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PEN Essay 2014: Freedom of speech and Australia’s Racial Discrimination Act

Race Race Discrimination

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It is said by many that freedom of expression means nothing if it doesn’t entail a freedom to offend others. The price of having free speech is that one may have to tolerate things that we may not like. As the writer Richard King suggests in his recent book On Offence, “the claim to find something hurtful or offensive should be the beginning of the debate, not the end of it”.[1]

But what if the burden of tolerance is not borne equally? What if there are forms of speech that cause harms to some, in ways that do not merely wound their sensibilities, but also their very dignity as a person? How should a liberal democracy treat forms of speech that racially vilify others?

For almost two decades, Australians have had federal legislation prohibiting racial vilification. Yet the vilification provisions of the Racial Discrimination Act are now subject to intense public debate. In March 2014, the Federal Government released an exposure draft of proposed amendments to the Act, which it argues will enhance freedom of speech while also ensuring protection against racial vilification. But will they? And how should we frame our debate about the issue? As I will argue, there are reasons to be seriously concerned about the proposed changes to the Racial Discrimination Act. Any debate should also be guided by a recognition that there may be two freedoms at stake: not just freedom of speech, but also freedom from racial discrimination.

The meaning of freedom

Let me begin with freedom – namely, freedom of speech. It has long been an article of faith among liberals that free speech is a fundamental freedom. “If all mankind minus one were of one opinion”, John Stuart Mill famously wrote, “mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind”.[2] There “ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered”.[3] For Mill, this was because a free exchange of ideas was required if we were to find the truth. According to the traditional liberal interpretation, Mill believed that the only limits that should exist upon speech were those concerning the incitement of physical harm. Anything short of that should be permitted.

There is on the face of things a powerful clarity to Mill’s argument. Yet as one scholar has argued, Mill is nonetheless “a difficult writer because his clarity hides complicated arguments and assumptions that often take a good deal of unpicking”.[4]In Mill’s thought, the limits of liberty are to be understood by reference to the purpose of our living in society. While his writings defended liberty, this defence was ultimately concerned with the value of individuality. That is to say, freedom of expression mattered not just because it enabled the discovery of truth, but also because it was necessary for people to develop their individuality. Freedom was not just about an absence of interference from others, but also about self-development and moral progress.

These points about individuality and a positive conception of liberty are important considerations in any application of Mill to our current debates. Hearing wrong and distasteful views is one thing, but being subjected to racist speech or vilification is another. The injury in question is not merely upon one’s tastes; it is upon one’s individuality and freedom. Consider the evidence.

A few years ago, in developing the National Anti-Racism Strategy, the Australian Human Rights Commission conducted a consultation involving a survey of Australians’ perceptions and experiences of racism. It was commonplace for respondents to reflect on how sad and angry the experience of racism made them feel, and how racism diminished their sense of worth. One respondent said ‘[i]t makes me feel like I am a lesser human being.’[5] Another mentioned its impact on emotions and health: ‘I feel so much revulsion that I sometimes feel physically ill. It is a major contributor to the anxiety I experience in everyday life’.[6]

Other respondents highlighted how racism had the effect of intimidating or inhibiting them. As described by one person, ‘I feel like I am being treated as a second class citizen. I cannot speak up against any unfair treatment in the workplace ....’[7]‘Racism’, one man of African-American background said, ‘makes me feel like I have to always be cognizant of what I say’, in case he were to encounter bigotry.[8] Many others described how racism made them feel unsafe, especially at night or in public places.[9]

Such testimony demonstrates the impact that racism has on freedom – on how Australians enjoy their freedom to live their lives on a daily basis. There is the impact that racism can have on someone’s self-perception. Where people begin to accept a picture of their own inferiority, this can get in the way of them exercising their freedom. It is difficult to see how can someone reach their potential, or be a truly self-determining individual, if they constantly second-guess themselves or feel constantly without power or hope. And insofar as those who dispense with racist abuse can intimidate others, it is open to consider them as interfering with the freedom of others. If those on the receiving end are no longer moving in certain circles because of fear, it must surely follow that their realm of non-interference has been violated.

If we do not always make the connection between racism and its curtailment of freedom, it is because we are more likely to regard the harm as one involving dignity. Racism reduces the standing of another to that of a second-class citizen. But dignity is also connected to freedom; freedom, after all, is never something that we enjoy in a vacuum. Where there is an injury to dignity, there is an impact as well on the capacity to exercise freedom. In the case of racism, the experience undermines the assurance of security to which every member of a good society is entitled – the sense of confidence that everyone will be treated fairly and justly, and that everyone can walk down the street and conduct their business, without fear of abuse or assault.[10]

The Racial Discrimination Act

In Australian law, such an assurance has been embodied in the Racial Discrimination Act’s provisions on racial vilification. Section 18C of the Act makes it unlawful to commit a public act that is reasonably likely to offend, insult, humiliate or intimidate another person on the grounds of race. This provision was introduced in 1995, in response to the recommendations of the Royal Commission into Aboriginal Deaths in Custody, the National Inquiry into Racist Violence and the Australian Law Reform Commission. There was during the late 1980s and 1990s community concern about racist incidents and their impact on social cohesion.

