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February 02nd 2017 print

Augusto Zimmermann, Joshua Forrester, Lorraine Finlay

The Slam-Dunk Case Against 18C

In a democracy, people must be free to speak even the unspeakable. That Australians are currently constrained from doing so is both a glaring example of legislative overreach and judicial caprice. That is the prime argument for repeal and reform, but far from the only one

18c logo IIIWhat follows is our submission to the Parliamentary Joint Committee on Human Rights regarding Freedom of Speech in Australia, specifically with respect to:

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

Section 18C is unconstitutional. This is because, simply put, it is too broad and too vague to be constitutional. It targets acts that, in many cases, have little if anything to do with racial hatred. The terms it uses also create significant uncertainties about “where the line is drawn” between lawful and unlawful conduct. Section 18C’s constitutional invalidity cannot be remedied by merely removing ‘offend’ and ‘insult’. This is because constitutional issues remain with ‘humiliate’ and ‘intimidate’.

Section 18D of the RDA,  which provides exemptions to acts that s 18C makes unlawful, is itself constitutionally invalid. This is because it is not reasonably capable of being considered appropriate and adapted to implementing the Convention. Consequently, ss 18C and 18D must be removed entirely. They should be replaced with a more narrowly focused law that makes intent to incite racial enmity a crime, with “enmity” defined as hatred or contempt creating an imminent danger of physical harm to persons or property.

The AHRC’s processes and structure also must change. In particular:

a.    It should be statutorily obliged to directly notify a respondent of a complaint made under the RDA and other human rights statutes immediately following a complaint being lodged; and

b.    In place of the existing AHRC, there needs to be two new entities that are statutorily and physically separate. One entity is dedicated to processing complaints (including rejecting claims that have no reasonable prospect of success before a court) and conciliation. The other entity educates and advocates on issues concerning human rights. Splitting these functions, along with officers of these separate entities abiding by their roles, should address issues concerning procedural fairness.

The importance of the question of constitutional validity

Somewhat remarkably, an often-overlooked issue in contemporary debates over s 18C is whether it is in fact constitutionally valid. Section 18C’s constitutional validity has never been challenged in the High Court of Australia. However, s 18C’s constitutional validity cannot be taken for granted for two reasons.

First, for reasons given below, the leading case holding that s 18C’s is constitutionally valid, Toben v Jones,  is in error. In any event, the Full Court of the Federal Court in Toben only considered whether s 18C was constitutionally valid under the external affairs power. It did not consider whether s 18C impermissibly infringed implied freedom of political communication.

Second, the law concerning the implied freedom of political communication has undergone significant development since s 18C was inserted into the RDA. Section 18C may not (and does not) pass the test for constitutional validity stated in the most recent High Court case concerning the implied freedom of political communication, McCloy v New South Wales.

As a final point, if s 18C is to be reformed or repealed, the Commonwealth Parliament must be mindful of the limits imposed by the external affairs power and the implied freedom of political communication. Put another way, it must be aware of what a racial vilification law can and cannot do.

Before exploring the constitutional issues with s 18C, it is worth noting some background relevant to its enactment.

Relevant background to s 18C

The RDA was enacted in 1975. Originally, the Bill introducing the RDA contained a provision, clause 28,  that made incitement to racial hatred a crime. Clause 28 was more confined in scope than s 18C. However, during the course of Parliamentary debate, clause 28 was removed owing to concerns about its effect on freedom of expression.

Prior to s 18C’s insertion in 1995, several reports recommended a Commonwealth law prohibiting expression of racial hatred. These reports were:

•    The Royal Commission into Aboriginal Deaths in Custody in 1991 (‘Royal Commission’);
•    The Human Rights and Equal Opportunity Commission’s National Inquiry into Racist Violence in 1991 (‘Inquiry’);  and
•    The Australian Law Reform Commission’s (‘ALRC’s’) report, Multiculturalism and the Law (‘ALRC Report’).

However, none of these reports recommended that speech that offended, insulted or even humiliated be made unlawful.  Indeed, the Inquiry noted:

The threshold for prohibited conduct needs to be higher than expressions of mere ill will to prevent the situation in New Zealand, where legislation produced a host of trivial complaints. The Inquiry is of the opinion that the term “incitement to racial hostility” conveys the level and degree of conduct with which the legislation would be concerned.

In 1995, the RDA was amended to include s 18C. However, in the Bills Digest accompanying the Bill inserting s 18C, the Parliamentary Research Service thought that s 18C could be vulnerable to constitutional challenge, noting:

There is no requirement in proposed s. 18C that the act include ideas based on racial superiority or hatred, or incite racial discrimination or violence, nor is there a requirement that it involve the advocacy or racial hatred or incite hostility.  There appears to be quite a wide chasm between racial hatred and ‘offending’ a person by an act, where one of the reasons for the act was the race of a person.

Recently, the ALRC noted that s 18C may be vulnerable to constitutional challenge  because the external affairs power does not support s 18C’s use of ‘offence’ and ‘insult’,  or that these words are constitutionally invalid given the implied freedom of political communication.

All 18c submissions can be read here

This is the edite text of a submission

We will now examine s 18C’s constitutional invalidity with respect to the external affairs power and the implied freedom of political communication. We start with the external affairs power.

The external affairs power

For the Commonwealth Parliament to pass a valid law, the law’s subject matter must fall within a power conferred onto the Commonwealth Parliament by ss 51  or 52 of the Commonwealth Constitution. In s 51, the head of power that is most relevant to s 18C is the external affairs power. In s 18C’s case, the Commonwealth Parliament purported to implement Articles of the Convention and ICCPR relevant to prohibiting racial hatred. Hence, the Commonwealth Parliament was implementing a treaty. However, the High Court has held that, in order to validly implement a treaty, the law must pass a four-stage test:

1.    The treaty is a bona fide treaty.
2.    The subject of the treaty is a matter of international concern.
3.    The treaty specifically obliges the Commonwealth to take legislative action (‘specificity requirement’).
4.    The law conforms to the relevant treaty (known as the ‘conformity requirement’).

There is no issue that both the Convention and the ICCPR are bona fide treaties addressing matters of international concern. However, there are issues concerning whether 18C meets the specificity and conformity requirements for implementing relevant Articles of the Convention and the ICCPR. Given that Article 4 of the Convention is the Article most relevant to s 18C, we cover it first.

Article 4

Section 18C fails to meet the conformity requirement to implement Article 4. The test for the conformity requirement is whether the law is reasonably capable of being considered appropriate and adapted to implementing the treaty. The part of Article 4 most relevant to s 18C is Article 4(a), which provides:

States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia:

1.    Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof.

Particularly relevant to s 18C’s compliance with the conformity requirement are the following types of conduct that States Parties should prohibit under Article 4(a):

•    The dissemination of ideas based on racial superiority or hatred; and
•    The incitement to racial discrimination or violence.

Dissemination of ideas based on racial superiority or hatred

We note the following passage from No Offence Intended: Why 18C is wrong

…Article 4 directs States Parties to do a Herculean task: to enact laws prohibiting expression based on an emotion, namely hatred. We say “Herculean” because while the task is not impossible, it is difficult. Laws rarely prohibit conduct embodying or creating emotions, for good reason. Laws can and do concern themselves with states of consciousness, with mens rea (or “the guilty mind”) and intent being the classic examples. However, these states of mind pertain to knowledge or volition and not feelings.

It is one thing to attach legal liability on a state of mind that the accused has consciously created, like knowledge or volition. It is another to attach legal liability to an emotion: a state of mind whose origins may not be conscious but visceral.

Of course, individuals are responsible for controlling their own emotions. Hence, a law could (but not necessarily should) impose liability for expression manifesting an emotion. However, it is legitimate to ask whether the law should impose liability on expression that creates an emotional response in other people. Given that an emotional response is visceral, another’s emotional response to an individual’s expression may vary widely.

Despite these conceptual difficulties, laws can and do attach legal liability to manifesting or creating an emotion.

However, such laws may encounter further difficulties defining the emotion, and hence the actual scope of the law. There may also be difficulties proving that certain conduct manifested or created the prohibited emotion. Confining the prohibited emotion to that against certain groups creates additional problems with defining who is or is not a member of the group.

In targeting the dissemination of certain ideas, Article 4(a) uses a strong word: hate. Not dislike, not disdain. Hate.
Hate itself is a strong and distinct emotion. In targeting hatred, Article 4 specifies laws prohibiting expression that is motivated by, that manifests, or that creates hatred towards another race, colour or ethnicity.  However, in purporting to combat racial hatred, s 18C targets the wrong feelings, in the wrong people. This is because:

•    Despite s 18C being within Part IIA of the RDA, which is titled “Prohibition of Offensive Behaviour Based on Racial Hatred’,  s 18C itself does not target hatred. Instead, it targets emotions that, in many cases, have little if anything to do with hatred. Offence, insult and humiliation are themselves emotions distinct from hatred. An act that creates offence, insult or humiliation will, in many cases, not create hatred. Further, creating offence, insult or humiliation will, in many cases, not feed a climate that eventually results in hatred.

•    Section 18C focuses on the feelings of the person or group of people who are the subject of the act. That is, whether that person or group of people are reasonably likely  to be offended, insulted or humiliated. It does not focus, as it should, on the feelings of people toward that person or group. That is, whether the act is motivated by, manifests or creates hatred towards the person or group of people who are the subject of the act.

