18c: Not Perfect, But A Pretty Good Start

The Turnbull government’s proposed changes to section 18c don’t go all the way, but they’re a pretty good start.

Yesterday, Prime Minister Malcolm Turnbull and Attorney-General George Brandis announced that section 18c of the Racial Discrimination Act would be amended so that it is no longer unlawful to "offend", "insult" or "humiliate" another person because of their race.  In their place, the government proposes to insert the word "harass".

Other changes announced are that the test for assessing whether conduct is unlawful — which is currently what offends a "reasonable member of a relevant group" — will become an objective test based on the assessment of the "reasonable member of the Australian community".  Overdue procedural changes to the Australian Human Rights Commission will also be made.

The words "offend", "insult", and "humiliate" were always the most subjective parts of section 18c.  While it's never wise to predict how courts would apply a law before it's even introduced, it is likely removing these words will raise the threshold for unlawful conduct under section 18c.

The wildcard is the insertion of the word "harass", where there is not a great deal of judicial interpretation.  In the case of Monis v The Queen in 2013, the High Court considered section 471.12 of the Commonwealth Criminal Code which makes it an offence for a person to use a postal or similar service "in a way... that a person would regard as being, in all the circumstances, menacing, harassing or offensive."

Justice Hayne held that "harassing" in this context means "troubling or vexing by repeated attacks".  Justices Crennan, Kiefel and Bell commented that "harassing" together with the word "menacing" implied "a serious potential effect upon an addressee, one which causes apprehension, if not a fear, for that person's safety."

If the courts interpret "harass" in the Racial Discrimination Act in a similar way, then the proposed changes would be an improvement on the existing wording of section 18c.

However, the insertion of the so-called objective test will probably not amount to a substantive change of the law.  This is because it is essentially the same test as currently used in the law.

Section 18c as currently interpreted asks judges to assess whether conduct would offend a "reasonable member of the relevant group".  The proposed "objective" test would require judges to assess the impact of the unlawful conduct on the reasonable member of the Australian community.  However, the basis for section 18c is that a person is affected by the conduct of another person because of their race, colour, ethnic or national origin.  The reasonable member of the Australian community would inevitably have to assess the impact of the alleged unlawful conduct from the perspective of someone with the personal characteristics of the person affected.

While these changes are an improvement, and should be welcomed, even this will run into problems.  After all, Cindy Prior launched a three-and-a-half-year legal saga against Alex Wood and the other QUT students on the basis that their Facebook posts were intimidating.

The only way to guarantee section 18c doesn't infringe on freedom of speech is to repeal 18c entirely.  And the proposed changes are an important first step.