Debate over RDA and section 18C continues

Section 18C of the Commonwealth Racial Discrimination Act (RDA) is among the laws highlighted as having potential to interfere with Australians’ civil liberties in a recent Australian Law Reform Commission report.

The report, Traditional Rights and Freedoms— Encroachments by Commonwealth Laws, is part of ALRC’s ‘Freedom Inquiry’. It examines how Commonwealth laws may encroach upon Australians’ rights such as freedom of speech, property rights, and access to justice and the courts.

Section 18C of the RDA deems it unlawful to ‘offend, insult, humiliate or intimidate’ a person or group based on race, ethnicity or colour.

18C is subject to certain defenses – for example, matters regarding the public interest – and does not apply to words or actions said or done in private.

In 2003, Section 18C was successfully used to prosecute Holocaust denier Fredrick Toben for publishing hate speech on his website.

In 2011, Conservative journalist Andrew Bolt was also found to be in breach of the law. Bolt had accused a number of Indigenous Australians, who are of lighter complexion, of using their Indigenous identity purely for social or financial gain in his newspaper column.

It was a 2013 election promise of Tony Abbott to abolish section 18C of the RDA, alongside sections 18B, 18D and 18E, in the name of ‘freedom of speech’.

However, after a national community backlash, then-Prime Minister Tony Abbott declared any changes to section 18C ‘off the table’ last August. It has remained a political ‘hot potato’ ever since, with politicians including Senator Cory Bernardi sponsoring a Bill to amend 18C later the same month.

The ALRC report reflects a diverse response from the public. Some respondents have expressed concern 18C is ‘too broad’ in its current form.

In its submission, the Church and Nation Committee argued the state ‘cannot legislate against offence and insult without doing serious damage to wide-ranging freedom of speech’.

The William Wilberforce Foundation writes that 18C ‘makes speech and acts unlawful as a result of a subjective response of another or a group or others’. It also criticised the fact that ‘truth’ is not available as a defense under section 18D.

Other respondents, including the NSW Young Lawyers, have argued 18C is necessary for a healthy democracy:

“In the absence of a federal bill of rights and constitutional guarantees of human rights, the need to strike a clear and equitable balance between the right to free speech and the right to be free from vilification is obviously all the more pressing.”

Redfern Legal Centre’s 2014 submission on the proposed removal of 18C highlighted freedom of speech as a fundamental human right and recognised its importance in a democratic society.

However, we argued that the right to freedom of speech must be balanced against other fundamental freedoms, including protection from harassment based on characteristics such as race.

“Being publicly subjected to comments that hurt, humiliate and offend effectively impinges on how a person engages with others in the community and perceive themself as included within the society.

This has long term consequences for the cohesiveness of the society.”

RLC has argued the RDA should not be altered, as it is “effective in protecting individuals against racial vilification, in a manner that does not burden freedom of speech”.

In May, then-Communications Minister, now Prime Minister Malcom Turnbull dismissed claims that changes to 18C were being considered by the Coalition.

Submissions in response to the ALRC’s interim report closed September 21st. The final report is expected to be delivered to the Attorney-General  in December.