Fix 18c complaints-handing process and leave 18c alone

Sydney, 1 March, 2017

The report from the Parliamentary Joint Committee on Human Rights, inquiring 18c matter has been submitted to the Parliament yesterday.

As you might remember;

  1. We submitted a written submission to the committee  18c-submission-fian-final and wrote a blog post.

  2. I was invited as a witness to give my views to the Parliamentary Joint committee in NSW Parliament in Sydney on 1 February, 2017.

  3. The thrust of our submission and my presentation before the Parliamentary Joint committee were about fixing the 18c related complaints-handling process of the Australian Human Rights Commission and leaving 18c alone.

The Parliamentary Joint Committee Report:

The committee has given multiple options in regards to 18c, but has not given any unanimous recommendations. Prime Minister has to consider these options and act accordingly. He will need to discuss them in the Cabinet, and decide the next steps.

It is unlikely that he will bring any substantial or drastic changes to 18c, because of the opposition from the ALP, the Greens and Moderates in the Coalition parties. The Turnbull Government will have to consider the political fallouts of repealing or tampering down of 18c because there is a substantial and serious opposition to any such attempt among the ethnic and minority  communities.

It might be pertinent to quote the leading lights in the Government.

Treasurer Scott Morrison was quoted in SMH “As a senior figure in this government … I know this issue doesn’t create one job, doesn’t open one business, doesn’t give anyone one extra hour. It doesn’t make housing more affordable or energy more affordable. I don’t see any intersection between that issue and those priorities.”

Deputy Prime Minister and Leader of the Nationals, Barnaby Joyce has said “not many people in his regional NSW electorate had raised concerns about the issue. I’ll be quite frank, they do not invite me into their shed to look around their packing shed and then say ‘Barney, sit down in this chair, I want to talk to you about the Racial Discrimination Act.”

Foreign Minister, Julie Bishop has said “the issue was rarely raised in her Perth electorate.”

It’s well known that ALP and the Greens are vehemently against any change to 18c.

While the Parliamentary Joint Committee unsurprisingly failed to unite behind any substantial changes to section 18c, it did make some recommendations on the complaints-handling process of the Australian Human Rights Commission (AHRC).

These recommendations to fix the complaints handling process related to section 18C of the Racial Discrimination Act will: (I have taken some assistance here from Julian Leeser’s press release)

  • provide better assistance to respondents to match what is currently afforded to complainants;
  • impose time limits on notifying respondents and on the complaints handling processes more generally;
  • ensure section 18D defences are considered by the Commission in assessing complaints;
  • give the Commission greater powers to terminate complaints earlier in the process;
  • restrict access to the Courts following the Commission’s termination of a complaint;
  • provide penalties for legal practitioners instituting complaints that have no reasonable prospects of success; and
  • provide more parliamentary oversight to the Commission.

Section 18c of Racial Discrimination Act provides important protection from racist abuse and exemptions in section 18d provide reasonable dimensions of freedom of speech. Freedom of speech advocates, who want to repeal 18c, tend to ignore a basic fact of life that freedom of speech is not an absolute right. There are always some restrictions, if we want to have a cohesive and successful multicultural society. Freedom of speech can’t be at the cost of protection from racist abuse. Freedom of speech is not superior to protection from racist abuse. There has to be a fine balance.

I see no problem either way if “insult” and “offend” words are removed from, or retained in, 18c, because it is practically already a case presently as Australian Courts have allowed 18c complaints only for severe offence, not just feelings.

The main issue has been misuse of 18c complaints, which, I believe, will be fixed by streamlining of the AHRC’s complaints handling process related to section 18C. This will prevent frivolous, vexatious and lacking in substance type of 18c complaints from going anywhere beyond AHRC, as AHRC will have the powers to terminate them, and the complainants will be able to challenge them in a Court only on jurisdictional grounds.

Fixing complaints-handling process of the Australian Human Rights Commission (AHRC) will take away the concerns  of the  Inquiry Chair, MP Ian Goodenough, who said in his tabling statement to the Parliamentary Joint Committee on Human Rights that 18C of the Act must pass the proverbial pub test.

“Our duty is to govern for all Australians, and that includes mainstream Australians who feel that their right to free speech is being infringed by political correctness and the over zealous (sic) application of laws such as Section 18C,” he said.

“Mainstream Australians deserve the same rights as racial and ethnic minorities. It is important that the law does not promote reverse discrimination.”

The Inquiry Chair should be concerned about the real, proven and existent harm from racist abuse and discrimination, which will surely get worse if 18c is repealed or tampered with, not just concerns from freedom of speech advocates, who should know from the pub test that freedom of speech is never an absolute right and is already served by exemptions in section 18d of Racial Discrimination Act.

Dr Yadu Singh

Federation of Indian Associations of NSW

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