There have been several high-profile cases of the use of the so called “18C laws” (Section 18C of the Racial Discrimination Act) in the media lately demonstrating the gross failings of these laws and of the commission to resolve the issue of racism in society let alone in any fair and just manner. Even the opinion that certain policies implemented by a government or institution are unjust can land you in a court with a legal bill several times larger than your annual earnings. Yet for all this there is no clear evidence that policing speech has meaningfully done anything to address the problem of racial discrimination in society.
With a federal parliamentary inquiry into freedom of speech underway, the Australian Taxpayers’ Alliance (ATA) has provided a submission to the committee calling for the repealing of sections 18C and 18D of the Racial Discrimination Act.
In the submission from the Australian Taxpayers’ Alliance, Executive Director Tim Andrews says “the words ‘offend, insult or humiliate’ are inherently subjective and a view which might objectively be considered a valid opinion or perspective may nonetheless likely ‘offend, insult or humiliate’ a person or group of people due to their individual subjective perspectives shared as a group. This degree of subjectivity is contrary to fundamental principles of the rule of law.” He goes on to explain that Section 18D fails to adequately protect free speech and public discourse as intended, pointing to the recent case of the QUT students. On this he says 18D “offered the students insufficient protection as they bore the heavy legal burden of establishing that their social media posts criticising the computer lab policy of their individual university was ‘a fair comment on a matter of public interest’ subject to the consideration of a judge” and “that the lengthy ordeal surrounding the QUT students case demonstrates that “the process is the punishment” and that protections under Section 18D do nothing to mitigate this.”
Whilst the submission calls for the repealing of 18C and 18D, it also offers alternative reforms should the parliament not repeal these sections. These alternative reforms include removing the words “offend, insult or humiliate” as well as significant reform of the handling of complaints by the human Rights Commission to provide fairness to both parties. This reform would include a quicker, more impartial, open and transparent complaint resolution process as well as the dismissal of complaints that are trivial, vexatious or unlikely to succeed in court as to avoid both parties being stuck in long expensive court proceedings that ultimately fail because of the Human Rights Commission allowing such complaints to proceed that far. As a separate suggestion, a suggested reform is also appointing a commissioner whose role is to protect freedom of speech.
However as important as these reforms are, they are not going to resolve the inherent problem that 18C contains in both restricting public discourse and free speech as well as failing minority groups who are affected by racial discrimination and this submission stresses the importance of repealing 18C and 18D to better outcomes for all members of society.