Freedom of Speech Inquiry – what people said

The first submissions to the Federal Government’s inquiry into S18C and Freedom of Speech have been published on the Parliaments website. More submissions will be released in due course. Here’s some extracts of what some people and organisations said in their submissions:

Professors Luke McNamara and Katharine Gelber (Submission 2): “Based on the evidence, therefore, it is our conclusion that Part IIA has not operated in such a way as to impose unreasonable restrictions on freedom of speech during its two decades of operation. The balance of evidence shows that there is therefore no need to reform Part IIA.”

Australian Lawyers for Human Rights (submission 5)

“ALHR strongly submits that it is not appropriate for Australian legislation to retreat from the values and standards required by international law and which have been associated with adequate protection from racial vilification in so many global jurisdictions… We believe that it is not necessary to amend the RDA but that if any amendment is sought it should involve strengthening section 18C.”

Prof. George Williams (Submission 6)

Prof. Williams says that the “focus on section 18C neglects the fact that it is an example of a much larger problem” of laws limiting freedom of speech in Australia. He says that “a number of these laws are similar to section 18C. In 2014, it became an offence to use indecent, obscene or insulting language at the Sydney Cricket Ground, taking its cue from an offence created the year before of using offensive or insulting language at the Royal Botanic Gardens and the Domain in Sydney. As a result, if a person uses language that offends or insults while giving a speech, for example, at the historic Speakers’ Corner (which has been a hotbed of soapbox oratory since 1878), that person will now be guilty of an offence and liable to pay a fine. Similarly, a person commits an offence if they sing an obscene song or ballad in public in Victoria, use foul language on public transport in Tasmania, or utter indecent or blasphemous words on a jetty in Western Australia. People must also take care as to who they insult: there are offences for insulting, or acting in an insulting manner towards, people performing their duties, including sex workers, teachers, TAFE employees, court staff, or members of a Planning Panel, an administrative tribunal, a Royal Commission, the Copyright Tribunal, or the Fair Work Commission.” He advocates a new law protecting freedom of speech to give the courts something to balance against laws restricting speech.

The Refugee Council of Australia (Submission 8)

“RCOA submits that Part IIA of the Racial Discrimination Act protects people from the harm of racial vilification and discrimination. Watering down these provisions is likely to encourage elements of the Australian community to engage in racist behaviour and may lead to further acts of racially motivated violence. It also arouses legitimate fears among highly vulnerable communities that their rights are being targeted, at a time when they are already being attacked in public and political discourse in Australia and overseas.”

Dr Anne Twomey (Submission 10)

“The reform of s 18C of the Racial Discrimination Act raises not only legal issues, but also cultural and social ones. In the best of all possible worlds, the abuse of people on the ground of their race, or indeed any other grounds, would be so socially unacceptable that no law on the subject would be necessary. However, because we do have such a law in relation to offensive racial communications, there is a considerable risk that if it is repealed or altered, this will have the effect of sending out a cultural message that such abuse is now acceptable and given legal sanction. The difficulty facing the Committee and the Parliament is essentially that even if s 18C warrants reform, the message sent out by undertaking the reform might itself result in damage that outweighs the benefits of the reform. This is a political assessment that the Committee and Parliament must make, which is beyond my expertise. It is, however, a problem of which I am acutely conscious.”

Executive Council of Australian Jewry (Submission 11)

“Freedom of expression is fundamental to a democratic society and indispensable for human progress. However, it has never been regarded as absolute and unlimited. In his famous Essay on Liberty the English philosopher, John Stuart Mill, drew a distinction between liberty and licence. He recognised that liberty does not mean the licence of individuals to do just as they please, because that would mean the absence of law and of order, and ultimately the destruction of liberty. The limits of freedom are reached when its exercise causes harm to others. To denigrate people because of the colour of their skin or their national or ethnic origin can be as harmful in its effect on its targets and on society as a whole, as statements which defame individuals, breach copyright, promote obscenity, breach official secrecy, demonstrate contempt of court and parliament, and mislead or deceive consumers, all of which are prohibited, and widely accepted as rightfully prohibited, by law. Australia is, and has chosen to be, a multicultural society. Its viability as such demands that the ethnic communities that make up Australian society can live together in peace and harmony. Denigrating individuals or groups because of their race is inimical to that goal, and necessarily undermines Australia’s fabric as a multicultural community, in a way that denigrating on the basis of other immutable factors might not do. The whole community has an interest in preventing egregious public denigration of individuals and communities on the basis of race, or at least minimising it, and in counteracting it when it occurs. Any amendment to Part IIA of the RDA would substantially risk upsetting that carefully-achieved balance and would send a strong and dangerous message from Australia’s political leaders that a degree of racism in public discourse is to be considered acceptable.”

