Australia / Israel Review

Colin Rubenstein

For almost two decades, the provisions of Part IIA of the Racial Discrimination Act (RDA) have largely been working effectively to balance freedom of speech with protecting Australian citizens against racial vilification.

Unfortunately, as written, the language of the exposure draft of the Freedom of Speech Bill 2014 (FSB) – released by Attorney-General George Brandis on March 25 and intended to replace those provisions of the RDA – threatens to destabilise that delicate balance and roll back the progress that Australia has made in combatting racism and bigotry in our society.

In order to justify the repeal of Section 18C, or its replacement by a much narrower provision, it should be demonstrated that the law has been frequently too stringent in its scope or implementation over the years. Yet a look at the provision’s 18-year history offers little evidence this is the case. 

The vast majority of claims under 18C have been either conciliated through the Australian Human Rights Commission, withdrawn or dismissed. Many cases end with nothing more than a simple apology. During 2012-2013, just five out of 192 complaints made it to court – disproving the sometimes hysterical claims being trumpeted about how this law is supposedly severely impacting the ability of Australians to engage in robust political debate. 

In fact, except for the 2011 case Eatock v. Bolt, which saw prominent columnist Andrew Bolt ordered to withdraw two columns, no other case under 18C has proven controversial.
Moreover, the argument that public debate has suffered under Section 18C ignores the comprehensive protections for free speech enshrined in the exemptions under Section 18D, rendering lawful “anything said or done reasonably and in good faith” for “academic, artistic or scientific purpose or any other genuine purpose in the public interest.”

The fact is that free speech in open, democratic societies has never been understood to be absolute, but subject to certain sensible boundaries defined by laws relating to defamation, copyright, consumer protection, sedition, obscenity, use of offensive language, official secrecy, contempt of court and parliament and incitement.The right of a person to express themselves freely is essential in a liberal democracy, yet so also is the right of a person to be protected from having their quality of life or ability to exercise their own civil rights severely damaged by racial harassment.

This is not to say that the current language of 18C is sacrosanct, nor that there cannot be a discussion of appropriate refinements. 

However, the wording of the FSB as presented in the exposure draft would definitely not be an improvement. It weakens 18C’s most important protections through narrow definitions of key terms and omission of others. Even more worryingly, its exemptions are so vast that legal experts argue that the new standards would be, for all intents and purposes, unenforceable.

The exposure draft removes any protection against public humiliation on the grounds of race and provides a much narrower definition than existing state provisions in NSW, Victoria, South Australia, Queensland, Tasmania, and the ACT. These all legislate against inciting “hatred towards, serious contempt for, or severe ridicule of” a person or group on the basis of race.

This language points to the limits of the exposure draft’s definition of “vilify” as meaning, “to incite hatred against a person or a group of persons.” This is much narrower than the plain meaning of the word – to defame or ridicule. It also narrowly rests the test of the illegality of an act on whether third parties were incited to hate rather than on the impact on the victim.

Similarly, the FSB’s definition of “intimidate” as meaning, “to cause fear of physical harm” is also too narrow. Both the dictionary and Australian case law define the term to include also actions which “inspire with fear”, “overawe”, “cow” or “force to or deter from some action”. The definition should include such psychological intimidation which can, in this age of social media, lead to emotional trauma, including suicide, or deter victims from exercising their basic rights.

Finally, the completely unqualified exemption provided for any communication “in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic, or scientific matter” suggests that any vilification whatsoever can be justified by the barest pretext of “discussing” a “social” or “political” matter.

Without some requirement involving “reasonableness,” “good faith,” or a similar term, it would appear that even Holocaust denial would be allowed by virtue of any claim to be engaging in public “discussion” of an “academic” matter.

The release of the exposure draft was met by a sharp outcry from a wide consensus of community groups, among them the Jewish community, academics and legal experts. Having wisely called for comment on the draft, the government will presumably listen closely to their concerns.

While the number of cases pursued under 18C has been relatively low, any significant weakening of the law would signal to Holocaust deniers, racial supremacists and other bigots that they are now free to do their worst. Such an increase in hateful behaviour would have a negative impact on Australia’s vibrant, diverse and multicultural society, particularly against those most vulnerable. This outcome is clearly not sought by those advocating a change to the law, but it is incumbent on those calling for major revision to make sure it is not the result. 

The government promise of community consultations and revision to the draft before moving forward legislatively on the FSB is to its credit. The question that must be asked at every step of this process is whether the rights of those genuinely victimised by vilification and racial hatred offences will be at least as well protected as they were under 18C.
The government has a moral responsibility to make certain the answer to that question is yes before any new bill is presented for a vote.