Dreyfus on Section 18C

Shadow Attorney-General Mark Dreyfus has been interviewed on Sky News on his views on the Abbott Government’s proposed to repeal Section 18C of the Racial Discrimination Act. Read the transcript.

CHRIS MERRITT: On legal matters, the Attorney-General Senator Brandis is under attack really, from the left and the right because of his promise to change Section 18C of the Racial Discrimination Act. Do you think that’s fair, given the fact that he’s not really clearly argued that he will repeal the entire provision?

DREYFUS: I think actually that the Liberals have been all over the place. Senator Brandis, from opposition, said he was going to repeal Section 18C. Tony Abbott, from opposition, said he was going to repeal Section 18C.

Since they’ve got to government, six months on, all over the place, not clear on what’s going to happen. And division within the Liberal Party on it, we’ve got Craig Laundy last week, the new Member for Reid, Ken Wyatt, the Member for Hasluck, at the weekend, saying leave this provision exactly where it is. It’s a provision which has served Australia very well over nearly 20 years.

And of course, at the other end, as you’ve just pointed out, the Institute of Public Affairs, a right wing think tank, calling for repeal. George Christensen, another member of the Federal Liberal Party calling for complete repeal.

I think time’s up and the Government actually should say what it’s going to do.

MERRITT: Well, let’s see what Labor would do. Are you happy with a provision like this that doesn’t take account of community standards? In the Bolt case, the judge in that decision explicitly rejected the argument that what you can say on the issue of race should be determined by community standards. Are you happy with that?

DREYFUS: I don’t think that’s a correct reading of the judgement at all and I think all of your viewers should go and read the multiple judgements of the Federal Court, including the Federal Court judgement in the Bolt case.

What that makes clear, and what all of the decisions over the last 20 odd years have made clear, is that this provision is for serious cases of racial vilification. It’s not there for mere slights, it’s there for serious cases and it also makes clear that it’s not judged on a subjective standard. It’s not judged simply because the complainant is feeling vilified by the racial abuse. It’s judged by an objective standard from the point of view of the reasonable member of the community.

MERRITT: I disagree with you there. I think in paragraph 243 of the judgement, Justice Bromberg actually rejects explicitly community standards and makes it very clear that the test for liability will be from the perspective of those complaining.

DREYFUS: I’m referring to all of the judgements, Chris, that have been given by Federal Court judges over the years. Bear in mind Andrew Bolt, full of bluster after the decision, which of course he failed because he failed to make out the free speech defence. He said he was going to appeal. He didn’t appeal.

And when we are considering this kind of legislative provision we have to read all of the judgements of the Federal Court judges who have looked at this. And also bear in mind that it’s only the serious cases which end up in court, the vast majority of complaints under this provision are conciliated by the Human Rights Commission.

It’s a provision which has served Australia very well, and that’s what I’m hearing from community groups from around Australia. That’s what’s reflected in Craig Laundy, a member of the Federal Liberal Party, or Ken Wyatt, saying leave this provision alone and don’t approach it from some empty ideological position, but look at how it’s worked, how it’s served Australians very well since it was introduced in 1995.

MERRITT: Given that the heads of liability in 18C include provisions that attract liability for speech on race that offends and insults and given that the Commonwealth of Australia has a Constitution that refers to a race power, doesn’t that mean that political discussion about matters in the Constitution is now limited?

DREYFUS: Of course, it’s a restriction on kinds of speech and it’s a restriction just like we see in lots of other areas of the law. Recently Tim Soutphommasane, the Race Discrimination Commissioner, gave a speech in which he pointed out that it’s a criminal offence to use offensive language in public in all States and Territories.

You could point to defamation law, which is a restriction on speech. You could point to misleading conduct laws in trade practices, which are restrictions on speech.

What we need to look at is why we’ve got those restrictions and as it happens in this Racial Discrimination Act provision, we’ve got some of the clearest protections of free speech actually set out in the legislation. Not like in defamation law, you’ve got to go to judgements of the High Court to find what protection there is for discussion of political matters.

In the Racial Discrimination Act we’ve got explicitly set out a protection of free speech, a protection of political speech, a protection of artistic endeavours, and that’s of course where Andrew Bolt failed. He failed to rely on the free speech protections in the Act, because he couldn’t prove that he’d acted reasonably. The judge found that he had knowingly used material that he knew to be false, and no one should be treated as having behaved reasonably in those circumstances.

VAN ONSELEN: Mark Dreyfus, can I get your reaction to what some of the advocates for repeal of 18C put forward as, from what I can gather from interviews I’ve done, and reading their arguments, one of the key things they talk about is that there are other protections that exist for people who feel vilified, including through defamation laws and the like.

What’s your reaction to that claim, that those other protections exist even if you repeal 18C?

DREYFUS: I think we should look to the lived experience of this legislation since it was brought in by the Keating Government and came into effect in 1995. And that is that the overwhelming majority of complaints under Section 18C have been brought to a conciliation process in the Human Rights Commission. The overwhelming majority have been satisfactorily resolved with an apology, or with some kind of correction, or the parties agreeing that the matter’s at an end. And it’s only in a very, very small number of cases that it’s ended up in the Federal Court.

