OHPI response to the Freedom of Speech / S18C Report

The Online Hate Prevention Institute (OHPI) welcomes the report into Freedom of Speech and S18C of the Racial Discrimination Act from the Parliamentary Joint Committee on Human Rights.  OHPI’s submission and evidence from our CEO were cited repeatedly in the Committee’s report and we’re please to have made a valuable contribution to the discussion.

OHPI’s CEO, Dr Andre Oboler, commented: “We particularly welcome the fact that the report has not recommended any changes to S18C and has highlighted the evidence the committee heard about the damage racism causes to society and the chilling effect racism has on freedom of speech. The recommendation for further education both against racism and on the scope of the current laws is also warmly welcomed.”

The report clarified S18C & S18D

The report provides a useful explanation of S18C and S18D of the Racial Discrimination Act, it also notes poor public understanding of the law as a significant issue and the first recommendation in the report is for “further supporting, strengthening and developing education programs including those: addressing racism in Australian society; addressing the scope of conduct caught by Part IIA of the Racial Discrimination Act 1975 as judicially interpreted; and about the meaning and scope of any amendments to Part IIA of the Racial Discrimination Act 1975”. At OHPI we are concerned that a significant part of the misinformation is a result of misinformation deliberately spread by those seeking to weaken the existing laws. The report does a significant public service by carefully explaining and outlining the scope of the current laws.

Given the importance of education and clarification around S18C and S18D, we reproduce the reports explanation in full (page 9 to 11):

Meaning and scope of conduct caught
2.20 The meaning and scope of section 18C of the RDA has been the subject of judicial consideration, which is essential to understanding its application. While this is unremarkable in a legal context, in this instance statutory interpretation plays a particularly important role because in general usage the words ‘insult’ and ‘offend’ may be employed in relation to conduct with effects that range from slight to severe. However, the breadth of application for legal purposes is significantly narrower than the senses in which the words ‘offend, insult, humiliate or intimidate’ are generally understood. This is especially important in the context of section 18C as it is concerned with public conduct engaged in because of the subject’s race.

Legal meaning of ‘offend, insult, humiliate or intimidate’
2.21 The Federal Court in Jones v Scully explicitly set out the dictionary definitions of the terms ‘offend, insult, humiliate or intimidate’ in an attempt to establish the meaning to be given to each word individually.[14] The ordinary meaning of the words provided in Jones v Scully provide some guidance, but must also be consistent with the threshold established by Kiefel J,[15] in Creek v Cairns Post Pty Ltd,[16] that section 18C only applies to conduct having ‘profound and serious effects, not to be likened to mere slights’. This standard has been affirmed in the case law.[17]
2.22 It is worth noting, however, that the Court generally does not consider each term in isolation. Although in McGlade v Lightfoot the relevant conduct was found to be reasonably likely to ‘offend’ and ‘insult’, the Court made it very clear that it was not reasonably likely to humiliate or intimidate.[18] This means that the legal meaning of ‘offend, insult, humiliate or intimidate’ does not wholly correspond with the ordinary or ‘common sense’ meaning of the terms. In other words, as interpreted by the courts, conduct that is merely offensive or merely insulting will not be captured by section 18C of the RDA, but only more serious forms of conduct on the basis of race. While some submitters suggested that the words used in section 18C created uncertainty, the committee received evidence from other witnesses that the legal meaning and judicial interpretation of section 18C was well settled as applying only to conduct at the more serious end of the range.[19]

Nature of the test
2.23 Under section 18C of the RDA the conduct complained of must be ‘reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate’.[20] This has been judicially interpreted as importing an ‘objective test’ rather than a ‘subjective test’ in relation to conduct.[21] This means that the determinative question is not whether subjectively the particular complainant was ‘insulted, offended, intimidated or humiliated’: the question is whether the act is reasonably likely to have a ‘profound and serious effect’, in all the circumstances.
2.24 An objective test is often applied with reference to how a reasonable member of the Australian community or reasonable person would respond. However, the form of the ‘objective test’ that has been applied by the courts in the context of section 18C of the RDA is one in which the ‘reasonable person’ is the member of a group: the ‘objective test’ applied in section 18C requires assessing the likely effect of the conduct on a reasonable hypothetical member of a particular racial or ethnic group which is the target of the alleged conduct.[22] A number of witnesses suggested this test should be broadened to the reasonable member of the Australian community, which is discussed in [2.80].

