Labor has warned changes to the Racial Discrimination Act will weaken protections against racial abuse and worsen access to justice by all discrimination complainants, not just those using section 18C.
Labor raised the objections in a dissenting Senate committee report after a whirlwind inquiry into the proposed changes and Senate debate on the bill, which started on Tuesday.
The Labor leader in the Senate, Penny Wong, told the Senate it was “distressingly sad” the Turnbull government wanted to “legitimise insult, offence and humiliation on the basis of race in the name of free speech”.
Wong warned the changes would raise the legal threshold for complaints “from a sense of personal offence to one of fearfulness”. “They declare it permissible to employ verbal abuse to affront and shock people, drawing the line only at the point of harassment.”
Labor is also concerned the “reasonable person” test would require courts to ignore sensitivities of particular ethnic communities.
The government’s plan would remove the prohibition on conduct which insults, offends and humiliates and replaces them with “harass” as well as make a number of procedural changes to complaints handling. The bill is expected to fail because it is opposed by the Nick Xenophon Team, Jacqui Lambie, Labor and the Greens.
But NXT, One Nation and senators Derryn Hinch, Cory Bernardi and David Leyonhjelm combined with the Coalition to vote down a Labor motion to push debate back to Thursday, citing a number of amendments to procedural changes that have not been tabled yet.
Professor of law at University of New South Wales Luke McNamara said that the ramifications of applying the changes to all complaints of discrimination, not just 18C, had been lost in the debate of the past week.
“In the context where the commission receives about 2,000 complaints a year across the four categories of section 18: race discrimination, sex discrimination, age discrimination, less than 100 of those are section 18C complaints,” he told 2SER 107.3 podcast Just Words.
“And so the so called evidence about the procedural problems that have been asserted in relation 18C have now been extrapolated to place restrictions on complaint making across the full spectrum of grounds of unlawful discrimination.”
On Tuesday the government-controlled Senate legal and constitutional affairs legislation committee recommended the bill be passed.
The report echoed Malcolm Turnbull and the attorney general George Brandis’s line that it would “strengthen the protections against hateful speech based on race, colour or national or ethnic origin on one hand and enhancing the rights to freedom of speech that all Australians enjoy on the other”.
It noted the joint human rights committee report recommended removing offend, insult and humiliate (among other possible options) to prohibit conduct that “threatens a person or reduces their dignity” rather than “merely wounds the feelings of a person”.
The Coalition majority said the reasonable person test was “the appropriate standard by which to assess racial vilification”.
In a dissenting report, Labor committee members blasted the fact the Aboriginal Legal Service was not permitted to give evidence in the truncated 18C inquiry as a “disgraceful example of arrogance” by the government.
They said the changes “weaken existing protections for Australians against racial hate speech and racial discrimination” and said it was “unclear” why harass was chosen over other options including vilify or degrade.
“The Law Council of Australia raised concerns during the public hearing that harass could denote proximity between two people and therefore not cover situations where racial hate speech is used, for example, in a media article.”
The dissenting report noted the proposed new objective test “would likely prevent the court from taking into account the perspectives of particular racial or ethnic groups” and had been criticised by ethnic communities.
It said procedural changes would apply to all complaints to the Australian Human Rights Commission, including thousands of complaints under age, sex and disability discrimination laws.
Labor recommended the procedural changes “proceed only with significant amendments to ensure that they do not increase red tape, delays, and costs, or reduce access to justice”.
In a separate dissenting report, Greens members recommended the substantive changes to 18C be rejected.
On the point of procedural changes, the Greens report noted the AHRC had raised concerns about the requirement to notify a person who is not a respondent but who is the subject of an adverse allegation, the proposed mandatory accept/reject phase of considering complaints, and that matters discussed during conciliation should remain confidential.
The Greens recommended the bill be amended to addressed those concerns.
In a Senate debate on Labor’s motion to delay consideration of the 18C bill, the government said it had made a “small number” of amendments of “purely technical nature” to satisfy AHRC concerns.
Guardian Australia understands the government will not release the amendments until the committee stage of consideration of the bill later in the week, after a long list of second reading speeches scheduled for Tuesday afternoon and evening.
Asked at a press conference on Tuesday how Labor would vote if the government split substantive and procedural changes to the RDA, the shadow attorney general, Mark Dreyfus, said Labor and the AHRC agreed with many procedural changes in principle.
“There are government amendments already to the bill the government only introduced on Wednesday.
“Regrettably Labor has not been shown those government amendments whether or not those government amendments fix up the botching senator Brandis has made of these procedural changes, time will tell.”
