Parliamentary inquiry into free speech resolves nothing, so 18C should be left alone

The inquiry into freedom of speech in Australia by the Parliamentary Joint Committee on Human Rights has reported to parliament. Unsurprisingly, it has focused most of its recommendations on the procedures and processes associated with the role of the Australian Human Rights Commission in accepting and hearing complaints.

The impetus for the inquiry was the now-infamous “QUT case”, in which an employee of Queensland University Technology asked non-Indigenous students to leave a computer lab designated for the use of Indigenous students. Those students then allegedly posted comments on Facebook, in relation to which the QUT employee lodged a complaint of unlawful vilification against the students. In November 2016, the Federal Court dismissed all the complaints against the students.

The QUT case was the most recent impetus for the launch of this inquiry, although it followed earlier rumblings in the Australian Law Reform Commission’s report on traditional rights and freedoms, the Andrew Bolt case and the unsuccessful 2014 attempt to narrow section 18C.

The words of section 18C

All eyes were on what the report would recommend regarding the words used in section 18C. This is because critics of the section are quick to point out that it says that unlawful conduct occurs when it is reasonably likely to “offend, insult, humiliate or intimidate” someone on the ground of their race. The bar is too low, they say. Merely offending someone or insulting them ought not to be grounds for a complaint of unlawful conduct under civil law.

Supporters of the section are equally quick to point out that the courts have interpreted section 18C to mean that the conduct captured by the law has to amount to a profound and serious harm, “not to be likened to mere slights”. Therefore, merely having one’s feelings hurt or feeling offended does not reach the threshold required to lodge a complaint. Independent MP David Leyonhelm found this out when he tried, unsuccessfully, to complain about journalist Mark Kenny describing him as speaking on ABC television with “angry-white-male certitude” and being a “rank apologist for the resentment industry promoted by angry-white-male shock jocks”.

What changes to 18C have been proposed?

Of the 22 recommendations made in the report, only one deals specifically with the words in section 18C. This recommendation is inconclusive. It notes merely that at least one member of the committee had supported each of the five mooted proposals.

This leaves no-one the wiser about what the federal parliament will do about the text of section 18C. It also puts the responsibility squarely in the hands of the parliament to make a decision on what has lately become a highly controversial piece of Australian federal law. The recommendation contains five options regarding the words in section 18C:

1. No change. This option is strongly supported by the Australian Greens, who wrote a dissenting report. Labor also wrote extended additional comments, which noted the high levels of racism experienced in Australian society, the important role that 18C has played during the more than 20 years of its operation, and that the section only captures serious conduct. They agreed with witnesses to the inquiry who suggested that amending the section would send a dangerous message to the community. Overall, it seems highly likely the ALP supported this option.

2. Codifying the courts’ interpretation of section 18C as referring to “profound and serious effects”. This change would have no material impact on how section 18C operates as a legal prohibition of unlawful conduct.

3. Removing the words “offend”, “insult” and “humiliate” and replacing them with “harass”. This change would create uncertainty in the interpretation of section 18C, until a case was able to make its way to the courts and a definitive interpretation of the term “harass” was able to be made.

The Oxford English Dictionary defines “harass” as to “trouble or vex by repeated attacks”, or alternatively as to “trouble, worry or distress”. These terms could imply, but do not necessarily imply, profound and serious conduct.

It is possible a court would apply a similar interpretation to the term “harass” as has already been applied to the existing text. If that were the case, nothing much would change.

4. Including a “truth” defence in section 18D. Section 18C operates in conjunction with section 18D, which allows for exemptions to conduct that would otherwise be considered to contravene section 18C. Exemptions currently exist for conduct done “reasonably and in good faith”, including artistic expression, public debate and fair and accurate reporting.

The inclusion of a “truth” defence in 18D would radically alter its scope. I imagine many people whose conduct might be caught by 18C would relish the opportunity to argue the “truth” of their views (for example, Holocaust deniers or those who would want to argue the inferiority of particular races). Deliberately providing a platform for such discourse through the text of 18C would make a mockery of 18C’s purpose and operation. It would significantly weaken the protection it offers to vulnerable communities, and provide a platform for hate speakers.

5. Changing the test of whether unlawful conduct has occurred from the experience of a member of the targeted group to a “reasonable member of the Australian community”. This suggestion was included in the ill-fated attempt to reform 18C in 2014.

Implementing this recommendation would mean a complete reframing of the way in which racial vilification is conceptualised in federal law. Currently, 18C is the only racial vilification law in Australia in which the test of whether conduct is unlawful depends on the response of the group targeted by the vilification. This is a great strength.

Changing to a test of whether a “reasonable” person in the community would regard an expression as vilifying or not would discount the lived experience of targets of vilification, and thereby reduce the likelihood of a complaint being upheld. People who are not the targets of vilification are simply not able to understand its effects in the ways that those who are targeted experience it.

Where to from here?

On the whole, this report is unhelpful. It has failed to resolve the key issues at stake in terms of the text of section 18C. Given the inability of the committee to reach agreement on suggestions for textual reform, the parliament should leave 18C unchanged.