17 Mar Reform 18C or risk losing it
Chris Merritt — The Australian — 17 March, 2017
When the government reveals its plan for section 18C of the Racial Discrimination Act, it will be judged against two criteria: Will it end the furore? And will it address 18C’s vulnerability to a constitutional challenge?
Unless the plan goes beyond mere tinkering and grapples with this law’s flaws, neither of those tests will be met: it will continue to hijack public debate and its constitutional weakness will be an open invitation for a High Court challenge.
Those legislators who are hesitant about making bold changes should consider this: High Court challenges rarely succeed, but warnings about this law’s vulnerability have been made by no less an authority than the Australian Law Reform Commission.
Those who believe 18C is essential need to consider whether they are willing to risk having every word struck down by the court. Or are they prepared to act now to save what they believe is important?
The reason this law is so reviled was brought home to the politicians in Canberra by the death last week of cartoonist Bill Leak. In the last year of his life, the actions of the Australian Human Rights Commission imposed an immense strain on this man.
For a significant part of the community, the facts speak for themselves: 18C empowered an authoritarian government agency to hound one of the nation’s great talents to an early grave.
History will determine if the credibility of the Human Rights Commission can ever recover. But Leak’s death has injected urgency into the push to reform this law.
In retrospect, it was inevitable that he would clash with a law that has the practical effect of making it unlawful to hurt people’s feelings. Giving offence is what cartoonists do. Pursuing Leak for doing so is like chastising the sun for rising.
This provision imposes liability on those who cause others to feel offended, insulted, humiliated or intimidated because of their race, colour of national or ethnic background. Leak and others in the media have long ridiculed 18C for its impact on freedom of speech. But some of its strongest critics have been lawyers who were troubled by its shoddy drafting.
For the government, three possible ways of dealing with 18C are on the table: do nothing; repeal the provision; or subject it to reform. Since Leak’s death, much of the debate has focused on option three: reform.
And within option three, those inside the government are pushing for a range of changes, only some of which would end the debate and strengthen the law.
The argument in favour of leaving 18C unchanged has been championed for months by NSW Liberal MP Julian Leeser, who would prefer to focus on changing the internal procedures of the Human Rights Commission. Leeser, who was part of the joint parliamentary inquiry into freedom of speech, won support for his position from Labor and the Greens.
His proposal for procedural change is seen as a starting point by others, including fellow Liberal, senator James Paterson, who was also part of the free speech inquiry. He favours removing the terms “offend”, “insult” and humiliate” and replacing them with “harass”. This view is shared by fellow Liberal MP Tim Wilson, a former Human Rights Commissioner.
Their goal is to redirect 18C towards more serious conduct — which would also address concern that the current law could be vulnerable to a constitutional challenge.
This concern was outlined in the Australian Law Reform Commission’s 2015 report on rights and freedoms.
“The inclusion of the words ‘offend’ and ‘insult’ raises a possibility that the High Court, in an appropriate case, might read down the scope of section 18C, or find it invalid,” the Law Reform Commission’s report says.
Paterson is worried that unless this vulnerability is addressed, serious wrongdoers — such as Holocaust deniers — might seek to avoid liability by running a challenge that could strike down all of 18C.
“There are many lawyers who believe 18C would be vulnerable to a constitutional challenge and it is only a matter of time before someone tests whether that is the case,” Paterson says. “It would be a terrible thing if it were found to be unconstitutional in part because we did not make sensible amendments today, and the person who found it to be unconstitutional is someone whose views we do not wish to see broadcast.”
Legal academic George Williams believes there is an “arguable proposition” that an unreformed 18C could be challenged. And while successful challenges were rare, he said that “the bigger the case, the bigger the consequences, the bigger the risk of a challenge”.
Williams, like Paterson and Wilson, would prefer 18C to be restructured so it targets more serious matters and would no longer be concerned with whether people felt offended or insulted.
“We should be proscribing extreme forms of speech,” says Williams, who is dean of law at the University of NSW. At the moment “it gets the balance wrong when it comes to freedom of speech and other interests”.
He accepts that courts have been interpreting 18C narrowly, but believes the words of the statute itself should clearly reflect the appropriate balance so the community can see what the law requires.
As long ago as 2004, legal academic Dan Meagher highlighted the problems with 18C and predicted this provision would lead to trouble because it was too vague and subjective.