As we said in No Offence Intended:

Section 18C therefore appears to greatly overreach the boundaries that Article 4 sets for prohibited expression. Indeed, it is no exaggeration to say that s 18C’s approach to implementing Article 4 is not just legislative overreach, but legislative overkill. However, even if it were only a case of legislative overreach, then this is sufficient to say that s 18C is not reasonably capable of being a suitable or fitting way of implementing Article 4. Hence, s 18C fails the conformity requirement.

We then noted the following about s 18D:

Section 18C’s overreach is not remedied by s 18D. This is because s 18D provides that acts are not unlawful so long as they are (amongst other things) made ‘reasonably and in good faith’. However, speech that offends, insults and even humiliates will fall short of the harm threshold Article 4 requires even if that speech is made unreasonably and in bad faith. Speech that offends, insults or humiliates is often unfair, tendentious, gratuitous, hyperbolic or disingenuous. “Cheap shots” and “hits below the belt” abound. This is especially so when it comes to discussing contentious political or social issues. However, many (if not most) instances of such speech will also not be based on racial hatred, or amount to threats or incitement to racial hatred.

When considering ss 18C and 18D it is also essential not to forget the importance of the underlying freedom, and that the relationship between the right and the restriction is not reversed. Whilst freedom of speech is not absolute,  any limitations on that right must be carefully drafted to conform with the requirements of necessity and proportionality. Indeed, the United Nations Human Rights Committee has repeatedly emphasised that:

… [W]hen a State party imposes restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself.  The Committee recalls that the relation between right and restriction and between norm and exception must not be reversed.

However, to continue the “overkill” metaphor, s 18C is the equivalent of bombing an entire suburb in order to destroy the house whose occupant might intend to punch someone. Ultimately, if the Commonwealth Parliament wants a law targeting racial hatred, then it should draft a law targeting racial hatred. It should not draft laws targeting emotions that in many cases have little, if anything, to do with hatred.

Incitement to racial discrimination or violence

Article 4(a) also prohibits incitement to racial discrimination, and incitement to violence against ‘any race or group of persons of another colour or ethnic origin’. The Macquarie Dictionary defines ‘incite’ as ‘to urge on; stimulate or prompt to action.’

Incitement appears to involve a purposive element. That is, the conscious urging of racial discrimination or violence against people of a different race, colour or ethnicity. This suggests that laws should contain an element of incitement. That is, the law should target a person’s subjective intent to urge racial discrimination or violence, which then manifests in acts that urge these things. Alternatively, laws may determine objectively whether a person crossed a legal threshold for inciting racial discrimination or racial violence, although great care must be taken when formulating an objective test.

In this regard, Section 18C goes well beyond the type of law envisaged by Article 4(a). It has no element of intent. Further, and once again, it takes an overkill approach. Acts that offend, insult or even humiliate in many cases simply do not lead to racial discrimination or violence.

Article 5

So far, we have only focused on Article 4(a) itself. However, the analysis cannot stop there. This is because laws prohibiting the conduct described in Article 4 must pay ‘due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention’.  Among the rights expressly set forth in Article 5 is freedom of opinion and expression,  and equality before the law.  Article 5 states that these rights are to be guaranteed ‘without distinction as to race, colour, or national or ethnic origin’.

The reason why Article 4 was inserted, and why Article 4 expressly refers to Article 5, relates back to the initial negotiations over the Convention’s provisions. Specifically, that the ‘objective of Article 4, designed to safeguard certain human rights and fundamental freedoms, should not be achieved at the expense of other equally fundamental human rights.’  Hence, ‘[t]he phrase beginning with ‘with due regard’ was introduced… in order to meet objections of those who maintained that Article 4 would violate the principles of freedom of speech and freedom of association.’

When applied to the test for the conformity requirement, the question becomes: is s 18C reasonably capable of being considered appropriate and adapted to implementing Article 4, while paying due regard to the right to freedom of opinion and expression guaranteed in Article 5? The answer is no. Indeed, s 18C’s “overkill” approach appears even more stark.

However, s 18C’s issues with Article 5 do not stop there. As noted above, Article 5 also guarantees the right to equality before the law. Section 18C fails the conformity test in this regard. As presently drafted, s 18C determines offence, insult or humiliation ‘in all the circumstances’.  In cases interpreting s 18C, a ‘reasonable representative’ test has been used. That is, whether a ‘reasonable representative’ of the group or sub-group subject to the act would be offended, insulted or humiliated. In determining this, the values and standards or the group or sub-group are taken into account, as well as its social, cultural, historical or other circumstances.  Given the scope of the phrase ‘in all the circumstances’, the race, culture, ethnicity and nationality of the speaker should also be taken into account.

This means that, when determining a breach of s 18C – and the legal liability that follows – the following factors are relevant:

•    The race, colour, ethnicity and/or nationality of the audience; and
•    The race, colour, ethnicity and/or nationality of the speaker.

This gives rise to the real risk of inequality before the law. For example, something that an Aboriginal says to an Aboriginal audience may not breach s 18C; whereas a non-Aboriginal saying the same thing to an Aboriginal audience may breach s 18C. To illustrate, in the recent controversy over Bill Leak’s cartoon in The Australian (which we cover in more detail below), would there have been similar moves to investigate Bill Leak under s 18C had he been Aboriginal? If this s 18C complaint had proceeded to investigation, or even later to court proceedings, would the outcome be different had Bill Leak been Aboriginal?

Our point is this: the ‘reasonable representative test’ appears to arise from s 18C’s wording that a breach be determined ‘in all the circumstances’. However, making someone’s legal liability dependent on their own and their audience’s race, colour, ethnicity or nationality fails the conformity requirement. That is, s 18C is not reasonably capable of being considered appropriate and adapted to implementing Article 4, while paying due regard to the right to equality before the law in guaranteed in Article 5.

Indeed, s 18C’s discriminatory operation breaches Articles 2(1)(a) and 2(1)(c) of the Convention. Article 2(1)(a) provides:

Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation.

Article 2(1)(c) provides:

Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists.

Articles 1(4) and 2(2) of Convention do allow “affirmative action” measures. However, these Articles do not apply to s 18C. This is because they only allow temporary affirmative action measures that are carefully targeted. As the Committee on the Elimination of Racial Discrimination noted:

Special measures should be appropriate to the situation to be remedied, be legitimate, necessary in a democratic society, respect the principles of fairness and proportionality, and be temporary. The measures should be designed and implemented on the basis of need, grounded in a realistic appraisal of the current situation of the individuals and communities concerned.

Appraisals of the need for special measures should be carried out on the basis of accurate data, disaggregated by race, colour, descent and ethnic or national origin and incorporating a gender perspective, on the socio-economic and cultural status and conditions of the various groups in the population and their participation in the social and economic development of the country.

By contrast, s 18C is a permanent law. Indeed, the operation of the ‘reasonable representative’ test will mean that racial discrimination will become more entrenched as a body of precedent is built.

One further point needs to be made concerning s 18D and Article 5’s guarantee of equality before the law.

Presently, s 18D appears provides exemptions that more readily apply to certain vocations or ‘classes’ than others. Specifically, s 18D(b) provides an exemption for ‘any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose’. Hence, vocations or ‘classes’ routinely engaged in academic, artistic or scientific work are benefitted over other vocations, and indeed over ordinary members of the Australian community, who must rely on the ‘genuine public interest’ exemption in s 18D(b).

This type of exemption cannot be reasonably considered appropriate and adapted to implementing Article 4 while paying due regard to the rights to equality before the law and freedom of opinion and expression guaranteed in Article 5. This is because, first, democratic participation in government involves freely discussing controversial issues involving race, colour, ethnicity and nationality (for more detail see section 5.1.1 below). The right to equality before the law, combined with the right to freedom of opinion and expression, means that all should have equal scope to express their own perspective on such issues regardless of vocation.

Second, history suggests that academics, artists and scientists have been among the worst offenders when it comes to espousing racist doctrines. Indeed, such vocations have provided an intellectual or artistic veneer to rancid ideas. The films Birth of a Nation and Triumph of the Will were artistic works despite their vile messages. As to academic and scientific works, Natan Lerner noted ‘It should not be forgotten… that in the past many books and papers aimed at disseminating racial hatred adopted the form of ‘scientific’ books or studies. The Nazi regime was specially prolific in the production of such studies’.

Further, it should not be thought that such days are behind us. Presently, concepts such as ‘intersectionality’ and ‘privilege’ have gained influence in certain academic circles. At heart, these concepts depend upon prejudiced assumptions being made about individuals or groups based on attributes like race, colour, culture, religion or ethnicity.  These concepts attempt to excuse such prejudice by using formulations like “racism equals prejudice plus power”. However, such formulations simply cannot withstand critical scrutiny. Prejudice poisons the spirit of any person. Real or perceived powerlessness does not render someone immune to this poison, and it is a dangerous conceit to believe otherwise.

Given the foregoing, if s 18C’s purpose is to promote racial harmony or reduce racial hatred, then it would actually make more sense for s 18C to prohibit academic, artistic or scientific works that offended, insulted or humiliated on the grounds of race, colour ethnicity or nationality.

Of course, we are not in favour of any such law. Rather, we favour a law combatting racial hatred that applies to all equally, including the application of defences. This principle reflects that of defamation law, where the principle is: ‘Who is entitled to comment? The answer to that is “everyone”. A newspaper reporter or a newspaper editor has exactly the same rights, neither more or less, than every other citizen’.  Such laws of equal application would work in addition to the freedom of all individuals to challenge prejudiced academic, artistic and scientific works in open discussion.