Since their introduction, laws against racial vilification have done a number of things. They have helped to set the tone for our multicultural society. They have provided all Australians with a legal means of holding others accountable for public acts of racial vilification that have the effect of degrading them. They have helped to nip racial hatred in the bud.

The law has also struck a balance between freedom of speech and freedom from racial vilification. Contrary to much commentary, it doesn't serve to protect trivial hurt feelings. Courts have interpreted section 18C as applying only to acts that cause "profound and serious effects" as opposed to "mere slights".[11] Section 18C is also balanced by section 18D, which is one of the few provisions in Australian law that explicitly protects freedom of speech. It protects anything that is done in the course of fair reporting or fair comment of a matter of public interest, provided it is done reasonably and in good faith.

The law is also civil and educative in character. Though it is commonly assumed that breaching section 18C results in a prosecution or a conviction, the Racial Discrimination Act provides for no such punishment. Where there is a complaint about racial vilification, it goes to conciliation at the Australian Human Rights Commission, which will attempt to bring parties to a complaint together to discuss the matter and arrive at an agreed resolution. In most cases, litigation does not occur: last financial year, of the 192 complaints lodged concerning racial hatred, only five (or 3 per cent) ended up in court.

Sections 18C and 18D would be repealed under the Federal Government’s exposure draft of proposed amendments to the Act. In my view, the proposed changes contain serious flaws that endanger the protections Australians enjoy against racial abuse. If enacted they would, in my view, undermine the integrity of racial discrimination laws.

These shortcomings have been discussed in considerable detail during the past month. The proposed changes would limit unlawful racial abuse only to those acts that "vilify" or "intimidate" others on the grounds of race (respectively, acts defined as the incitement of third parties to racial hatred and as physical intimidation). Most troubling is the broad exception for anything done in the course of participating in "public discussion" – an exception that would mean that few, if any, acts would be prohibited.

Many also believe these changes would send an unedifying and dangerous signal to society. Multicultural and Aboriginal and Torres Strait Islander communities, legal and human rights experts, psychologists and public health professionals, and the community at large have been united in their support for current laws against racial vilification.[12]

A Fairfax-Nielsen poll found that 88 per cent of respondents believed it should remain unlawful to offend, insult or humiliate someone on the grounds of race.[13] Another recent survey conducted by academics at the University of Western Sydney found that nearly 80 per cent of Australians supported existing legal protections against racial vilification.[14]

At a time when some have championed a right to bigotry, such support for the current laws affirms Australian society's deep commitment to racial tolerance. It affirms that Australians not only value living in a society that condemns racism, but that they believe it is right that our laws reflect our values.

The law regulates many aspects of our social life. It is perfectly reasonable and appropriate that it should also have something to say about abuse and harassment that violate another person's dignity and freedom. The law should rightly play a part in setting a civil tone in a liberal democratic society.

Fighting bad speech with good speech?

There are, of course, some who argue that however abhorrent racial vilification may be, it would be better to leave things to the marketplace of ideas. Let good speech override bad speech – let there be an open contest where we put our faith in the goodness of our fellow citizens. If one is to be subjected to hate speech, one should be free to exercise one’s own speech to counter it. In fact, it is argued, being exposed to the ugliness of hate speech may even have edifying effects: it ensures that all manner of bad doctrine or hatred can be disinfected by sunlight. At the very least, as Richard King has put it, we could avoid one potential moral danger. We could avoid having a state protect its citizens against hate speech at the cost of ‘infantilising those citizens [and] undermining their dignity, by assuming that they can’t stick up for themselves’.[15]

There is, I believe, a misleading simplicity about such arguments.

First, it seems odd to be celebrating bad or ugly speech. To be sure, those who laud what some have called the ethos of homeopathic machismo – the idea that “the notion that a tincture of poison will lift us to heights of tolerance or civil mindedness”[16]
- may have a point if the only relevant perspective is that of the impartial spectator. For the spectator who is fortunate enough to remain insulated from racial vilification and to live in a social world free of violence, there may well be a benefit in coming across an ugly incident of racism. This spectator may be shocked by what he saw. She may, for the first time, realise the confronting nature of racism. She may leave with a new appreciation of the harms that it causes. Who knows; maybe she may leave with a newfound sense of indignation about racism and become an advocate for racial tolerance.

