March 26th 2016

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ROYAL COMMISSION INTO SEXUAL ABUSE: J'accuse...! A travesty of justice

CANBERRA OBSERVED Turnbull's grand plan coming apart it seems

EDITORIAL Defence White Paper: rhetoric outpaces action


DOMESTIC AND FAMILY VIOLENCE Is not family breakdown the real issue?

ECONOMICS Oil offers resistance to free market's operation

HISTORY OF TAIWAN Kaohsiung Incident opens road to democracy

LAW AND SOCIETY Section 18C may render all speech "inoffensive"

VICTORIAN PARLIAMENT Risk to democracy, rights in health complaints bill

RESEARCH Transgenderism: treat it as a mental illness

MUSIC In deliberate pursuit of accidental sounds: Arve Henriksen

CINEMA AND SOCIETY Hollywood writes in "hero" part for Trumbo

CINEMA Hailing the Golden Era: Hail Caesar!

BOOK REVIEW Diminished expectations

BOOK REVIEW 12 million refugees

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Section 18C may render all speech "inoffensive"

by Augusto Zimmermann, Joshua Forrester and Lorraine Finlay

News Weekly, March 26, 2016

Augusto Zimmermann, Joshua Forrester and Lorraine Finlay, of Murdoch University law school in Western Australia, argue that section 18C of the Racial Discrimination Act may be unconstitutional and that the Australian constitution provides for an implied freedom of political communication; moreover they argue that the use of section 18C to silence debate is undemocratic and has dire consequences for freedom of speech in Australia.

The recent case involving Cindy Prior, a Queensland University of Technology (QUT) academic, provides a compelling example of the undesirable impact of section 18C of the Racial Discrimination Act on freedom of speech in this country.

 The giving and taking of offence

Ms Prior is making a claim under section 18C for slightly less than $250,000 against a staff member and a number of students of QUT. (Ms Prior is also suing QUT and two other staff members under separate provisions of the RDA.)

Ms Prior made a complaint on the basis of several comments made following her decision to eject three students from an Indigenous-only computer lab in 2013. Ms Prior asked the students whether they were Indigenous. They said they weren’t. She said to the students that the room was “an indigenous space for Aboriginal and Torres Strait students”. She asked them to leave.

Later that day one of the ejected students posted on Facebook: “Just got kicked out of the unsigned Indigenous computer room. QUT stopping segregation with segregation.” Another student wrote on Facebook: “I wonder where the white supremacist computer lab is.”

Ms Prior’s action also cites a student as having written on the Facebook page: “My Student and Amenity fees are going to furbish rooms in the university where inequality reigns supreme? … All this does is encourage separation and inequality.”

Dr Sharon Hayes, a QUT lecturer, is also accused in Ms Prior’s claim of having stated at the time that “it seems a bit silly” to evict students from a computer lab for not being Indigenous when there are computers not being used. She apparently suggested that Ms Prior might have been in breach of QUT anti-discrimination policy by asking students who visited the Oodgeroo Unit whether they were Indigenous.

Ms Prior said she felt “sick, furious and distraught” after the comments of Dr Hayes.

According to Ms Prior, all these comments have caused her to suffer “offence, embarrassment, humiliation and psychiatric injury”. She says she didn’t feel safe and was worried about being verbally or physically assaulted. She claims she went home on that day feeling sick and stressed, as she did not feel safe and was worried about verbal or physical attack.

QUT’s equity director, Mary Kelly (one of the other staff members being sued in Ms Prior’s legal action), reviewed the matter and removed some of the Facebook posts, and told Ms Prior that the three students had taken down the material. However, Ms Prior advised that she was complaining to the Australian Human Rights Commission (AHRC).

In a subsequent meeting, Ms Kelly told Ms Prior: “With the small amount of contact I’ve had with the students, it is clear that these students aren’t racist.”

The AHRC determined in August last year that there was “no reasonable prospect of the matter being settled by conciliation”, resulting in Ms Prior filing her claim in the Federal Circuit Court. Her legal challenge claims the Facebook posts were “reasonably likely to offend, insult, humiliate or intimidate her”, and contravened section 18C of the Racial Discrimination Act. Her claim for $247,570.52 includes lost wages from May 29, 2013, to September 6 last year.