Article 2

There are, of course, broader obligations contained in other parts of the Convention.  For example, Article 2 provides a general condemnation of racial discrimination and outlines a number of specific undertakings designed to eliminate racial discrimination.  Most relevantly in relation to s 18C this includes the requirement under Article 2(1)(d) that ‘[e]ach State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization’.

In our view, s 18C fails the conformity requirement to implement even the broader obligations under Article 2.  There are three important points to note in relation to Article 2.  First, Article 2 was never intended to impose specific obligations concerning laws prohibiting expression of racial hatred.  As an examination of both the history and structure of the Convention make clear, the broad language employed by Article 2 cannot be read in isolation.  The general obligations imposed under Article 2 must be read in light of the specific obligations contained in Article 4 and the express guarantee that Article 5 provides for freedom of opinion and expression.

In particular, Article 4 is the Article of the Convention that was expressly designed to address the problem of speech inciting racial hatred, and its specific wording was the subject of considerable debate due to concerns about the impact that the obligation would necessarily have on freedom of speech.   In other words, it is the specific obligation under Article 4 that should inform the development and reach of domestic laws prohibiting expression of racial hatred, not the more general obligations under Article 2.

Second, Article 5 directly refers to Article 2.  This emphasizes that the general obligations outlined by Article 2 must be read in light of Article 5 and its recognition that the prohibition and elimination of racial discrimination must be done in a way that simultaneously guarantees to everyone the enjoyment of other fundamental rights, including the right to freedom of opinion and expression.

Third, the definition of “racial discrimination” with the Convention must be considered.  An important, but generally overlooked, limitation on the reach of the general obligations contained within the Convention (including Article 2) is the definition of ‘racial discrimination’ that is found in Article 1.  It states that for the purposes of the Convention ‘racial discrimination’ means:

any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

This is substantially the same definition that is adopted in section 9(1) of the RDA.  This definition of ‘racial discrimination’ in Article 2 means that ‘[r]acial discrimination occurs not simply when differences are made between certain racial groups, but when this differentiation adversely affects the enjoyment of rights otherwise protected by international human rights treaties by members of one group’.   This requirement was also confirmed by the Committee on the Elimination of Racial Discrimination, with specific reference to the obligations under Article 2. The central rights referred to are expressly outlined in Article 5 of the Convention, and include ‘the right to freedom of opinion and expression’.

This limitation is central in understanding the balance to be struck between prohibiting expression of racial hatred and the protection of freedom of speech.  When, for example, racist speech reaches a level that constitutes an incitement to violence it adversely affects the targeted individual or groups enjoyment of ‘the right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution’.

At international law there is, however, no human right that protects against simply being offended or insulted.  Behaviour that solely offends or insults (without more) does not itself adversely affect the enjoyment of other specific human rights and is not, therefore, a form of racial discrimination that comes within the technical terms of the Convention.  The broad language and low harm threshold adopted by s 18C through the inclusion of acts that are reasonably likely to offend or insult therefore extends beyond the scope of the Convention, including the general obligations contained in Article 2 which refers specifically to measures designed to directly prohibit or end racial discrimination.  Given this, s 18C is not reasonably capable of being considered appropriate and adapted to implementing the obligations contained under Article 2 of the Convention, and fails the conformity test.

Article 7

Article 7 is also unable to provide constitutional support for s 18C, as it fails the specificity requirement.  The test for specificity requires that a law relying on the external affairs power ‘must prescribe a regime that the treaty has itself defined with sufficient specificity to direct the general course to be taken by the signatory states’.   That is, a treaty that is primarily couched in aspirational language will not be sufficiently specific to enliven the external affairs power. Article 7 provides that:

States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnical groups, as well as to propagating the purposes and principles of the Charter of the United Nations, the Universal Declaration of Human Rights, the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, and this Convention.

The aspirational language and open-ended commitments imposed under Article 7 mean that it fails to meet the specificity requirement.  While the Article does oblige States Parties to ‘adopt immediate and effective measures’ , it provides no direction as to what those measures might be or the tangible steps that States Parties will be expected to take in fulfilment of their treaty obligations.  As we noted in No Offence Intended:

Article 7 provides no guidance concerning the measures that might be considered effective in combating prejudices and promoting understanding, tolerance and friendship amongst nations.  It would certainly be open to States Parties to take significantly divergent views about these measures.  For example, laws prohibiting hate speech may be seen by some States Parties as a measure combating racial prejudice.  However, other States Parties may see such a measure as doing the opposite by preventing the types of public discussions that ultimately help eliminate racial discrimination in the longer-term.

Article 20(2) of the ICCPR

Finally, some comment should be made regarding Article 20(2), which provides that ‘[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law’.  While some have argued that Article 20(2) provides constitutional support for s 18C, in our view the conformity requirement is not met and, as a result, the external affairs power is not enlivened.

The key consideration here is the high harm threshold set by the use of the words ‘advocacy’, ‘hatred’ and ‘incitement’.  The wording of Article 20(2):

[A]ppears directed to prohibiting speech that urges, recommends or espouses intense dislike or detestation against others on the basis of nationality, race or religion such that it stimulates or prompts others to engage in discrimination, hostility or violence.

Section 18C extends its reach well beyond the terms of Article 20(2).  For example, speech may be reasonably likely to offend or insult on the basis of race, colour or national or ethnic origin without going so far as to advocate hatred or incite discrimination, hostility or violence.  As with Article 4, s 18C far overreaches Article 20(2)’s limits and thus fails the conformity test.

It is also important to note that the overreach of s 18C is not remedied by s 18D.  As was noted in No Offence Intended, ‘as with Article 4, acts that offend, insult or humiliate in many cases will not fall into a category that Article 20(2) of the ICCPR prohibits even if those acts are made unreasonably and in bad faith.’

A note on Toben v Jones

Toben is the leading case concerning the constitutional validity of s 18C. It is a decision of the Full Court of the Federal Court. However, two things must be noted about Toben. First, it did not consider the implied freedom of political communication. Second, its reasoning concerning the external affairs power contains grave errors. We explored these errors in detail in No Offence Intended.  However, to summarise certain key errors, the reasoning in Toben:

•    Failed to consider High Court authority concerning the interpretation of treaties.  In particular, a treaty’s text, object and purpose of a treaty is important to its interpretation, along with the form the treaty takes, the history of its negotiation, the subject to which it relates, and the mischief it addresses.
•    Failed to correctly account for the history and purpose of Article 4.
•    Failed to correctly account for the history and purpose of Article 2.
•    Failed to correctly account for the history and purpose of Article 7.
•    Entirely failed to account for history and purpose Article 5.
•    Consequently, failed to correctly apply the test for the conformity requirement for articles 2, 4 and 7.
•    Consequently, failed to correctly apply the test for the specificity requirement for Article 7.
•    Failed to correctly account for the history and purpose of Article 20(2).
•    Consequently, failed to correctly apply the test for the conformity requirement for Article 20(2).

In light of the foregoing, our view is that Toben is highly likely to be overturned if challenged in the High Court.
We now turn to considering the implied freedom of political communication.

The implied freedom of political communication

Section 18C impermissibly infringes the implied freedom of political communication. The test for determining whether a law impermissibly infringes the implied freedom of political communication was most recently stated in McCloy.  This test is as follows:

1.    Does the law effectively burden the implied freedom of political communication in its terms, operation or effect?
2.    If “yes” to question 1, are the purpose of the law and the means adopted to achieve that purpose legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government?
3.    If “yes” to question 2, is the law reasonably appropriate and adapted to advance that legitimate object? If not, then the measure will exceed the implied limitation on legislative power.

Section 18C fails every stage of this test.

Laws or policies often involve the discussion of controversial issues. For example, border protection, refugee intake and immigration raise controversial issues concerning the level of refugee and immigrant intake, the racial, ethnic or national composition of such intake and the level of integration expected of immigrants.

In addition to laws passed by the Commonwealth Parliament, the Commonwealth’s executive government is responsible for implementing laws as well as other executive functions.  The way that the Commonwealth’s executive government goes about this in matters involving race, colour, ethnicity or nationality may also raise controversial issues. For example, the way that Australia’s executive government conducts border protection and runs refugee and immigration programs often involves controversial issues. To conclude with perhaps the most serious (but not uncommon) example, Australia’s prosecution of wars creates controversies about the nature of the conflict and the enemy.

Putting aside Commonwealth matters, those local to a State, such as law and order, health, welfare or education, may raise controversial issues involving race, colour, ethnicity or nationality.

A heavy burden

Assessing the heaviness of s 18C’s burden requires considering popular sovereignty; the general nature of laws and discussions about them; the uncertainty of the terms used in s18C; and s 18C’s operation. We will examine each in turn.

(a)    Popular sovereignty

Unfortunately, the following are often overlooked in discussions about freedom of expression and the implied freedom of political communication:
•    The sovereignty of the Australian people under the Commonwealth Constitution; and
•    The plenary powers of Commonwealth, State and Territory Parliaments.
As we noted in An Opportunity Missed?:

The Commonwealth Constitution provides for popular sovereignty. That is, under the Commonwealth Constitution, the Australian people are sovereign.  It is Australian electors who elect representatives to make laws on their behalf.  It is Australian electors to whom these representatives are ultimately answerable.  And it is Australian electors who have the power to amend the Commonwealth Constitution.

