20 January 2017

AIJAC's submission to the Federal Parliamentary Inquiry into Freedom of Speech and article 18C of the Racial Discrimination Act


Friday 20 January 2017


 
AIJAC's submission to the Australian Federal Parliamentary Joint Committee on Human Rights Inquiry into Freedom of Speech in Australia - including into the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) (RDA) (including ss. 18C and 18D) and the complaints-handling procedures of the Australian Human Rights Commission (AHRC) - has now been published by the Parliamentary Committee.

The submission can be downloaded in full here.

For those looking for a shorter summary of AIJAC's recommendations and arguments, here is the Executive Summary of the submission:

This document is the submission by the Australia/Israel & Jewish Affairs Council (AIJAC) to the Australian Federal Parliamentary Joint Committee on Human Rights Inquiry into Freedom of Speech in Australia - including into the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) (RDA) (including ss. 18C and 18D) and the complaints-handling procedures of the Australian Human Rights Commission (AHRC) under this section.

In it, it is argued:
• That, while freedom of expression is both a vital civil right and an essential precondition of liberal democracy, it is nowhere in the world completely unfettered and absolute, such that it must supersede all other rights, and override all other forms of public interest. Indeed, we identify at least nine broad ways, besides racial vilification, in which state or federal legislation already limit, prohibit or render unlawful expression in many forms and contexts.

• That, since the passage of Part IIA of the Racial Discrimination Act 1975 in 1995, we have witnessed both more circumspection and less harm by openly racist groups in Australia, and a series of legal and societal achievements which have clearly benefitted the well-being of minority groups in Australian, including the Jewish community, as well as the social cohesion of Australian society as a whole.

• That not only is the availability of legal redress against extreme or pervasive racial vilification essential to maintaining the right of Australians to live their lives free from harassment and intimidation, it actually helps serve to protect the right to freedom of expression for members of vulnerable minority groups.

• That arguments by some individuals and groups that the wording of 18C - and specifically the inclusion of the words "offend" and "insult" - creates a subjective "hurt feelings" test which is allegedly uniquely threatening to the right to freedom of speech are simply wrong as a matter of law. Furthermore, this language is similar to that used across considerable existing state and federal legislation and the practice across many liberal democracies around the world.
• That claims that 18C is stifling Australian public debate around major issues of public concern are simply incorrect - with those who make this claim unable to offer a single reasonable and valid example of a case where the law made it impossible for exponents to express a sincere viewpoint in any significant public debate. The examples that are typically offered, we argue, actually demonstrate the opposite.

• That while there have been controversies - and apparent genuine mistakes - with regard to the process of administering 18C by the Australian Human Rights Commission in a small number of recent cases, we argue that these cases do not indicate any problems with the wording of 18C per se. Moreover, there is no reason to believe that this law is any more burdensome on the parties than other similar laws - and in fact the opposite may be the case. Nonetheless, AIJAC acknowledges that improvements to the process of administering 18C might be desirable, and suggests minor reform measures which might achieve some streamlining of the law's administration.