He wrote in the Federal Law Review that the key words and phrases in 18C “are sufficiently imprecise in both their definition and application as to make the putative legal standards they embody largely devoid of any core and ascertainable content”.
The meaning of the terms “offend” and “insult”, was “so open-ended as to make any practical assessment by judges and administrators as to when conduct crosses this harm threshold little more than an intuitive and necessarily subjective value judgement”.
“With the possible exception of cases involving extreme racist conduct, the indeterminacy of section 18C is such that too many determinations could comfortably and justifiably have been decided the other way,” wrote Meagher, who is an associate professor of law at La Trobe University.
Concern about subjectivity has given rise to a push to incorporate community standards as the touchstone of liability. This comes after a series of rulings in which judges have made it clear they felt compelled by 18C to make their decision using a technique some might consider to be unfair. It gives priority to the interests of those who complain.
This is how it works: At the moment, the test for liability requires judges to adopt the perspective of a hypothetical reasonable representative of those who complain.
This means a cartoon or newspaper article that complies with the standards of the general community can nevertheless be damned as racist hate speech if those who complain are objectively more susceptible to taking offence. The greater the sensitivity of the complainant, assessed objectively by a judge, the greater the likelihood of taking offence, and the greater the likelihood that the complainant will win.
The same words could incur legal liability in a case brought by one complainant, but could escape liability in a case brought by a different complainant who is objectively less susceptible to taking offence.
This is the process that was used against journalist Andrew Bolt in 2011. He did make errors of fact in his articles about light-skinned Aborigines. But the reason he lost the case was not because he had breached the objective standards of conduct that prevail throughout the Australian community. He lost because he had breached the objective standards of the light-skinned Aborigines who complained.
If the government’s goal is to remove 18C from the national agenda, modest change such as the “compromise” proposed by International Development Minister Concetta Fierravanti-Wells is unlikely to succeed. It is also unlikely to eliminate the constitutional vulnerability.
She has proposed switching to a test that invokes the standards of the ordinary member of the community while leaving the rest of 18C untouched. This would eliminate the concern about the unfairness of the current test for liability and would position the government as the champion of community standards.
That might result in short-term political advantages but it would not address the main issues.
The Fierravanti-Wells “compromise” would still leave Australia with a federal law that makes it unlawful to hurt people’s feelings. The only difference would be that liability for causing people to feel offended or insulted would be determined based on community standards, not the objective standards of those who complain.
The constitutional vulnerability would remain and so would the antipathy of the media. The law that many hold responsible for the death of the nation’s greatest cartoonist would remain on the books, substantially unchanged.
David Flint, who is a former chairman the Press Council, says 18C will continue to invite conflict so long as it makes it unlawful for journalists and cartoonists to give offence.
“For cartoonists not to give offence, it would not be cartooning any more,” he says. “I know from experience they are designed to give offence, they are designed to be funny and you have got to accept them because that is part of the democratic give and take,” Flint says.
Media lawyer Robert Todd has proposed a completely new approach. If repeal is off the table, he suggests scrapping the objective test and adopting a fault-based regime in which the onus of proof would rest with those lodging complaints. This, he believes, would result in a better balance for free speech.
The fact that a law like 18C exists at the federal level is due to the ingenuity of the Keating government’s attorney-general Michael Lavarch, who used the external affairs power to overcome what some might have considered to be an insurmountable obstacle.
Anyone who examines section 51 of the Constitution will find a list of specific heads of power that were given to the federal government at the time of federation. Everything not mentioned in section 51 was intended to remain the responsibility of the states — which explains why the states have a network of anti-vilification laws.
There is nothing in section 51 that empowers the federal government to make laws to prevent people feeling offended or insulted. But the external affairs power does allow the federal government to sign treaties and make laws based on those treaties — if those laws adhere to the subject matter of the treaties.
In its 2015 report, the Law Reform Commission says the question of whether 18C is validly supported by the external affairs power will arise if it extends beyond the obligations outlined in two treaties, the International Covenant on Civil and Political Rights and the International Convention on the Elimination of all forms of Racial Discrimination.
The commission says those treaties focus on protecting against racial vilification and hatred, not conduct that causes people to feel offended or insulted.
This article was originally published in The Australian.