As our race discrimination commissioner Tim Soutphommasane correctly points out, the history of Australia’s racial vilification laws is not well known, yet his recent 7000 word essay presents a misleading picture.
Soutphommasane claims the 1995 changes to the Racial Discrimination Act mirrored the recommendations that the then race discrimination commissioner Irene Moss made in her 1991 report National Inquiry into Racist Violence.
He omits to mention that Moss expressly warned the government against setting the kind of low threshold for complaints that became incorporated into the notorious 18C.
Andrew Bolt could not have been prosecuted if the Act had followed Moss’s recommendation which was only to prohibit the incitement of racial hostility and racist harassment.
These are altogether more serious acts than those which merely offend, insult or humiliate as stipulated in 18C.
Moss was unequivocal on the matter on page 299:
The commissioner was conscious of the problems experienced in New Zealand where a low threshold for complaints stipulated in section 9C of its Race Relations Act “was widely used and even abused by individuals complaining of insults or remarks of a relatively trivial nature.”
Moss continues on page 300:
The weak underpinnings of Michael Lavarch’s 1995 RDA amendments were apparent to the Parliamentary Research Service. It produced a damning assessment of Lavarch’s 1994 Race Hatred Bill for the Parliamentary Library.
It compares the proposed legislation with the recommendations of Moss’s report and two others circulating at the time, the Australian Law Reform Commission’s Multiculturalism and the Law and Elliott Johnston’s Report of the Royal Commission into Aboriginal Deaths in Custody.
The report draws particular attention to the proposed wording of 18C:
Interestingly, the report also raises questions about the constitutional validity of the RDA amendments. The assumed source of constitutional power is the external affairs provisions in section 51 (xxix) of the constitution since the Bill is intended to implement in part the Convention of the Elimination of All Forms of Racial Discrimination and the International Covenant of Civil and Political Rights.
The report notes that there is a wide chasm between the wording of CERD and the ICCPR and the civil provisions proposed by Lavarch leaving room for a High Court challenge.
It is a mystery to me why Soutphommasane would invite us to revisit this history when it further undermines his case that RDA be left in its current form.
Clauses 18C and 18D were muddled from the start and have demonstrable illiberal consequences. The case for amendment is unanswerable.