Application to public conduct
2.25 Part IIA only applies to conduct ‘otherwise than in private’. This means that there is no prohibition on expressing views that ‘offend, insult, humiliate or intimidate’ on the basis of race, colour or national or ethnic origin in private.

2.26 As set out above, section 18D of the RDA contains a number of defences or ‘exemptions’ to conduct that would otherwise be captured by section 18C of the RDA. These exemptions cover acts done ‘reasonably and in good faith.’ It includes artistic works, statements made for any genuine academic, artistic or scientific purpose or in the public interest. These ‘exemptions’ also extend to publishing a fair and accurate report of any event or matter of public interest or a fair comment on any event or matter of public interest if it is a genuine belief held by the person making the comment.[23] The scope of the defences established by section 18D, and its importance for protection of the right to freedom of expression, was the subject of testimony during the inquiry and is explored further below.

Civil-complaint based model
2.27 The model adopted at a federal-level in Australia under the RDA is a civil-complaint based model rather than a criminal model. This means that proceedings are initiated by individual complainants rather than the government. If a respondent is found to have engaged in unlawful conduct under Part IIA they are liable to civil rather than criminal sanctions.

The report reflects many views

The inquiry received 418 submissions and the report references 60 of them. Particular attention was paid to the submissions from the Australian Human Rights Commission which were collectively cited 39 times. Addition evidence from those who appeared before the committee was also heavily cited. through reference to these submissions, the report provides a wide ranging perspective on the many conflicting views, including views the report itself highlight as being based on a misunderstanding of the law.

Our own submission was cited in the report in support of the point that, “a number of submitters suggested that section 18C should be amended to include religion as a ground for protection”. Also supporting this point was the submission of the Cyber-Racism and Community Resilience research group (submission 54) and that of the Ethnic Communities’ Council of Victoria (submission 198).

Our CEO, Dr Andre Oboler, also gave evidence at hearing of the committee as part of the Victorian Multicultural, Faith and Community Coalition which OHPI is proud to be a part of. Dr Oboler’s evidence before the Parliamentary Committee was cited 7 times in support of the following points:

  • “In addition, other submitters argued that they found that forms of racially discriminatory speech themselves had a ‘chilling’ or silencing effect in relation to their exercise of freedom of expression and in dissuading people affected from pursuing legal remedies (discussed further below at [2.83]).”
  • “However, other submitters to the inquiry argued against this proposition on the basis that it assumed an ‘equal playing field’ and that people who experience racism would not feel marginalised or unsafe in expressing their views and would have equal access to the media.”
  • “The committee heard evidence from a range of community groups, multicultural and legal organisations and social researchers that Part IIA of the RDA is viewed as being an important protection against forms of racially discriminatory speech and racism in Australia.”
  • “The committee heard extensive evidence from submitters regarding the serious impact of racism, including racially discriminatory speech, on the well-being of individuals.”
  • “The committee received evidence that experiences of racially discriminatory speech may have a ‘chilling’ or silencing effect in respect of the right to freedom of expression of those who experience such discrimination. Dr Andre Oboler, speaking about examples from the work of the Online Hate Prevention Institute, informed the committee that: ‘The impact at the lowest level is that people do not feel safe having their views, expressing their views or speaking on social media. So we are actually seeing that racism and discrimination is removing people’s freedom of speech. It is making some people unable to participate in the civic life of the country…’”
  • “A number of submitters, opposed changes to weaken section 18C of the RDA on the basis that it would send a ‘negative signal’ that racial discrimination and racist speech was acceptable.”
  • “Similarly, in evidence to the committee Dr Andre Oboler from the Victorian Multicultural Faith and Community Coalition explained such concerns:
    ‘…any change to the act, even changes that could improve it, carr[ies] a risk at this point in time. Any change would create an impression that there is some feedback from the parliament that the sort of hate we are seeing and the sorts of comments that have been saying that this law should be removed, which have been tied largely to those promoting that hate, have traction, and I think that is actually quite dangerous.’”