Australian Human Rights Commission (Submission 13)

“In its current form, the RDA as applied by the courts and administered by the Australian Human Rights Commission has successfully resolved hundreds of complaints about racial vilification and racial hatred over the past two decades. Australian courts have interpreted section 18C to cover only acts that cause ‘profound and serious effects, not to be likened to mere slights’. In addition, section 18D provides broad exemptions to protect freedom of speech, including fair comment, and discussion and debate about matters of public interest. The Commission considers that Part IIA of the RDA as it has been interpreted by the courts strikes an appropriate balance between freedom of speech and freedom from racial vilification. The Commission observes that there is some confusion about the legal meaning of sections 18C and 18D, and of the Commission’s role in administering the RDA. In particular, it is important to make clear that the RDA does not prohibit speech or conduct that merely hurts a person’s feelings. The Commission supports the promotion of a clearer understanding of the judicial interpretation and practical operation of section 18C and the free speech exemptions in section 18D.”

Australian Liberty Alliance (Submission 14)

Note: The Sydney Morning Herald described this group as “the anti-Islam, Donald Trump-style party”

“We hold that the Racial Discrimination Act 1975 (RDA) and the operation of the Australian Human Rights Commission {AHRC) constitute a violation of common law freedoms as well as Article 19 of the Universal Declaration of Human Rights (UDHR)”

Human Rights Law Centre (Submission 16)

“Freedom of speech is a fundamental right but it is not an absolute right. It must be balanced against other rights including the right to live free from racial discrimination and vilification. Australian laws limit speech in other areas like defamation, disorderly or offensive behaviour offences, false advertising and sexual harassment. Protecting against the serious harm that flows from racial vilification is a legitimate restriction on free speech… The current protections against racial vilification in the Racial Discrimination Act must be maintained. They help us in the pursuit of an Australia that is free from racism, respectful of all cultures and proud of its cultural diversity.”

Reconciliation Australia (Submission 19)

“In the creation of an Australia that is free from racism, strong legislative protections are needed to ensure that all Australians are afforded mutual respect, and able to live free from racial discrimination. Reconciliation Australia does not agree with any reforms to the Racial Discrimination Act 1975 (Cth) (RDA) that weaken protections against racial vilification, specifically amendment or removal of section 18C (S18C) and/or section 18D (S18D). We believe the RDA in its current form strikes the right balance between the right to feel protected against racial vilification, and the right to freedom of expression…. Recommendation 1: That Part IIA of the RDA does not impose unreasonable restrictions upon freedom of speech, and S18C and S18D of the RDA should not be reformed. Recommendation 2: The Government should only consider changes to the RDA that genuinely strengthen legal protections against racial vilification, and that has the support of the general community, particularly those most affected by racism. Recommendation 3: Reconciliation Australia does not agree with reforms that weaken the ability of the AHRC to investigate complaints of those whom experience racism and racial vilification. We will however support recommendations that increase the ability of the AHRC to act on complaints in an effective and efficient manner. ”

NSW Young Liberal Movement (Submission 22)

“We submit that s 18C of the Racial Discrimination Act 1975 (Cth) is a blight on our country’s statute books. It infantilises minority groups and shuts down legitimate debate. Ordinary Australians feel unable to voice their opinions. University students, cartoonists, columnists and politicians face protracted legal battles merely because they do not conform to an ever-narrowing and ever-entrenched orthodoxy.”

The Ethnic Communities Council of Queensland (Submission 26)

The Act carries both symbolic and practical implications for racial tolerance. ECCQ encourages government to consider the implications associated with weakening the Act and the message it will send to Australia’s CALD communities. The Act as it stands, adequately protects both freedom of speech and freedom from racial discrimination. ECCQ encourages government to support legislation and infrastructure which is conducive to harmony and inclusion.”

