Human Rights Legislation Amendment Bill 2017: Harassed by s18C

Thursday 30 March 2017 @ 11.39 a.m. | IP & Media | Judiciary, Legal Profession & Procedure | Legal Research

Recently, we reported on the deliberations of the Parliamentary Joint Committee on Human Rights inquiry and its report into the Racial Discrimination Act 1975 (Cth) (the RD Act) and into the operation of the Australian Human Rights Commission (the AHRC) (see Section 18C - Parliamentary Joint Committee on Human Rights Inquiry Reports). That inquiry came down with a rather uncommitted set of findings which have now found their way into the Human Rights Legislation Amendment Bill 2017 (Cth) (the Bill), which was introduced in to the Senate by the Attorney General, Senator George Brandis (the AG), on 22 March 2017.

After the Bill's introduction and second reading the Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee on 23 March 2017 and that Committee has since tabled its report in the Senate on 28 March 2017.

The Bill has been greeted by a mixed reception with most at least favouring some of the mechanical changes to the processes of the AHRC proposed by the Bill.

Overview - The Changes Proposed by the Bill

Perhaps the most important change proposed by the Bill is the amendment of the RD Act to provide for the amendment of section 18C , which prohibits offensive behaviour based on racial hatred, by replacing the words "offend", "insult" and 'humiliate" with the word "harass" the resulting remaining words then reading "harass or intimidate".

Further, the RD Act is amended to provide that an assessment of whether an act is reasonably likely to "harass or intimidate" a person or group of persons is to be made against the standard of a "reasonable member of the Australian community".

The Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act) is also to be amended to:

  • replace the defined term "alleged unlawful discrimination" with "alleged acts, omissions or practices"; 
  • repeal the requirement for the President and commissioners to act in a way that promotes the collegiate nature of the AHRC; 
  • provide that certain powers to report to the minister must be exercised by the President; 
  • expressly provide that the President is responsible for managing the administrative affairs, and is the accountable authority, of   the commission;
  • remove mandatory requirements to report to the minister on certain matters and replace them with discretionary reporting powers; 
  • provide that the President cannot delegate certain powers; 
  • introduce new grounds on which the commission or the President may or must close inquiries or terminate complaints; 
  • require the commission to act fairly in the performance of its inquiry functions; 
  • increase the threshold for lodging complaints; 
  • require the President to consider whether a complaint should be terminated on certain grounds before starting to inquire into the   complaint; 
  • require the President to act fairly in their handling of complaints; 
  • allow the President to terminate complaints lodged more than six months after the alleged unlawful discrimination; 
  • require the inclusion of a note about the costs jurisdiction of the Federal Court (FC) and the Federal Circuit Court (FCC) in a notice of termination;
  • prescribe procedures for voluntary conciliation conferences; 
  • provide that applications may be made to the FC or FCC in relation to complaints terminated on certain grounds; and
  • provide the Native Title Act 1993 is to replace the mandatory requirement for the Social Justice Commissioner to provide an annual report to the minister with a discretion to report when they see fit.  

Overview - The Effect of the Changes

For all the claims that changing the laws will make them "stronger"; it would, in fact, seem that changing the offence detailed in Section 18C from the current "offend", "insult" and "humiliate" to "harassment" will make it harder for people to complain against racist speech and that this is the true intent of the proposed changes.

Compounding the difficulty of successful prosecution will be the new test under the proposed changes to be applied in complaints to the AHRC, namely, the standard of a "reasonable member of the community" - it will be interesting to see how that standard is interpreted in the courts and what values are applied to determine what represents a "reasonable member of the Australian community".

Reaction and Comment

The Government through the Prime Minister and the AG have taken the view that they are strengthening the racial vilification law, the Prime Minister reported as saying:

"We are strengthening the race-hate laws, . . . They are clearer and they clearly express the type of conduct that should be prohibited, not mere slights or the taking of offence or hurt feelings."

The opposition through the Shadow Attorney-General, Mark Dreyfus, have said that words like "a stronger term" used by the AG to indicate why section 18C was to be changed were:

"Raising the legal bar [and] would make it harder for people to complain against racist speech, . . .  Every single ethnic community in Australia has been betrayed by this government, . . . No one should believe in any way that this is, as the Prime Minister has untruthfully attempted to suggest, a strengthening of the law. It is not. It is a weakening of the law."

Independent Senator Nick Xenophon is reported as saying ". . . he doubted rewording 18C would get through parliament". The Greens have indicated they will oppose the changes, indicating the proposed changes to section 18C were ". . . exactly what multicultural Australia had asked the Prime Minister not to do".

As the government will need nine out of 11 crossbench votes to succeed in the Senate, the passage of the legislation will be interesting to watch. Already there is talk of splitting the Bill into two Bills, with the less controversial changes to the AHRC Act being dealt with separately as evidenced in a recent door stop in which the AG had to field the possibility of the legislation being split into two Bills.

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Human Rights Legislation Amendment Bill 2017 and second reading speech and supporting documents as reported in the TimeBase LawOne Service

Proposed changes to the Racial Discrimination Act met with mixed response (Nine News)

Section 18C: PM Malcolm Turnbull denies caving in to party pressure on racial discrimination laws (ABC News)

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