PROPOSALS TO AMEND SECTION 18C OF THE RACIAL DISCRIMINATION ACT
Harmony Day 21 March 2017
As leaders of organisations representing a wide range of culturally diverse communities in Australia, we are profoundly disappointed at today’s announcement by the Federal government of its intention to amend section 18C of the Racial Discrimination Act.
If implemented, these proposals will weaken, perhaps emasculate, existing legal protections against racist hate speech. They will give a free pass to ugly and damaging forms of racial vilification which do not satisfy the stringent legal criteria of harassment and intimidation. The publication of virtually any derogatory generalisation about an entire community group would, of itself, be permissible.
To offend, insult or humiliate a person or group because of their race or ethnic background necessarily sends a message that such people, by virtue of who they are, and regardless of how they behave or what they believe, are not members of society in good standing. This cannot but vitiate the sense of belonging of members of the group and their sense of assurance and security as citizens, and constitutes an assault upon their human dignity. This has nothing to do with a contest of ideas or free speech – which is in any event protected under section 18D – and falls far short of the mutual respect about which we have heard.
Under the government’s proposals vulnerable community groups will now have no peaceful, legal means of redress against these kinds of attacks against their dignity. This would send a signal from government of a more lenient attitude to racism and would damage social cohesion. It is especially ironic that the government has put forward these proposals on Harmony Day.
The proposal to insert a generic “reasonable person” standard into the legislation has superficial appeal, but is unfair and unworkable. The proverbial person in the pub or on the “Bondi tram” does not have the background knowledge and insight into the particularities of a minority
group that would be needed to make a fair and informed assessment of what is reasonably likely to “harass or intimidate” members of that group.
Under the existing law, the assessment is made by a reasonable member of the targeted community, that is, by a member of that community who is neither overly sensitive nor overly thick-skinned. This is both more logical and more just.
A generic reasonable person test would also create the possibility that members of a group that happens to be unpopular at any time for any reason would be unfairly treated. Section 18C is not needed to protect members of minority groups who are popular in the wider community. It is needed to protect members of unpopular minorities, and also vulnerable minorities, especially our First Peoples, Aboriginal & Torres Strait Islanders.
We support the idea of improving the process for handling section 18C complaints, so that trivial or spurious complaints are terminated quickly.
We note that the Parliamentary Joint Committee on Human Rights was unable to reach a consensus, or even a majority opinion, in favour of any of the government’s proposals to amend the substantive law. Its recommendations were all limited to suggested reforms to the complaints- handling process.
This is the sensible way forward. The problems identified by the QUT case and the Bill Leak complaint all related to deficiencies of process. The government’s reforms should, as the Inquiry recommended, address that problem specifically, and not be distracted with an abstract ideological debate, divorced from the social realities.
Rod Little and Dr Jackie Huggins, Co-chairs, National Congress of Australia’s First Peoples
John Kennedy, President, United Indian Association
George Vellis, Co-ordinator, and George Vardas, Secretary, Australian Hellenic Council NSW
Peter Wertheim AM, Executive Director, Executive Council of Australian Jewry
Patrick Voon, Immediate Past President, Chinese Australian Forum Tony Pang, Deputy Chair/Secretary, Chinese Australian Services Society
Randa Kattan, CEO, Arab Council Australia
Vache Executive Director, Armenian National Committee of Australia