The Commonwealth Constitution also provides for a Commonwealth Parliament that, along with State and Territory Parliaments, has what is known as the plenary power to make laws. These plenary powers are extremely broad.  The Commonwealth Parliament is confined to legislating with respect to matters under specified heads of power. That said, the Commonwealth Parliament’s plenary power to legislate under these heads of power is extremely wide. As to the State and Territory Parliaments, unless confined by the Commonwealth Constitution  or the respective State or Territory constitution,  their plenary powers to legislate are unlimited in scope and extend to any matter.  In summary, Commonwealth, State, and Territory Parliaments may make laws with respect to an extremely wide range of matters, including matters of great controversy. Further, the content of these laws may be what many would regard as extreme.

The Commonwealth Constitution also provides for an executive answerable to Parliament  but who, in executing laws, may do acts that, likewise, many would regard as extreme. In discussing legislative and executive matters, the Commonwealth Constitution provides for Parliamentary privilege.  This is because members of Parliament must be able to fully, frankly and robustly discuss all matters before Parliament. It follows that, as sovereign, the Australian people must also be free to discuss controversial matters, or indeed any matter, fully, frankly and robustly.

Put another way, it borders on absurdity to say that, under the Commonwealth Constitution, Parliament may pass outrageous laws, the executive may do outrageous things, and members of Parliament may say outrageous things. However, the people from whom Parliament, members of Parliament and the executive derive their authority may not speak outrageously.  If anything, in a democracy, a sovereign people must be free to speak even the unspeakable.

To be clear, there are limits to freedom of expression. However, these limits are themselves strictly limited.
Section 18C imposes a heavy restriction on freedom of expression, prohibiting even statements that offend another person or group of people on the basis of race, colour, ethnicity or nationality.

This is not simply a theoretical restriction.  While it is difficult to measure the actual ‘chilling effect’ of any particular law on free speech, it is clear that s 18C is impacting public debate about important political issues.  For example, the head of the Prime Minister’s Indigenous Advisory Council, Warren Mundine, recently observed that s 18C was embedding racial division, causing social frustration and contributing to the stifling of national debate on significant issues such as child abuse.

(b)    The general nature of laws and discussions about them

Section 18C imposes a burden on Australia’s political system far greater than that of defamation (perhaps s 18C’s closest analogue).  Specifically, s 18C purports to protect groups from offence, insult or humiliation. As we noted in An Opportunity Missed?:

Legislative and executive action contemplated under the Commonwealth Constitution and respective State and Territory constitutions operates generally. That is, legislation rarely targets specific individuals.  Rather, legislation in all but rare cases concerns groups of people, ranging from small groups up to the entirety of Australia’s population… Executive action may concern individuals directly, but often concerns groups.

Hence, when discussing matters that may be subject to government action, it is common to make general statements about an issue. It is also common to refer generally to groups of people. Statements concerning groups may not apply to individuals in that group. However, that lack of specificity is the inherent price of discussions about proposed or past legislative or executive action.

The ‘chilling effect’ of a law that makes unlawful offending, insulting, humiliating or ridiculing another person based on an attribute must not be underestimated. Much has been made of the chilling effect of defamation law, and rightly so.  However, in defamation, one must only consider whether or not their comment affects a particular individual’s own reputation. Consequently, someone who wishes to comment on a political issue in which that particular person is involved may avoid mention of that person. By contrast, in our political system, it is far more difficult not to comment about groups sharing certain attributes in political issues. As noted above, in our system of representative and responsible government, there are often controversial issues concerning such things as race, colour, ethnicity, nationality and sexuality. Hence, making unlawful offending, humiliating, insulting or ridiculing another person based on an attribute has far more of a chilling effect.

(c)    The uncertainty of the terms used in s 18C

Australia is a nation that places great importance on the rule of law. A critical aspect of the rule of law is certainty. People must know where a line is drawn so that they can avoid crossing that line. Hence, it is generally observed that the rule of law necessitates the existence of clear, stable, general norms, which must then apply equally to everyone regardless of a person’s social status or position. By contrast, if laws are unclear or uncertain, people will be unsure of what the law requires of them and hence unable to properly obey the law. They will be left unable to conduct their affairs with a satisfactory level of legal security.

The RDA does not define ‘offend’, ‘insult’ or ‘humiliate’. This itself is a serious defect in s 18C. Parliament should have defined these terms when s 18C was inserted into the RDA. That said, case law has considered these terms, and confined them to serious instances of offence, insult or humiliation.  However, even if these terms are given this narrow interpretation, there is considerable uncertainty concerning their application to very different circumstances.  A statement that one person thinks is seriously offensive is one another may think is “merely” offensive (or even inoffensive).

Interestingly enough, attempts to establish judicial criteria for ‘offensiveness’ with any degree of precision have ‘become a circular and question-begging exercise’.  Indeed, courts notoriously struggle to provide a sufficiently certain legal standard for decisively identifying “offensive” speech. Indeed, case law suggests that legal liability for “offence” risks not being the outcome of applying a sufficiently certain legal standard, but rather the view of the particular judge.  As mentioned above, the rule of law effectively requires the existence of clear and stable rules that must then apply equally to everyone regardless of status or position. Characterised in this way, the rule of law cannot be achieved if judges are not effectively guided in their decisions by rules of law that are both clear and easily understandable by the average citizen. That being so, Pasquale Pasquino points out:

[T]he person who judges exercises, in a sense, the most worrying power of all. In daily life it is not the legislator who renders judgement or passes sentence, but the judge… The judge protects the citizen from the caprices and arbitrary will of the legislator, just as the existence of the law protects the accused from the caprices and arbitrary will of the judge.

There are serious issues as to whether s 18C (either alone or in conjunction with s 18D) is too broad and too vague to be constitutional. In An Opportunity Missed?, we summarised our arguments concerning vagueness and overbreadth as follows:

[F]irst, certainty is critical to the rule of law. As McLachlin J (in dissent) noted in R v Keegstra regarding the concept of vagueness:

As a matter of due process, a law is void on its face if it is so vague that persons ‘of common intelligence must necessarily guess at its meaning and differ as to its application’. Such vagueness occurs when a legislature states its proscriptions in terms so indefinite that the line between innocent and condemned conduct becomes a matter of guesswork.

As to the concept of overbreadth, her Honour noted, relevantly:

Statutes which open-endedly delegate to administering officials the power to decide how and when sanctions are applied or licenses issued are overbroad because they grant such officials the power to discriminate – to achieve indirectly through selective enforcement a censorship of communicative content that is clearly unconstitutional when achieved directly.

Her Honour noted:

The rationale for invalidating statutes that are overbroad… or vague is that they have a chilling effect on legitimate speech. Protection of free speech is regarded as such a strong value that legislation aimed at legitimate ends may be struck down, if [it] also tends to inhibit protected speech.

Second, legal theorists such as Ronald Dworkin and Lon Fuller have spoken to the need for certainty. Dworkin noted that a vague law ‘places a citizen in an unfair position of either acting at his peril or accepting a more stringent restriction on his life than the legislature may have authorized’.  Fuller noted that ‘The desideratum of clarity represents one of the most essential ingredients of legality’.  Fuller warned that:

[I]t is a serious mistake – and a mistake made constantly – to assume that, though the busy legislative draftsman can find no way of converting his objective into clearly stated rules, he can always safely delegate this this task to the courts or to special administrative tribunals’.

Fuller further warned that some areas of the law were unsuited to creating rules on a case-by-case basis.  We note that one such area was political discussion, given its range and complexity.

Third, vagueness and overbreadth are concepts useful to determining whether a law impermissibly infringes the implied freedom of political communication. They are readily applicable to an analysis under the modified  test. The implied freedom of political communication is a restriction on lawmaking. It follows that laws that are too broad or too vague should be restricted.  Further, voiding laws for vagueness or overbreadth would create a “buffer zone” around the implied freedom of political communication as the concept of vagueness has around the First Amendment of the US Constitution.  This discourages vague or overbroad legislation being enacted.

Fourth, like freedom of expression at common law,  the common law principle of due process is of constitutional importance.  Common law due process includes the principle of certainty in the law. An individual must be certain what the law is in order to avoid unlawful conduct. Given that the common law informs the Commonwealth Constitution,  common law due process should inform whether a law impermissibly infringes the implied freedom of political communication.

Fifth, vagueness and overbreadth have been employed with respect to both criminal and civil provisions. In Taylor v Canadian Human Rights Commission,  a Canadian Supreme Court case concerning a civil provision making unlawful communication likely to expose any person to hatred or contempt, McLachlin J noted:

‘[Hatred and contempt] are vague and subjective, capable of extension should the interpreter be so inclined. Where does dislike leave off and hatred or contempt begin? … The phrase does not assist in sending a clear and precise indication to members of society as to what the limits of impugned speech are. In short, by using such vague, emotive terms without definition, the state necessarily incurs the risk of catching, within the ambit of the regulated area expression falling short of hatred.

We suggest that her Honour’s comments apply to s 17(1)’s [of the Anti-Discrimination Act 1998 (Tas)] use of ‘offend’, ‘insult’, ‘ridicule’ and ‘humiliate’. Her Honour further noted:

[T]he chilling effect of leaving overbroad provisions “on the books” cannot be ignored. While the chilling effect of human rights legislation is likely to be less significant than that of criminal prohibition, the vagueness of the law means that it may well deter more conduct than can legitimately targeted, given its objectives.

