The Attorney–General, George Brandis, has announced his intention to consult before acting on his pre-election promise to reform Australia’s prohibition on offensive racial acts under sections 18C and 18D of the Racial Discrimination Act 1975. We should look carefully before we leap. Since section 18 was introduced in 1995, Australia’s courts have successfully balanced freedom of expression with the right not to be racially abused in the few prosecutions under this law. Reform, or worse abolition, of the race hatred laws could be a retrograde step to the detriment of wider freedoms in Australia.
At the Australian Human Rights Commission we have reason to know how important the prohibition of racial abuse is to the Australian community. Last year we received a 59% increase in complaints about racial abuse in the workplace, on radio, on public transport and at football matches. In stark contrast, the Commission might receive one or two complaints a year alleging violation of the right to freedom of expression. The phenomenon of racial abuse is now evident as an iPhone can capture an incident and send it ‘viral’. The recent anti-Semitic attack in Sydney, while rare, demonstrates the need for laws to protect against racial abuse and violence.
Wide community consultations are welcome, for the need for reform is open to debate. Polarised views are that section 18C either restricts the right to freedom of speech or is a necessary protection against racially offensive behaviour in multicultural Australia. To repeal section 18C, says Shadow Attorney-Gen Mark Dreyfus, “really means the freedom to engage in public hate speech”. A middle ground can, however, be found that balances freedom of speech with prohibition of racial abused. Any reform to sections18C and D should find that balance.
While Australians know they have a right to freedom of speech, they are unlikely to know that we have few explicit protections of this freedom. The Constitution does not mention it and we have no legislative Charter of Rights, unlike all other comparable nations. Rather, in the tradition of the common law, the High Court has implied a right to freedom of political communication as a necessary means of participation in democratic society. Ironically, sections 18C and 18D provide one of the few explicit protections of the right to freedom of speech. To abolish section 18D would take away that legislative protection.
The cause celebre stimulating calls for reform was the decision in Eatock v Bolt in 2011. The Federal Court found that Andrew Bolt had acted unlawfully in reporting that fair-skinned Aboriginals abused their identity to claim welfare benefits. The Court reached two vital conclusions. First, Bolt had acted in a way that was reasonably likely to “offend, insult, humiliate or intimidate’ a person in public on the basis of his race, colour or national or ethnic origin”, contrary to section 18C. Secondly, the Court applied section 18D that ensures artistic works, scientific debate and fair comment are exempt from prosecution. Bolt could not claim the benefit of free speech because he had not acted reasonably or in good faith and because his report was neither fair nor accurate. In short, Bolt’s right to freedom of speech was restricted because his journalism was an abuse of that right.
The Bolt decision demonstrates a key point. The right to freedom of speech is not and never has been an absolute one. It is subject to many restraints including laws on defamation, blasphemy, and contempt of parliament. The Australian courts have struck the right balance when considering prosecutions for ‘offensive’ acts in respect of holocaust deniers on the internet (Jones v Tobin, 2002), taunts that the police are ‘corrupt’ (Coleman v Power,2004), obscene cartoons (Bropho v HREOC, 2004,) and, most recently, derogatory letters to the families of Australian soldiers killed in Afghan (Monis v The Queen, 2013).
The focus for public and media debate about s 18C has been that the words “offend and insult” put the test for unlawfulness at too low a threshold. It is argued that the words, “ humiliate and intimidate’ set the bar at the right level, while words ‘vilify’ or ‘hatred’ might be inserted. The Attorney employed his undoubted advocacy skills to argue that robust, even hurtful public comment is part of the cut and thrust of Australian life. To the contrary, it is hard to see how abusive and offensive speech can advance the right to participate in a representative democracy.
In practice, the Courts have always demanded more than ‘mere sights’. Rather, they have found an act unlawful only where it has ‘profound and serious effects’, well beyond trivial insults and offence.
Hasten slowly with the Attorney’s reform initiative. Race hatred laws have been a foundation for our enviable multicultural society. We should reform them on the basis of objective evidence, mindful of their symbolic value.