Parliamentary Joint Committee on Human Rights

The IPA’s opening statement to the Parliamentary Joint Committee on Human Rights’ hearing into section 18C

The following remarks were given by the IPA’s Simon Breheny to the Parliamentary Joint Committee on Human Rights’ hearing into section 18C in Melbourne yesterday. The opening statement was followed by questioning directed to Simon and the IPA’s Dr Chris Berg. Readers can watch the video at this link.


Freedom of speech is a basic Australian value.

A survey commissioned by the Institute of Public Affairs, published today, finds that ninety-five per cent of Australians say freedom of speech is important. Fifty seven per cent say it is very important.

Australia’s commitment to freedom of speech makes this country one of the most diverse, prosperous and socially welcoming on the face of the planet.

Laws that undermine free speech put at risk our success story as a socially inclusive nation.

Section 18C of the Racial Discrimination Act is one of the most significant restrictions on freedom of speech in this country.

Along with the rest of the provisions in Part IIA of the Racial Discrimination Act, Section 18C ought to be repealed outright.

It is an excessive, unnecessary and counterproductive restriction on Australians’ liberties.

Alternative proposals for reform would not solve the problems with the legislation that have been identified by recent court cases involving section 18C.

Simply removing some of the words from the section or, worse, replacing them with new words, would be, in our analysis, either ineffective, or redundant, or create even more uncertainty about the scope of the law.

Some participants in this debate argue that freedom of speech is protected by section 18D. But section 18D is a weak and unstable foundation for such an important right.

Section 18D has been applied in just three out of more than 70 cases that have been decided by the courts since Part IIA was first inserted into the Racial Discrimination Act in 1995.

Nor should parliament imagine that section 18D provides any certainty about the law. In the QUT case Judge Jarrett noted a “conflict in the authorities about the way in which s.18D might operate.”

More fundamentally, section 18D places a burden on the respondent to prove why he or she should have the right to speak freely. This is not a requirement that a free country like Australia should be proud of.

Offence is not a moral trump card. Australia is driven by other values – including individual freedom and democracy. Section 18C harms these values.

We urge this committee to recommit to the liberal democratic values that make this country great, and to recommend the full repeal of Part IIA of the Racial Discrimination Act.

Thank you.

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Senator Day’s bill a step in the right direction

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The IPA’s Simon Breheny has been featured in today’s The Australian, on the topic of Senator Bob Day’s Racial Discrimination Amendment Bill 2014.

“Section 18C is a significant restriction on freedom of speech,” Mr Breheny said.

“Senator Day’s bill is an important step towards the restoration of free speech. It seeks to repeal the very worst parts of section 18C.

“Only a full repeal of the provision will restore freedom of speech but everyone who values free speech must support Bob Day’s bill.

“Making it unlawful to offend or insult a person equates to a ‘hurt feelings’ test. The removal of these words is a very modest proposal,” Mr Breheny said.

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Why the latest human rights committee report is so significant

The latest report by the Parliamentary Joint Committee on Human Rights is very significant. It clears the way for all members of parliament to support the modest amendment to the Racial Discrimination Act 1975.

I’m talking of course about the freedom of speech bill drafted by South Australian Family First Senator Bob Day and sponsored by Liberal Senators Cory Bernardi and Dean Smith and Liberal Democratic Senator David Leyonhjelm – the Racial Discrimination Amendment Bill 2014. The bill proposes to remove the words “offend” and “insult” from section 18C of the Racial Discrimination Act.

These are the words that form the lowest hurdles in the legal threshold created by section 18C, which currently makes it unlawful to offend, insult, humiliate or intimidate a person on the basis of that person’s race, colour or national or ethnic origin. I’ve said it before and I’ll say it again – the only way to restore free speech is to repeal section 18C in full. Removing the words “offend” and “insult” is an imperfect solution to the problems of section 18C but it is an important step forward.

The report of the PJCHR is significant for two reasons.

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