Proposed changes to Racial Discrimination Act’s S18C re “insult” & “offend”

Click here for the latest on changes to Australia's Racial Discrimination Laws
Click the image for the latest on changes to Australia’s Racial Discrimination Laws

As reported yesterday in the Australian, the first legislation to be introduced into the Parliament by Australia’s new Attorney-General George Brandis will focus on altering or repealing Section 18C of the Racial Discrimination Act. The move, in response to the Bolt Case, is being sold as a move to protect traditional freedoms. It realigns Australia further from the European position on freedom of expressing (where such freedom is just one of many basic rights, and comes with limitations to protect those other rights such as freedom from racial hatred) and closer to that of the United States (where freedom of speech is the primary right from which all others are seen to flow, meaning even hate speech must be protected on the basis of freedom of speech). In this area the United States is in an extremely isolated position internationally. If taken too far, these legal reforms have the potentially to seriously undercut Australian democracy by creating an environment that protects racial hatred and which is toxic to multiculturalism and the ability of minority groups to engage in the political process. At the same time, we welcome the news that terms of reference are being drafted by the Attorney-General  for an inquiry by the Australian Law Reform Commission into basic freedoms including freedom of worship. We also welcome news that the Australian Human Rights Commission will have its mandate broadened to protect all human rights. We note the need for the Commission to receive broader powers as well as a wider mandate, as its state based counter parts already have.

A renewed focus on protecting fundamental freedoms is to be welcomed, but the suggestion that this requires a winding back of existing laws against hate speech is particularly surprising given the weak nature and existing gaps in these laws at the Commonwealth level. Australia’s states have far better laws than that of the Commonwealth. Western Australia’s laws which focuses on criminal provisions for 8 different offences is a great example. Victoria’s laws against religious vilification is another example of the gap at the Commonwealth level. In Australia we believe in freedom of expression, but also in responsible speech – whether it is speech used to mislead the markets, to deceive consumers, or to stir up violence like the Cronulla riots or the recent attacks on a Jewish family in Sydney. In this country, as in most others, freedom of speech means freedom within the law, which is there to protect the public, vulnerable minority groups, and individuals. Your freedom does not give you the right to harm others.

One of the primary justification for freedom of speech is to uphold democratic values and ensure the people are able to play their part in elections in an informed manner. Hate speech against minority groups sends a message to these groups they are not welcome in our society. It embeds a message in the fabric of society saying it is acceptable to exclude minorities, and those who do so will not be alone. Hate speech fundamentally damages the public good of an inclusive society. It drives members of minority groups away from full participation in society. A focus on fundamental freedoms needs to consider the rights of minorities to be included in society and the damage that malicious attacks on their participation have on their individuals freedoms and on the levels of democracy and productivity of the nation as a whole.

Section 18C of the Racial Discrimination Act currently makes it unlawful for a person to speak about another person’s, or group of people’s, “race, colour or national or ethnic origin” in a way that is likely “to offend, insult, humiliate or intimidate” them. Where someone breeches the provision, it is open to someone from the group attacked to make a complaint to the Australian Human Rights Commission. The Commission then tries to bring the parties together and to reach some form of reconciliation. Failing that, the commission issues a letter that the matter cannot be resolved, and it is up to the complainant to instigate civil legal proceedings which could result in an order for compensation. The changes being proposed are either to get rid of S 18C altogether, or removing “offend” and “insult” so that action would need to “humiliate or intimidate” to be caught. That would catch action against individuals in some circumstances but is far less likely to catch racism directed against a group.

Not only is Section18C a relatively weak law, in Europe for instance such conduct would often be criminalised, but it also has numerous exceptions provided by Section 18D. The exceptions in the existing law protect “anything said or done reasonably and in good faith”: for the purpose of “performance, exhibition or distribution of an artistic work”, that is part of a “statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest”, or by the media for the purpose of “fair and accurate” reporting or fair comment on any event or matter of public interest where the comment expresses a genuine belief of the person saying it. These exceptions already provide all the freedom that is needed in a democratic society. The balance has already been struck.

The Bolt case is a singularly bad example on which to base a public debate about freedom of speech. It is an example where a court has found that the speech concerned “contained erroneous facts, distortions of the truth and inflammatory and provocative language” (Eatock v Bolt [2011] 197 FCR 261, 271 at 8). Bolt himself said his expectation was that those he attacked would be “offended” and “upset” (Eatock v Bolt [2011] 197 FCR 261, 354 at 412). The Court held that Bolt’s actions “involved a lack of good faith”. This was not a case of the law persecuting a journalist, it is the case of an individual going out of their way to attack others on the basis of their race, and the law saying such deliberate abuse of the power of the media is not acceptable. On the one side we have the need for protection of vulnerable minorities so they too can enjoy full participation in our democratic society. On the other hand, the right to freedom of speech, without consequences, for people acting in bad faith to use erroneous facts and distortions of the truth to attack minorities with the intention of causing emotional harm. Whatever changes are made, based on the facts of the Bolt case, that sort of action should remain unlawful and possibly be made criminal.

The Online Hate Prevention Institute is an Australian Charity dedicated to reducing the harm that results from online hate speech. We welcome the review and hope the terms of reference will give the commission sufficient freedom to properly consider the issue of hate speech in general and of online hate speech in particular. We strongly recommend that S 18C not be amended in a manner that leaves further gaps. We note that a number of antisemitic memes we have examined, such as “Kentucky Fried Jews” or the meme of Anne Frank with the caption “What’s that Burning, Oh It’s my Family” fall under the provisions against “offend” and “insult” but may not be caught by provisions against “humiliate” or “intimidate”. Such content is not acceptable in Australia and the law ought to continue to reflect this. If hate speech against minorities becomes lawful, this will undermine the public good of an inclusive society and in so doing will undermine democratic participation by segments of society. This would undermine not only multiculturalism, but the fundamental nature of democracy in Australia. This outcome needs to be avoided.

Update 27 March 2014: See further content on changes to the Racial Discrimination Act here