Whether the language used to abuse someone breaches 18C of the Racial Discrimination Act (RDA) will be subject to a “reasonable person” test under proposed changes approved by the Coalition party room today.
The government also plans to make it tougher for anyone to lodge a racial discrimination complaint, but prime minister Malcolm Turnbull said the changes will strengthen the laws on racial discrimination.
The Human Rights Commission (HRC) will be given powers to terminate complaints early on if they’re deemed “unmeritorious” and anyone lodging a complaint could be liable for costs, especially if the action is dismissed as trivial.
The HRC president will be obliged to make a preliminary assessment before proceeding, with an obligation to terminate “at the threshold”.
The terms “offend, insult and humiliate” will be deleted from the RDA, instead making it an offence to harass or intimidate someone.
Announcing the changes today, Turnbull said the government was “defending and enabling the right of free speech”.
“We are defending the law by making it clearer,” he said, “so cartoonists will not be hauled up and accused of racism.”
The PM said 18C of the RDA law contained “language which has been discredited… and has lost the credibility that a good law needs”.
“This is an issue of values. Free speech is a value at the core of our party,” he said, adding that the changes were “supported from all sides of the political spectrum”.
“These are stronger laws, more effective laws… to protect against race hate,” he said.
Attorney-general George Brandis said the changes had been discussed with HRC president Gillian Triggs, who backed them to ensure the organisation offered “procedural fairness”.
“Sometimes the process can be the punishment and that is not right or fair,” he said.
Under the changes, complaints must be lodged within six months of the incident and resolved within 12 months by the HRC.
There will be an obligation to ensure the respondent is notified and if the complainant seeks to take the matter to court, rather than via the HRC’s arbitration system, there will be a limit on applications. They can only by done by leave from the court and the complainant would be subject to an adverse costs order.
The test to be applied in determining whether 18C has been breached is the objective standard, ie the standard of the “reasonable member of the Australian community”.
The legislation was backed by Cabinet last night and taken to the party room today, less than a fortnight after the sudden death of cartoonist Bill Leak, who the prime minister cited today as an example of the need for reform.
The case lodged against the late artist over a cartoon last year featuring an Aboriginal man, published in The Australian, was withdrawn before it was adjudicated.
Today’s announcement marks a sudden change of heart by the PM, who went to last year’s election saying no changes were planned for the RDA and subsequently said the issue was not a priority for the government. His predecessor Tony Abbott, who dropped similar plans in 2014, reportedly praised Turnbull during today’s party room meeting.
The government is reportedly looking at sending the legislation to the senate first, rather than the lower house, where a lack of support from crossbench senators and Labor is likely to see the changes rejected.
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