Amid the renewed debate on repealing or amending section 18C of the Racial Discrimination Act 1975 (Cth), former Federal Court judge and acting NSW Supreme Court Justice Ronald Sackville AO has proposed key amendments to the legislation.
In an upcoming article in Thomson Reuters’ Australian Law Journal, entitled “Anti-Semitism, Hate Speech and Part 2A of the Racial Discrimination Act”, Justice Sackville argues there are powerful policy reasons for retaining Part 2A and other hate speech laws, but that the legislation should be amended to remove references to offending and insulting and introduce a more demanding standard and substituting objective tests for subjective criteria.
The proposed amendments would achieve a more defensible balance, he says, between the legitimate protection of vulnerable groups from serious hate speech and the values of free speech.
Acting Justice Sackville writes:
The difficulties created by the drafting of the current legislation would be reduced by two significant amendments. One would substitute for the current ‘to offend, insult, humiliate or intimidate’ with a more demanding standard such as ‘to degrade, intimidate or incite hatred or contempt’.
The other would be to replace the references to the subjective responses of groups targeted by hate speech with an objective test for determining whether the hate speech is likely to have the prohibited effect.
An objective test would involve reference to the standards of a reasonable member of the community at large. In practice, as in so many areas of the law, this would involve courts exercising judgment in the light of their assessment of prevailing community standards, taking account of the evidence adduced in the individual case.
NSW Supreme Court Justice François Kunc is the new General Editor of the Australian Law Journal, in which Justice Sackville’s article will soon be published (Vol 90 Part 9).
“The Australian Law Journal has an essential national role to play where considered legal analysis can make a positive contribution to public debate,” Justice Kunc says.
“Acting Justice Sackville is one of the country’s foremost legal minds and most experienced judges. This is an important article which carefully sets out a case which can inform public debate on a very topical question of contemporary public policy.”
Acting Justice Ronald Sackville AO sits in the Court of Appeal of the Supreme Court of NSW. He is a former judge of the Federal Court of Australia and past Professor of Law and Dean of the Law School at the University of NSW.
To view the pre-publication article, click here: Draft_Anti-Semitism Freedom of Speech (Sackville AJA) Insider.
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