Submission: on Part IIA of the Racial Discrimination Act

Meredith Doig / 11 December 2016

Pursuant to the section 7(c) of the Human Rights (Parliamentary Scrutiny) Act 2011, on 8 November 2016 the Attorney-General referred to the Parliamentary Joint Committee on Human Rights the following two matters for inquiry and report:

  • whether the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) (including sections 18C and 18D) impose unreasonable restrictions on freedom of speech; and
  • whether the complaints-handling procedures of the Australian Human Rights Commission should be reformed.

The following are responses by the RSA to the questions posed in the Terms of Reference of this Inquiry.

1.   Whether the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) imposes unreasonable restrictions upon freedom of speech, and in particular whether, and if so how, ss. 18C and 18D should be reformed.

The Rationalist Society of Australia is a strong supporter of freedom of thought and freedom of expression as foundations of a good society. Freedom of thought must have no limits but the freedom to express those thoughts should have limits​, with the intent ​to prevent violence ​or intentional harm.

From the RSA’s perspective, we recognise the need for legal remedy to speech intended to cause harm on racial grounds but think the words used in 18C have, consciously or not, invited a threshold too low for a society that values robust debate. If the RDA were to be changed, we would recommend replacing “offend, insult, humiliate or intimidate” with “degrade, intimidate or incite hatred or contempt” as recommended by former Federal Court judge Ron Sackville.   

2.   Whether the handling of complaints made to the Australian Human Rights Commission (“the Commission”) under the Australian Human Rights Commission Act 1986 (Cth) should be reformed, in particular, in relation to:

  • the appropriate treatment of:
    •      trivial or vexatious complaints; and
    •      complaints which have no reasonable prospect of ultimate success;
    •     ensuring that persons who are the subject of such complaints are afforded natural justice;
  •  ensuring that such complaints are dealt with in an open and transparent manner;
  •  ensuring that such complaints are dealt with without unreasonable delay;
  •  ensuring that such complaints are dealt with fairly and without unreasonable cost being incurred either by the Commission or by persons who are the subject of such complaints;
  •   the relationship between the Commission’s complaint handling processes and applications to the Court arising from the same facts.

The RSA believes the QUT case in particular appears to demonstrate a need for improved processes when the Human Rights Commission handles complaints under the RDA.

​The process for dealing with complaints should be reviewed and improved. Vexatious complaints or those with little chance of success should be terminated as soon as possible.​

3.   Whether the practice of soliciting complaints to the Commission (whether by officers of the Commission or by third parties) has had an adverse impact upon freedom of speech or constituted an abuse of the powers and functions of the Commission, and whether any such practice should be prohibited or limited.

If there is to be freedom of speech in our society, then clearly it would be illogical to prohibit ‘third parties’ from urging individuals,​ who may have a legitimate complaint, to take this to the HR Commission. This is a legitimate role for ‘third parties’ in a robust public debate.

​However, there seems to be an implication in the question that Officers of the Human Rights Commission solicited complaints – perhaps comments ​made ​by the Race Discrimination Commissioner? However, there is a difference between informing individuals of their rights under the RDA and urging them to make a complaint. The former is quite proper and should be encouraged; the latter would be overstepping the mark. But we reject the implied assumption that such overstepping has happened.

HR Officers should be careful making statements in the public arena but like all speakers, they have no ​​control over the interpretation of such statements made by journalists or members of the public.

On this basis we do not agree with the premise of this question. No action should be taken.

4.   Whether the operation of the Commission should be otherwise reformed in order better to protect freedom of speech and, if so, what those reforms should be.

We are aware some groups are calling for the RDA to be amended to include ‘religion’ as a protected ground under the RDA, so it would read ‘race, religion, colour or national or ethnic origin’. The RSA would strongly object to any such amendment. Race and religion are logically dissimilar: race is an immutable characteristic and cannot be changed, but religion is a choice. There must be freedom to comment upon, criticise, even ridicule religion in our society.

All the more reason.