Friday, 24 March 2017

Turnbull and Co announce they are taking their ideological razors to the Racial Discrimination Act and Human Rights Commission legislation

During this decade there have been three cases close to the hearts of the far right of the political spectrum in Australia.

The first was Pat Eatock v Andrew Bolt and the Herald and Weekly Times Pty Ltd in the Federal Court of Australia, the second the Cynthia Prior complaint to the Human Rights Commission and, the third was the complaint against Bill Leak lodged with the Human Rights Commission.

The Federal Court found against News Corp journalist Andrew Bolt, the Commission terminated the Prior complaint on the basis it was satisfied that there was no reasonable prospect of the matter being settled by conciliation (the complainant later commencing unsuccessful litigation) and, the complaint against cartoonist Bill Leak was eventually withdrawn by Ms. Dinnison.

The Racial Discrimination Act and the Australian Human Rights Commission Act appear to have operated as intended by the original law makers in all three instances.

Yet such was the angst in Liberal Party and ‘flying monkey’ circles that an attempt to significantly alter the Act and neuter the Commission is now underway.

Excerpts from Australian Prime Minister Malcolm Bligh Turnbull statements at a joint press conference on 21 March 2017:

Good afternoon. Today I am here with the Attorney and we are announcing changes to the Racial Discrimination Act and the Human Rights Commission legislation, which will strengthen the protection of Australians from racial vilification and strengthen the protection of free speech, one of the fundamental freedoms upon which our democracy depends.

We are defending the law by making it clearer. We are defending Australians from racial vilification, by replacing language which has been discredited and has lost credibility. It has lost the credibility that a good law needs.

So the changes we are proposing to section 18C will provide the right balance between defending Australians from racial vilification and defending and enabling their right of free speech upon which our democracy, our way of life, depends.

We are also amending the law so as to ensure that the Human Rights Commission will offer procedural fairness, will deal with cases promptly and swiftly and fairly. That's very important too.

We need to restore confidence to the Racial Discrimination Act and to the Human Rights Commissions' administration of it. The changes we're proposing have been supported from all sides of the political spectrum.

Granted, there will be many critics and opponents. But this is an issue of values. Free speech. Free speech is a value at the very core of our party. It should be at the core of every party.
Ensuring Australians are protected from racial vilification, likewise, is part of that mutual respect of which I often speak, which is the foundation of our success as the greatest and most successful multicultural society in the world.

We’ve struck the balance right. We've done this carefully. There's been a scrupulously careful examination of this matter by the Human Rights Committee and we thank the Chairman, Ian Goodenough, and the members for their work.

What we presented today strikes the right balance. Defending freedom of speech, so that cartoonists will not be hauled up and accused of racism. So that university students won't be dragged through the courts and had hundreds of thousands of dollars of legal costs imposed on them over spurious claims of racism.

The time has come to get the balance right, to get the language right, to defend our freedom of speech and defend Australians with effective laws, clear laws, against racial vilification. That's what we're doing today. We're defending Australians with a stronger, fairer law…..

The language, the new language will better and more clearly protect people from racial vilification, in a more generic term, from harassment or intimidation because the language is clearer.

The problem with the language at the moment - using the language insult and offend – the problem is that, of course, on its face, its natural and ordinary meaning, it includes very small slights. So people have said: “Oh, well, you know, there are court cases that say it only means really serious insults.” Well isn't it better that laws actually say what they mean? Isn't it better that laws are clear? Isn't it better when you’re dealing with freedom of speech and you're dealing with protecting people from racial vilification, that the law is clear and in language people can understand? That's what we're doing.

….. you have got to remember that if you have language that does not reflect the object, or the proper object of the legislation, it has a chilling effect on free speech. So let’s be very clear. Ask this question: “What is it we that we are seeking to prohibit”?

We believe that “harassment”, “intimidation” are the better terms. They are clearer and they clearly express the type of conduct that should be prohibited, not mere slights or the taking of offence or hurt feelings. That is not what the law should be about…..

….. We believe that the law has lost its credibility. I mean, all of you have seen the criticism that has come around recent cases, the QUT and the Bill Leak case being classic examples. When a law loses its credibility, it lacks its ability to achieve any of its objectives.

So this is why it’s important to restate the language in terms that better reflect the objects of the legislation. As the Attorney said, right from the outset, if you go back decades, it better reflects the object of the legislation then, and it clearly prohibits conduct of a kind that we condemn, that we abhor, that we do not accept.

We are the most successful multicultural society in the world. It’s built on a foundation of mutual respect, and that mutual respect - that foundation - is strengthened by stronger, clearer, fairer laws.


Excerpt from a paper by the Chair of Melbourne University Law School Professor Adrienne Stone in Melbourne University Law Review 926 on the judgment in Eatock v Bolt [2011] FCA 1103 (28 September 2011):

In a short judgment following his initial finding, Bromberg J granted two remedies: the Herald Sun (published by the Herald and Weekly Times) was required to publish a ‘corrective notice’ as specified in the judgment, and Bolt and the Herald and Weekly Times were restrained from further publishing or republishing the offending articles.[67]

The remedies are notably insubstantial. They are considerably less onerous than damages, a fact which is especially notable given it seems entirely possible that Eatock could have successfully claimed damages in a defamation action.[68] The lenity of the remedy becomes even clearer in light of an additional order which allowed the Herald Sun to continue to make the offending newspaper articles available ‘for historical or archival purposes’, provided that the publication was accompanied by the required corrective notice.[69] The result of this latter order is that the offending articles remain available online.[70] The ready availability of the offending articles considerably weakens claims that Bolt has been silenced by the action, and more general claims that freedom of speech has been chilled. The ideas in his articles continue to be communicated to those who seek them out.

