorney General George Brandis announced on Tuesday that he had asked the Parliamentary Joint Committee on Human Rights to report on whether sections of the Racial Discrimination Act — including sections 18c and 18d — imposed “unreasonable restrictions on freedom of speech”.
The parliamentary inquiry would also look at the Australian Human Rights Commission’s procedures for handling complaints and whether they should be reformed, he said.
But human rights legal experts warned this week that racists would be given a green light if the Act was weakened.
Experts from the Australian National University and the Australian Lawyers for Human Rights separately defended the besieged AHRC and its leader Gillian Triggs, saying its independence needed to be protected from any government pressure and its role had been misrepresented and misunderstood.
It was a position shared by the first Indigenous woman elected to the House of Representatives, Labor MP Linda Burney, who told NIT the Racial Discrimination Act should be left alone.
She said a push to water down section 18c of the Act — which makes it unlawful to offend, insult, humiliate or intimidate on the basis of race — was being led by white men “of a certain age” who had never experienced racial discrimination.
“The reason those words are there now is because it’s about protecting Indigenous people and people from other backgrounds against being insulted, against being hurt,” she said.
“Racial vilification for anyone who has been on the end of it is insulting, it’s hurtful and it’s long lasting.”
The Turnbull government move followed several recent high profile cases involving the AHRC, including a complaint against The Australian newspaper cartoonist Bill Leak for a cartoon depicting an Aboriginal man and his son. In it, a black policeman has a boy by the scruff of the neck and tells his father; “You’ll have to sit down and talk to your son about personal responsibility.”
The father, with can of VB in his hand, replies; Yeah righto, what’s his name then?”
The Federal Court also this month threw out a case against three Queensland University of Technology students accused of racially vilifying an Indigenous woman in Facebook posts after they were barred from an Indigenous-only computer.
Prime Minister Malcolm Turnbull’s chief Indigenous advisor, Warren Mundine, told NIT the Act should be reviewed, but it was a case of balancing freedom of speech with protecting people from racism.
He agreed with a proposal to remove the words “offend” and “insult” from section 18c and insert “vilify”.
Ken Wyatt, assistant minister for Health and Aged Care and an Indigenous MP from WA, said it was time for new, contemporary laws which balanced free speech and a civil society. He also supported replacing “offend” and “insult” with “vilify”,
“Given the time of the Act, almost 20 years ago, it was at a time in which it was needed to deal with the level of racism experienced in Australia,” Mr Wyatt said. “At that time it was appropriate, but I think we’ve moved on, and there is a strong sense to revisit 18c in the context of a contemporary Australia.”
He called for level-heads in the debate.
“There are strong views on both sides of this debate and I don’t want to see anyone hurt or vilified,” he said.
“We need to take a calm, open, rational statesman like approach and avoid emotive debates that could cause more harm than good.”
Both Stan Grant and Indigenous academic Marcia Langton have both questioned the legitimacy of the law.
But Professor Simon Rice, an expert in anti-discrimination and human rights law at the Australian National University, said there was nothing wrong with the Racial Discrimination Act as it was.
“The idea of protecting people against offence for racial speech in Australia is absolutely appropriate,” he said. “It’s important we get a strong and consistent message that language that offends on the basis of race is not tolerated.
“That’s because in Australia people who are not white live with degrees of racial commentary that offends them almost daily. I don’t think we, the white majority, understand what it is like to live with being subjected to racial speech every day of your life and I don’t think it is for us to say when other people should or shouldn’t feel offended.
“It’s a very important, civilising influence.”
Professor Rice said nine out of every 10 complaints to the AHRC under the Racial Discrimination Act were resolved by the commission. In a minority of cases that were not resolved, it was up to the complainant to decide if they wanted to take it to court where, if the complaint was upheld, they could be awarded a small sum in compensation or an apology.
“In any change from what it is now, if you drop a word and put another word in, it is going to mean more conduct is allowed and fewer complaints can be established,” he said.
“Offend is a reasonably low threshold. From offend you go up a level to insult. From insult you go up a level to humiliate. The word vilify doesn’t mean much to many people.
“Most people can’t define what vilify means — however you try to describe it is very strong. It is going to raise the bar higher than offend or insult.
