The Turnbull government has announced proposed changes to Section 18C of the Racial Discrimination Act: the law that makes it unlawful to engage in acts that are reasonably likely to “offend, insult, humiliate or intimidate” someone because of their race or ethnicity.
Under the proposals, the word “harass” will replace the words “offend, insult, humiliate”. A provision will also be included saying the test to be applied in deciding whether 18C has been breached is the objective standard of “the reasonable member of the Australian community”.
There are also proposed changes to the processes the Australian Human Rights Commission follows when someone lodges a complaint under 18C. For example, the commission will have to contact the people a complaint affects.
The changes to the commission’s processes are relatively uncontroversial; the commission supports many of them. They should also avoid a repeat of cases such as that involving three Queensland University of Technology students, who were not contacted until 14 months after the complaint was made.
However, the government’s objectives in seeking to change 18C are unclear. This may have the effect of confusing rather than clarifying what the law means.
Why does the government want to change the wording?
Much of the controversy surrounding 18C has focused on the words “offend” and “insult”. This is unsurprising: many people recognise these words are capable of applying to slights that should not be the concern of hate-speech laws.
Many also think that, in a democracy, there shouldn’t be a right not to be offended or insulted. The hate-speech laws of most other democracies don’t cover offensive and insulting acts.
The Federal Court has recognised the difficulties with 18C by interpreting it that so it applies only to:
… profound and serious effects, not to be likened to mere slights.
18C’s legal meaning is therefore different from its ordinary meaning.
However, this is not always well understood, either by critics of 18C and possibly by some people who have brought complaints under the provision. Many have argued there is a case for amending 18C to bring the law’s ordinary meaning into line with the Federal Court’s interpretation.
Against this, there have been concerns that any changes to 18C could send a problematic message to minority groups and give a green light to people who want to engage in racist behaviour. There have also been concerns about unintended effects upon a settled body of Federal Court decisions.
Clearly, any change to 18C would have to be carefully managed to clarify its meaning while avoiding these negative outcomes.
In this light, the government has not adequately explained what it is hoping to achieve by changing the wording of 18C. For example, why remove the word “humiliate” when controversy has focused on the words “offend” and “insult”? Why has the word “harass” been chosen instead of other options, like “vilify” or “degrade”?
It is also unclear if the government is seeking to bring 18C in line with the Federal Court’s interpretation, or if the government’s view is that the Federal Court’s current approach makes it too easy for race-hate complaints to succeed under 18C.
Unless the government adequately explains what it is seeking to achieve by changing 18C’s wording, it is unlikely to win broad support for its proposals, which look likely to be blocked by the Senate. It is also unlikely to achieve its stated aims of making the law clearer and more effective.
Who is the reasonable person?
Under the Federal Court’s interpretation of 18C, an “objective”, rather than “subjective” test is applied in deciding whether it has been breached.
The question is not whether the person making the complaint was subjectively “insulted, offended, humiliated or intimidated”, but whether the act was reasonably likely to have “profound and serious effects”.
In this regard, the Federal Court will often apply a “reasonable person” test. This involves considering the conduct’s likely effect on a reasonable member of the racial or ethnic group that is the target of the alleged conduct.
The government’s proposal that the standard should be “the reasonable member of the Australian community” therefore clarifies that the test under 18C is objective as opposed to subjective. However, a crucial difference is that the reasonable person is no longer a member of the racial or ethnic group that has been targeted, but is instead a member of the broader Australian community.
The government has not adequately explained what it is seeking to achieve through this change. One possible concern is that “reasonable” Australians who are ignorant of what is likely to harass or intimidate minority groups should not inadvertently breach 18C. However, a clear danger of the new test is that a law meant to protect minorities will not adequately reflect their perspectives.
One way this problem could be avoided would be for the Human Rights Commission and the Federal Court to regard the “reasonable member of the Australian community” as sensitive to minority concerns. However, in the short term, the change is more likely to confuse rather than clarify 18C’s meaning.