Indeed, this claim of silencing is at once made and disproved by  Andrew Bolt  himself. In his response to the decision, Bolt wrote ‘Silencing Me Impedes Unity’, a commentary in which he argues that his ideas have been ‘banned’ and yet goes on to repeat, at quite some length, his argument that Aboriginal people of mixed heritage should not claim Aboriginal identity.[71]

This irony deepens when one considers the common refrain amongst critics of 
s 18C (and the respondents in Eatock v Bolt in particular) that the complainants should have responded to the criticisms by defending themselves in public debate.[72] This suggestion taps into an important idea in the political theory of freedom of speech that the victims of harms caused by speech ought to ‘speak back’, and that the ‘fitting remedy for evil counsels is good ones’.[73] The irony arises because, in effect, Bolt and the Herald and Weekly Times have themselves been subject to a certain kind of ‘speaking back’.[74] They have not been required to apologise, to pay damages, or — crucially — to remove the material from the internet. The sum total in effect of the measure imposed on them is that the articles are labelled as having infringed the RDA.

In other words, the remedy imposed inEatock v Bolt was predominantly expressive  rather than coercive. It neither required compensation nor imposed any other sanction on the respondents. Rather, the state signals its disapproval of the message conveyed — labelling it as contrary to the RDA — but does not prevent its communication. The state’s action is akin to the ‘speaking back’ that the respondents and their defenders encourage. Moreover, just as the respondents and their defenders encouraged the complainants in this case, if the respondents are troubled by being labelled in this way, they are, of course, able themselves to ‘speak back’. Therefore, one way to understand the effect of Eatock v Bolt is that it makes a contribution to the public debate about racial identity (labelling the particular contribution of Bolt as discriminatory), but does not prevent Bolt’s message from being heard.

This argument will, no doubt, not satisfy those deeply committed to a strong libertarian vision of freedom of speech — in which the role of the state is to be minimised — and who will find even expressive remedies offensive to their underlying conception of liberty.[75] The state is an especially powerful ‘speaker’ and its intervention through expressive remedies might be cast as dangerously distorting.

However, libertarian conceptions of freedom of speech are themselves contested both in theory[76] and exceptional in practice.[77] So those campaigning to amend s 18C cannot simply claim to be defending freedom of speech against those who disregard it or prefer other values or interests. They are defending a particular, rather unusual, and strongly contested version of freedom of speech and they are doing so in the face of alternative conceptions that powerfully defended in theory[78] and widely adopted in practice.[79] By neglecting even to notice the expressive nature of the remedy, the opponents of the law have thus failed to see that it may advance, rather than chill, free speech values.

Legal meaning of 'offend, insult, humiliate or intimidate'

2.21 The Federal Court in Jones v Scully explicitly set out the dictionary definitions of the terms 'offend, insult, humiliate or intimidate' in an attempt to establish the meaning to be given to each word individually.14 The ordinary meaning of the words provided in Jones v Scully provide some guidance, but must also be consistent with the threshold established by Kiefel J,15 in Creek v Cairns Post Pty Ltd,16 that section 18C only applies to conduct having 'profound and serious effects, not to be likened to mere slights'. This standard has been affirmed in the case law.17

2.22 It is worth noting, however, that the Court generally does not consider each term in isolation. Although in McGlade v Lightfoot the relevant conduct was found to be reasonably likely to 'offend' and 'insult', the Court made it very clear that it was not  reasonably likely to humiliate or intimidate.18 This means that the legal meaning of 'offend, insult, humiliate or intimidate' does not wholly correspond with the ordinary or 'common sense' meaning of the terms. In other words, as interpreted by the courts, conduct that is merely offensive or merely insulting will not be captured by section 18C of the RDA, but only more serious forms of conduct on the basis of race. While some submitters suggested that the words used in section 18C created uncertainty, the committee received evidence from other witnesses that the legal meaning and judicial interpretation of section 18C was well settled as applying only to conduct at the more serious end of the range.19
14 [2002] FCA 1080.
15 Kiefel J is now the Chief Justice of the High Court.
16 [2001] FCA 1007, [16].
17 Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 at 131, [70]
(French J) (Bropho); Jones v Scully (2002) 120 FCR 243, [102]; Eatock v Bolt (2011) 197 FCR 261
at [267]-[268] (Justice Bromberg) (Eatock).
18 McGlade v Lightfoot (2002) 124 FCR 106, 120 at [61]-[62].
19 See, for example: Law Institute of Victoria, Submission 184, 4; Mr Iain Anderson, Deputy
Secretary, Attorney-General's Department, Committee Hansard, 17 February 2017, 21-22.

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