“Any suggestion to change it is going to make it harder for people to complain successfully about conduct or the other way around, it’s going to make it easier for people to get away with race-based conduct.”
Professor Rice said the Act had been operating well for two decades.
“No one has paid any attention to this before, it’s been doing its job perfectly well until Andrew Bolt lost a case and the right wing politicians and commentators rallied to defend him, and now Bill Leak,” he said.
“It’s much bigger than a storm in a tea cup but it’s a distraction from the fact that the law has been working well for a very long time.”
He said Australia’s Racial Discrimination Act was unique in the world.
“Nowhere else in the world makes it unlawful to use racially offensive language,” he said. “The bar is higher than everywhere else. We’re leading the world in recognising that offensive race speech shouldn’t be allowed.”
Tamsin Clarke, from the Australian Lawyers for Human Rights, said she feared the inquiry was aimed at undermining the Racial Discrimination Act.
“But if enough people can make submissions to the inquiry supporting the strengthening of the legislation then maybe we can get a good outcome nonetheless,” she said.
“But if they want to take out the words ‘offend’ and ‘insult’ in this legislation then they should take out the words ‘offend’ and ‘insult’ in other legislation as well such as the public offences act and that’s not going to happen.
“The people pushing for the inquiry obviously have a desire to broaden racist speech which is a dangerous and undesirable thing to do.”
She said rather than weaken the laws, they should be strengthened by closing some of the loopholes. Dr Clarke said under section 18d of the Act, acting in good faith was an exemption against racist comments.
“If you do something in absolute good faith you get an exception even if in good faith you believe something crazy like the Holocaust didn’t happen,” she said.
Labor’s Ms Burney said she was against an inquiry.
She said freedom of speech was already protected in the legislation.
And it was “an enormous concern” if the Human Rights Commission was being pressured by the government.
“This is pure politics,” she said. “Malcolm Turnbull in August said that there would be no changes to the Racial Discrimination Act and then we find early November that he’s now rolled over to the right wing ideologues of his party to saying there should be an inquiry citing the Bill Leak and Queensland University cases which have very little relevance to this discussion….
“The notion that somehow or other that the Bill Leak cartoon that is being used as a stalking horse is the reason is a nonsense because already in the Racial Discrimination Act there is a clause that protects cartoonists and illustrators.
The argument about the fruitlessness of the Queensland case also doesn’t fit into their rhetoric.
“So what is this really about? It’s about a bunch of neo-Conservatives who want to unsettle the government at any cost. There is absolutely no need for section 18c to be removed. We should be a country that is happy we have laws that protect people from race-hate speech.”
But others are calling for reform.
Tom Percy, a Queens Counsel in Western Australia who also writes a newspaper column, said it was a “multifaceted issue”.
“It’s said that section 18c restricts the ability of people to make even fair comment if there is a racial aspect to it,” he said. “You can’t do anything satirically, artistically, there’s just a complete embargo on it.”
Mr Percy said just because people found something offensive it shouldn’t be illegal.
“Irish people have put up with it for years,” he said. “It seems to be fair game. At the end of the day no one’s really scarred by it. It’s never set anyone back in their careers. But it’s fair game to tell Irish jokes. Obviously there have to be some limits.
“(But) We can’t just say someone has been offended by this so it’s against the law.”
In a statement Tuesday, Mr Brandis said the review of Part IIA of the Racial Discrimination Act was recommended by the Australian Law Reform Commission earlier this year.
He said the AHRC had invited an inquiry into its complaints handling procedures.
“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,” Mr Brandis said.
“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.”
Mr Brandis said the inquiry would make sure Australia had the right balance between protecting social harmony and mutual respect and freedom of speech.
The inquiry will report by February 28.
Australian Human Rights Commissioner Gillian Triggs was not available to comment today. Labor Senator Pat Dodson was also approached for comment.
Section 18c was introduced under the Keating Labor government in 1995.
The law that’s caused the controversy.
RACIAL DISCRIMINATION ACT 1975 – 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.
Note: Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.
(2) For the purposes of subsection (1), an act is taken not to be done in private if it:
(a) causes words, sounds, images or writing to be communicated to the public; or
(b) is done in a public place; or
(c) is done in the sight or hearing of people who are in a public place.
(3) In this section:
“public place ” includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.