The sixth and final point in our summary is that US or Canadian concepts concerning vagueness or overbreadth need not be imported into the modified  test for s 17(1) [of the Anti-Discrimination Act 1998 (Tas)] to be held unconstitutional. Sections s 17(1) and s 55 [of the Anti-Discrimination Act 1998 (Tas)] may, in any event, be considered too complex, intrusive and/or uncertain to be considered reasonably appropriate and adapted to the end they serve.

As noted above, reasonable minds can and do differ concerning whether a remark is seriously offensive, insulting or humiliating as opposed to “merely” offensive, insulting or humiliating. The breadth and vagueness of these terms when applied to widely different circumstances creates considerable uncertainty about their application. Section 18C creates a heavy burden on the implied freedom of political communication.

We would also make two points concerning the heaviness of the burden that s 18D places on the implied freedom of political communication. The first is that s 18D uses terms that are themselves vague and potentially overbroad. For example, ‘reasonably’ has been held to mean an objective assessment of whether an act bears a ‘rational relationship’ to a protected activity and whether the act is ‘not disproportionate’ to what is necessary to carry out the activity.  This assessment, however, allows for the possibility that there was more than one way of doing things ‘reasonably’.

As another example, ‘good faith’ in s 18D has been held in case law to impose a ‘harm minimisation’ requirement. That is, the good faith exercise of the exemptions provided in s 18D ‘will honestly and conscientiously endeavour to have regard to and minimise the harm it will, by definition, inflict.’   However, considerable uncertainty is then created concerning whether an act alleged to breach s 18C is something that could have something that could have been expressed more sensitively.

To illustrate, in Eatock v Bolt,  Bromberg J held that the defences in s 18D did not apply to Andrew Bolt’s article because, amongst other things, the ‘mockery’ and ‘inflammatory language’ that Mr Bolt used.  The ‘derisive tone’ had ‘little or no forensic purpose to the argument propounded’ and ‘in the context of the values which the RDA propounded and in the context of the values which the RDA seeks to protect’ are ‘not justified, including by an asserted need to amuse or entertain’.  Among the examples Bromberg J cited as language that is ‘not justified’ are the following (and, we note, the emphasis is Bromberg J’s):

•    ‘self-obessesed’;
•    ‘how comic’;
•    ‘you’d swear this is from a satire’;
•    ‘That way lies madness, where truth is just a whim and words mean 
•    ‘a privileged white Aborigine snaffles that extra’;
•    ‘…a borrowing of other people’s glories’; and
•    ‘at its worst, it’s them against us’.

We note that the examples do not use vile racial epithets. Reasonable minds can and would differ concerning whether these comments are derisory and unwarranted, or sharp but allowable. This itself creates uncertainty. However, even assuming the harm could be minimised, one then wonders how much is enough? Again, reasonable minds can and would differ. To illustrate, would harm be sufficiently minimised if the comment ‘how comic’ was changed to ‘how amusing’? Would the comment containing ‘snaffles’ sufficiently minimise the harm if ‘snaffles’ was changed to ‘grabs’ or ‘snaps up’? Our point is this: the harm minimisation approach itself creates considerable uncertainties.

The second point we make is that truth is not an exemption under s 18D. This is a critical defect not only in s 18D, but in the operation of s 18C generally. Any law that directly affects freedom of expression, over the range which s 18C covers, must have truth as a defence. Truth (or facts, or correct information, or however one conceptualises verity) is absolutely critical to the functioning of any democracy, including Australia’s.  The ALRC noted the following with respect to the defence of truth in defamation that are also relevant to s 18C.

The very fact of self government, of individual responsibility for community affairs, imposes a greater need for freedom of speech. But there is no value in falsehood; intelligent participation in civic affairs depends upon correct information.

Defamation law provides a defence of truth for good reason. A defamatory statement against a person, no matter how demeaning or how hurtful, cannot be remedied if it is true. The same principle should apply to s 18C. This is especially so given, as noted above, in Australia’s political system, discussions about contentious issues involving groups are common.  Indeed, the absence of truth as an exemption is perhaps s 18C’s greatest flaw. From the standpoint of constitutional validity, the absence of truth as an exemption means that s 18C’s burden on the implied freedom of political communication is much heavier.

A summary of 18C’s burden

Section 18C’s operation is direct, heavy and sweeping. Its application is far from straightforward and, in fact, is hopelessly confusing. This is unacceptable in a law that can be breached by the mere act of speaking in public. In No Offence Intended, we noted the following:

The ALRC noted the following with regards to the complexity of defamation law and the need for simplicity:
If defamation defies simplicity it nonetheless demands it. Defamation is an inhibition of an important freedom, freedom of speech. Accepting that publication which affects reputation should be subject to legal sanction it is desirable that the limits of the restriction should be clearly stated. If people are unable to understand and apply the laws themselves one of two consequences may follow. Either they will publish the material without legal justification, effecting private damage, or else, in fear and uncertainty, they will restrain themselves from publication of material which might properly have been published and which the public is entitled to have…

Given that s 18C concerns matters more general than individual reputation, we submit that the ALRC’s comments apply with greater force to s 18C’s complexity. When speaking publicly about an issue concerning race, colour, ethnicity or nationality, under s 18C and s 18D a person will need to undertake the following Rube Goldberg-like  exercise:

•    Consider whether their act is public or private.
•    Consider the circumstances in which they are acting, including their own race, colour, ethnicity or nationality.
•    Consider whether their act is reasonably likely to offend, insult, humiliate or intimidate a person, group or sub-group of people. As to these groups or sub-groups, they must consider whether a reasonable representative of that group would be reasonably likely to be offended, insulted, humiliated or intimidated.
•    Consider whether their act falls within an exception.

If any or all of the foregoing exercise strikes one as odd, disturbing or even stupid then it should. This Kafkaesque farce is antithetical to any democracy worth the name, especially one with a common law legal tradition.
Before going further, we note that current AHRC President, Professor Gillian Triggs SC, has recently commented that.

‘We … believe that [s 18C] has a very clear jurisprudence, it’s worked very well and that it would be a retrograde step to amend it because in a way that would put the jurisprudence right back to square one,’… ‘We feel that the better approach would be to clarify what the words actually mean according to the jurisprudence of the court.’

We disagree. In our view, the case law has only added confusion to an already confusing provision. Section 18C must be scrapped, and replaced with a provision far narrower in scope and far more straightforward in its application. ‘Going back to square one’, in this instance, would be a welcome step.

Is 18C’s purpose legitimate?

Section 18C’s purpose is not compatible with Australia’s system of representative and responsive government. In this system the provisions of the Constitution mandate a system of representative and responsible government with a universal adult franchise, and s 128 establishes a system for amendment of the Constitution in which the proposed law to effect the amendment is to be submitted to the electors. Communication between electors and legislators and the officers of the executive, and between electors themselves, on matters of government and politics is ‘an indispensable incident’ of that constitutional system.

Applying the principles of statutory construction,  it appears that s 18C’s purpose is, in part, to prohibit offence.  However, prohibiting offence is not an end compatible with Australia’s constitutionally prescribed system of representative and responsible government, even if its overall purpose is to promote racial harmony, reduce racial hatred, or both.

Offence, insult, ridicule and humiliation are inevitable incidents of discussion about government and political matters in Australia’s constitutionally prescribed system of representative and responsible government. As we noted in An Opportunity Missed?:

In discussions amongst electors about [politically controversial matters], views will differ sharply. Feelings will run high, and robust, heated discussion will occur. Positions will be attacked with all the logical and rhetorical weapons that opponents can muster, exposing them to withering critical scrutiny if not outright scorn. Arguments will be lost, and lost badly. Feelings will be hurt and pride will be wounded. Offence and insult, and even ridicule and humiliation, are inevitable incidents of such discussion in a democracy.

Prohibiting offence, insult, and even humiliation, are not compatible with Australia’s system of representative and responsible government. Section 18C therefore fails this stage of the McCloy test.

(a)  Existing criminal laws

A common complaint is that people are subjected to racial abuse in public, such as walking down the street or otherwise going about their business. However, there are already criminal laws in all States and Territories that serve the purpose of protecting people from such harassment and abuse.  These are laws of equal application, that is, they apply to all in the particular jurisdiction and are not limited to those who have a listed attribute.

Another common complaint is repeated racial harassment aimed at a particular individual. However, criminal laws in all States in Territories prohibit stalking  – a law that is readily applicable in such situations.

(b)  Existing anti-discrimination laws

A common complaint is discrimination or harassment that occurs in environments such as in the workplace, in places of education, or when trying to obtain accommodation or goods or services. However, present laws already cover such instances, not least including a suite of State, Territory and Commonwealth anti-discrimination laws.

(c)  Measures that can be undertaken in civil society

In No Offence Intended, we noted that just because a government does nothing does not mean nothing is done.  Civil society itself provides measures to combat racism. According to Martin Krygier, civil society is:

…comprised of multitudes of independent actors, going about their individual or freely chosen cooperative affairs, able to choose to associate and participate (or not) in an independent public realm, with an economy of disbursed actors and markets, undergirded by a socially embedded legal order, which grants and enforces legal rights.

