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