Freedom of Speech and Racial vilification: one man’s freedom ends where another’s starts
The Sydney Institute
Tuesday 26 November 2013
Venue: King & Wood Mallesons, Level 61, Governor Phillip Tower, 1 Farrer Place, Sydney
(Check against delivery)
I am pleased to have the opportunity to contribute to the Sydney Institute speakers program and to discuss two freedoms- freedom of speech and freedom from racial vilification. The Sydney Institute is an invaluable not for profit group that promotes freedom of expression and I am delighted to have recently been accepted as a member. Despite Groucho Marx quip that he would not join a club that would accept him as a member, I am happy to join the Sydney Institute.
May I acknowledge the traditional owners of the land on which we meet today and express my respect for their elders past and present.
In politics, context and timing are everything. This election year has been a roller-coaster ride for human rights. It is a truism that with bipartisan support for human rights, great advances can be achieved, notably the legislation for Constitutional recognition of Aboriginal and Torres Strait Islanders and the national disability insurance scheme. Contested political views on fundamental freedoms can, by contrast, lead to egregious breaches of the human rights of asylum seekers and their children, indigenous youths in adult prisons, even ‘bikie’ gangs.
Over this last year, a passionate public debate has ensued as to whether our 1995 Federal racial vilification laws place a fair restriction on the right to freedom of speech in a 21st century multicultural and democratic society.
In this charged political environment the Opposition, undertook that, if elected, they would either repeal or amend s18 C of the Racial Discrimination Act. S 18C makes it a civil wrong to “offend, insult, humiliate or intimidate” a person in public on grounds of their race, color, national origin or ethnicity. The former opposition saw s. 18 C as an unreasonable restriction on the right to freedom of speech, arguing that robust, even hurtful, racial abuse is part of the cut and thrust of Australian life and democracy.
What has prompted calls for reform?
This year we have seen racial abuse on public transport (filmed on Iphones and instantly sent ‘viral’). We have witnessed racial abuse on the football field and heard it on the radio. Ironically, Australia granted a visa to Mr Gert Wilders to speak on Islam, despite the offense he causes, while Senator Xenaphon was ignominiously ejected from Malaysia, apparently because he supports free elections in that country. Debate about the civil liability of Andrew Bolt for his remarks about fair-skinned Aboriginal people two years ago was revisited in the debate about the Human Rights and Anti-Discrimination Bill – the ill-fated Consolidation Bill- introduced by the former government to extend protection against offending and insulting behaviour to additional grounds such as religion, industrial history and pregnancy. Adding to a conflation of legal issues, following the Finkelstein report calling for tighter control of the media, the former government attempted, but failed, to create the office of Public Interest Media Advocate. More recently, legal action has been brought against a Sydney academic who has supported a wide-ranging boycott against Israel.
These are testing times for freedom of speech and the Attorney has categorised this year as a ‘multi-front war against the traditional liberal conception of freedom of speech’.
Since the election, the Attorney has repeated his intent to reform the racial offense provision, and has indicated that he will consult before introducing a Bill to do so. As we await the precise language of the proposed reforms, it would be mere shadow boxing or premature to preempt the process. The central concern of those calling for reform is that the words “offend and insult’ in s18C place unlawfulness at too low a threshold. In order better to understand and respond to concerns about the reach of s 18C I would like to discuss, in these calmer days of a new government, the history and aims of the racial abuse laws and to examine how they have worked in practice before our courts.
I particularly want to focus on the interplay between s18C and s18D of the Act. S18D protects freedom of speech and provides an exemption from what would otherwise be unlawful speech. Indeed, as we shall see, s18D is a rare legislative protection for freedom of expression under Australian law.
May I suggest that, from a human rights perspective, s18 C- qualified as it is by s18D- has proved over the last 18 years to be a legitimate, fair and effective protection against racial abuse in public. As we shall see, the Federal courts and the High Court of Australia have applied the law in a balanced and reasonable way. Any reform to s18C and D should strive to maintain that balance by, first, identifying the ‘mischief to be prevented ‘and, secondly, drafting language to give effect to the aims of the Racial Discrimination Act 1975.