Arts Law Centre of Australia (Submission 27)

“Arts Law is a strong advocate of freedom of expression, and in particular, freedom of artistic expression. However, Arts Law is also conscious of the fact that artists, in line with Australia’s diverse society, come from a wide range of ethnic, cultural, racial and religious backgrounds… Arts Law is sensitive to the potential for harm caused by racial discrimination and vilification and the need to protect vulnerable communities and individuals from hate speech… Arts Law recognises that freedom of speech, although crucial in a free and open democratic society, is not paramount and must be balanced with other common law rights, freedoms and privileges or human rights set out in international covenants, declarations and conventions to which Australia is a party… Arts Law acknowledges the common criticism that the use in section 18C of the words “offend, insult, humiliate or intimidate” as the parameters for racially discriminatory expression appear to set a relatively low threshold. A tension may exist for a robust artistic culture in which community sensitivities and morals may be challenged and sensitive issues broached. However, Australian case law demonstrates that the courts have construed the test as having a high threshold for harm caused… Arts Law is satisfied that section 18C operates in an appropriate way and focuses only on serious examples of racial vilification… , it is not in fact clear, based on the current system and jurisprudence, that the removal of ‘offend’ and ‘insult’ would change the operation of the section in any significant way. In that context, Arts Law does not propose any amendment being made to section 18C.”

Australia Council for the Arts (Submission 30)

“The Australia Council considers that Part IIA of the Racial Discrimination Act 1975 (Cth) strikes an appropriate balance between the indivisible rights of freedom of artistic expression and freedom from racial discrimination. Accordingly, and for the reasons provided in our submission, Council respectfully submits that the legislation as currently drafted does not impose an unreasonable restriction on freedom of artistic expression and should not be subject to amendment on this basis.”

LibertyWorks Inc (Submission 33)

Note: The Guardian described this Queensland association as “a libertarian thinktank with links to [Senator] Leyonhjelm’s Liberal Democratic party and One Nation via its chief economist doubling as a policy adviser to [Senator] Roberts”)

“In a free society, speech is moderated by custom, peer pressure, cultural norms and a variety of other social factors. In contrast, placing legislative limits on speech is a hallmark of of socialist, marxist, theocratic or fascists states that seek control over citizens. The Act does not expand anyone’s rights, it only diminishes a fundamental rights owned by all, the right to speak freely, and repeal would return those rights to all of us… There is no right to not feel offended, insulted, humiliated or intimidated. Those feelings are in the learned control of all of us yet the Act seeks to shield us from them. Because the Act seeks to protect us from those feelings, to stop us from feeling offended, insulted, humiliated or intimidated, it is actually an attempt to take away something else that rightly belongs to all of us; our right to hear uncomfortable things, to feel those specific emotions when we choose and to learn and grow from them. ”

Australian Lawyers Alliance (Submission 35)

“We believe it is fundamental in any society for individuals to be able to discuss all matters fully and frankly. Freedom of speech, however, carries with it special responsibilities, as outlined below. One of these responsibilities relates to racial discrimination, in recognition that racially discriminatory speech can have very serious consequences, both for the individuals concerned and the broader community. These responsibilities are founded in the understanding that speech can be incredibly powerful, and has the potential to undermine other human rights if not reasonably constrained in certain limited circumstances, as outlined below… The ALA does not believe that there is any need to reform ss18C and 18D. This position was recently supported  by the UN Special Rapporteur on the human rights of migrants. These sections ensure that Australia complies with its international human rights obligations, including both the right to be free from discrimination and the right to freedom of speech.”

Online Hate Prevention Institute (Submission 36)

“This surge in online hate poses a threat to freedom of expression. It has a chilling effect on participation in society and the expression of ideas by members of our indigenous, ethnic and culturally diverse communities as well as those who speak out against discrimination. This takes place not only online, but also when hate speech occurs in public spaces, in the course of employment, in trade and commerce, in education and in other facets of public life. The surge in hate speech is harming our society – we need to address this growing problem, not give it room for further growth… At a time of an unprecedented rise of hate globally, which is spreading internationally through the internet and inciting extremism and violence, creating uncertainty which may take decades to settle would be incredibly damaging to both our national security and our fundamental freedoms. Such a move would undermine, rather than advance, our core values as Australians.”

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