18C and Australia multiculturalism
The Australia/Israel & Jewish Affairs Council (AIJAC) has commenter on the announcement by Attorney-General George Brandis QC of a parliamentary inquiry into freedom of speech, including sections 18C and 18D of the Racial Discrimination Act 1975 (Cth) and how the Australian Human Right Commission (the Commission) handles complaints.
Dr Colin Rubenstein
AIJAC Executive Director Dr Colin Rubenstein said, “Section 18C plays an important role in supporting Australian multiculturalism, which is so intrinsic to the cohesion of our society. However, that is not to say that the section and the way it is administered can’t be improved. It has been in operation for over twenty years, and elements of the QUT case have shown that aspects of its application process can be problematic.
“We agree with comments by the Attorney-General in his press release announcing the inquiry that it is important to strike ‘the right balance between laws which protect social harmony and mutual respect, and the fundamental democratic value of freedom of speech.’ In striking that balance, it is important to give due weight to the right of all Australians to live free from vilification, to remember the many positive accomplishments of Section 18C in successfully resolving issues of discrimination in many cases, including Holocaust denial and other extreme forms of racism, and to remember that many other cases have been successfully resolved by conciliation.”
Dr Rubenstein added, “While there have been many claims that 18C unreasonably inhibits freedom of speech and expression, it is important not to ignore the exemptions in Section 18D, which protect statements and other expression made reasonably and in good faith, and to bear in mind that the courts have always read the words ‘offend’ and ‘insult’ in Section 18C together with the words ‘humiliate or intimidate’, and applied the test to a normal person of the claimant’s heritage, so mere offence or insult has never been sufficient to lead to a finding that the Section has been breached.”
“We trust that the inquiry will focus on ways to refine and improve this important legislation, and will not be dominated by the misguided ideologues who are determined to have it repealed,” he concluded.
Senator George Brandis
Senator Brandis said : “I have today asked the Parliamentary Joint Committee on Human Rights to inquire and report on two issues relating to freedom of speech in Australia. The first is whether the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) (including ss. 18C and 18D) impose unreasonable restrictions on freedom of speech. The second, related, matter, is whether the complaints-handling procedures of the Australian Human Rights Commission should be reformed. The reference has been made under s. 7(c) of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).
Among other things, the Committee will examine whether the existing processes of the Commission are sufficient to ensure that trivial or vexatious complaints to the Commission, and complaints which have no reasonable prospects of success, are identified and dismissed at an early stage. It will also examine ways to ensure that complaints are dealt with in an open and transparent way, without unreasonable delay, and in a manner which ensures those subject to complaints are afforded natural justice.
The review of provisions of Part IIA of the Racial Discrimination Act was recommended by the Australian Law Reform Commission in its Report on Traditional Rights and Freedoms – Encroachments by Commonwealth Laws, released earlier this year. The review of the Commission’s complaints-handling procedure was invited by the Commission itself.
It is important that Australia strikes the right balance between laws which protect social harmony and mutual respect, and the fundamental democratic value of freedom of speech. The purpose of the inquiry is to ensure that we have that balance right. Equally, it is important that the machinery for human rights protection in Australia operates in such a way as to ensure procedural fairness, and that it cannot be used as a vehicle for vexatious complaints.
I encourage all interested groups to put their views before the inquiry in a constructive and mutually respectful discussion.
I have asked the Committee to report by February 28 2017.”
Dr Rubenstein’s measured comments do not adequately deal with well-argued and soundly-based democratic objections to 18c that cannot be dismissed in a pejorative way as only coming from “misguided ideologues”. While there are ideological objections to the assaults on the freedom of speech that are a prerequisite for the creation of authoritarian and totalitarian regimes that Jews should fear more than any other, the disgraceful and unnecessary inclusion of “offend” and “insult” in 18c involves a corruption of a basic tenet of our law; Being charged under 18c means that there is then a reverse onus on the defendant to prove him/herself innocent under 18d. The penalty of public excoriation under 18c precedes any outcome under 18d. And as for Dr Rubenstein’s comment that many cases have been resolved by conciliation, he should be aware of the use of 18c as effective blackmail for such “settlements”, as indicated in recent well-publcised instances. Dr Rubenstein is doing the Jewish community a disservice by insisting that it needs to hide behind such an anti-democratic device whose flaws have been so clearly exposed, not only by the QUT students but also the Bill Leak cartoon. It is time for an open embrace of the removal of these two ridiculous words. Otherwise intransigence may well generate a real risk of justifiable anti-18c momentum succeeding in getting rid of the whole section.
Thank you Dr. Rubenstein for a more balanced and nuanced approach to the 18C legislation than we have had from most of our lay roof bodies over the past few years.