New call for 18C review over free speech limits

The Australian Law Reform Commission has called for a review of the contentious Section 18C of the Racial Discrimination Act, as well as some national security laws, because of their potential to limit freedom of speech.

The recommendation forms part of an extensive report released yesterday, dealing with laws that encroach on traditional rights and freedoms.

The commission’s concerns on Section 18C centre on its broadness and the inclusion of “causing offence” in its provisions.

It was under this section of the Racial Discrimination Act that News Corp Australia columnist Andrew Bolt was prosecuted in 2011, which set a precedent that restricted the ability of journalists and commentators to express some views.

Section 18C states that it is unlawful to offend, insult, humiliate or intimidate a person on the grounds of race, colour or ethnicity.

The commission said in the report that it had not established whether Section 18C, in practice, had caused unwarranted limits on freedom of speech, but it said the part of the Act containing the section would benefit from more thorough review in relation to freedom of speech.

“In particular, there are arguments that Section 18C lacks sufficient precision and clarity, and unjustifiably interferes with freedom of speech by extending to speech that is reasonably likely to ‘offend’,” it said.

“In some respects, the provision is broader than is required under international law to prohibit the advocacy of racial hatred, broader than similar laws in other jurisdictions, and may be susceptible to constitutional challenge.”

The law has the potential to contravene right to freedom of political speech implied under the Australian Constitution and has not been tested in the High Court.

The commission said that any review of 18C and other provisions of the Racial Discrimination Act should take place in conjunction with a more general review of anti-vilification laws.

“This could consider not only existing encroachments on freedom of speech, but also whether existing Commonwealth laws serve their purposes, including in discouraging the urging of violence towards targeted groups distinguished by race, religion, nationality, national or ethnic origin or political opinion.

“Greater harmonisation between Commonwealth, state and territory laws in this area may also be desirable.

The report also questioned legislative provisions that protect the processes of tribunals, commissions of inquiry and regulators. “Some of these laws may unjustifiably interfere with freedom of speech – and may be unconstitutional – in prohibiting criticism of public officers engaged in performing public functions,” it said.

In terms of security laws, the commission recommended reviews or reconsideration by government, given their effect on traditional rights and freedoms, in three main areas.

These are:

  • Secrecy offences, including the general secrecy offences in Crimes Act 1914, Section 70 which deals with disclosure of information by Commonwealth officers, and Section 79 which covers official secrets
  • Criminal Code Section 80.2C (advocating terrorism), Sections 102.1, 102.3, 102.5, 102.7 (prescribed terrorist organisations), Section 105.41 (preventative detention orders)
  • Australian Security Intelligence Organisation Act 1979 (ASIO Act) Section 35P (special intelligence operations).

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