At the Australian Human Rights Commission we have reason to know how important the prohibition of racial hatred is to the Australian community. We receive over 17,000 inquiries and conciliate over 2,000 complaints each year in respect of our legislative mandates on race, age, sex, children, disability and human rights. Of immediate relevance to the societal value of S 18C is the 59% increase in complaints we have received about racial abuse, many over the internet or social media. The recent anti-Semitic attack in Sydney, while rare, also demonstrates the need for laws to protect against racial hatred and violence.
In striking contrast, we might receive a handful of complaints a year alleging a breach of the right to freedom of speech. It is clear that Australians are much more concerned about their freedom from racial abuse in public places than they are about the limitations on their freedom to speak.
In short, and with respect to Voltaire, Australia should not defend to the death those who abuse their right to freedom of speech by vilifying others in public on the ground of race. The fundamental protections provided by S 18 C and D should be retained in any reform initiative.
What is freedom of speech?
Let us begin by looking at the nature of the right to freedom of expression.
The origins of the right to free expression, as a central component of democracy in the modern era, lie in the work of the father of liberalism, John Locke. Locke influenced the adoption of freedom of speech by the First Amendment to the American Constitution; the first constitutional protection of this right....a right that is commonly understood as enabling democratic governance.
The great American jurist Oliver Wendell Holmes (echoing John Stuart Mill) observed that ‘the best test of truth is the power of the thought to get itself accepted in the competition of the market’.
The principle of free speech as a vital pillar of democracy was subsequently adopted in national constitutions and legislation, and the common law and civil law courts have given flesh to this freedom on a case-by-case basis.
The international community recognised the right to freedom of expression in the 1948 United Nations Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights 1966 (ICCPR).
Article 19 of the ICCPR provides that:
(2) Everyone shall have the right to freedom of expression...
...while recognising that the right is not and never has been an absolute right. The right
(3) ...may be subject to certain restrictions, but these shall be such as are provided by law and are necessary: for respect of the rights or reputations of others, for the protection of national security or of public order or of public health or morals.
Benjamin Franklin understood as early as 1722 the need to balance the right with other freedoms. He wrote:
Without freedom of speech; which is the Right of every Man, as far as by it, he does not hurt or control the Right of another.
In practice, there are many limitations on the right to free speech in most legal systems, including Australia, in respect of consumer protection laws, defamation, copyright, contempt of court and parliament, censorship, blasphemy, child pornography, incitement to genocide or to discrimination, hostility or violence.
Racial hatred law was introduced by Article 20(2) of the ICCPR which provides that:
Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.
This provision was given greater precision by the Racial Discrimination Convention of 1966 that condemns the promotion of racial hatred and requires States to make it unlawful to disseminate ideas based on racial superiority or hatred. 
International law gives states a wide measure of discretion to State parties to treaties in giving effect to international legal obligations in their national laws. However, as CJ Dickson of the Canadian Supreme Court recognised,
...racist propaganda that undermines the dignity and self worth of target groups ...with the result of eroding the tolerance and open-mindedness that must flourish in a multicultural society which is committed to the idea of equality (CHRC v Taylor  3 SCR 892)
How have these legal obligations been met by Australia?
Australia has historically been a good international citizen. Led after the Second World War by the brilliant -if testy- Doc Evatt as President of the UN General Assembly, Australia has been an active player in drafting the human rights treaties to which we almost always become a party. Australia’s support for human rights renders it all the more curious that we have been cautious and piecemeal in implementing these rights in our national laws.
Australia is virtually unique among comparable legal systems in that it has no explicit constitutional protections for most human rights (the right to religion being a notable exception). Moreover, Australia has no human rights act or Charter as such. The Government and Parliament, especially through the recently created Joint Parliamentary “Scrutiny” Committee on Human Rights, play the primary role in restricting or protecting our rights. We have created a regime for the protection of human rights that is essentially a parliamentary and administrative, rather than a constitutional or legislative one.
