Press Conference with the Attorney General - Canberra
SUBJECTS: Reform to section 18C of the Racial Discrimination Act
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.
I'll ask the Attorney to describe in more detail the legislation.
Thank you very much indeed, Prime Minister. The legislation will correct some important gaps in the existing provisions of the Racial Discrimination Act.
It will, importantly, introduce the concept of harassment as one of the grounds of racial vilification. In 1991, when the then Human Rights and Opportunity Commission reviewed the law, the review that was the basis of Part Two of the Racial Discrimination Act, it recommended “harassment” as one of the grounds of racial vilification. That was not done when the current provisions were inserted in 1995. So we’re introducing the notion that to “harass” someone on the grounds of their race or national or ethnic origin, is prohibited conduct.
As well, when the then Attorney-General Mr Lavarch introduced the current provision in November 1994, he said that the reach of them was to be judged by the objective standards of the ordinary member of the Australian community. That has been eroded by judicial interpretation over the last 20 years.
So these reforms will restore, explicitly, that the test by which conduct is to be judged, is the ordinary, reasonable member of the Australian community's standard - the objective standard that was always intended when these provisions were inserted into the law to be the standard.
We have decided to accept recommendations of the Parliamentary Joint Committee on Human Rights, to ensure that the Human Rights Commission, in investigating complaints made to it, observe the principles of procedural fairness. We're introducing new provisions relating to the early termination of complaints, so that the President is obliged to make a preliminary assessment upon receiving a complaint, as to whether the complaint has substance or any reasonable prospect of being resolved in favour of the complainant. He or she has to do that before embarking on a formal inquiry. If the President is of the view that the complaint is without substance, and has no reasonable prospects of success, there will be an obligation to terminate the complaint at that point, at the threshold, rather than exposing people who are the subject of complaint, like the QUT students for instance, to the torment of process.
Secondly, there will be new provisions relating to the more timely handling of complaints. There will be a requirement that a complaint be lodged within six months at the latest of the conduct complained of and on obligation on the Commission to use best endeavours to resolve complaints within 12 months of a complaint being filed.
There will be the introduction into the Act of an explicit obligation to observe the principles of natural justice and to act fairly.
There will specifically be an obligation to ensure that anybody whose conduct is complained of, whether they are a respondent or whether they are merely the subject of an allegation while not being made formally a respondent, will be notified of the allegations made against them.
There will be requirement that a complainant provide sufficient information at the threshold to enable these determinations to be made upfront.
There will be a limit on applications to the Federal Circuit Court or the Federal Court, so that applications can only be made by leave of the court, if the complaint resolution process fails.
Finally, at least at the court stage of the process, there will be orders in relation to costs, so that those who make unmeritorious complaints can be the subject of an adverse cost order.
As the Prime Minister said, fairness is important here.
As we saw particularly in the case of the QUT students and in other high-profile cases, sometimes the process can be the punishment. That is not right or fair.
So these proposals, which have been discussed by the way, with the President of the Human Rights Commission Professor Triggs and in general have her support and are based on the recommendations of the Parliamentary Human Rights Committee, will redress, or address those gaps, imperfections, in the current Act.
When you boil this down to the cold facts, what do you say to a black person or an Asian person who has experienced racism either indirectly or directly? What do you say to them today? How do they digest this decision that it is now okay to insult or offend them, but not harass?
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.
On the need to change the wording of the Act, it does seem to be in general agreement the process needs to be fixed, as the Attorney indicates. But what successful prosecution under 18C demonstrates that the wording of the Act needs to change? Which of the prosecution under 18C should not have happened?
The QUT case is a very good example. The Bill Leak case, of course, which was terminated. But you see David, 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.
Ethnic and community groups like the Executive Council of Australian Jewry have said there is no need to change these laws, the wording of the laws are sufficient as they currently stand. What is your message to them?
Well we beg to differ with them. 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.
Before the election, when voters here asked you on many occasions about this change, you said it wasn't a priority, it wasn't a pressing issue, your Government had much more important things to deal with. The only thing that seems to have changed is the pressure from the right wing of your party. What's changed?
Well, the QUT case, the Leak case, the establishment of the Human Rights Committee and their report. They're the changes, the events, that have occurred since the election.
As you said, at the election, we said we didn't have plans to make any changes. That was absolutely true.
You referred to “very small slights”. Isn't this the point, that a rich white guy who refers to something as “very small slights” might not understand what other people feel? Secondly, just on the QUT case and the Bill Leak case, they could have both been dealt with, with proper process, couldn't they?
Well, an improvement to the process of the kind we have proposed, we are proposing, would certainly result in a better way of handling the cases. But nonetheless, the language of the section has been the subject of extensive criticism, both from leading legal professionals, from leaders from the left and the right. The language itself is very general and does not strike the right balance between protecting people from racial vilification and free speech.
Can I just add you don't fix a flawed substantive law, merely by changing the process? It's important to change the process, particularly whereas I said before, the process can be the punishment. But to reverse engineer the process is not a sufficient or acceptable way of reforming a law which is, itself, substantively flawed.
