Australia / Israel Review

Colin Rubenstein

Changing Section 18C of the Racial Discrimination Act 1975 (RDA) makes no sense. The Parliamentary Inquiry into this provision, to which AIJAC provided a comprehensive submission and then, by invitation, extensive oral evidence, did not conclude that changing 18C was the best course.

Moreover, this was not the first time that a public consultation showed there is no widespread support within the Australian community for changing the law, with countless submissions affirming it has largely been working effectively – although it incontrovertibly has had some significant procedural problems which should be fixed without changing 18C itself.

Some of the impetus to now change the law comes from the tragic passing of Australian cartoonist Bill Leak who, in his final months, was subject to a highly contentious complaint before the Human Rights Commission (HRC). Yet Mr. Leak was never found to have breached 18C and the complaint against him was terminated relatively quickly.

The other contentious 18C case in the news – the Queensland University of Technology case – also led to no finding that anyone had breached 18C. In that case, procedural flaws by the HRC meant the complaint process was unnecessarily prolonged and worrisome.

Yet in neither of these cases should there ever have been any well-founded legal concern that people risked being found in breach of 18C for controversial but good faith contributions to political debate.

AIJAC did recommend changes to the HRC’s practices for managing complaints, as did numerous other contributors to the Inquiry, which in turn adopted these recommendations in its findings.

These recommendations clearly have broad support from the Government, Opposition and the crossbench. They include the HRC making a preliminary assessment as to the prospects of a complainant’s success, and stipulations that a complaint must be made within six months of the incident concerned and that a decision must be handed down within 12 months.

Critics of 18C have claimed “the process is the punishment” – so the Inquiry’s recommended process changes should address all legitimate concerns.

AIJAC supports these changes, but we are disappointed that, despite the Inquiry making no consensus recommendations on changes to 18C itself, the Government is pushing ahead with major changes anyway. Removing the words “insult”, “offend” and “humiliate” from Section 18C, as it has proposed, and replacing them with “harass” will, in our view, significantly weaken legislation that has worked effectively for over 20 years.

While the Government claims the word “harass” will make the law stronger and clearer, it will obviously make it more restrictive in its application, shedding a whole dimension of vilification, a form of soft but debilitating racism.

In reality, out of the nearly 2000 18C cases brought to the HRC since 1995, no finding has proven at all controversial – excepting only the 2011 case Eatock v Bolt, which was never appealed.

Similarly, those who claim that 18C is stifling public debate cannot offer a single reasonable and valid example where the law made it impossible to express a sincere viewpoint in any significant public debate.

There simply is no compelling case for changing 18C – especially given the extensive case law that has developed around the existing wording. This case law makes it very clear that 18C’s critics are simply wrong when they say the existing language sets a low-bar, subjective “hurt feelings” test for breaches of 18C. As Justice Kiefel stated in Creek v Cairns Post, the law applies only to “profound and serious effects, not… mere slights.” 

In addition, proposed legislative change to the ‘reasonable man’ standard under which the Courts have traditionally judged breaches of this Act – from that of the targeted community to that of the broader community – not only neglects the unique perspective of unpopular minority groups who most need this law, but will likely disrupt the sensible certainty the case law has established.

Since the 1995 amendment to the RDA to include 18C and 18D, organisations monitoring racism have witnessed more circumspection and less harm by openly racist groups in Australia. This has clearly benefitted the well-being of minority groups in Australia, including the Jewish community.

The Government’s decision to seek major changes that would weaken 18C – and the symbolism associated with such a change – is especially disappointing given the welcome and important Multicultural Statement it released on March 20 in the lead-up to Harmony Day.

The Statement – launched by PM Malcolm Turnbull and Assistant Minister for Multicultural Affairs Senator Zed Seselja – was the first Multicultural Statement in over six years. It reaffirmed the importance of responsibilities as well as rights, and stressed the centrality of a commitment to core Australian values, such as mutual respect, gender equality, parliamentary democracy and rule of law and the need for all Australians to be effective in the English language.

These are all key aspects of the policy of Australian multiculturalism going back to the Fraser years, and reports of the National Multicultural Advisory Council, and successor Council for Multicultural Australia, bodies on which I had the privilege to serve during the Howard years. These prerequisites provide the glue for integration into a largely cohesive, harmonious Australia society.

The Statement strongly and rightly affirmed that racism and discrimination go against these Australian values and expressed the resolve of the Government to combat such harmful and destructive behaviour. It is a principled Statement, which at a time of increased concerns surrounding racism and extremist behaviour and the rise of xenophobic populist parties of the left and right is more necessary than ever – and should not be compromised by any weakening of current legislative defences against vilification and the most egregious forms of hate speech.