Conservative politicians and senior media figures have been critical of the failure of an Australian government committee to amend the Racial Discrimination Act to protect free speech.
The Joint Parliamentary Committee on Human Rights reviewed Sections 18C and 18C of the Act following a Federal Court case against five Queensland University students brought under the Act and a series of complaints by people who claimed to be offended by a cartoon by The Australian’s Bill Leak. The complainants eventually dropped their actions against Leak and The Australian, and the case against the QUT students was dismissed.
The parliamentary committee recommended changes to the process to streamline the complaint process, but did little to stop the restrictive impact of the Act on freedom of speech
The committee recommended changes to improve the time it takes to notify parties and to offer greater assistance to respondents. It also afforded more power to the Australian Human Rights Commission to terminate complaints and restrict access to courts following the termination of a complaint.
Another recommendation was to give parliament greater oversight over the commission.
However the contentious Section 18C remains, which provided the basis for the actions against Leak and the QUT students. One recommendation by the committee was to replace the words “offend” and “humiliate” with “harass”, which made the section less subjective, but did little to protect free speech.
The committee also recommended that the defences outlined in Section 18D in terms of “acting reasonably and in good faith” be considered by the Australian Human Rights Commission in conjunction with the complaint. However, this is no more than a confirmation of the status quo.
The Turnbull government will consider the inquiry’s recommendations, but does not need to implement any changes to the legislation.
The Australian railed against the lack of protection for free speech under the Act in its editorial on Wednesday. “The racial hatred law and its complaints process pose a threat to the freedom of speech necessary for public debates in the national interest,” it said.
“The best result yesterday would have been a strong recommendation to do away with the provision entirely. As NSW Solicitor-General Michael Sexton SC has pointed out, there is already a patchwork of federal and state anti-discrimination law. In short, the politicians failed to find their voice. At least Malcolm Turnbull now has the chance to stand up and strike a decisive blow in favour of free speech.”
Mark Hollands, who stepped down as chief executive of industry group NewsMediaWorks this week, argues that freedom of speech needs to be protected.
“Freedom of speech is paramount in any democracy,” he said. “I do not support any government legislating against an individual expressing a personal opinion or fair comment. The moment free speech is lost, it will never come back. Indeed, it would be more likely that further curbs would be placed around freedom of expression.
“The latest report is not much help to anyone. I am all for a debate as society is changing quickly in terms of technology and social discourse. Yet I see little to dissuade me from the view that freedom of expression and a free press remain a cornerstone of democratic society, and therefore our way of life.”
Former Liberal senator Cory Bernardi accused the committee of dodged a hard decision.
“The sole reason for this inquiry was to resolve issues relating to section 18C of the Racial Discrimination Act which allows claims of offence or insult to be punishable under law. The evidence was in, the 18C scandals were clear. Yet the committee bowed at the altar of political correctness,’’ he said.
His views were echoed by Queensland National George Christensen who released a statement on Thursday condemning the failure to reform Section 18C, saying that it represented a “breach of faith” with the Australian public.
Mr Christensen said that 18C was political correctness enshrined into law and that it stifled freedom of speech. “Nothing could be more of an affront to Australian values,” he said.
Mr Christensen said the government should repeal, or at the very least amend, section 18C “sooner rather than later.”
While freedom of speech has always been a core principle for journalists, Michael Short, the chief editorial writer at The Age, believes there are more important impediments to freedom of speech in Australia. He believes that the suppression orders and defamation law needs to be addressed more than 18C, which has become an “emblematic issue”.
“The position at The Age has been there is no need to change 18C because of 18D which provides blanket protections.
“This has become a proxy that is much more about politics than principle,” Mr Short said.
Mr Short believes that of the recommendations, the streamlining of the Human Rights Commission process would be useful for claimant and respondents.
Prior to the committee report, News Corp Australia sent a submission to the inquiry arguing that Australia had limited protections of freedom of speech, and this impinged on journalists’ ability to do their job.
News Corp Australia declined to comment on the recommendations until a later date.