Back to my friend’s questions on process. There's been a suggestion that it might be introduced first into the Senate. Is that the case?
Yes, that is the case.
Why would that be?
It’s the Attorney-General's bill, it’ll be introduced in the Senate.
What do you expect of the success of these changes in the Senate? How often are you prepared to take them to the Senate if they're rejected?
Well our goal is to persuade the Senate to pass the legislation. We're often asked about our prospects in the Senate. Sometimes we're given free advice, George, aren't we?
Free predictions. Sometimes they're wrong, thankfully, because it's generally pretty gloomy advice.
GetUp! has pledged to campaign against these changes. Do you accept that the price of this reform may be that the Coalition loses some votes among ethnic communities and do you accept that that could jeopardise some of the marginal seats held by the Government?
I've got no doubt that the Labor Party will cynically and ruthlessly seek to exploit these changes.
They have no interest in free speech. They actually don't have much interest in the objects of the Racial Discrimination Act either. We've seen they're prepared to lie and distort on any and every issue. Why would this be any different?
Prime Minister, what you’re saying, are we now saying that casual racism, racial insults - calling me a ‘w’, calling others other names, we're OK with that now, as a society?
That’s not what we’re saying at all. In fact -
But you’re going to remove that from the law.
I was going to say - but actually I don't want to repeat that language - but language exactly like that has been found to be harassment under the Western Australian legislation, I think. So “harassment” is a very widely used term. It is a much more widely used term, in terms of human rights legislation, than words like "insult" and "offend". So it’s a well understood term of harassment and it is better. It provides a better protection and does so in many other areas of human rights, including obviously, most notably, sexual harassment.
Australia is making a bid for a seat on the human rights council, the UN human rights council. What's your message to people who say: “Well, why should Australia have such a seat, if you're watering down race hate laws”?
I absolutely reject the premise of your question. We are strengthening the race hate laws. These are stronger laws, more effective laws, because they’re clearer laws. We are strengthening the Racial Discrimination Act, we are strengthening it because it's clearer, it will be a more effective protection against race hate. As far as international commitments, I can say - and George will explain - there has been concern that the generality of the language in 18C may in fact, create issues of that kind.
That's absolutely right, Prime Minister. Can I point out in response to your question as well, “harassment” is a more powerful language. There is no country in the world that has "offend, insult, humiliate", as the terms for the prohibited conduct. But almost every country in the world, or every like-minded country that has protections against vilification, uses the term "harass" as one of the proscribed types of conduct. Yet, for unexplained reasons, that was missed when this legislation was passed in 1995. Although, as I said in my opening remarks, the recommendation was that it should be part of the law. It wasn't. We are correcting a gap in the law.
Are we going to have a plebiscite on 18C? It is a contentious social reform that everyone has a stake in. Why are elites allowed to decide this issue, but same-sex marriage is going to be done by a majoritarian popular vote?
Thanks for the editorial.
You spoke about the QUT case, you spoke about the Leak case. The case that really triggered this debate was the Andrew Bolt case a few years ago. Would these changes to the law have meant that Andrew Bolt, the verdict in that case, would have been different and that he would have been let off?
I don't know whether the Attorney wants to express a legal opinion, but I don't want to express a view on the conduct of that particular case. But look, the decision of the trial judge, I think, has been criticised in many legal quarters. It's been often said that Mr Bolt would have been well-advised to appeal. But again, that's a legal question. I don't want to express a view on that. I'd simply say that we know that the language of 18 C at the moment has lost its credibility. It is widely criticised. It is held up as being an in appropriate restriction on free speech. It has lost the confidence that a law of this kind, needs. So recasting it in clearer language, makes it stronger. A clearer law is a stronger law. A law whose words mean what they say, whose natural and ordinary meaning, delivers the object of the Act, that's a clearer law. That is consistent with the rule of law.
There have been many criticisms of 18C's current wording, on the basis that the words themselves do not express what the courts have said they mean. So isn't it better to have language that is clear, that is precise, that gives greater strength, greater protection, against racial vilification and better preserves the freedom of speech, that is so vital in our democracy? I know that the point has been made: “Well, how many cases have been lost” and so forth? The reality is, if you have language that is too wide, too general, it has a chilling effect on free speech.
It's not just the cases that hit the headlines, it's all of the speech that is inhibited, the speech that should be allowed. What we've set out is clear language which will better protect Australians from racial vilification. It's consistent with precedent and practice. It's clear, it's stronger, it's fairer.
Do these changes restore - as you once put it Attorney - the right to be a bigot?
That's not what the changes are about. The changes are getting the balance right between strong protection against racial vilification, protection of freedom of speech and procedural fairness. Those are the three values that are sometimes – very often in fact – contentious. As the Prime Minister said, we've been embarking on the exercise of law reform. We don't assume that the current law is perfect. What we do, is we look at the law, we look at the limitations that have been exposed in the law. We look at the gaps in the law, like the omission of harassment. We ask ourselves the question: “How do we best recast this law to reconcile the three competing values”? I believe we have got this right.
Thank you all very much.