Freedom of Speech: The Cross-Bench and the Bid to Repeal Section 18C

Previously we have reported on Senator Leyonhjelm, the independent Libertarian Senator's, plans for the introduction of a Bill to change racial discrimination laws so as to repeal Part IIA ( including section 18C )of the Racial Discrimination Act 1975 (Cth)(the RD Act). The Bill proposed by the Senator was introduced into the Federal Parliament on 15 September 2016 and is the Racial Discrimination Law Amendment (Free Speech) Bill 2016 (the Bill). Although introduced as a Private Members Bill by Senator Leyonhjelm, it was indicated that the Bill also had the support of Senator Burston, Leader of Pauline Hanson’s One Nation, Senator Hanson, Senator Culleton, Leader of Derryn Hinch’s Justice Party, Senator Hinch, and Senators Roberts and Day. In other words, a fairly wide array of cross-bench support which at some point the government might seek to use as a negotiation point, given the not unsympathetic support for the repeal of Part IIA of the RD Act among some of the government's own members.

The Bill in Detail

The Bill repeals Part IIA of the RD Act which was inserted into the RD Act in 1995. Part IIA deals with the  "Prohibition of Offensive Behaviour based on Racial Hatred". The proponents of the Bill argue that the provisions of Part IIA  make no mention of "racial hatred", and that as a result ". . . the courts have not interpreted the provisions as relating specifically to racial hatred".

As it stands Part IIA prohibits public acts that:

• are reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people, and
• are done, at least in part, because of the race, colour or national or ethnic origin of a person.

There is currently in Part IIA  (see section 18D) a defence for acts that are done "reasonably and in good faith" and meet at least one of three other conditions. 

The Bill, therefore, proposes the repeal of the whole of Part IIA of the RD Act, including the now well known section 18C which deals with offensive behaviour resulting because of race, colour, national or ethnic origin. The Bill also proposes consequential amendments to the RD Act and the Australian Human Rights Commission Act 1986 (Cth).

The Arguments Against Part IIA by Bill Supporters

The key argument against Part IIA of the RD Act by the proponents of the Bill is that the current Part IIA ". . . discourages public discussion on matters of public importance".

A factor that Bill supporters say is made worse because of how the courts have dealt with Part IIA in the past and are likely to deal with it in future, that is, leaving an uncertain position as to how they will interpret Part IIA:

In support of the uncertainty of interpretation argument the Bill's Explanatory Memorandum refers to what is now known as the Bolt Case and states that:

Bill supporters argue that a peer-reviewed article in an academic journal with qualifications, footnotes and citations may benefit from the defence under section 18D, but it is unlikely that a newspaper column, blog post or comment on social media would.

Bill supporters further argue the repeal of Part IIA will remove the ". . . discouragement of public discussion on matters of public importance, such as affirmative action policies". It will, it is also contended, enable the Australian Human Rights Commission to ". . . focus resources on its role with respect to the raison d’etre of the Act," said to be Part II which deals with the prohibition of racial discrimination.

The retention of Part II of the RD Act, it is argued:

•  will continue the position that it is unlawful to do any act involving a distinction, exclusion, restriction or    preference based on race, colour, descent or national or ethnic origin that impairs the enjoyment of any human right or fundamental freedom; and
•  will continue the specific prohibitions of racial discrimination with respect to equality before the law, public access, accommodation, the provision of goods and services, and employment; and incitement to carry out such discrimination will remain prohibited.

The repeal of Part IIA of the RD Act, Bill proponents argue ". . . may also facilitate cuts in funding for the Australian Human Rights Commission, to the benefit of taxpayers".

A Recent Example of the Section 18C Debate 

Recently, fuel was added to the debate surrounding the Bill when the well known cartoonist Bill Leak and The Australian newspaper, it was reported, were being investigated for breaching section 18C of the RD Act after the Australian published a Bill Leake cartoon that depicted an Aboriginal man holding a beer can, unable to remember his son's name. Mr Leak's cartoon was said to be in response to the ABC's Four Corners report on the treatment of children at the Northern Territory's Don Dale detention centre, many of whom were Indigenous. Commenting on the matter on the ABC Lateline program, Mr Leake stated:

The matter involving Mr Leake is an interesting example of the difficulty that Part IIA and in particular section 18C has posed to the "freedom of speech" debate, namely; at what point can/should a freedom be curbed/ or controlled. At what point is a hard, even embarrassing truth turned into what the legislation would prohibit as "offensive" and "humiliating" language or behaviour. In Mr Leake's case, even though perhaps there was an unpleasant spin, there was evidence for what his cartoon implied, evidence as the ABC reported from Western Australia's top police officer, who said: "...Leak's cartoon was an 'accurate reflection' of what police officers see in the field every day."

Next For the Bill

Given the recent negotiations between the government and the senate cross-benches, it is likely that this Bill may lay dormant while Senator Leyonhjelm and supporters purse the fate of other matters such as "lever action shotguns" - but in the future this Bill may rise again as the government looks for support in senate for its legislative program.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

Racial Discrimination Law Amendment (Free Speech) Bill 2016 and Second reading Speech and EM as reported in the TimeBase LawOne Service.

Bill Leak 'singled out' for racial discrimination investigation after cartoon prompts complaints (ABC)

Nick Xenophon rules out support for removing 18C from Racial Discrimination Act (ABC)