Amending the Racial Discrimination Act’s Section 18C would send a “dangerous message” from political leaders that “a degree of racism in public discourse is to be considered acceptable”, according to the Executive Council of Australian Jewry (ECAJ).
In a submission to the parliamentary inquiry into freedom of speech, the council says this could damage cohesiveness, peace and order in Australian society. The removal of the words “offend” and “insult” would leave “severe gaps in the protections provided” compared with those now provided.
But the council, which describes itself as the national representative body of Australian Jewry, favours changes in the process for the Human Rights Commission’s handling of complaints to eliminate early those without merit and strongly discourage them proceeding to court.
The council says the proposal to delete “offend” and “insult” – as promoted within the Coalition – “is based on the erroneous view that those words set up a ‘subjective test’ based on ‘hurt feelings’, which establishes too low a threshold for the operation of the section and therefore impinges excessively on freedom of expression”.
It says 18C was not intended to operate like that and the courts have not interpreted it in that way.
Without exception in every decided case, “the court has made its own assessment by applying an objective test based on a community standard, regardless of the subjective perceptions of the complainant.
"This is the way the courts have consistently interpreted the words ‘reasonably likely to’, which appear in Section 18C immediately prior to the words ‘offend’ and ‘insult’,” it says.
So the case law, including the recent controversial Queensland University of Technology case, contradicts the claim that the word “offend” sets the bar too low, the council says.
But George Williams, dean of law at the University of NSW, in his submission says that even despite the courts’ narrow interpretations, the section’s wording is too broad, with too great an impact on freedom of speech.
Williams advocates the present wording of “offend, insult, humiliate or intimidate” should be replaced with a more demanding standard such as “to degrade, intimidate or incite hatred or contempt”.
Also, “references to the subjective responses of groups targeted by the speech should be replaced with an objective test having reference to the standards of a reasonable member of the community”.
Williams argues there is a wider problem in relation to freedom of speech – a growing number of laws have been put on the books that undermine it.
For example, in 2014 it became an offence to use indecent, obscene or insulting language at the Sydney Cricket Ground. In Victoria a person commits an offence if he or she sings an obscene song or ballad in public. It is an offence to use foul language on public transport in Tasmania. More serious free speech infringements are in the security laws, Williams points out.
He says that too often, the right to freedom of speech “is given great rhetorical importance, but diminished in legislation”.
Williams says parliament should enact a statute giving “general protection for freedom of speech”.
“This would act as a much-needed counterweight to federal and state statutes that infringe the right, including Section 18C of the Racial Discrimination Act.”
Authors: Michelle Grattan, Professorial Fellow, University of Canberra