The Abbott government can salvage its divisive proposal to overhaul the Racial Discrimination Act with a compromise that would see it stick with its favoured wording, but make the protections against hate speech actually meaningful, according to the president of the Human Rights Commission.



Gillian Triggs used an address to the National Press Club on Wednesday to press the government to find some constructive middle ground in the so-called “freedom wars” by amending its RDA proposal before bringing it to parliament.

Triggs said she could accept the attorney general’s proposal to remove the words “offend” and “insult” from the current RDA, provided the proposed substitutions, “intimidation” and “vilification”, actually strengthened the law.

Intimidation and vilification were workable conceptually, but in the government’s proposed exposure draft the definitions of the two concepts weren’t comprehensive enough to catch improper behaviour. Triggs argued there were also too many exclusions.

She said the government’s proposal, in essence, failed “to identify the mischief to be prevented and adopts a free speech defence that, in effect, permits racial vilification and intimidation in virtually all public arenas”.

The president of the AHRC said the evidence before the commission indicated Australia did not have a free speech problem, but it did have a problem with racism.

“The Human Rights Commission is the first port of call for human rights complaints, and we receive no more than two or three complaints a year alleging a breach of freedom of speech. By contrast, we saw a 59% spike in racial hatred complaints in 2013 along with a 5% rise in general race-based complaints,” Triggs told the press club.

“In short, freedom of speech is not at risk for most Australians. Rather, the risk of abuse on racial grounds in public is all too frequent an occurrence.”

Triggs said while the public debate over the overhaul to the RDA had been “divisive and unproductive, polarising views and raising anxieties, particularly among minority groups” – Australia would nonetheless benefit from a properly focused debate about our lack of systemic protections for freedom and for human rights.

The AHRC president said Australia was an international outlier in the sense “we have very few constitutional or legislative protections for fundamental freedoms. We have no commonwealth bill of rights or charter of rights, unlike all other common law countries.”

She observed that American children had a profound understanding of the rights they enjoyed courtesy of their constitution, but many Australian children weren’t even aware Australia had a founding document.

Triggs said recent political experience suggested a charter of rights in this country was a bridge too far. She noted a national consultation process undertaken by the Rudd government on a charter of rights failed to achieve the necessary consensus.

But she said Australia should not give up on this debate and needed to “try harder”. An effective human rights mechanism could be developed to articulate and defend basic freedoms.

But in order to achieve this, the country needed to move away from a piecemeal approach where some freedoms were championed at the expense of others, and also desist from “polarisation and politicisation”.

“One way is to enact specific legislation setting out core freedoms of speech, association, assembly, criminal trial procedures and protections against arbitrary detention. If such legislation proves faulty or ineffective, it can of course be repealed,” Triggs said.

She also pointed to inconsistencies in the approach of some Australian protagonists who styled themselves as freedom advocates yet “remained curiously silent in the face of the mandatory detention currently of about 4,700 asylum seekers in remote detention centres in Australia and Christmas Island”.

Triggs said proper human rights protections would allow asylum seekers to have legal protection against arbitrary detention.

The prime minister has already signalled that the government might need to amend its RDA proposal given backbench concerns and the public outcry. The government has invited public submissions on its RDA exposure draft by 30 April. Interested parties can email their submissions to s18cconsultation@ag.gov.au