Reform act, ditch AHRC to ensure debate can be free and frank

The government must fix the Racial Discrimination Act and its “enforcer”, the Australian Human Rights Commission.

The government must urgently act to fix the inappropriate Racial Discrimination Act and its farcical “enforcer”, the Australian Human Rights Commission.

The act needs amendment and the commission needs abolishing. In short, the act goes too far while the commission does too little.

The claim made against Bill Leak for his indigenous affairs cartoon in The Australian highlighting issues faced by indigenous youth is the latest in a long line of inappropriate claims that seek to chip away at free speech and undermine the very thing the claimants may want — positive movement on important indigenous issues.

The problems with the act are stark. Section 18C makes it unlawful to say something that causes ­offence or insults, humiliates or ­intimidates another person because of their race.

To put it simply, the bar is set too low. Race relations can be a difficult topic. There is no simple ­solution to the problems and ­issues faced by indigenous Aus­tralians, and so there will always be differing views held on this emotional topic.

From time to time the expression of honest views will result in some people being offended. Some might even be insulted. But surely we are mature enough and our democracy strong enough to allow that to happen in order that those views be expressed to further the debate and perhaps lead to some of those solutions — as ­complex as they may be — being discovered.

In any complex emotional debate there is the potential for ­offence or insult.

Frankly, without it you really have a bunch of people sitting around agreeing with each other and the status quo remains.

The words “offence” and “insult” at the very least must be removed from the section.

The state-based vilification legislation strikes a much better balance.

For example, in Victoria the Racial and Religious Tolerance Act 2001 makes a statement unlawful only if it “incites hatred against, serious contempt for, or revulsion or severe ridicule of” a class of people.

Incitement is a far more serious thing than offence. And hatred or serious contempt is a lot harder to achieve than just insulting someone. It is not clear why the Racial Discrimination Act needs to go so much further.

As for offence and insult, the words “because of” their race must be given more focus when before the courts.

Just because a person mentions something about a person’s race doesn’t mean it is done because of the person’s race. It may be spoken because they feel it is important for debate and the public benefit ­generally.

Of course it would be misleading to discuss section 18C without reference to the defences contained in section 18D. They are ­important.

They include protection for a reasonable discussion on a matter of public interest. Supporters of 18C point to 18D and say it fixes the problem — that it covers the sort of debate I’ve outlined above.

But even if it does, it doesn’t justify section 18C’s existence. The practical effect of the operation of section 18C is to make it so that a person who wishes to exercise free speech can end up in a situation where they have to prove they had the right by having to prove the defence in 18D applies.

The structure of the act puts free speech on trial. Take Leak, for example. Why should he — or his newspaper — have to spend many hundreds of thousands of dollars to prove that he had a right to publish his cartoon?

Why should he be on trial? Why should he bear the onus of proving his bona fides?

The onus is all wrong. It doesn’t acknowledge free speech. It only acknowledges speech and it becomes free only if the speaker can prove the freedom by proving the defences in section 18D. The cart is miles ahead of the horse.

Supporters of 18C also point to a fairly limited number of cases as being proof that section 18C isn’t a big problem.

Frankly, one case is one too many. But the problem with 18C isn’t just about the cases that make it to court. It’s not even just about the cases that make it to the ­commission.

It’s also about all the journalists and editors who can’t publish something, or have to amend it or are even just concerned about what they are about to publish because of the very existence of section 18C. I see it every day when giving advice to my clients.

Free speech is eroded when people feel reluctant or inhibited when they speak. And that is exact­ly what section 18C does.

That is especially the case when you have a commission that ­appears ready and willing to take on any claim that section 18C has been breached. The commission doesn’t appear to understand the word “filter”.

Certainly, it doesn’t seem to apply one to the claims it receives. For a matter to go to court, a party must make an assessment that their claim is decent enough to warrant taking that big step.

There are cost considerations that act as a de facto filter on cases that might otherwise be brought. And a party has to certify that they have a reasonable case.

It’s not perfect — there have been plenty of hopeless cases brought before our courts — but these filters do provide a mechanism to limit the number of hopeless cases brought.

But that filter doesn’t really exist before the commission.

It couldn’t be easier for any person to make a claim to the commission. No costs. No concerns. No real assessment of the merits of the claim by the person bringing or, it seems, often by the commission.

So with the low bar of section 18C and a commission that seems to put no filter on claims brought under section 18C, the impost on free speech is enormous.

And so the government must act to fix the Racial Discrimination Actm, and the commission.

Justin Quill is a principal at Macpherson Kelley, whose clients include News Corp Australia publications.