Section 18C - Parliamentary Joint Committee on Human Rights Inquiry Reports

Thursday 9 March 2017 @ 11.34 a.m. | Crime | IP & Media | Torts, Damages & Civil Liability | Trade & Commerce

As we have previously reported, on 8 November 2016, the Federal Attorney General Senator George Brandis announced a Parliamentary Joint Committee on Human Rights (PJCHR) inquiry into the Racial Discrimination Act 1975 (Cth) (the RD Act) and in particular Part IIA, containing the now famous sections 18C and 18D, and along with that an inquiry into the complaints handling procedures of the Australian Human Rights Commission (the AHRC) [see our article Much Expected Section 18C Inquiry Announced with Wider Scope Including the AHRC]. That inquiry was to report by 28 February 2017, which it did, in what has been described at best as a "very open and thoughtful" report, through to what some have labeled as an "equivocal and conflicted" report. 

To Recap - What the Committee was to Deliver

Cynics might say that the referral to the PJCHR was to deliver a way out for the Prime Minister, from a debate he did not really want, and from this background the PJCHR was tasked to inquire:

  • 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";
  • whether the handling of complaints made to the AHRC under the Australian Human Rights Commission Act 1986 (Cth) should  be reformed in certain specific areas;
  •  whether the AHRC practice of soliciting complaints to the Commission (whether by officers of the Commission or by third parties) had an adverse impact upon freedom of speech or constituted an abuse of the powers and functions; and
  •  whether the operation of the AHRC should be otherwise reformed in order better to protect freedom of speech and, if so, what those reforms should be.

How the Committee Responded

Looking at the PJCHR's Report it has clearly taken to its task and responded thoroughly, making clear recommendations at least on  the part of its brief relating to the AHRC, where the PJCHR has recommended that it becomes an oversight committee for the AHRC so that it could have public meetings twice a year to ". . . examine the Commission’s activities, including complaints handling, over the preceding six month period."

On the matters relating to the RD Act section 18C and 18D there was less clarity perhaps also mirroring the lack of agreement on the PJCHR itself  - a lack of agreement not just along party lines, but as is reported by The Conversation, even within the conservative side of politics itself so much so that:

"In a search for maximum consensus among its members the committee, after hearing extensive evidence for the status quo on the one hand and various changes on the other, has presented a 'range of proposals that had the support of at least one member of the committee'”.

Essentially, the PJCHR did not report back with any firm preferences in its recommendations, providing mostly a list of options that might or might not be applied, as follows:

  • that no change be made in wording of section 18C and 18D of the RD Act;
  • the RD Act be amended to ensure that its effect “. . . is clear and accessible” by codifying the judicial interpretation of the legislation; 
    [An approach said to deal with the problem of the difference between what words like “offend” and “insult” used in section 18C have been held to mean in legal cases as opposed to their everyday meaning to the public];
  • removal of the words “offend”, “insult” and “humiliate” and replacing them with the word “harass”;
  • the amendment of section 18D of the RD Act to add a “truth” defence similar to that found in the law of defamation;
  • changing the objective test, from assessing the likely effect of the conduct on a “reasonable member of the relevant group” to “the reasonable member of the Australian community”; and
  • the further investigation criminal provisions on incitement to racially motivated violence on the basis that existing state and federal laws have been ineffective.

Comments and Reaction

Generally, the future of RD Act sections 18C and 18D remains an open question with most waiting to see how the PJHRC's report will translate into legislation if it does in fact do that. After all, the greatest division over the future of  the RD Act sections 18C and 18D still seems to be within the one conservative side of politics, who's leader, the Prime Minister, is faced with also having to consider as The Conversation says, that:-

". . . the summary of evidence to the committee shows this is another issue on which he can’t win, because feeling runs high on each side of the public debate. It’s also a dangerous issue in marginal seats with big ethnic votes."

The RD Act section 18C and 18D issue was not one that the Prime Minister sought out and the PJHRC's Report may have been seen as a transparent way to resolve things - it just does not appear to have turned out that way.

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