The right to freedom of expression is, nonetheless, protected by the common law and developed by Australian courts. As the High court has stated, under the common law:
Everybody is free to do anything, subject only to the provisions of the law’, so that one proceeds ‘upon the assumption of freedom of speech’ and turns to the law to discover the established exceptions to it. (Lange)
The common law...has its own set of constitutional rights, even if these are not formally entrenched against legislative repeal’. (Para 232 Bolt Case, Per J Bromberg).
Here then is the rub. While freedom of speech is protected by the wider principle of legality, parliament can always override that freedom by clear and unambiguous words and does so in fact.
Another means of achieving human rights under Australian law is through the work of the Australian Human Rights Commission that provides access to justice to thousands of Australians at no cost to either the complainant or the person complained against. It is not widely understood that the ICCPR, while a benchmark for the work of the Commission, has not been made part of Australian law by Parliament. The result is that a court is not able to apply the Convention provisions on the right to freedom of speech, or the right not to be detained arbitrarily without charge or trial, in determining the cases before them. In short, these core human freedoms cannot be used as a sword with which to protect and enforce our rights.
Despite this technical legal failure to implement international human rights in our national laws, Australians know they have a right to freedom of speech- a right hat is undeniably an entrenched part of our culture. However, Australians are unlikely to know that we have few explicit protections for this freedom. The Constitution does not mention it and there are very few laws that do so. 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 a parliamentary system of representative and responsible government.
Apart from this implied right to political communication- not a full freedom of speech - few legislative protections exist. It is ironic in the context of the debate about reform of section 18C that s18D provides one of the few explicit protections of the right to freedom of speech in Australian law. Section 18 D provides exemptions for words or behaviour that are unlawful racial abuse if what was said or done was reasonable and in good faith in respect of:
- an artistic work,
- a genuine purpose in the public interest, or
- publication of a fair and accurate report of public interest.
History of section 18 C
Sections 18C and D of the Racial Hatred Bill 1995 were introduced at the request of the Australian Institute of Jewish affairs, and leaders of the Italian, Greek, Vietnamese and Chinese communities, following a National inquiry into Racist Violence conducted by Human Rights and Equal Opportunity Commission (now the AHRC), the Royal Commission into Aboriginal Deaths in Custody Report in 1991 and the Report of the Law Reform Commission on Multiculturalism and the Law, the following year. The words ‘offend, insult, humiliate or intimidate’ were drawn from the much earlier Sex Discrimination Act of 1984.
In the second reading speech for the Bill the Attorney-General, Michael Lavarch, stated that:
It needs to be recognised that racial hatred does not exist in a vacuum...it provides a climate in which people of a particular race or ethnic origin live in fear and in which discrimination can thrive. It provides the climate in which violence may take place. It is itself a threat to the well-being of the whole community as well as to the individual or groups in the community...the bill strikes a balance between the right of free speech and other rights ... of Australians.. it provides a safety net for racial harmony in Australia... sends a clear warming to those who might attack the principle of tolerance.. and provides Australians who are the victims of racial hatred or violence with protection.
This is all very abstract. How has the law actually worked in practice?
The Courts have applied sections 18 C and D in relatively few cases.
First, the courts have held that the section is constitutionally valid and does not impose a burden on the right to freedom of political communication because it is ‘reasonably appropriate and adapted to serve a legitimate end ...compatible with the maintenance of government under the constitution’.
Secondly, the courts have found that the words must be of a serious nature. Justice Kiefel said the section applied only to ‘profound and serious effects not to be likened to mere slights’.
Third the test is objective based on the reasonable victim test assessed by reference to community standards and the context is taken into account.
Fourth, the words ‘offend, insult, intimidate and humiliate’ are taken collectively and not individually.
Fifth, civil actions have been successful only in the most egregious or extreme cases, at the high end of the spectrum.
Let us look at some examples where the courts have upheld the right to freedom of speech:
- In Coleman v Power (2004) the High Court found that allegations by a law and politics student the Queensland police are ‘corrupt’ are protected by the implied constitutional freedom of political communication. Quashing his conviction for using ‘insulting words’, CJ Gleeson observed that ‘one person’s freedom ends where another person’s right begins’ [at 32]. He gave the example of ‘a mother who takes her children to the park and supposes that they are exposed to threats, abuse and insults on the ground that they are immigrants to Australia. He asks:
why should the family’s right to the quiet enjoyment of a public space necessarily be regarded as subordinate to the abuser’s right to free expression of what might be generously described as political opinion? The answer necessarily involves striking a balance between competing interests.