As regards offensive speech, non-state actors may challenge that speech with their own speech. They may use their common law freedom to assemble to magnify their voice and to speak out on behalf of those who cannot speak for themselves. That is, in a common law legal system such as Australia’s, the freedom to make racist or offensive speech is countered by those exercising common law freedoms of speech and assembly to refute such speech.
Further, people who are harassed may also pursue more direct, cheaper and faster private solutions. For example, if racial slurs are used in online argument (such as on social media like Facebook or Twitter) then the best response is to report the slur. However, if there is sustained online harassment, then there is recourse to the law against stalking, which covers a wide range of conduct, including online conduct.

Finally, the “marketplace of ideas” must be considered. This marketplace does most of its work in civil society. As we mentioned in No Offence Intended:

There is much to be said for the concept of the “marketplace of ideas”. It is the best way to arrive at truth. Note that “best” does not mean “infallible” – and critics usually seize the marketplace concept’s lack of infallibility to attack it. But lack of infallibility does not mean this concept should be abandoned. Indeed, the marketplace concept is superior to all alternatives that have been tried. (To continue the marketplace metaphor, critics often advocate state-enforced “monopolies” which, when applied to ideas (as in many other areas), is a far worse alternative.)

An advantage of the marketplace concept that critics (and, alas, some advocates) overlook is the discipline of competition. This discipline is critical maintaining the strength of ideas – especially ideas that have merit. The need to respond to challenges keeps ideas alive and vital. This is crucial to transmitting ideas across generations. The problem with closing off debate by “legislating truth” is that it leads to intellectual laziness. Once vital ideas defended by informed advocates become stale dogma enforced by unthinking zealots.

As much as one might be tempted, “legislating truth” is never wise. Those who live in a liberal democracy much always be ready to defend their positions with reasoned argument, and not with threat of legal punishment.

(d)  Enforcement of existing laws

It could be argued that s 18C must supplement existing laws owing to them not being enforced. However, if this is the case, then the solution is to ensure State, Territory and Commonwealth agencies enforce existing laws. Here, civil society also plays a role: representative organisations can educate their constituents about relevant laws, and can monitor enforcement.

Another argument is that s 18C, being a civil provision, allows individuals to bring an action where an executive agency may not act. However, there are other civil laws that may serve in s 18C’s place in the circumstances. In addition to the anti-discrimination laws noted above, civil claims can be made under defamation and intentional infliction of emotional distress.

Adequacy in its balance

This criterion requires a value judgment, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.

Two things should be noted from the outset. First, the implied freedom of political communication is a strong freedom.  In addition, common law freedom of expression is a freedom of constitutional importance.
Second, the onus is on those seeking to restrict the implied freedom of political communication to justify the law. In s 18C’s case, its proponents must meet a very high threshold. As noted above, this threshold is: does s 18C’s purpose justify restricting the freedom of all Australians to communicate about government and political matters, even considering the alternatives available?

Section 18C’s proponents have, on occasion, asked critics to justify the language they want to say that s 18C presently makes unlawful. With respect, this argument is entirely misconceived from the standpoint of both the implied freedom of political communication and Australia’s common law legal tradition. The implied freedom of political communication is a restriction on lawmaking. It is up to those supporting the law to show it does not impermissibly infringe the implied freedom of political communication. In addition, the need for lawmakers to justify a law has long been part of the common law legal tradition. In the common law legal tradition, everyone is free to do anything unless prohibited by law.  As a corollary, if a law is to infringe a freedom then it must be justified. Hence, lawmakers (whether in Parliament or in the judiciary) have long provided rationales for their laws.

Hence, it is up to those supporting s 18C to show it does not impermissibly infringe the implied freedom of communication. They need to show that s 18C’s restrictions are not disproportionate to the purpose it serves. Section 18C’s opponents may, of course, provide arguments that s 18C is disproportionate. However, they are not obliged to make their case. Section 18C’s supporters are so obliged. To claim otherwise is, in effect, asking an individual who wants to speak freely to justify themselves before doing so.  You should not need a justification for wanting to exercise basic human rights and common law freedoms.  No other human right or common law freedom is treated with this type of suspicion and disdain.

Finally, there are issues with the evidence concerning racial hatred in Australia. The AHRC itself has noted that there has been very little qualitative research on the lived experience of racism in Australia.  In An Opportunity Missed?,  we noted that Katherine Gelber and Luke McNamara have attempted to address this in recent articles concerning the harms of hate speech.  However, we also noted that their analysis was unsatisfactory because, amongst other things:

•    Certain statements they cite as evidence of hate speech do not meet their own definition of hate speech.
•    Certain statements they cite as evidence of hate speech are vague, conclusory and/or hearsay.
•    In any event, the sample size they use (101 people), while statistically significant, is still small and thus prone to a significant margin of error.

As we noted in An Opportunity Missed?:

In liberal democracies, John Stuart Mill’s ‘harm principle’  has long been influential in determining when it is appropriate for a government to make laws. However, Mill formulated this principle when ‘harm’ did not have the expanded meaning that some would give it today. A government protecting against these expanded harms may undermine its liberal democratic basis. For example, a government may purport to protect people against expanded harms by prohibiting offensive speech. However, doing so may well choke the freedom of expression necessary for effective liberal democratic government.

Likewise, Commonwealth, State or Territory laws purporting to protect against expanded harms may impede communications necessary to Australia’s constitutionally-prescribed system of representative and responsible government. Hence, when determining whether or not a law impermissibly infringes the implied freedom of political communication requires assessing the type of harm that the law addresses. Laws prohibiting physical harm to people and property are more justifiable than laws prohibiting acts that offend, insult or humiliate.

There is no doubt that racist speech can and does cause harm. However, given the foregoing, s 18C’s broad restriction of the freedom of all Australians to communicate about government and political matters is not justified, considering the alternatives available.

Why the need?

It should also be noted that, since Federation, Australia has done the following:

•    Extended the franchise to women and Aboriginals;
•    Amended the Commonwealth Constitution so the Commonwealth Parliament could legislate with respect to Aborigines;
•    Abolished the White Australia Policy;
•    Decriminalised homosexuality in all States and Territories;
•    Enacted a range of anti-discrimination legislation at the State and Commonwealth level;
•    Pursued a largely successful policy of multicultural immigration.

Each of these successes were achieved without ‘hate speech’ legislation. They speak to the strength of the arguments supporting them. They also speak to the political and philosophical ability of the Australian people to debate and enact them. Given this, the claim that ‘hate speech’ laws are necessary to prevent Australia from sliding into fascism is suspect given the historical evidence. (It is also offensive to the Australian people.)

The historical evidence does not appear significant enough to justify restricting the freedom of all Australians to communicate about government and political matters to the extent that s 18C does, considering the alternatives available. In fact, we suggest that the historical evidence provides a compelling case for rejecting a law of s 18C’s scope.

Preventing a climate of racial hatred and promoting a climate of racial harmony

The argument that laws prohibiting expression of racial hatred prevent climates of hatred and discrimination appears plausible, and is certainly appealing. However, as we noted in No Offence Intended:

Arguments justifying restrictions on freedom of expression on the basis that its exercise creates a “climate” where people feel unsafe must be treated with caution. Restricting freedom of expression requires a clear-eyed risk analysis of the perceived threat. What is the source of the perceived threat? Is it a direct threat against an identified person or group of people? Or (at the other end of the spectrum) does the perceived threat stem from someone hearing comments they simply don’t like? A person’s emotional reaction can be disproportionate to the conduct about which they complain. Care must be taken to ensure that claimed threats are not vague, speculative, exaggerated, or contrived.

A clear-eyed risk analysis would account for the evidence of the harm caused by expressions of racial hatred, and Australia’s overall record of fighting racism. Given our arguments in the previous two sections, the argument that s 18C is necessary to prevent a climate of hatred appears speculative at best. Such an argument certainly does not justify a law of s 18C’s breadth.

As to creating a climate of racial tolerance, this is an admirable goal. However, even while admirable, this goal does not justify s 18C’s broad restriction of the freedom of all Australians to communicate about government and political matters, considering the alternatives available.

Promoting responsible speech

Arguments to the effect that “regulating” freedom of expression enhances public debate must be treated with extreme caution.  While superficially appealing, laws purporting to “promote the standard of debate” encounter the same difficulties with uncertainty as laws prohibiting expression of racial hatred. Once again, reasonable minds may differ concerning whether a particular statement was a forthright opinion on the one hand, or a coarse or unseemly statement that detracts from public debate on the other. Forcing a speaker to state their position more politely may in fact rob them of their freedom of expression.

As Daniel Ward observed, such a position ‘ignores the extent to which one’s sentiments are inseparable from the manner in which they are expressed .‘F**k war’ is simply not the same as ‘Down with war.’’

Overcoming the chilling effects of expression of racial hatred

As to the chilling effect of expression of racial hatred, we note what we said in An Opportunity Missed? with respect to s 19 of the Anti-Discrimination Act 1998 (Tas):

[I]n Whatcott, Rothstein J noted that hate speech  could silence groups affected by it:

[H]ate propaganda opposes the targeted group’s ability to find self-fulfillment by articulating their thoughts and ideas. It impacts on that group’s ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy. Indeed, a particularly insidious aspect of hate speech is that it acts to cut off any path of reply by the group under attack.  It does this not only by attempting to marginalize the group so that their reply will be ignored: it also forces the group to argue for their basic humanity or social standing, as a precondition to participating in the deliberative aspects of our democracy.