That’s what should guide us in determining whether of not this is a provision that needs to be repealed. I say that because it’s served Australia well, we should leave it exactly in the form that it presently is.

The fact that you could say ‘they could sue for defamation’, I don’t think is much of an answer. I think all of you there as journalists would know that defamation proceedings are very expensive, take a very long time to resolve, don’t include the compulsory conciliation process that the Racial Discrimination Act has.

This is a provision which is building community harmony. This is a provision which is building an elimination of racial vilification in our community and it should have no place in our community. It works very well with the campaigns like the ‘Racism – It Stops With Me’ campaign that the Human Rights Commission has been working on now for some years.

And I think that’s the context we have to look at this in, not whether or not there might be some part of the law, that in addition could be used.

PAUL KELLY: I find your comments extraordinary, that it’s building community harmony. I would have thought it’s doing the opposite. I would have thought this particular provision, if it stays in the law is going to trigger community disharmony.

So could I ask you, given the test is offending and insulting, do you think there’s any downside at all, do you think there’s any negative in that at all?

DREYFUS: That’s not the test, Paul. There are four words used – it’s offend, insult, humiliate or intimidate, on racial grounds. And each of those terms, the courts have said this repeatedly, each of those terms informs the other. It’s not just a matter of, one of the judges has actually said this, it’s not a matter of mere slight, and it’s certainly not a matter of mere slight existing in some kind of vacuum.

This is racial vilification that we’re talking about. It’s served Australia well and what I hear from you Paul is a pretty extreme ideological position. Plucking this Section and indeed a couple of words out of the Section, from the real world contact that they have been applied in.

KELLY: No, I’m not trying to be ideological. I’m looking, I think, at the real world experience. It seems to me that the real world experience, in terms of this provision over the course of the last couple of years has been quite divisive.

DREYFUS: On one case, which people have repeatedly misquoted. People have repeatedly ignored what happened in this case, which is that a tabloid columnist deliberately used false information to vilify the complainants in the case. He had been told by them that what he had written on an earlier occasion was false and he deliberately repeated it.

Now that’s a very extreme case and the Bolt case wasn’t really fought on racial vilification matters. It was actually fought on whether or not he was entitled to the protection of the free speech defence that’s in the legislation and the court found that he wasn’t.

Now the idea that one case should dictate the course of Australian law or dictate the course of racial vilification protections in the country, I take real exception to. I want to look at the whole body of the law. I want to look at all of the cases which have been complained about.

And I’d invite you Paul, and anyone else that’s interested in this subject to talk to people who have brought complaints to the Human Rights Commission. I have, and in almost all cases they’ve been satisfied with the outcomes and I include in the people who have been respondents to complaints, who have ended up saying this was a good process, this has brought me face to face in the same room with someone I did humiliate, someone that I did racially vilify and I’ve learned something from this process.

Now I’m interested in laws that work in that way. I’m not interested in laws that are complex. I’m not interested in laws that involve people in lengthy, very expensive, court proceedings, which is what defamation would invariably bring you to.

VAN ONSELEN: Mark Dreyfus, I just want to ask you about this idea that this change looks to be predicated on one case, the now infamous Bolt case. Because, is your view that there’s a pandering to Andrew Bolt that has gone on by George Brandis and perhaps Prime Minister Tony Abbott in the way that they reacted to this case after it happened?

Yet now there’s perhaps some back-pedalling as they get a little bit more detail behind what it means to adjust the provision off the back of one case, that ultimately wasn’t even appealed?

DREYFUS: It’s hard to read it in any other way. Tony Abbott and George Brandis were full of outrage on behalf of Andrew Bolt when he was found to have contravened this Section, back at the end of 2011. He said he was going to appeal. He didn’t.

And yet Tony Abbott and George Brandis have persisted with their threat to repeal this Section. You’re right, Peter, to say that it appears that there’s some back-pedalling going on and I can say what the reason for that is.

It’s because hundreds of community groups across Australia have complained to Tony Abbott, have complained to George Brandis, and have complained to their local members.

What you see in those Liberal members Ken Wyatt and Craig Laundy, is reflecting the views of their communities. They both represent, in particular Craig Laundy represents, a very multicultural electorate. Ken Wyatt there is reflecting the views, I think not just of his multicultural electorate, but also particularly the views of the Indigenous community.

Very many of the complaints under Section 18C have concerned disgraceful, unpleasant, racial vilification of Indigenous people which should have no part of 21st Century Australia.

That’s what this provision’s about, it’s about what kind of society we want to be and the idea that just because one right wing commentator should have been found to have contravened the provision, that we should chuck out something that has served Australia very well over 20 years. I find, actually, offensive. And I’m very pleased that there’s some back-pedalling on the part of George Brandis and Tony Abbott. So there should be.