Amendments to the government’s racial discrimination bill to clarify that prohibited “harassment” can occur at a distance, including online on social media, do not address concerns that the test for complaints is unclear, the Law Council of Australia has said.
The Australian Human Rights Commission, Labor and the Greens have also complained that amendments to complaint procedures don’t do enough to address their concerns, including that many changes are retrospective and impose unreasonable burdens on the commission.
On Tuesday night the government tabled two sets of amendments, one to clarify that “harassment” in the proposed new 18C can occur online and does not require people to be in each other’s presence.
The second set of amendments clarifies which procedural changes for AHRC complaints handling apply retrospectively and prospectively, and allows the AHRC not to disclose a complaint to a person who has had adverse allegations about them where it is not practical to do so.
On Wednesday the president of the Law Council of Australia, Fiona McLeod, said the amendments “appear to seek to address [our] concern … about the amendments potentially requiring a direct communication.
“The Law Council’s concern in this respect was that the effect … would be to limit the scope of section 18C to interpersonal interaction, notwithstanding that the harassment may be directed at a group of people.”
The concern was cited by Labor in its opposition to the bill, which replaces the “offend, insult or humiliate” test with the term “harass”.
McLeod said retention the term harass and the “standard of a reasonable person of the Australian community” means that difficulties with these provisions remain.
“The difficulty with the word harass is that it is circular and question begging,” she said, arguing the amendments did not clarify the meaning of harassment.
Few cases have interpreted what “harass” means, and the definition in the Sex Discrimination Act includes conduct that could “offend, humiliate or intimidate” a person, “potentially reading back into the legislation the very words that are said to be causing some difficulty at the moment”, McLeod said.
“Despite the government amendments, it may still be the case that conduct such as that in Toben v Jones [regarding Holocaust denial material published online] will not be caught by the amended provisions.”
Andrew Jakubowicz, an academic expert who works on a major cyber racism project and gave evidence to the joint committee on human rights examining 18C, told Guardian Australia the term “harass” would make it more difficult for internet and social media users to make complaints.
“They will think, ‘I am really insulted and offended but not personally harassed or intimidated [by a comment] so I can’t do anything anymore, I have nowhere to go.’”
“Until a person feels absolutely harassed, they will think they’ve got to put up with this shit, and it contributes to the poisonous atmosphere,” referring to examples including Islamophobic websites.
Although Labor and the AHRC have provided in-principle support to some changes to procedures to handle section 18C Racial Discrimination Act complaints, stakeholders have warned the retrospective changes will impose a huge administrative burden on the commission.
The AHRC objected to a mandatory accept/reject phase in the commission’s processes, mandatory termination of complaint provisions, and the requirement to notify people who have had an adverse allegation against them who is not a respondent.
On Wednesday a spokesman for the AHRC said that the amendments “address some but not all of the commission’s concerns” on proposed procedural changes to the act.
It remains opposed to the “reasonable person” test and replacing “offend, insult or humiliate” with “harass” in 18C.
The shadow attorney general, Mark Dreyfus, said the “procedural changes proposed in these amendments are not currently in a form that Labor could support”.
He accused the government of delivering the amendments at “five minutes to midnight” and failing to consult the opposition.
“The government clearly is making no attempt to make the procedural changes workable and appears to now be hoping that the entire bill is voted down. It’s bizarre.”
The Greens support some procedural changes but oppose applying them retrospectively and are concerned the AHRC president would be required to accept or reject all existing complaints that she has not begun to investigate.
The Greens justice spokesman, Senator Nick McKim, said: “These amendments will require the Human Rights commission to divert significant resources into reviewing existing cases and complying with retrospective notification requirements.”
He accused the government of “making life difficult” for the AHRC as part of an alleged “ongoing vendetta” against it.
“The government has consistently claimed that it wants the commission to clear matters more quickly, yet these amendments will gum up its gears and delay the timely disposal of existing complaints.”
