FRAN KELLY: The imaginary man on the Bondi tram, or the woman on the Flinders street station for that matter, could be called on the break the impasse over the race hate laws. Last week a parliamentary inquiry failed to recommend whether the words 'insult' and 'offend' should be removed from section 18C of the Racial Discrimination Act. That left the government with no clear way forward on this polarising issue. Now a compromise has been proposed by Senator Concetta Fierravanti-Wells; she is the Minister for International Development and she wants a 'reasonable person' test inserted into the laws to determine what constitutes offensive behaviour. Senator, welcome to RN Breakfast.


FRAN KELLY: Minister, I should say! Let's unpick this, Minister. How would a 'reasonable person' test work in relation to 18C?

CONCETTA FIERRAVANTI-WELLS: Well, basically, as I have said in my piece, there is no test by which conduct under the Racial Discrimination [Act] is measured. When, for those of us who studied law, the test was the man on the Clapham omnibus or in the Australian context, the man on the Bondi tram. So there is a body of law that has looked at what is the 'reasonable person', so what I am saying is that that should be the test that should be in the racial discrimination test. In other words, what does the ordinary Australian think that offend, insult, humiliate or intimidate actually means.

FRAN KELLY: I just wonder – I am sorry, you finish and then I will come back to you.

CONCETTA FIERRAVANTI-WELLS: I was just saying, given today what the ordinary Australian is and who the ordinary Australian is – and as I state in my piece, it is more likely to be somebody who has had a much greater exposure to diversity – social, cultural and religious diversity. And so, therefore, I think in-built into today's contemporary culturally diverse Australia is a much higher level of tolerance. I think that needs to now be taken into account as we look at potential changes to the Racial Discrimination Act.

FRAN KELLY: Okay, I understand that. We will talk about how it works in practice in a moment, because I struggle with that, but coming to the nub of it because the words we are talking about are 'insult' and 'offend', whether they stay in 18C or not. And you are saying, well, perhaps if they stay, but we change the test to this 'reasonable person' test, rather than the feelings of a narrow group. But isn't the point of this – the whole Racial Discrimination Act – about the feelings of that narrow group? That their feelings are paramount and they need protection? So I am not sure why we would not just stay with the feelings of the narrow group?

CONCETTA FIERRAVANTI-WELLS: Well, I think in contemporary Australia, as I say, when you look at the broad make-up of Australia today, almost half of us were either born overseas or have at least one parent born overseas. The make-up of Australia today is far different to when the Racial Discrimination Act was enacted in 1975.  And I do think that that needs to be taken into account when we are looking at the Racial Discrimination Act in the context, not of 1975, but in the context of 2017/2018.

FRAN KELLY: Just on that – sorry to interrupt – but there are some within our community at the moment who say that they have never faced more discrimination, and I am talking about Muslims in particular, at the moment than they have in the last couple of years.

CONCETTA FIERRAVANTI-WELLS: Well, I think that what has happened is that Australians now call out racism a lot more than what they did in the past; we have had some quite successful campaigns such as Racism. It Stops With Me, there is a greater awareness that we are actually seeing. Instances where incidences may occur on public transport or something like that, and with today's modern technology, these are readily captured and put out in the public for all to see. So, in the end, I think that there is a greater awareness of racism and racial vilification conduct in our Australian community, and therefore I think that that is part of the reason we are seeing a lot more people saying that there has been conduct against them which they feel constitutes a racial vilification. But I think we need to find an appropriate balance. We need to find that balance between what has been intolerance of offensive behaviour and racial vilification balanced against freedom of expression. And that is really what I am saying, and that is really why I believe that there needs to be a test put into the Racial Discrimination Act by which conduct can be measured. And I believe that that test should be the ordinary Australian, or the reasonable Australian, or a test of that nature – a test that goes to that effect.

FRAN KELLY: And Minister, not trying to be obtuse here at all, but it brings us back to a definition. So you say it is a legal acceptance – this notion of a 'reasonable person' test, but it still needs a definition doesn't it? Who would be the judge of that? Is that with the Human Rights Commission, or how is that judged?

CONCETTA FIERRAVANTI-WELLS: Well, what I would envisage would happen, is that the insertion of a 'reasonable person' test, potentially as an additional clause in section 18 – for example adding a section 18G, which would be to the effect that for the purposes of [this section of] the Act – the test would be the 'reasonable person' in the Australian community or words to that effect. And then that then has its interpretation whether it be by the courts, or by the Human Rights Commission. It actually gives the Human Rights Commission, in the first instance, which would be interpreting the conduct added to all the other procedural reforms that the Joint Parliamentary Committee [on Human Rights] has set out, which I do agree with. It provides that initial benchmark for the Commission to make a determination on. Then, of course, afforded a person who brings a claim before the Human Rights Commission who may not be happy with that decision, then of course there is an appropriate appeal process, which we have seen in operation already. And then federal courts interpreting the 'reasonable person' through those appropriate processes.

FRAN KELLY: So, Minister, just briefly and finally then, and as you say there are plenty of people who think already the changes proposed to the processes of the Commission will do enough, but some of your colleagues are determined to reform 18C – even get rid of it altogether. Do you think, just briefly, this change you are proposing would be enough to satisfy, appease, that group?

CONCETTA FIERRAVANTI-WELLS: Look, I think that the 'reasonable person' test does bring a credible compromise and I would ask my colleagues who perhaps have not spent the time that I have in the diversity that is today contemporary Australia, I strongly believe that this is an appropriate balance. I come at this from different perspectives, as a conservative, but as a conservative who has spent 35 years involved in the diversity of today's contemporary Australia. And so I believe that this is, as I say in my piece, a credible compromise, a situation that both sides can find palatable and acceptable.

FRAN KELLY: Okay. Concetta Fierravanti-Wells, thank you very much for joining us.


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