10 Mar Changes to HRC ‘not enough’
Chris Merritt — The Australian — 10 March, 2017
Changes to the Australian Human Rights Commission that have been recommended by a parliamentary committee would not have prevented students at Queensland University of Technology being falsely accused of racial hatred.
This is the assessment of James Paterson, a Liberal member of parliament’s joint committee on human rights, which was unable to agree on how to change the law behind those false accusations — section 18C of the Racial Discrimination Act.
Unless procedural changes at the Human Rights Commission are accompanied by the repeal or substantial reform of this law, Senator Paterson warned that the weight given to free speech would be insufficient to discourage complainants from taking weak cases to court.
His warning comes as federal cabinet will today consider a range of proposals on how to reform this provision.
This law makes it unlawful to cause people to feel offended, insulted, humiliated or intimidated because of their race, colour or national or ethnic origin.
Their discussions will take place in the knowledge that former race discrimination commissioner Irene Moss, whose 1991 report on racial violence led to the introduction of 18C, has joined those calling for change. Section 18C was introduced by the Keating government in 1995.
Ms Moss believes it “ignored the inquiry’s warnings that an offence which was drafted too broadly could lead to trivial complaints and confusion”.
“An amendment to remove the offences of ‘offend’ and ‘insult’ from 18C while retaining ‘intimidate’ and focusing the section on objective harm would not weaken the effectiveness of the Racial Discrimination Act but strengthen it and enhance its impact,” Ms Moss said this week.
International Development Minister Concetta Fierravanti-Wells has proposed leaving the core of the law unchanged, but introducing a new test for liability that would adopt the perspective of ordinary, reasonable members of the general community.
This would require the government to overturn the present arrangement in which judges decide these cases by applying the objective standards of those who complain, not the general community.
Media lawyer Mark O’Brien believes this change would be fairer and less restrictive than the current test, but Robert Todd, a partner at Ashurst, warned that Senator Fierravanti-Wells’s scheme would address one problem but introduce more uncertainty over the judicial application of the “reasonable person” test.
He proposed a fault-based system in which the onus was on the claimant to prove the subjective conduct of the respondent.
If cabinet decides against repealing the provision, Senator Paterson outlined a plan that he said would give people confidence in their ability to defend themselves against 18C claims.
“This can be achieved by removing offend, insult and humiliate from 18C and replacing it with harass, ensuring there is a proper, objective reasonable-person test which meets community standards, and adding a defamation-style truth defence,” he said.
Unless the law is overhauled or repealed, he believes the QUT case could still have gone ahead even if his committee’s procedural changes had been implemented.
He believes increased powers allowing, or even compelling, commission president Gillian Triggs to dismiss weak cases would not have helped.
This was because Professor Triggs had said publicly she and the commission believed the QUT case “had a level of substance”.
“There’s nothing in the current law, or even the committee’s proposals, to stop an applicant whose case is terminated by the commission from having their day in court,” he said.
“Suggestions that applicants bear some financial risk if proceeding with a terminated case certainly may discourage some,” Senator Paterson said.
This article was originally published in The Australian.