Attorney-General George Brandis has quietly introduced the legislation to change section 18C of the Racial Discrimination Act and the Australian Human Rights Commission’s process of dealing with complaints. The speech was incorporated into the Hansard, meaning there were no visuals of the Attorney-General making the case for the legislation in front of his senate colleagues.

The legislation today reads:

 (1) It is unlawful for a person to do an act, otherwise than in private, if:

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

Under the legislation introduced yesterday, “offend, insult, humiliate” will be removed and replaced with “harass”.

The government has not narrowly defined what constitutes being harassed under the legislation, noting that judicial interpretation of the word has been inconsistent. The government envisages that being harassed might be a single act, like being abused on public transport on the basis of a person’s race, or multiple acts like a group putting out leaflets attacking a racial group. Posts on social media could also constitute harassment, according to the explanatory memorandum.

The real change to the Act here is that, rather than determining the harassment purely subjectively for the person subject to the harassment, the government wants a clause inserted into the Act to determine whether an action is harassment “by the standards of a reasonable member of the Australian community”.

The process changes for the Australian Human Rights Commission (AHRC) are much more substantial than the changes to 18C. Although the commission has improved its complaint resolution rate in the last financial year, the legislation requires the commission to do its best to resolve complaints within a year. Now, complaints will only be able to be lodged if it is “reasonably arguable” that the harassment constitutes unlawful discrimination. AHRC will have the power to dismiss complaints as trivial, vexatious, misconceived, lacking in substance, or where there is no reasonable prospect of the complainant winning. The legislation will also limit the ability for people to take terminated complaints to the court, requiring people to first seek leave from court in order to continue the case. Under the changes, those who do decide to take the terminated cases to court also risk wearing the costs of those they take to the court.

The commission will also be required to inform respondents to complaints, unless there is a threat to the person’s safety to do so.

But this all appears to be academic at this stage. Although Brandis has indicated he will seek a cut-off later today to ensure that the legislation can be debated this week and next week, all signs from the Nick Xenophon Team senators and Senator Jacqui Lambie indicate they will not support the legislation, dooming it to perish in the Senate before it can reach the House of Representatives.

Peter Fray

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