Like many in our community I oppose the Attorney-General's proposed changes to hate speech laws. I made a submission to his department explaining why Australia's hate speech laws should not be weakened in the way that the Attorney-General has suggested.
12 May 2014
Human Rights Policy Branch
3-5 National Circuit
BARTON ACT 2600
By email: firstname.lastname@example.org
And by post
Re: Submission – exposure draft of Bill to repeal section 18C of the Racial Discrimination Act 1975 (Cth)
I refer to the above.
The current sections 18B, 18C, 18D and 18E of the Racial Discrimination Act 1975 (Cth) have served Australians well and ought not be repealed. Those provisions also ought not be amended in the manner proposed in the exposure draft Bill, nor consistently with the spirit of that exposure draft.
The reasons that no Bill ought to be brought before the Parliament in the terms of the exposure draft include:
• the existing laws strike the right balance;
• the proposed new prohibition would offer protection in very few situations;
• The proposed new exemption is so broad as to almost completely undermine the inadequate protection offered;
• the existing laws are practical;
• repealing section 18B would lead to costly disputation;
• the proposed objective test is impractical and unfair;
• removing the present vicarious liability provision will lead to uncertainty for employers and principals, and will lead to costly disputation;
• effectively removing access to cost-free alternative dispute resolution will deny access to justice for some, and will lead others to use the more costly and inefficient alternative of immediate recourse to the courts.
I have been in contact with a number of groups in my community who are very concerned about the repeals and proposed laws contained in the exposure draft. People are greatly concerned about the practical and symbolic effects of the changes. I urge the Attorney-General not to proceed with the proposed amendments.
I submit as follows.
The existing laws strike the right balance
1. As you know, when the Keating government introduced the current provisions in the mid-1990s, the changes received bipartisan support. At the time, there had been several reports and long consultations undertaken that had shone a light on racism in Australia. The provisions were also added to the Racial Discrimination Act, in partial fulfilment of Australia’s obligations under the Convention for the Elimination of Racial Discrimination, which obliges states to take action on racial hate speech. The Howard government did not alter the provisions and they enjoyed bipartisan support for almost twenty years.
2. The current provisions strike the right balance between one person’s right to free speech and another’s right not to be discriminated against or vilified because of race, colour, nationality or ethnicity.
3. The existing law already strongly protects free speech. Section 18D of the Racial Discrimination Act provides a very broad exemption from liability for ‘reasonable’ and ‘good faith’ artistic expression, academic work, debate or public commentary.
4. The Racial Discrimination Act does not restrict freedom of expression other than to the extent necessary to avoid harm – that is, harm in the form of offence, insult, humiliation, or intimidation based on race, colour or national or ethnic origin. Those things constitute harm not just because of the grave hurt they cause to the individual concerned, but because they can also contribute to making racism and similar prejudices seem normal and acceptable in our society.
5. In Australia freedom of expression is balanced against other rights, freedoms and interests. In addition to the provisions under consideration for repeal, some of the legal fetters on freedom of expression include (and of course there are many others):
a. sexual harassment laws;
b. defamation laws;
c. the tort of injurious falsehood;
d. the tort of passing off;
e. statutory prohibitions on misleading and deceptive conduct in trade or commerce;
f. statutory prohibitions on misrepresentations prior to employment;
g. laws aimed at protecting intellectual property;
h. laws preventing misleading the Parliament;
i. laws preventing perjury;
j. parliamentary standing orders aimed at maintaining order and decorum in the Parliament.
6. Each balances freedom of expression against other interests. The private interests protected include:
a. interests in property;
b. one’s interest in his or her reputation;
c. one’s right to freedom from sexual harassment.
7. The public interests include:
a. our nation’s interest in maintaining the standing of the Parliament and the courts;
b. our nation’s interest in eliminating sexual harassment.
The proposed provisions almost wholly remove the present protections
8. The proposed new prohibition would offer protection in very few situations, and the proposed new exemption is so broad as to almost completely undermine the inadequate protection offered. The cumulative effect is that the present protections are virtually removed altogether.
The proposed new prohibition would offer protection in very few situations
9. I’m advised that Mr John Roskam of the Institute of Public Affairs has described the effect of the exposure draft provisions as delivering 95% of the IPA’s desired outcome, which was total repeal of section 18C.
10. The proposed provisions appear to be a cynical attempt to repeal, for practical purposes, section 18C, without appearing to do so.
11. There is no basis to remove offence, insult and humiliation. Those things, when done because of race, colour, or national or ethnic origin, constitute real harm. The definition of sexual harassment in the Sex Discrimination Act 1984 also refers to offence and humiliation. Presumably there is no intention to alter that definition.
12. The proposed definitions of ‘intimidation,’ defined only as causing fear of physical harm, and ‘vilification,’ defined only as ‘inciting racial hatred,’ mean the new prohibition will apply to very few situations.
The proposed new exemption is so broad as to almost completely undermine the inadequate protection offered
14. The last subsection of the proposed new provision is so broad that the prohibition in the first subsection will have virtually no application. The prohibition on vilification and discrimination would not apply to anything said “in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter.”