- In Walsh v Hanson, a book by Pauline Hanson and David Etteridge suggesting that the Aboriginal community was given priority by government, was determined by the court to have been published reasonably and in good faith for a genuine purpose in the public interest, namely political debate about the fairness of the distribution of social welfare benefits in the Community.
- In Kelly-Country, a standup comedian played an Aboriginal character called “King Billy Cokebottle” as a grotesque caricature. The Court found that, in the context of a comedy performance where the aim is to give offence or make jokes at the expense of someone in the community, the offence was, in the context, not out of proportion and was reasonable.
- In Bropho’s case (2004) the Federal Court considered a cartoon entitled ‘Alas poor Yagan” published by West Australian Newspapers Ltd depicting the head of an Aboriginal leader that had been returned to Australia from a graveyard in Liverpool. The head –in a thought bubble-expressed the desire to be returned to England to avoid acrimony within the aboriginal community. The Court upheld the views of the Australian Human Rights Commission that the cartoon violated S 18C, but was exonerated on the ground that it was published in good faith as an artistic work or for a genuine purpose in the public interest. The court upheld the right to freedom of expression, despite evidence that the cartoon offended members of the indigenous community.
- In Hagen v Toowoomba Sports Ground Trust the Court found the naming of the ‘ES Nigger Brown’ stand was not an offensive racist act within the meaning of s 18C because the context was one in which the word was a fond nickname and the aim was to honor not vilify.
Lets us now look at some of the very few cases where a s18C unlawfulness has been found by the courts:
- In Campbell and Kirstenfeldt, a white woman was found to breach S 18c for calling her neighbour racist names and telling her to go ‘back to the scrub where you belong”.
- In the Jones v Tobin litigation, Dr Tobin was held to be in breach of S18C for publishing anti-Semitic material on the world-wide web denying the holocaust. This was the first time that s18C had been applied to the internet and is likely to be repeated in the future, as many of the race abuse complaints we receive are via social media and the internet.
- The cause celebre stimulating calls for reform is the much discussed and misunderstood decision in Eatock v Bolt in 2011. The Federal Court found that Mr Bolt had breached s 18C in reporting that prominent fair-skinned Aboriginals of mixed heritage had falsely identified as Aboriginal to claim various benefits available only to Aboriginal people. The Court reached two vital conclusions. First, Mr Bolt had written a report that was reasonably likely to ‘offend, insult, humiliate or intimidate’ a person in public on the basis of his race, color 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. He 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, Mr Bolt’s right to freedom of speech was restricted because his journalism was an abuse of that right.
- The Federal court judge in the Bolt case was careful to make clear that his findings were not that it is unlawful to challenge the sincerity of aboriginal self-identification to be eligible for welfare benefits. Rather, he found a contravention of s 18C had occurred because of the manner in which the subject matter had been dealt with.
- In a case earlier this year, Monis v The Queen (2013) the courts considered similar legislation to s18C that prohibits the use of the Commonwealth postal services in a way that a reasonable person would regard as ‘menacing, harassing or offensive’. The two accused had sent letters to the families of Australian soldiers killed in Afghanistan that were found to be ‘denigrating and derogatory’. The Court of Criminal Appeal convicted the accused, the Chief Justice stressing that the word ‘offensive’ requires a strong reaction, anger, rage, distrust or hatred. On appeal to the High Court, counsel argued that the letters merely expressed political opposition to the war in Afghanistan and should be protected by freedom of speech. If it can happen it will. The High Court was split 3:3 on the question whether the law placed an unreasonable burden on the right to political communication. As is the rule with split decision the conviction by the lower Court of Criminal Appeal was confirmed.
- It might be noted that it was the three women judges of the High Court that, in a clear and concise joint judgment, found that the law prohibiting use of the postal service for ‘offensive’ purposes was not an impermissible burden on the right to political communication as it was a proportional response to achieve a legitimate end. In this instance then, the outcome was to accept the validity of a restraint on an unlimited right to freedom of speech.
