Race Discrimination Commissioner Tim Soutphommasane’s essay “Setting the Record Straight” about Section 18C of the Racial Discrimination Act (LSJ February) perpetuates more misconceptions than it dispels.
It is true that the Racial Hatred Act 1995 was introduced following the tabling of three government reports in the early 1990s, but it is not accurate to say section 18C reflects the recommendations put forward in those reports. Not one of those reports recommended for a civil prohibition on offensive or insulting language.
Nor is it appropriate to refer to the current interpretation of 18C as “settled law”. As readers will be aware, the Full Court of the Federal Court or the High Court is not bound by the interpretation of equal or lower courts. Nor is the present interpretation clear.
That 18C applies to “profound and serious effects, not to be likened to mere slights” is no less vague than “offend” and “insult”, and doesn’t make any clearer what conduct amounts to “mere slights”, “profound and serious effects” and what falls in the chasm between them.
Another level of confusion in the law is the so-called objective test for whether there has been a breach of section 18C, which uses “the reasonable person of the target ethnic or racial group”.
Justice Ronald Sackville recently noted in reference to a case which used the subgroup of “young, impressionable, Jewish people faced with Holocaust denial” that “once you get to that kind of level, I think in fact, you are dealing with concepts that are extraordinarily difficult to apply and will not work.”
Section 18D is not a reliable defence for freedom of speech. In 20 years and close to 80 cases being heard in the Federal Courts, the 18D defence has only be accepted three times, and two of those were from the Bropho series of cases.
The chilling effect of section 18C arises not from the outcome of court proceedings, but from the process before a complaint reaches court. This was most glaringly demonstrated in the case against several students at Queensland University of Technology.
The complaint was launched after 20-year-old student Alex Wood commented on an unofficial student Facebook page: “Just got kicked out of the unsigned indigenous computer room.
QUT stopping segregation with segregation…?” For this comment made in May 2013, Wood was subjected to three-and-a-half years of legal drama before the matter was dismissed in the Federal Circuit Court in November 2016.
This is an indefensible example of section 18C, which makes its omission from Dr Soutphommasane’s article unsurprising.
To the question ‘What is it that people want to say, which they can’t already say?’ the answer is that Alex Wood should be able to write Facebook comments critical of his university.
Likewise, a cartoonist should be able to draw satirical political cartoons and a Church should be able to erect a statue commemorating WWII sex slaves without the threat of legal sanction, as happened to Bill Leak and the Ashfield Uniting Church in the past 12 months alone under section 18C.
Dr Southphommasane’s intent was to address the lack of ‘clear public understanding of how the Act and the AHRC in fact operate’.
In fact, opponents of section 18C have witnessed how the law operates in a very clear way, and recognise it has no place in a liberal democratic society.