The Liberal Party’s latest attempt to undermine Section 18C of the Racial Discrimination Act, put forward by Senator Concetta Fierravanti-Wells, displays a continued ignorance of how the law actually operates.
There is no need to change Section 18C. It is a law that has functioned well for decades in protecting multicultural Australia, and the bar is already high for successful complaints.
That is why the Human Rights Committee report, published last week, did not recommend any changes. It also heard from a significant number of witnesses that any change to 18C would be interpreted as a weakening of the law.
Senator Fierravanti-Wells’ proposal does not make sense. First, there is already a reasonableness test written into the law:
It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people
This objective standard, applied consistently in case after case, often includes reference to community standards. In the 1994 second reading speech that introduced section 18C into our law, the then Attorney General declared “The bill requires an objective test to be applied so that community standards to behaviour rather than the subjective views of the complainant are taken into account.”
Second, the definition of racial discrimination is that it is targeted at a particular group. It is the harm that the racist behaviour specifically causes to the affected person, or group, that is important in determining whether a complaint should be upheld. So inserting a catch-all “reasonable person” test is nonsensical.
Section 18C has an established jurisprudence which has set the bar high for a successful complaint. The terms offend, insult, humiliate or intimidate do not cover “mere slights” – as noted by the current Chief Justice of the High Court, Susan Kiefel.
While the coalition tears itself apart over 18C, Labor’s position is firm and united – we do not need to change this law.
The change proposed by Senator Fierravanti-Wells would inevitably weaken the protection provided by the current law.
We still have not heard from the proponents for change – what is it that they want to be able to say, which they currently cannot? Their silence is deafening.
Labor fought to protect Section 18C in 2014 and we will continue the fight now, for as long as is necessary.
TUESDAY, 7 MARCH 2017