The right to protection against race hate speech
The Freedom of Speech in Australia Report (28th January 2017) will bring no joy to those urging wholesale repeal or major weakening of Part IIA of the Racial Discrimination Act which prohibits racially motivated hate speech.
At the end of another (unnecessary and rushed) review process, which attracted 11460 responses, the Parliamentary Human Rights Committee was unable to make a recommendation to the Government on this core provision. Instead it restricted itself to listing 6 options that had the support of at least one Committee member. (R3). Neither abolition nor major weakening of the provision appears in this list of options. Not one Committee member supported an extreme option.
The Report focusses on positive options that do not have as their intent the weakening of the provision’s vitally important protection against race hate speech: whether or not it is best to leave the provision as it is on the grounds that case law interpretation of what it means is well established and the legislation is working well – or to tweak the provision by various proposed amendments to make explicit in the legislation these judicial interpretations on the basis that it is a good principle that the meaning of laws be clear and accessible.
Nothing new here – these issues have been canvassed many times including in the last review in 2014.
But it is a great relief that the extreme views of those who demand repeal or major watering down of the provision have not been given any support in the Committee’s recommendations.
NSWCCL also welcomes the separate strong statements in the Report from the ALP and the Greens members opposing any change to this core provision.
The AHRC administrative processes
In response to the controversy generated by three recent cases and repeated attacks by the Government and others on the AHRC and its President, the Committee was also tasked with the review of the Commission’s handling of complaints and its general procedures - with particular reference to the alleged soliciting of complaints. Most of the Committee's recommendations (19 out of 22) relate to this broad area.
Given the ferocity and persistence of attacks by senior Government members and some sections of the media on the AHRC and its President, NSWCCL was concerned that the review could be used to seriously undermine the President and the organisation. This has not been the outcome .
The evidence from many respected and qualified sources discussed in the Report essentially disposes of the public allegations of gross incompetence, unfairness, soliciting etc by the Commission and establishes that much of the commentary on the three recent cases was seriously ill-informed.
Nonetheless, the Committee has made numbers of recommendations relating to the AHRC procedures, its oversight and the role of the President. Many of these are a sensible tightening up of procedures and are either supported by the AHRC or not likely to be opposed by it. (For example the President has previously requested an amendment that will allow the Commission to terminate complaints not likely to succeed quickly. R 12).
Some recommendations seem redundant and some unnecessary but are not likely to be harmful- beyond the fact that they will consume resources. It may be that the Committee is proposing these additional checks and safeguards to provide public confidence that the Commission will be operating fairly and effectively.
If they protect the AHRC and its President from the kinds of unwarranted political attacks we have seen over the last two years - they will have served a good purpose.
NSWCCL is however concerned about some of the recommendations because of their potential to undermine the current accessibility of the ALHRC to complainants with limited resources if the cost of lodging a complaint or of failure to have a complaint upheld, become too big a barrier.
It is important that any reforms to improve the Commission’s effectiveness do not undermine its powers or independence and its current accessibility to persons wanting to make a complaint.
A detailed analysis of the 22 recommendations will be posted shortly.
Dr Lesley Lynch
Joint HR Committee Report Freedom of Speech 2017