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So, what went wrong with section 18C?

By John de Meyrick - posted Tuesday, 10 January 2017


According to the 1992-93 Federal Cabinet papers of the Keating Government, just released by the National Archives, section 18C of the Racial Discrimination Act 1975 (Cth),when introduced as a proposed amendment of that Act by the (then) Attorney-General, Michael Duffy, was intended to make racial vilification an offence in relation to "conduct that is likely to lead to incitement to hatred, contempt or ridicule and should not be relatively minor or be of the nature of a lighthearted racist joke".

It also seems that an act of racial vilification under the (then) proposed s18C was intended to be defined as "inherently offensive [with] actual offensive intent [and likely to cause] hostility or ill-will", and to be illustrated by "a series of defined conditions to be met".

Had those proposals been the way section 18C was drafted and came into legislation then the contentious cases that have arisen under that section and all of the political, legal and media attention involving its threat to freedom of speech may never have seen the light of day.

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But none of what the (then) Government appears to have intended or proposed is what section 18C says or does; nor is it because it has been wrongly interpreted or applied by the courts or the Australian Human Rights Commission.

The AHRC has the power to dismiss complaints of racial discrimination which are found to be trivial or vexatious, but the fact that it has pursued some such complaints, advisedly or otherwise, is entirely within the scope and authority of section 18C as it presently stands. It can not only take up complaints that may be "relatively minor or be of the nature of a lighthearted racial joke", but also any kind of conduct imaginable from a mere slight, slur or raised eyebrow to an act of utter degradation provided the complainant asserts that he or she has been offended, insulted, humiliated or intimidated by that conduct.

So what went wrong somewhere along the way between the policy intentions of the (then) Government and its Attorney-General, Michael Duffy in 1993, and the actual amendment that was passed through Parliament later in 1995 by his successor Attorney-General, Michael Lavarch?

The presently released Cabinet documents do not cover the later period, assuming they would throw some further light on this 'riddle'. But it seems from reports of Mr Duffy (who retired from the Parliament in 1996) that he is of the (dubious) opinion that, whilst 18C does not reflect what was intended by his submission to Cabinet, it doesn't "contradict the basic thrust of the matters raised in [his] Cabinet submission".

Michael Lavarch (who also left Parliament in 1996) is yet to comment, although he may feel constrained by reason of Cabinet confidentiality, as any papers for 1994-95 are yet to be released.

The threat that section 18C holds for freedom of expression and free speech remained a 'sleeper' issue between its enactment in 1995 and the now notorious Andrew Bolt Case in 2011. Although that case is not a worthy example of the insidious effect of 18C, it raised alarm as to its potential harm.

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The Coalition Government came back into office in 2013 with Attorney-General George Brandis vowing to repeal section 18C before becoming embroiled in controversy over the right to be a bigot. The (then) Prime Minister, Tony Abbott, dismissed the matter qua the Bolt Case as an aberration unlikely to occur again. But much more serious cases have arisen meanwhile and since, and the issue has become a sustained political and media topic of concern.

The Government, with its present precarious one-vote majority in the Lower House and requiring the support of a querulous cross-bench for the passing of its legislation in the Senate, has shuffled the matter off to a Parliamentary Joint Committee for an Inquiry into Freedom of Speech in Australia, the Operation of Part IIA of the Racial Discrimination Act [ie, including 18C] and the Complaints Handling Procedures of the Australian Human Rights Commission. The Committee is to report by the end of February this year.

Meanwhile, the Opposition and a number of interested organisations are 'playing down' the seriousness of the issue and suggesting that nothing needs to be changed, and that the provisions of 18C are entirely justified in appropriate cases, whilst freedom of speech is said to be protected by the defences and exemptions set out in section 18D of the Act.

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About the Author

John de Meyrick is a barrister (ret’d), lecturer and writer on legal affairs.

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