“Public debate about the Racial Discrimination Act is unlikely to abate any time soon. But we hope discussion of the Act is based on an accurate understanding of what it means and how it operates. And we hope our society will remain committed to racial tolerance, non-discrimination and equality,” writes Race Discrimination Commissioner Dr Tim Soutphommasane in the Law Society Journal.
The Racial Discrimination Act (RDA) and the complaints-handling processes of the Australian Human Rights Commission are currently the subjects of an inquiry by the Parliamentary Joint Committee on Human Rights. A particular focus of this inquiry is sections 18C and 18D of the RDA.
The Committee’s ‘Freedom of speech in Australia’ inquiry is due to report by 28 February 2017.
“There is no persuasive case for changing section 18C of the Racial Discrimination Act,” Dr Soutphommasane writes.
“As it stands, the law strikes an appropriate balance between freedom from racial vilification and freedom of speech. It is important that Australian society sends a strong message that racial vilification can be held to account, while guaranteeing freedom of speech.”
Dr Soutphommasane reflected on criticisms that section 18C of the RDA “goes too far” and stifles freedom of speech.
“Such criticism ignores how section 18C is accompanied by section 18D, which protects any fair comment or reporting on a matter of public interest, and any sentiment expressed ‘in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose’.
“Provided something is done reasonably and in good faith, any fair comment or public discussion will be exempt from being in breach of section 18C.
“Indeed, the Racial Discrimination Act is one of the few legislative instruments in Australian law that contains an explicit protection of free speech.
“Given the broad protection of free speech in section 18D, we are entitled to ask: Why is that people want to make it acceptable to racially offend or racially insult others in ways that are not done reasonably or in good faith, in ways that have no genuine purpose in the public interest? What is it that people want to say, which they can’t already say?”