Much Expected Section 18C Inquiry Announced with Wider Scope Including the AHRC

Thursday 10 November 2016 @ 11.48 a.m. | IP & Media | Legal Research

On 8 November 2016, the Federal Attorney General Senator George Brandis announced, by Media Release, the already largely expected Parliamentary Joint Committee on Human Rights (the PJCHR) inquiry into the Racial Discrimination Act 1975 (Cth) (the RD Act) and along with that an inquiry into the complaints-handling procedures of the Australian Human Rights Commission (the AHRC). The PJCHR is to inquire and report to the Parliament by 28 February 2017.

Justification for the Inquiry

In announcing the PJCHR inquiry, the Attorney General indicated that the justification for the inquiry was to ensure the right balance had been struck between laws that "protect social harmony and mutual respect" and the fundamental democratic value of freedom of speech - saying in his Media Release:

"It is important that Australia strikes the right balance between laws which protect social harmony and mutual respect, and the fundamental democratic value of freedom of speech. The purpose of the inquiry is to ensure that we have that balance right. Equally, it is important that the machinery for human rights protection in Australia operates in such a way as to ensure procedural fairness, and that it cannot be used as a vehicle for vexatious complaints." 

The Inquiry Terms of Reference

The inquiry terms of reference are as follows:

First, the PJCHR is to consider whether the operation of Part IIA of the RD Act ". . . imposes unreasonable restrictions upon freedom of speech, and in particular whether, and if so how, sections 18C and 18D [of the RD Act] should be reformed."

Second, the PJCHR is to consider whether the handling of complaints made to the AHRC under the Australian Human Rights Commission Act 1986 (Cth) 

". . . should be reformed, in particular, in relation to:
(a) the appropriate treatment of:
      (i) trivial or vexatious complaints; and
      (ii) complaints which have no reasonable prospect of ultimate success;
(b) ensuring that persons who are the subject of such complaints are afforded   natural justice;
(c) ensuring that such complaints are dealt with in an open and transparent manner;(d) ensuring that such complaints are dealt with without unreasonable delay;
(e) ensuring that such complaints are dealt with fairly and without unreasonable cost being incurred either by  the Commission or by persons who are the subject of such complaints;
(f) the relationship between the Commission’s complaint handling processes and applications to the Court arising from the same facts."


Third, the PJCHR is to consider whether

". . . the practice of soliciting complaints to the Commission (whether by officers of the Commission or by third parties) has had an adverse impact upon freedom of speech or constituted an abuse of the powers and functions of the Commission, and whether any such practice should be prohibited or limited."


Fourth, the PJCHR is to consider whether 

". . . the operation of the Commission should be otherwise reformed in order
better to protect freedom of speech and, if so, what those reforms should be".

The Terms of Reference also ask the PJCHR to take into "particular" consideration of the recommendations of the Australian Law Reform Commission  (the ALRC) in its Final Report on "Traditional Rights and Freedoms – Encroachments by Commonwealth Laws [ALRC Report 129 – December 2015]", in particular Chapter 4 – “Freedom of Speech”.

Further, the Terms of Reference go as far to indicate what is meant by "freedom of speech" casting a wide net stating that:

"In this reference, 'freedom of speech' includes, but is not limited to, freedom of public discussion, freedom of conscience, academic freedom, artistic freedom, freedom of religious worship and freedom of the press."

Comment and Reaction

In terms of reaction, there has been broad agreement that the Prime Minister has had to ". . . [abandon] his stance on the country's race hate laws in order to keep parliamentary stability" as Michelle Grattan put it in her article in The Conversation: 

"A combination of unrelenting pressure from conservatives in his ranks, two controversial high-profile cases, mishandling by the Human Rights Commission, and a blitzkrieg by News Corp has forced Turnbull to accommodate the noisy critics."

While the opposition questions the "merit of the inquiry", the majority of the government and a some crossbenchers support it, and interestingly, it is reported that the President of the AHRC,  Professor Gillian Triggs, has welcomed the inquiry and is quoted as saying the AHRC is open for the PJCHR inquiry to ". . . find ways of strengthening section 18C of the RD Act, which prohibits expression that offends or insults on the basis of race".

Professor Triggs is further reported by the ABC as indicating the AHRC:

 ". . . welcomed changes that could help its handling of cases. [and that] As far as 18C is concerned, we're open to seeing what the inquiry might suggest, whether the language might be clarified and - in our view - strengthened that enables us to support the multicultural society that we are, . . .” 

The outcome of the inquiry will be interesting but it is almost a given that the RD Act Pt IIA will be changed if not rewritten to limit its operation and application. The question of how much of a brake will be placed on the operation of the AHRC - is an unknown but again, it is almost a given, that change will be recommended.

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