In his recent What Went Wrong article in Quadrant, former Prime Minister Tony Abbott nominates his failure to amend s 18C of the Racial Discrimination Act as one of a series of mistakes that he made while in office. It is, he says, 'clearly a bad law'.
It is good to hear that Abbott now recognises that he committed a mistake when failing to repeal this 'bad law'. In fact, the problem goes much further than s18C being 'clearly a bad law'. In our new book No Offence Intended: Why 18C is Wrong, we argue that s 18C is not only a bad law, but an unconstitutional one. The dubious constitutional basis of s 18C was actually flagged by the Parliamentary Research Service over twenty years ago. Since then, while s 18C itself has been the subject of much debate; the constitutional question has been largely ignored.
We reveal that s 18C is unconstitutional for two reasons. The first is that it is goes much further than required by the international obligations set out in the International Convention on the Elimination of All Forms of Racial Discrimination. While the Convention requires States to create an offence that punishes 'all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin', s 18C makes unlawful (amongst other things) any act that is reasonably likely to offend or insult another person or group of people and which is done because of their race, colour, ethnicity or nationality. As can be seen, there is a significant disparity between the high level hate speech that the Convention is seeking to prohibit and the extremely broad scope of s 18C.
Indeed, when race-hate legislation was first being considered in Australia, the Human Rights and Equal Opportunity Commission recommended that the Racial Discrimination Act should be amended to prohibit the incitement of racial hostility, but emphasized that they were 'not talking about protecting hurt feelings or injured sensibilities'. After all, international human rights law does not recognize a right not to be offended. And yet, by making offensive and insulting conduct unlawful, s 18C is no longer 'reasonably capable of being considered appropriate and adapted to implementing the treaty'. This over-reach means that s 18C does not meet the conformity test required to come within the external affairs power under s 51(xxix) of the Constitution. As a result, s 18C is beyond Commonwealth legislative powers.
The second reason we argue that s 18C is unconstitutional is that it breaches the implied freedom of political communication. The burden that s 18C inflicts on political communication is direct and significant. There are many current issues of political importance that involve discussing race, colour, ethnicity or nationality. While we may like to believe that political discussion should always be civil and respectful, recent experience shows us that this is not always the case. This should not be surprising. As Salman Rushdie recognized: "Democracy is not a tea party where people sit around making polite conversation. In democracies people get extremely upset with each other. They argue vehemently against each other's positions. (But they don't shoot)".
It is not only the setting of a dangerously low harm threshold through inclusion of the words 'offend' and 'insult' that is problematic. The burden that s 18C imposes on the implied freedom of political communication is compounded by requiring only that an act is reasonably likely to offend or insult; by the conduct in question being judged not by reference to community standards but rather by the standards of the alleged victim group; by the failure to include truth as a defence; and by the overriding requirement that any acts must have been 'said or done reasonably and in good faith' if the s 18D exemption is to be applied. Being able to discuss controversial political issues freely and robustly is essential to the health of our democracy. Section 18C restricts this in a disproportionate way that violates the implied constitutional freedom of political communication.
Section 18CQC has, however, survived for over twenty years without being challenged in the High Court of Australia. Interestingly, Tony Abbott assumed that 'the Howard government had left it on the statute books, presumably because it was rarely used'. This is actually not the case. Section 18C has been used regularly in recent years but, aside from a handful of high profile cases, its use has been largely hidden from public view. Simon Breheny from the Institute of Public Affairs recently revealedthat there are 18 complaints currently under consideration by the Australian Human Rights Commission (AHRC), and that over the last six years there have been 838 complaints lodged under s 18C. This is not a law that is rarely used, but rather one that is having a very real impact on freedom of speech.
What is even worse is that it is having a detrimental impact on freedom of speech without having a corresponding positive impact on eliminating racial discrimination. This is self-evident given the secrecy that seems to surround the conciliation process. How can s 18C have a broader educational effect when even those who are alleged to have made racially offensive comments aren't told that they have allegedly done anything wrong until over a year after a complaint is originally made? This is the allegation that two QUT students being sued under s 18C have made, with the AHRC seemingly acknowledging that respondents will sometimes not be notified of a complaint so as not to cause them unnecessary concern.
This is truly extraordinary. How can we legitimately assess the effectiveness of s 18C if we don't know what complaints are being made and how the section is being used? More importantly, how is any individual meant to know what they can and can't say in Australia when the law is so vague and the legal process is conducted behind closed doors?
The former Prime Minister acknowledged that s 18C is 'clearly a bad law'. The AHRC must now make clear just how bad it is.
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About the Authors
Joshua Forrester has a BA (Hons) (Murd), LLB (Hons) (UWA), and is currently a PhD candidate at Murdoch University.
Lorraine Finlay is a Law Lecturer at Murdoch University, lecturing in constitutional law and international human rights. She is also a former President of the Liberal Women’s Council (WA).
Augusto Zimmermann, LLB, LLM, PhD is a Lecturer in Law at Murdoch University, Western Australia.