The constitutional validity of s 18C has not been tested before the High Court. The provision may be vulnerable to challenge on two fronts.
4.203 The first is the question of whether s 18C is validly supported by the external affairs power under s 51(xxix) of the Constitution. This would arise if the provision extends beyond Australia’s international obligations under the ICCPR and CERD, which may be said to ‘focus on protecting against racial vilification and hatred rather than prohibiting offence or insult’.
4.204 The second relates to the implied freedom of political communication. In this context, the High Court has observed that ‘insult and invective’ are a legitimate part of political discussion and debate. The inclusion of the words ‘offend’ and ‘insult’ raises a possibility that the High Court, in an appropriate case, might read down the scope of s 18C, or find it invalid.
Review of s 18C4.205 Australian racial vilification laws have long been the subject of academic and other criticism. For example, in 2004, Dan Meagher suggested that Commonwealth, state and territory laws, including s 18C of the RDA, lacked ‘sufficient precision and clarity in key respects’. As a consequence, an incoherent body of case law has developed, where too much is left open to the decision maker in each individual case.
4.206 Meagher concluded that the primary goal of racial vilification laws in Australia—to regulate racial vilification without curbing legitimate public communication—is compromised by this lack of precision and clarity.
4.207 The ALRC has not established whether s 18C of the RDA has, in practice, caused unjustifiable interferences with freedom of speech. However, it appears that pt IIA of the RDA, of which s 18C forms a part, would benefit from more thorough review in relation to freedom of speech.
4.208 In particular, there are arguments that s 18C lacks sufficient precision and clarity, and unjustifiably interferes with freedom of speech by extending to speech that is reasonably likely to ‘offend’. The provision appears broader than is required under international law to prohibit the advocacy of racial hatred and broader than similar laws in other jurisdictions, and may be susceptible to constitutional challenge.
4.209 However, any such review should not take place in isolation. Stakeholders put forward arguments that people should also be protected from vilification on other grounds, including sex, sexual orientation and gender identity.
4.210 While recognising that anti-vilification laws serve a number of purposes, including providing an ‘educative and symbolic function and acting as a general deterrent’, there are also concerns that existing laws do not effectively prohibit more serious ‘hate speech’.
4.211 For example, the AIJAC suggested that the Australian Government should consider amendments to ss 80.2A and 80.2B of the Criminal Code to improve their effectiveness against ‘incitement to racially motivated violence and racial hatred including on online platforms’.
4.212 A review of pt IIA might best be done in conjunction with a more general review of vilification laws that could consider not only existing encroachments on freedom of speech, but also whether existing Commonwealth laws effectively discourage the urging of violence towards targeted groups distinguished by race, religion, nationality, national or ethnic origin or political opinion. In this context, the Counter-Terrorism Legislation Amendment Bill (No 1) 2015 (Cth), introduced on 12 November 2015, would create a new offence of advocating genocide in div 80 of the Criminal Code.
4.213 A related issue concerns Australia’s compliance with CERD. Article 4(a) of CERD states that signatory states should criminalise the dissemination of ideas based on racial superiority or hatred and all other propaganda activities promoting and inciting racial discrimination. Article 4 is not fully implemented in Australian law, because s 18C does not create a criminal offence.
4.214 In 2000, the UN Committee on the Elimination of Racial Discrimination acknowledged the ‘civil law prohibition of offensive, insulting, humiliating or intimidating behaviour based on race’ contained in s 18C, and recommended that Australia ‘continue making efforts to adopt appropriate legislation’ giving full effect to art 4(a) of CERD.
4.215 Greater harmonisation between Commonwealth, state and territory laws in this area may also be desirable. While all Australian states and the ACT have racial discrimination legislation in many ways similar to the RDA, the approaches to racial vilification and other conduct based on race hate are not uniform.
Go to Australian Law Reform Commission site. http://www.alrc.gov.au/publications/laws-interfere-freedom-speech-0