‘Let community rule on discrimination’

A TOP silk wants to reform the ‘Bolt provisions’.

Neil Brown QC, in his Melbourne chambers, says the current test is subjective and should

FORMER federal attorney-general Neil Brown QC has presented the Abbott government with a reform plan that would give community standards a central role in deciding what can lawfully be said in public on the issue of race.

If enacted, Mr Brown’s plan would bring the Racial Discrimination Act into line with one of the key arguments of columnist Andrew Bolt, who wanted articles he wrote about light-skinned Aborigines to be judged by community standards.

In 2011, those articles were found to have breached section 18C of the Racial Discrimination Act, which imposes civil liability for speech on the subject of race that is found to offend, insult, humiliate or intimidate.

Federal Court judge Mordecai Bromberg decided there was no role for community standards in determining whether Bolt’s articles were unlawful and instead applied a test that gave priority to the views of the group claiming to have been offended.

According to Mr Brown, who is also a former communications minister, the test used in section 18C is subjective and relies on the feelings of the complainant or the group of which the complainant is part.

“Allowing the test to be the feelings of a section of the community that complains about the conduct in question ... rather than the community as a whole, caters only to the former and does not reflect what the community wants or, more particularly, what the community wants to deter,” says Mr Brown’s submission to the government.

This is at odds with the analysis of section 18C by Race Discrimination Commissioner Tim Soutphommasane, who asserted this week on ABC radio: “It’s not a subjective test. It’s an objective test, as the courts have made very clear.” Writing in The Age, he said: “The section isn’t about protecting hurt feelings.”

Mr Brown, who is a senior silk at the Victorian Bar, says in his submission to the government: “The test is essentially a subjective one, based on how the individual or group feel or would feel about the act as determined not by them but by a judge.”

He writes that this is flawed and should be replaced by an objective test, applied by a jury, that depends on community standards.

Mr Brown’s proposal is one of several submissions that have been made to Attorney-General George Brandis on how section 18C - known as “the Bolt provisions” - should be reformed.

Much of the debate about section 18C has focused on whether all four heads of civil liability should be repealed or whether the changes should be limited to removing liability for speech that offends and insults.

In January, Senator Brandis indicated he may also be about to make incitement to racial hatred a criminal offence. This new provision would be in the Commonwealth Criminal Code alongside the existing federal offence of inciting racial violence.

Mr Brown favours removing liability for speech that offends and insults as well as a move to an objective test.

He writes that if all four heads of liability were repealed and this were followed by an extreme act of racial vilification, the government would be blamed. Repealing the entire provision would also alienate the ethnic community, distract the government from more important economic issues and leave a gap in the law - “real or imagined”.

He writes that there is a case for amending, rather than repealing section 18C. But if the amendment is limited to removing liability for speech that offends and insults, other changes would be needed in order to change the outcomes of future cases.

In the Bolt case, Justice Bromberg decided against using a test for liability that relied on community standards because “to import general community standards into the test for the reasonable likelihood of offence runs a risk of reinforcing the prevailing level of prejudice”.

Mr Brown’s submission takes the opposite view and seeks to make use of what he refers to as the community’s “common sense” through a new objective test for liability.

“Australians tend to possess a fair amount of common sense and hold their right to speak freely in high regard. In practice jury members would most likely only find a person in breach of section 18C for unambiguously egregious displays of racial vilification,” Mr Brown writes.

“They wouldn’t take too kindly to plaintiffs using courts as a forum for identity politics or the silencing of opponents,” Mr Brown’s submission continues.

The current subjective test “prevents a proper role being given to the principle that we should strive to give as much rein as possible to freedom of expression”.

“There is a clear danger under the present test that what traditionally would have been thought of as no more than a demonstration of robust freedom of expression becomes illegal, no matter what the community as a whole thinks of it,” Mr Brown writes. “A better approach than this subjective test would be, instead, to determine liability under the act according to community standards of propriety generally accepted by and expected of reasonable adults. And who better to determine whether an act offended community standards than the community itself, by way of a jury?”

Requiring juries to apply community standards “would have the democratic effect of tethering case outcomes to what the community views as acceptable, rather than the value-laden editorial decisions of a judge,” Mr Brown’s submission adds.

In last month’s Senate estimates hearing, Senator Brandis said consultations over the changes to section 18C began in November and had been far-reaching.

In some instances, he had gone back to community leaders on two or three occasions. Those involved in these extended talks included Peter Wertheim, executive director of the Executive Council of Australian Jewry.

Mr Wertheim declined to release letters he had written to Senator Brandis and Tony Abbott. But he said he believed there was no scope for substantive change to section 18C. However, he believed there was scope for the addition of interpretative provisions that codified the case law and dealt with aspects of how the provision should be applied.

He believed this would overcome some of the objections that had been raised about section 18C.

Mr Wertheim said he had been involved in two meetings with Senator Brandis, each of which lasted more than two hours, and which he thinks the senator found useful.