Rothstein J repeatedly refers to the silencing effect of hate speech.  However, while this effect is repeatedly asserted, it is not demonstrated: Rothstein J does not offer any evidence supporting this claim. This is a problem that has been repeated in Australia where, in Sunol, Basten J asserted the following without providing evidence:

Conduct by which one faction monopolises a debate or, by rowdy behaviour, prevents the other faction being heard, burdens political discourse as effectively as a statutory prohibition on speaking. A law which prohibits such conduct may constrain the behaviour of the first faction, but not effectively burden political discourse; on the contrary, it may promote such discourse.

We grant that the silencing effect of hate speech is plausible, and that hate speech no doubt has silenced individuals. However, the onus is on those supporting the law that infringes the implied freedom of political communication to establish that the infringement is permissible.

Further, with laws like s 19, they must establish that the infringement is permissible even though the law restricts the freedom of expression of everyone in the jurisdiction. Repeatedly asserting there is a silencing effect does not overcome the apparent paucity of evidence that this effect happens to a significant extent,  let alone to the extent that it justifies universally restricting freedom of expression of everyone in (in s 19’s case) Tasmania.

Finally, Canada and Australia are liberal democracies with common law legal traditions. Each has well-developed civil societies. Each also have numerous groups organised by such attributes as race, colour, ethnicity, nationality, sex, sexuality, disability and religion whose purpose is to defend their members’ interests and advocate on their behalf.  The fact that these organisations regularly and unflinchingly engage in public debate counts against the suggestion that minorities are silenced.

In summary, there does not appear to be sufficient evidence suggesting that expression of racial hatred chills discussion in Australia to an extent that it justifies s 18C.

Protecting multiculturalism in Australia

Multiculturalism is a long-standing and largely successful policy of Australian government. However, it is, nevertheless, still a policy. As we noted in No Offence Intended:

It is true that Australian governments have pursued policies promoting multiculturalism for a considerable period of time. However, to contend that laws impinging the implied freedom of political communication are justified because multiculturalism is government policy, or that Australian society is multicultural, is to put the cart before the horse. The freedom of political communication extends to all matters that may be subject to government policy and action. This includes multiculturalism. Hence, the freedom of political communication extends to all aspects of multiculturalism, including (but not limited to) the following, all of which are contentious and prone to heated debate:

•    The number of immigrants accepted, and from where immigrants will be accepted.
•    The level of integration expected of immigrants.
•    The level of integration expected of existing ethnic populations.
•    The provision of welfare and other government support to immigrants.
•    Whether or not someone’s race, colour or ethnicity entitles them to particular government benefits or support.
•    Issues facing first and subsequent generations of immigrants.
•    Whether multiculturalism should continue as a policy.

As to preventing discrimination, it appears that (and it gives us no joy in saying this) the implied freedom of political communication extends to expression advocating even racially discriminatory policies. As we noted in An Opportunity Missed?:

[U]nder the Commonwealth Constitution, the Commonwealth Parliament has plenary powers to legislate under its various heads of power. Provided a matter falls under a head of power, the Commonwealth Parliament can pass laws that discriminate on virtually any basis. Commonwealth laws presently discriminate on bases such as age and mental capacity.  However, there is nothing stopping the Commonwealth Parliament passing laws that discriminate on bases such as race,  sex  or sexuality.  As also noted above, State and Territory Parliaments also have the plenary powers to make laws subject to the Commonwealth Constitution and manner and form provisions. Unless so restrained, State and Territory Parliaments may also pass laws that discriminate on bases such as age, mental capacity, race, sex, sexuality and religion.

Given this, and given that the Australian people are sovereign, the implied freedom of political communication extends to matters where Australian Parliaments may pass discriminatory laws. That is, Australians may discuss, and indeed may advocate, discriminatory views, policies and laws. The fact that Australians can do this is relevant to whether s 19 [of the Anti-Discrimination Act 1998 (Tas)] (and similar hate speech laws) impermissibly infringe the implied freedom of political communication.

It is no answer to say that treaties like the Convention on the Elimination of All Forms of Racial Discrimination… prohibits Australia from passing discriminatory laws. This is because, while Australia is a signatory to these treaties, it remains a sovereign state in the international system. Australia may therefore make laws that (say) breach the Convention, but are nevertheless constitutionally valid and enforceable upon Australians.  That Australia breaches the Convention by doing this entails no consequence for it other than sanctions from other states in the international system and from international bodies. In any event, even if the Australian government complies with the Convention, the implied freedom of political communication extends to the Australian people advocating discriminatory views, policies and laws. By such advocacy, and the democratic processes which the Commonwealth Constitution provides, the Australian government may ‘change course’ on the Convention and other treaties.

To be absolutely clear, we are not saying that Australians should advocate discriminatory views, policies and laws. We are saying that, given the lawmaking powers of Commonwealth, State and Territory Parliaments and the principles of popular sovereignty, Australians can do this. No doubt many will feel uncomfortable that the Commonwealth Constitution and State and Territory constitutions allow this. The solution is to amend these constitutions.

The foregoing underlines the fact that the implied freedom of political communication is a strong and wide-ranging freedom. However, the fact that multicultural policies can be changed or even abolished, or racially discriminatory policies advocated, means that civil society must always be ready to defend multiculturalism and racial equality.

The symbolic ‘value’ of prohibiting racist speech

As to s 18C’s symbolic value, it is hardly a supportable proposition to restrict a constitutionally important freedom like freedom of expression on the grounds of symbolism.  Indeed, this argument cuts both ways: restricting a fundamental freedom also has symbolic value – it’s just that the symbolism is decidedly unedifying.

We have primarily dealt with s 18C’s use of ‘offend’, ‘insult’ and ‘humiliate’. However, we must also examine s 18C’s use of ‘intimidate’. It should be kept in mind that that intimidation entails the element of threat. In addition to equality before the law, Article 5 also guarantees ‘The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual, group or institution’.

There should indeed be laws against unlawful intimidation.  However, this prohibition should apply to all equally. As we noted above, the reasonable representative test involves taking into account:

•    The race, colour, ethnicity and/or nationality of the audience; and
•    The race, colour, ethnicity and/or nationality of the speaker. This creates the same issues with intimidation as it does for offence, insult and humiliation. That is:
•    A reasonable representative of a group from a certain race, colour, ethnicity or nationality may regard an act as intimidating. However, a reasonable representative from another race, colour, ethnicity or nationality may not regard that same act as intimidating.
•    A speaker of a certain race, colour, ethnicity or nationality may be regarded as intimidating a person or group. However, a speaker of another race, colour, ethnicity or nationality may not be regarded as intimidating that person or group.

Once again, a person’s legal liability under s 18C depends upon the race, colour, ethnicity or nationality of themselves and/or their audience. This breaches the principle of equality before the law without distinction as to race, colour, ethnicity or nationality that is guaranteed under Article 5.

Section 18D

Section 18D’s exemptions may more readily apply to certain vocations or ‘classes’ than others. Hence, those routinely engaged in academic, artistic or scientific work are benefitted, including being more able to intimidate others because of their race, colour, ethnicity or nationality.

The foregoing suggests that there should be law against intimidation or similar conduct. However, the law should be one of equal application.

A proposed alternative law against racial hatred

We are firmly of the view that, given the problems with ss 18C and 18D, the entirety of Part IIA of the RDA must be repealed. The question then arises concerning what replaces s 18C. There are a number of alternatives. The Commonwealth Parliament could enact a law against racial harassment that applies to certain contexts. Such a law would work in a manner similar to that found in the Disability Discrimination Act 1992 (Cth) (‘DDA’).  That is, racial harassment in employment, education and in relation to the provision of goods and services could be prohibited. That said, unless harassment is tightly defined, the law may encounter difficulties with the implied freedom of political communication.

For example, with respect to prohibiting harassment in education, would this chill the robust exchange of ideas about race, colour, ethnicity or nationality, especially at tertiary institutions? To take another example, would prohibiting harassment in employment unduly (pardon the pun) chill “water cooler discussion” in the workplace about matters concerning race, colour, ethnicity and nationality?

The Australian Human Rights Commission’s role

Recent matters have highlighted problems in the present processes and structure of the AHRC. These matters are the case of Prior v Queensland University of Technology  and the Bill Leak matter. There are two issue that emerge from Prior. First, Judge Jarrett summarily dismissed the applicant Cindy Prior’s claims against three respondents, who were students at the Queensland University of Technology.  To dismiss a case in the Federal Circuit Court, a claim (amongst other things) must have no reasonable prospect of success.

The summary dismissal of Ms Prior’s claims against the three QUT students raises the question why the AHRC did not reject these claims but instead proceeded to conciliation. The AHRC Act provides that the AHRC President may terminate a complaint if (amongst other bases) the President is satisfied:

•    That the alleged unlawful discrimination is not unlawful discrimination  (and we note that, in the AHRC Act, a complaint under s 18C falls within the definition of unlawful discrimination),  or
•    The complaint was trivial, vexatious, misconceived or lacking in substance.
It is the first-listed ground that concerns us here. In order to make a determination that the alleged unlawful discrimination is not unlawful discrimination, the President should consider:
•    The text of the relevant statute (in this case s 18C);
•    How case law has interpreted the relevant statute; and
•    If the claim were litigated, whether it would have a reasonable prospect of success.

