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.
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:
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".
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:
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:
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
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