What do these cases tell us about how s18C and similar laws are applied?
The Australian courts have endorsed the importance of freedom of speech as a right that is integral to the health of our multicultural society. This freedom has been qualified in very narrow circumstances, by requiring that it be exercised reasonably. Actions under s18C have succeeded only where the offending words are deeply offensive on an objective test of the reasonable person in all the circumstances.
In doing so, the courts have readily understood that freedom of expression can work:
to undermine our commitment to democracy where employed to propagate ideas anethemic to democratic values. Hate propaganda works in just such a way; arguing as it does for a society on which the democratic process is subverted and individuals are denied respect and dignity simply because of [racial or] religious characteristics’. (Canadian Supreme Court, Keegstra, cited in Bolt, para 239)
Where a court has found the words or acts to be unlawful, a strong message, both real and symbolic, has been made that racial vilification will not be tolerated and that the undoubted right to speak freely may not be abused. The freedoms of countless racial and ethnic communities in Australia to enjoy public spaces in peace will be protected at the cost of restricting the right of a few to speak.
The link between freedom of speech and race hatred laws was well made by a recent statement by leaders of the Indigenous, Jewish, Arabic speaking, Chinese, Vietnamese, Lebanese and Armenian communities who stress that ‘paradoxically for free speech advocates, racial vilification can have a silencing effect on those who are vilified’.
To test whether we have the balance right we might look at the society we would have were we, hypothetically, to reverse the judicial findings. If there were no s18 C, Bolt would have been able to make with impunity what the Court found to be inaccurate statements in bad faith, regardless of their effect on Aboriginal people; the holocaust could be denied regularly and abusive letters to the families of our war dead could be freely posted. I suggest that this is not a vision of Australia we want to promote and is one that would be positively harmful to our successful multicultural society.
Of course it is legitimate for a newly elected government to consider for itself whether the correct balance has been struck between different human rights, especially where the then Opposition raised and repeated its concerns about s18C in speeches and debates before the election.
In the absence of precise draft government proposals in a reform bill, however, it is premature to discuss the options in any detail. Suggestions for reform include total abolition of s18C and D, leaving in place the Criminal Code offence of urging violence on the grounds of race and religion, merely deleting the words ‘offend and insult’ and substituting the words ‘vilification’ or ‘hatred’, or adding clarifying words such as ‘serious’ or ‘subject to community standards’.
Whatever reform initiative the government decides to adopt, the Australian Human Rights Commission welcomes the public debate and encourages the Attorney in his consultations with leaders throughout Australia, especially those most vulnerable to racial abuse– Aboriginal and Torres Strait Islanders, and ethnic communities.
The right to freedom of speech is a fragile flower that depends upon protection by Parliament, the courts and the Commission and, most importantly, the community.
The Commission has long argued for Commonwealth legislation to protect our fundamental freedoms, including the right to free speech. In the meantime, I believe that a balance can be achieved of the common law right to freedom of expression with the right to enjoy public spaces free of racial abuse. Most Australians understand the need for a balance of freedoms and accept that this balance may need to be recalibrated over time to reflect community values.
Race hatred laws have been one of the vital foundations for our enviable multicultural society. If the Government decides to reform Sections 18 C and D, it should do so with care and on the basis of objective evidence, identifying the mischief and mindful of the symbolic value of the racial vilification laws that underpin our vibrant and free democracy.
 J Locke, Two Treatises of Government, ed. Thomas Hollis (London: A. Millar et al., 1764). At http://oll.libertyfund.org/title/222 on 2013-09-30 (viewed 1 July 2013).
 The jurisprudential flesh has been put on the bones of these laws by the work of the Human Rights Committee in General Comment No 34.
Lange v ABC (1997) 189 CLR520.
 s 80 2A of the Commonwealth Criminal Code, that creates a crime of “urging violence against a target group on grounds of race, religion, nationality, ethnic origin or political opinion, with a good faith defense.
Note 2009 commitment by the Australian Government to the London Declaration on Combatting Anti-Semitism and to enacting ‘Hate Crime legislation’ to criminalize ‘incitement to hatred’.