Nick Cater has noted that, in the period 2001-2005, the AHRC rejected 30% of s 18C complaints. In the period since, that figure has dropped to about 5%.  Given that, during this time, case law has not broadened s 18C’s scope, and that it is fairly safe to assume the Australian people have not become markedly more racist, it is reasonable to infer that the AHRC has relaxed its standards for determining whether a complaint under s 18C has merit.

Remarks by Professor Triggs SC support this inference. On the ABC’s 7.30 Report, she stated that ‘the [AHRC’s] first obligation is to accept the complaint and then to investigate it and conciliate it’.  In response to a question to the effect that the AHRC would have been aware that Ms Prior’s case would not have had a reasonable prospect of success Professor Triggs SC responded:

“Well, we could have made that judgement about what a court might do but that misunderstands our role.

Our role is not a court. We are there to, in effect, stop matters going to the court.

We have about 20,000 complaints a year, or matters a year. And we try, our job is to investigate and conciliate them and that’s why we come back to the threshold point. It’s a very low threshold.”

Later in the interview, presenter Leigh Sales asked this question:

“I don’t mean to labour this point but I just want some clarity around it. If your job is to try to prevent things from ending up in court, then let me ask again, why is it not the responsibility of the Human Rights Commission to make an assessment that this is not going to be successful in court, so therefore why are we wasting time about whether people can agree or disagree or whatever?”

To which Professor Triggs replied:

“Because the primary function is to achieve a conciliation.

In other words, we have 20,000, 22,000 matters coming through every year. Of course we don’t want them going to court mainly because most Australians can’t afford to go near the Federal Court.

So we are trying to persuade them for one side to acknowledge that perhaps a statement was unacceptable, for another to perhaps apologise.

That’s mainly how these matters are resolved. We thought that would be the case here [with the Prior matter].”

With all due respect to Professor Triggs SC, she appears to fundamentally misconceive her role and the relevant threshold. As noted above, the AHRC President’s statutory role includes terminating a claim of alleged unlawful discrimination if satisfied that it is not unlawful discrimination. This means applying the relevant case law regarding both s 18C and summary dismissal. By discharging this role, the AHRC President performs an important “filtering” function. Cases where there is no reasonable prospect that s 18C has been breached are terminated prior to conciliation.  This leaves substantial matters to conciliation.

It is not the AHRC President’s role to conciliate so that someone who hasn’t breached s 18C may ‘acknowledge that perhaps a statement was unacceptable’. Proceeding to conciliation in these circumstances is a waste of time and resources for (at least) the AHRC and the respondent.

The second issue that arises from the Prior case is that the AHRC breached its statutory obligation to notify the student respondents that there was to be a conciliation conference. Section 46PJ(3) of the AHRC Act provides that

‘If the President decides to hold a conference, the President must, by notice in writing, direct each complainant and each respondent to attend the conference’.

In addition to its statutory obligation, the AHRC should notify each respondent of a conciliation conference as a basic requirement of procedural fairness. However, the AHRC did not do this. Instead, it appears to have left this task to the Queensland University of Technology, another respondent to Ms Prior’s complaint. Indeed, an AHRC officer made this snippy and unintentionally ironic remark that QUT “has known about this complaint for over year … it’s not the fault of the commission that the QUT has waited a week before the (conciliation conference) to notify the students.”

However, the AHRC’s failure to notify the student respondents in the QUT matter does not appear to be a one-off event. Of great concern is that it appears that the AHRC routinely breaches its statutory obligation to directly notify respondents about conciliation conferences.

The Bill Leak matter

On 4 August 2016, The Australian newspaper published a cartoon by its cartoonist, Bill Leak. The cartoon depicts three Aboriginals. An Aboriginal police officer stands behind an Aboriginal boy before an Aboriginal man holding a beer. The police officer says to the man: ‘You’ll have to sit down and talk to your son about personal responsibility’, to which the man replies ‘Yeah righto what’s his name then?’.

Later that day, the AHRC’s Race Discrimination Commissioner, Dr Tim Soutphommasane, posted the following statement on his Facebook page, along with Mr Leak’s cartoon:

We shouldn’t accept or endorse racial stereotyping of Aboriginal Australians, or of any other racial group. If there are Aboriginal Australians who have been racially offended, insulted, humiliated or intimidated, they can consider lodging a complaint under the Racial Discrimination Act with the Commission. It should be noted that section 18D of the Act does protect artistic expression and public comment, provided they were done reasonably and in good faith.

There are two points we wish to make with respect to Dr Soutphommasane’s Facebook statement. The first concerns actual or apparent bias. The Race Discrimination Commissioner is a senior position in the AHRC. The AHRC is responsible for handling complaints alleging breaches of s 18C. As noted above, the AHRC President’s role is to terminate a matter if the alleged unlawful discrimination is not unlawful discrimination. The AHRC President often delegates this task to other AHRC officers.

The Race Discrimination Commissioner is not directly responsible for handling complaints. Nevertheless, given the position’s seniority, the Race Discrimination Commissioner is in a position to influence the AHRC President and their delegates. At the very least, the Race Discrimination Commissioner is in a position where the public perception is that he has that influence and speaks on behalf of the AHRC.

The test for bias in decision-makers exercising public power is whether the relevant circumstances are such as would give rise, in the mind of a fair-minded and informed member of the public, to a reasonable apprehension of a lack of impartiality on the part of the decision-maker.  Dr Soutphommasane’s position as Race Discrimination Commissioner, his seniority within the AHRC, combined with his Facebook statement, at the very least creates an arguable (and, in our view, a strongly arguable) claim of bias on the AHRC’s part with respect to an s 18C complaint lodged against Mr Leak’s cartoon. This is because:

•    The first sentence Dr Soutphommasane’s statement (the “topic sentence” of the statement, as it were) is strong, unequivocal and declarative: ‘We shouldn’t accept or endorse racial stereotyping of Aboriginal Australians, or of any other racial group’.
•    After this strong, unequivocal and declarative sentence, Dr Soutphommasane then invites Aboriginal Australians to consider lodging a complaint with the AHRC.
•    The reference to s 18D later in the statement is equivocal: ‘It should be noted that section 18D of the Act does protect artistic expression and public comment, provided they were done reasonably and in good faith’. This sentence does not overcome the strength of the first sentence. Indeed, in context, the final statement appears to suggest that Mr Leak may not have met the proviso.

In any event, given the AHRC President’s statutory role in investigating complaints, and terminating complaints that do not constitute unlawful investigation, the AHRC should scrupulously avoid any appearance of bias. This is especially so given that the AHRC is dedicated to protecting all human rights, including the right to procedural fairness.

The second point is not unrelated to the first. Dr Soutphommasane’s Facebook statement also gave the appearance of touting for business for the AHRC that would ultimately benefit Aboriginal complainants. This is inappropriate for someone in Dr Soutphommasane’s position because:

•    Benefits may be awarded for a breach of s 18C, including (but not limited to) apologies, corrections and monetary compensation.
•    Dr Soutphommasane’s imprimatur may encourage Aboriginals to think that, should they lodge a claim against Mr Leak under s 18C, they are likely to succeed.
•    Dr Soutphommasane occupies a senior position within the AHRC, namely Race Discrimination Commissioner. For a bureaucrat to invite claims is inappropriate. We note that under s 13(10)(a) of the Public Service Act 1999 (Cth), an employee of the Australian Public Service must not, amongst other things, use their status or power ‘to gain, or seek to gain, a benefit or an advantage for themselves or any other person’.

As presently structured, the AHRC’s functions appear to be advocacy as well as investigation and conciliation. This structure is unsustainable, as the AHRC’s advocacy function risks giving rise to the appearance of bias when it engages in its investigation and conciliation function. The advocacy function should be legislatively and physically separate from the investigative and conciliation function.

Hence, the present AHRC should be split into two new entities that have different enabling statutes and occupy separate premises. One entity should be dedicated to advocacy concerning human rights issues; the other should handle complaints made under the Commonwealth’s various human rights statutes. Provided officers in each of these new entities understand their roles and the importance of procedural fairness, the proposed structure should avoid the perception of bias.


The Commonwealth Parliament must be aware of the limits that the Commonwealth Constitution places on laws prohibiting expressions of racial hatred. Section 18C is itself too broad and too vague to be constitutional. The external affairs power does not support s 18C, as the law greatly exceeds the limits of relevant Articles of the Convention and the ICCPR. Section 18C’s also impermissibly infringes the implied freedom of political communication as its burden on this freedom is direct, sweeping and heavy. The Commonwealth Parliament should have a law against expressions of racial hatred, but it must be far more narrowly focused than s 18C. We have suggested a law directed against intentional incitement to racial enmity and violence.

Recent incidents have highlighted problems with how the AHRC operates. As a consequence, we have recommended that the AHRC be split into two new entities whose existence is statutorily and physical separate. One entity would advocate human rights issues; the other would handle complaints made under the Commonwealth’s various human rights statutes. The entity responsible for handling complaints must directly notify respondents that a complaint has been made against them. The entity would also terminate unmeritorious complaints early.

We suggest that the proposed reforms would remove unconstitutional fetters on freedom of expression. They would also improve procedural fairness in the administering of the Commonwealth’s human rights statutes.

Augusto Zimmerman LLB, LLM, PhD (Mon.) is W.A. Law Reform Commissioner and Professor of Law (adjunct), The University of Notre Dame Australia in Sydney. He and his co-authors submitted the above paper to the Parliamentary Inquiry into s 18C of the Racial Discrimination Act 1975. As reproduced above, it has been edited and abridged.