The tone and content of the comments varied considerably. Most were mild; some weren’t. However, all concerned a matter that is clearly one of public concern: whether publicly funded universities should have separate facilities for certain racial groups.

Naturally, the very fact that a claim can be made on the basis of these facts in the first place highlights the problems with the low harm threshold established by section 18C. In many respects, “the process is the punishment”, particularly in a context where an allegation of racism inevitably carries with it special opprobrium in the community.

18C’s ‘chill factor’

There is no way to measure accurately the indirect “chilling effect” that such an ill-conceived provision may have, when legal action can be begun based on occurrences that fall well short of the types of serious and egregious racial hatred that the community would ordinarily view as justifying intervention by the state.

Above all, this legal case provides further evidence that former prime minister Tony Abbott was completely wrong to backtrack on the proposal to repeal section 18C.

Under the existing section 18C it is unlawful for a person to do an act (other than in private) if the act “is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate” a person where the act is done “because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group”. This extremely broad prohibition represents an extraordinary limitation of freedom of speech.

Human rights lawyer Julian Burnside QC has correctly stated that existing racial discrimination laws go too far by making it an offence to upset people. He said: “The mere fact that you insult or offend someone probably should not, of itself, give rise to legal liability.”

Although the Australian constitution does not contain a comprehensive declaration of rights, the High Court has found an implied freedom of political communication as a means of invalidating legislation on constitutional grounds, holding that the freedom to speak about matters of public importance lies at the very foundation of our democratic system. For example, in Coleman v Power the majority of the court argued that a law cannot, consistent with the implied freedom of political communication, prohibit speech of an insulting nature without significant qualifications.

In Coleman, Justice Michael McHugh noted that “the use of insulting words is a common enough technique in political discussion and debates” and “… insults are a legitimate part of the political discussion protected by the constitution. An unqualified prohibition on their use cannot be justified as compatible with the constitutional freedom.”

In addition to the possible constitutional problems arising from the implied freedom of political communication, it seems that there may also be issues relating to whether the specific provisions are supported by a valid constitutional head of power. The external affairs power under section 51(xxix) of the Australian Constitution appears to be the head of power that most directly and fully engages with the existing provisions.

‘Appropriate and adapted’?

For the external affairs power to be validly relied upon where domestic legislation claims to give effect to an international treaty obligation, the legislation must be reasonably capable of being considered to be “appropriate and adapted” to the treaty obligations. However, in his 2012 Human Rights Day Oration to the Australian Human Rights Commission, James Spigelman QC commented that “none of Australia’s international treaty obligations require us to protect any person or group from being offended. We are, however, obliged to protect freedom of speech.”

In international law there is no express right protecting people from being offended or insulted. Accordingly, section 18C appears to go considerably further than the obligations imposed on Australia to protect against racial vilification and hatred under either the International Covenant on Civil and Political Rights or the International Convention on the Elimination of All Forms of Racial Discrimination.

Indeed, the use in this section of “offend”, “insult” and “humiliate” is far more expansive than obligations imposed under an ordinary reading of the text of the international treaties. In other words, the existing section 18C extends well beyond the scope of Australia’s international treaty obligations to protect against vilification and hatred.

Constitutional challenge

For the reasons outlined it can be said that there must be serious doubts as to whether section 18C would survive a constitutional challenge in its present form. As we argue in our forthcoming book, the low harm threshold set by the present wording of section 18C raises real questions both as to whether the external affairs power supports section 18C and whether it impermissibly infringes the implied freedom of political communication under the Australian constitution.

Constitutional issues aside, it is important not to lose sight of the need to repeal section 18C, despite the recent retreat from this position by the federal government. After all, repealing section 18C should be seen as an important step towards re-asserting the importance of free speech in Australia.

Ultimately, the failure to protect free speech weakens our democracy, and limits our ability to fully realise other human rights.

Augusto Zimmermann, Joshua Forrester and Lorraine Finlay teach constitutional law at Murdoch University, in Western Australia. Dr Zimmermann is also Adjunct Law Professor at the University of Notre Dame Australia, Sydney campus. Their book on the unconstitutionality of section 18C will be published by Connor Court
later this year.

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