Submission: Parliamentary Inquiry into Freedom of Speech

This submission, written by RLC’s discrimination solicitor Dr Linda Tucker, draws on RLC's earlier submissions in addressing the terms of this Inquiry.¹ We also thank Ting Lim, a solicitor and volunteer on RLC’s discrimination advice night.

Background

In 2016, 12% of RLC’s clients identified themselves as being Aboriginal or Torres Strait Islander and approximately 42% were of culturally and linguistically diverse (CALD) backgrounds. We have provided submissions to previous inquiries on the issue of discrimination and vilification and continue to work with clients who demonstrate to us the multiple and intersecting impact of historic and continuing prejudice and marginalisation. Racial profiling and stereotyping continues to influence how they are provided with services, education, employment, access to premises and policing as well as to how they are treated by neighbours and others in the community.

The Parliamentary inquiry into Freedom of Speech in Australia relates to two issues:

  1. Whether the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) imposes unreasonable restrictions upon freedom of speech, and in particular whether, and if so how, ss. 18C and 18D should be reformed, and
  2. Whether the complaints-handling procedures of the Australian Human Rights Commission should be reformed.

RLC addresses these two issues in our submission. Following is a very brief summary. Read RLC's full submission (no. 87) on the Parliament of Australia Submissions page.

Part IIA of the Racial Discrimination Act 1975 (Cth)

The Racial Hatred Act 1995 (Cth) was adopted by the Federal Parliament in 1995 following an extensive debate. The principle of free speech is enshrined in our democracy and was carefully considered and balanced with the provisions the Racial Hatred Bill 1994 sought to introduce into the RDA. With respect to free speech, the Explanatory Memorandum of the Racial Hatred Bill 1994 noted: "The Bill is based on the principle that no person in Australia need live in fear because of his or her race, colour, or national or ethnic origin..."

The High Court has recently established an implied guarantee of free speech inherent in the democratic process enshrined in our Constitution. But the High Court has also made it clear that there are limits to this guarantee. There is no unrestricted right to say or publish anything regardless of the harm that can be caused. The Explanatory Memorandum goes on to say:

"The Bill is not intended to limit public debate about issues that are in the public interest. It is not intended to prohibit people from having and expressing ideas. The Bill does not apply to statements made during a private conversation or within the confines of a private home.

“The Bill maintains a balance between the right of free speech and the protection of individuals and groups from harassment and fear because of their race, colour or national or ethnic origin. The Bill is intended to prevent people from seriously undermining tolerance within society by inciting racial hatred or threatening violence against individuals or groups because of their race, colour or national or ethnic origin.”

RLC recommends that Part IIA of the RDA remains unchanged as it strikes the appropriate balance between free speech and to live free from discrimination. RLC is of the view that Part IIA of the RDA, in its present form, achieves a positive balance between the protection of our right to freedom of speech and the protection of our right to be free from discrimination, harassment and vilification on the basis of race.

Further, it is clear from judgments dealing with applications under s 18C, that the courts require the conduct to have had ‘profound and serious effects’.²

The complaint process

The nature of the AHRC complaint process is that it is primarily driven by the complainant. While the AHRC can provide a safe and structured forum for parties to resolve a complaint, whether a complaint is pursued or resolved ultimately lies with the complainant. When a complaint process is predominantly driven by a complainant, it requires the complainant to at times repeatedly recount the alleged events either in writing or verbally over the phone or face to face. This experience of recounting the events acts to re-traumatise clients and can often leave them feeling like the process has let clients down.

Given this stressful experience, RLC recommends that the AHRC be provided with the power to initiate ‘own motion’ investigations into circumstances where systemic discrimination has been identified. These own motion investigations would be similar to the powers exercised by the Fair Work Ombudsman in matters such as the 7-Eleven case regarding the underpayment of wages.³

Conclusion

The current RDA provides an accessible and cost-effective avenue for individuals to resolve concerns about racial discrimination and racial vilification, being the investigation and conciliation service offered by the Australian Human Rights Commission. It also codifies the point at which civilised and reasonable, if robust, debate trips over into mere expression of prejudice in the public domain. In that regard it provides some certainty.

Recent coverage of a small number of cases has distorted the many years of constructive work of the Commission and the court, working within the current RDA regime, in addressing the damage done by hate speech to both individuals and the fabric of the society, to mutual respect within that society and in particular to people within minority groups in our community.

Download
RLC’s submission to the Parliamentary Inquiry into Freedom of Speech  [PDF]

References

1. See our submission on the proposed amendments to the Racial Discrimination Act 1975 (Cth) in April 2014, available on the RLC website
2. Creek v Cairns Post Pty Ltd [2001] FCA 1007 at [16]
3. Fair Work Ombudsman. (2016, 9 April). Statement on 7-Eleven. [Media release]