We’re please OHPI was able to make such a significant contribution to the public discussion on this topic. We note, however, that much of our work was simply countering misinformation from others like The Institute for Public Affairs (IPA), a right-wing think tank, whose submission was titled “The case for the repeal of section 18C of the Racial Discrimination Act”. The IPA perversely argued that S18C is “an attack on human dignity”, “undermines democracy”, is “inconsistent with a peaceful and cohesive society”, and “undermines attempts to combat racism”. These points are “alternative facts” much like the IPA’s past campaigns against plain packaging of cigarettes (while funded by the tobacco industry) and their campaign to undermine public knowledge about global warming. The report cited the IPA submission 6 times times and evidence they gave before the Committee a further 3 times. One reference is to a poll conducted by the IPA whose methodology has been questioned and whose results are significantly different to other research. The IPA work was called “push polling” by one of the Senators, and the way the question was setup and important demographic information was not collected certainly reflects some aspects of push polling. The IPA secured a front page news story for their misleading poll on the day of the hearing, a tactic to shift the committees focus to the IPA’s agenda.

Also widely cited was the submission from the Centre of Public Law at the University of NSW (9 citations). The authors summarize their position in their submission saying: “It is our view and primary submission that the current statutory protections contained in ss 18C and 18D of the Racial Discrimination Act 1975 (Cth), when read in the context of their judicial interpretation, provide an appropriately robust protection for vulnerable racial minority groups against hate speech while also providing appropriate exemptions for free and fair speech on race-related topics.” The submission notes that “in much of the recent public debate on this issue, a singular focus on the term ‘offend’ and/or ‘insult’ in s 18C, divorced from the statutory context (including s 18D) and from judicial interpretation, has fed an exaggerated perception amongst many about the impact that s 18C has on free speech”. The report cites this submission as it discusses various ways to change the current statute to reflect the interpretation given to it by the courts.  The report, however, also noted that ,”A number of submitters, opposed changes to weaken section 18C of the RDA on the basis that it would send a ‘negative signal’ that racial discrimination and racist speech was acceptable”. In addition to the quote from OHPI’s CEO, (see above) it also quotes Professor Anne Twomey:

“…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”

Another widely cited submission was from the Refugee Council of Australia (7 citations). The submission argues 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.” The submission was cited both on the level of racism and its impact on victims.

Going forward

To a large extent the report reflects what we already knew. The law in practice works well and strikes the right balance between protecting people from racism and protecting people’s freedom of speech. The is a strong recognition in the report that racism is a real issue in Australia and has a significant impact on people’s health and welling. There is a concern that the public don’t properly understand the existing laws, and a recommendation that this be addressed through greater education both on racism and on the laws against it including the limitations that apply to those laws. There is an argument that codifying the legal understanding of the current laws into the plain text so it was obviously to ordinary people would help, but there is concern doing so may both alter the law unintentionally and send the wrong message which will ultimately do more harm than good. Finally, there is a loud minority opinion, generally from those with high levels of political power and public influence and who are often not themselves impacted by racism, who feel even greater protection for them to say what they wish is definitely worth the price others would have to pay if they got their way.

One aspect not sufficiently captured in the report is the size of the opposition to the change. The Victorian Multicultural, Faith and Community Coalition submission alone represents the views of over 100 organisations opposing any change to S18C. The vast majority of submissions echo this sentiment. Those pushing for change a small minority and public opinion is not on their side. While they may be loud, ultimately they each get one vote come the next election just like everyone else. With no recommendation from the committee to change the law, any such change would have to come from the Prime Minister and as Sir Humphrey would say, such a decision would be “very courageous”.

How to help

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At the Online Hate Prevention Institute we are proud of the contribution we are making to society, as evidenced in our work to protect and increase understanding about S18C. Unfortunately, we have been turning away requests for assistance on a range of matters while doing this work as our capacity in 2017 is significantly reduced due to a lack of funding. We’re very grateful to our regular donors, many contribute $10 a month and their support makes a huge difference to us. If you can join them, please see our see our donation page.