15. Unlike the current law, there will be no requirement that such discussion be reasonable and in good faith.
16. Taken together, the very narrow prohibition and the very broad exemption mean the Racial Discrimination Act will offer virtually no protection from race-based and similar vilification.
17. A person’s interest in not being subjected to race-based or similar discrimination or vilification (or put another way, one’s right to freedom from discrimination or vilification), and our society’s interest in eliminating those types of vilification and discrimination, are of no less value or importance than the interests protected by other laws that affect freedom of expression.
The proposed objective test is impractical and unfair
18. The current section 18C already applies an objective test, based on whether the relevant conduct is likely to offend, insult, humiliate or intimidate an ordinary and reasonable member of a racial group. It is not enough that a given person subjectively feels offended. ‘Hurt feelings’ are not enough. It is expected that an ordinary and reasonable member of a racial group has some tolerance for the views of others.
19. Removing context from the ‘reasonable person’ test, by using the standard of the ordinary reasonable member of the Australian community, rather than of any group, is impractical and unfair.
20. The proposed new test is at odds with an analogous recent discrimination law reform, the definition of sexual harassment. Section 28A of the Sex Discrimination Act 1984 now contains a new section (1A) which provides:
“28A Meaning of sexual harassment
(1) For the purposes of this Division, a person sexually harasses another person (the person harassed ) if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
(1A) For the purposes of subsection (1), the circumstances to be taken into account include, but are not limited to, the following:
(a) the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed;
(b) the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct;
(c) any disability of the person harassed;
(d) any other relevant circumstance.
21. The current Attorney-General, then in opposition, moved amendments to the Bill that introduced that subsection, but did not move an amendment to that subsection. That is presumably because the Coalition, at the time, supported new subsection (1A).
22. Though an objective test is appropriate, it is fair and practical to take into account the circumstances and context, when that objective test is being considered. That is consistent with the provision of the Sex Discrimination legislation referred to above, and is practical and fair.
Repealing section 18B would lead to costly disputation
23. Section 18B resolves the issue of when something is done “because of” the race, colour, national or ethnic origin of someone (or a group of people). It is consistent with other discrimination laws and with the general protections provisions of the Fair Work Act. Removing this provision will lead to costly legal disputes about causation.
Removing the vicarious liability provision will lead to uncertainty for employers and principals, and will lead to costly disputation
24. The current section 18E assists in dealing with common law difficulties in determining vicarious liability, and also provides for an easily-understood defence for employers and principals. Removing the provision will lead to uncertainty about an employer’s liability. Like the removal of the guidance in section 18B, repealing section 18E would lead to more technical jurisdictional arguments, contributing to greater costs for participants, and less focus on the main issue of the alleged vilification and discrimination.
The existing laws are practical
25. The existing provisions provide a practical way of resolving disputes. The existing sections provide only a civil cause of action; there is no criminality involved. Complaints are generally dealt with in private: as you know, the Commission generally manages complaints under the provisions by its investigation and/or conciliation processes. The complaints are generally resolved by agreement, or by the complainant deciding not to continue to court in the event that resolution is not reached with the Commission’s assistance.
26. In other words, the existing laws discourage litigation: they give people a simple, straightforward, accessible way of managing complaints and grievances about hate speech and similar conduct. Complainants and respondents have access to justice because conferences are convened quickly. Unless the complaint goes to court, which is rare, there is usually very little risk that one of the people involved will be ordered to pay any legal costs to another person involved. The process is confidential and need not involve lawyers.
27. Across its entire jurisdiction encompassing race, sex, age, disability etc, the Australian Human Rights Commission in 2012-13 facilitated 1,650 conciliations of which 1,079 complaints were successfully resolved. Of surveyed participants in conciliation, 93% reported satisfaction with the process.
28. So the processes that apply before any court proceedings are accessible, affordable, and carry little risk. That means that disputes can usually be resolved without the need to go to court. But the proposed new laws will reduce access to the Commission’s low-risk, alternative dispute resolution processes.
Removing access to low-risk ADR is a backwards step
29. Effectively removing access to cost-free alternative dispute resolution will deny access to justice for some, and will lead others to use the more costly and inefficient alternative of immediate recourse to the courts.
30. It is the nature of discrimination and vilification laws that victims tend to be less powerful, and less well-off, than those about whom they wish to complain. For those who can’t afford to go to court, or for whom the facts disclose no alternative legal action, access to justice will be denied.
31. For others – people of sufficient financial means to go to court, or people who are able to arrange pro bono assistance – the removal of the practical, low-risk Human Rights Commission process will mean more recourse to the courts, and more attempts to find other causes of action.
32. Moving away from low-risk, relatively inexpensive ADR is a regressive step that seems to fly in the face of the recommendations of the many inquiries and reports into the lack of access to justice in Australia.
33. I submit that the laws ought to remain in their present form.
Thank you for considering this submission. If you require any further information please do not hesitate to contact me.
Terri Butler MP
Federal Member for Griffith