Yet from the perspective of someone who is the target of racial abuse, there is little that is edifying about the experience. It is not clear how someone who has been called a “coon” or “boong” or “gook” or “chink” or “curry muncher” or “sandnigger” by a stranger in public should be grateful for being given the opportunity to improve their soul. It seems perverse to say that we must all tolerate hate, if not everyone has to bear the burden of tolerance in the same way.

And in response to King’s arguments, we may question what is more likely to amount to infantilising our fellow citizens. Is it to have protections against hate speech? Or is it to tell some communities that in spite of what they say, that we may know better what is in their interests? It seems deeply patronising to tell some communities they do not know it is in their interests to be subject to abuse and to enjoy lesser protections under the law.

Indeed, when it comes to fighting bad speech with good speech, power and privilege matter. “More speech” can be an easy thing to prescribe if one were an articulate and well-educated professional or someone accustomed to enjoying the privilege of social power. But the marketplace of ideas can be distorted. We cannot realistically expect that the speech of the strong can be countered by the speech of the weak. It is interesting that in the Australian Human Rights Commissions’ consultations, referred to above, respondents indicated that one impact of racism was precisely that it made them feel less free to speak. As one respondent said, ‘[r]acism makes me feel intimidated [and] curtails my freedom...’.[17] Another said, ‘I cannot exercise my basic human rights in freedom of speech, opinions and expressions’[18]. If such testimony is any indication, racism can have a profound effect in silencing its targets, and in debilitating their ability to enjoy freedom of expression.

This is why it is unconvincing to say that leaving things open to more speech is all that's needed to fight racism. Not everyone is in a position of parity to speak back. In any case, it would be wrong to assume that racism can always be countered by a well-reasoned riposte, that those perpetrating racism can be persuaded to change their mind through reason – for the basic reason that racism is not always rational in the first place.


Our debate about racial vilification laws does involve a question of freedom. Yet there are two freedoms at stake: freedom of expression and freedom from racial vilification. The value of free speech must not trump all others. The liberal defence of freedom of expression has frequently rested on the contribution that freedom of expression makes to individuality. If that is the case, those of the liberal creed should recognise that some forms of conduct – speech as well as physical acts – can inflict serious harms on others.

Any debate should also be based on a sound understanding of how the Racial Discrimination Act in fact operates. There are numerous points of misunderstanding – for instance, the oft-made claims that racial vilification laws criminalise hate speech or involve a form of state censorship. The law as it currently exists involves neither of these things. Moreover, courts have interpreted the law only to apply to those acts that cause profound and serious effects, as distinct from hurt feelings.

The case for changing the Racial Discrimination Act has not been made. There is no compelling evidence that the law has a chilling effect on freedom of expression in Australia. A weakening of racial hate speech laws may have the effect of emboldening a minority of Australians with bigoted views. To those who would champion a right to be a bigot, we should ask: must this supposed right outweigh a right to be free from the effects of bigotry?

[1] R King, On Offence: The Politics of Indignation, (2013) p 222
[2] JS Mill, On Liberty, (1869), ‘Chapter II: Of the Liberty of Thought and Discussion’.
[3] JS Mill, On Liberty, (1869), at note 1.
[4] A Ryan, The Making of Modern Liberalism, p 257.
[5] Survey responses from the Australian Human Rights Commission’s consultations as part of the National Anti-Racism Strategy in 2012 (unpublished).
[6] As above.
[7] As above.
[8] As above.
[9] As above.
[10] J Waldron, The Harm of Hate Speech (2012), p 60.
[11] Creek v Cairns Post Pty Ltd (2001) 112 FCR 352, 356-357 [16].
[12] See for example submissions published on the website of the Human Rights Law Centre in response to the Exposure on proposed changes to the Racial Discrimination Act: (viewed 14 May 2014).
[13] Reported in ‘Race hate: voters tell Brandis to back off’, Sydney Morning Herald, 13 April 2014, at (viewed 14 May 2014).
[14] Summarised in A Jakobowiz and others, ‘What do Australian internet users think about racial vilification?’, The Conversation, 17 March 2014, at (viewed 14 May 2014).
[15] R King, On Offence: The Politics of Indignation, (2013), p 219.
[16] J D Peters, Courting the Abyss: Free Speech and the Liberal Tradition (2005), p 146.
[17] Survey responses from the Australian Human Rights Commission’s consultations as part of the National Anti-Racism Strategy in 2012 (unpublished).
[18] As above.

Published in PEN Melbourne