The terrorist attack on the office of Charlie Hebdo and its
implications for freedom of expression in France has renewed debate
of section 18C of the Racial Discrimination Act 1975 in
Australia. Critics of the Commonwealth the Act have claimed that
s18C would unnecessarily curb freedom of expression, if a Charlie
Hebdo-style publication were to operate in Australia.
Tim Wilson, Australia's Human Rights Commissioner, has
argued that section 18's current wording, which makes it
unlawful to 'do an act' which is 'reasonably
likely' to 'offend, insult, humiliate or intimidate'
another person based on either 'race, colour, or national or
ethnic origin', would have prohibited the existence of Charlie
Hebdo in Australia. The criticism follows an unsuccessful attempt
by the Federal Attorney-General in 2014 to remove the words
'insult' and 'offend' from s18C(1), which it was
argued impeded free speech including controversially, one's
"right to be a bigot". We discussed these proposed
amendments in our
Despite the Australian Constitution not containing an explicit
right to freedom of expression there are a number of reasons to
doubt that s18C in its current format would have prohibited a
Charlie Hebdo style publication, or have been an appropriate
mechanism for dealing with religious vilification.
Section 18C does not include religion as a basis for breach of
the Racial Discrimination Act. As a result, religious
satirisation would be permissible under s18C subject to the
exemptions of s18D. However the satirisation of certain religions
can present as a quandary when one enters the typological realm of
ethno-religions. Two examples are the Jewish,1 and
Sikh2 faiths, which are each considered as comprising
not only religious but also racial or ethnic identities. Therefore
, whilst these particular minority religious groups might find
protection in s18C, other religious groups such as Buddhist,
Islamic or Christian groups more than likely will not.
The absence from the Act of religion as an attribute of
discrimination has prompted some to call for its inclusion as a
means of promoting religious tolerance and harmony. Yet in the
current discussion concerning the proposal for limiting the ambit
of s18C by removing the words 'insult' and
'offend', we submit that the debate to include religion as
a basis of discrimination would be separate and confusing.
The Federal government has since rejected the plans to reopen
the debate concerning s18C. Nevertheless, as Tim Soutphommasane,
Racial Discrimination Commissioner, states 'Australia has a
very good record when it comes to race relations and community
harmony and there are distinctive differences between the French
and Australian experiences which we should bear in mind, but we can
never be complacent about these issues'.
1Jones v Toben  FCA 1150: An
FCA case in which the Executive Council of Australian Jewry bought
proceedings based on s18C against the Adelaide Institute for
publishing offensive material towards Australian-Jewish people on
its website. Branson J determined that Jews were a group with a
common "ethnic origin", at , and that the Adelaide
Institute had breached s18C.
2R (Watkins-Singh) v Aberdare Girls High
School Governors  EWHC 1865 (Admin): a Welsh High Court
case, based on the Race Relations Act 1976 which judicially
determined that the wearing of Sikh jewellery in a public school
was important for a Sikh student's religious and racial
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