Brandis protects hate speech

Brandis_b9d63c08-e202-49b8-87c5-f481a3fef28e-200During the last week in March, before this blog came to life, Attorney General George Brandis introduced to parliament an exposure draft of changes to the S18c of the Racial Discrimination Act. Brandis goes beyond everyone’s “right to be a bigot”. He seeks effectively to protect the right of individuals, especially those working in the media, to use hate speech.

Much of the discussion and commentary has been in terms of free speech. I agree with Mark that this is to mistake fundamentally the aim of legislation against hate speech.

Its purpose is to provide redress against harm, harm felt by specific individuals and groups.

It’s not about freedom of speech. It protects speech which is justified on several grounds – including literary and artistic merit (so the argument about Salman Rushdie is entirely specious). It’s about not doing harm through the expression of hateful speech.

If we consider the effects of actually existing racism (or any other form of hate), it doesn’t take too much reflection to see that hurt leads to harm pretty quickly – it’s demonstrable in the impacts of hate speech on identity and thus wellbeing, and there’s a path from wounded identity to self harm, even suicide. (My bold)

Comments on the draft are now being considered by the Government. There’s a whisper that they reconsidering, but the question is still open. You can send Abbott/Brandis a message by signing this petition against hate speech.

In the following section I’ve laid out the nuts and bolts of the proposed changes.

Proposed changes to S18c

Simon Rice explains that the current test for racial vilification is “conduct causing offence, insult, humiliation or intimidation”. Offence, insult and humiliation have been dropped in the proposed changes. Verboten now is an act which is reasonable likely

(i) to vilify another person or a group of persons; or (ii) to intimidate another person or a group of persons.

Intimidate means to cause fear of physical harm:

(i) to a person; or (ii) to the property of a person; or (iii) to the members of a group of persons.

Vilify means to incite hatred against a person or a group of persons.

For an act to be unlawful it must must be “otherwise than in private” and must be done

“because of the race, colour or national or ethnic origin of that person or that group of persons.”

So the focus is now to be on vilification and intimidation (causing fear of physical harm). It’s OK to cause offence, insult and humiliate.

Vilification and intimidation are permissible if they involve:

words, sounds, images or writing spoken, broadcast, published or otherwise communicated in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter.”


“is to be determined by the standards of an ordinary reasonable member of the Australian community, not by the standards of any particular group within the Australian community.”

The actual feelings of the target person or group are irrelevant.

Acts are to be judged independently of their actual effects, rather on what their effects would be if perpetrated on some mythical average member of the dominant group in society.


To me, humiliating someone means putting them down, diminishing their esteem in their own eyes and in the eyes of others. To do that on the basis of race, colour or national or ethnic origin is to cause personal and social harm, is racist and frankly appalling. It’s a form of bullying, is tantamount to violence and should be illegal.

Some might argue that to tell the truth can involve offence and insults. Nevertheless I would argue that to offend or insult someone in relation to race, colour or national or ethnic origin means that you regard them as defective or inferior on those grounds. Again harm is done and I have no difficulty in making such acts illegal.

Truth telling appears to have no relevance to Brandis’s notion of free speech. A person can be humiliated, in public, by someone telling a pack of lies, and that’s OK.

Hate speech, racial intimidation and vilification in the public sphere is acceptable in Brandis’s world. To quote Michelle Grattan

In other words, anything goes in the name of free speech, accurate or not.

Vic Alhadeff reminds us that we will never have completely free speech:

“The late Justice Lionel Murphy said: ‘Freedom of speech is what is left over after due weight has been accorded to the laws relating to defamation, blasphemy, copyright, sedition, obscenity, use of insulting words, official secrecy, contempt of court and parliament, incitement and censorship’.”

That’s eleven categories imposing limits on what we are permitted to say in public.

All in all Brandis has cooked a rather nasty brew, emanating I’m afraid from a rather nasty cook. Brandis should remember that the robustness of parliament has resulted in suicide attempts. He seems to want to live in “a world of unrestrained biffo all round”, to borrow a phrase from Grattan.

Penny Wong:

“I think George saying this is about the rights of the bigots really laid bare the philosophy behind these changes.

“For them, it seems to be an abstract philosophical or legal argument. For them it’s a game, it’s a debate about words and abstract principles.

“For people who have experienced racism, it is a deeply personal debate, and it’s actually a debate about real people and real hurt.

“It’s a debate about real people in Australia, what happens on our buses and our trains, in the pubs on the football fields and on our streets. It’s about the message that our parliament sends and what I find missing, apart from the very offensive things in the debate, is empathy and compassion.”

Brandis has struck a blow for bigots, especially one bigoted journalist – Andrew Bolt.


That was Ben Eltham at New Matilda.

Dennis Altman at The Conversation

Cristy Clark at The Conversation

5 thoughts on “Brandis protects hate speech”

  1. In many ways the dramatic bigotry is easy to deal with because it is so obvious. The difficult thing is the less dramatic stuff. The sympathetic statement that is based on the assumption of inferiority. The well intentioned help that is about “us superior people helping…”
    Then there is the manipulative behaviour that tries to put down fair and potentially useful comment by the use of labels.
    In addition, there is the Australian attitude to banter. “We are rude to our friends and people we see as equals” More careful in our dealings with enemies and those we consider less than equals.
    My take is that we should have laws against incitement and condemn bigoted comments. But I am wary of incorporating PC into our legal system. It can actually work against those we think we are helping.

  2. John, good point about the “sympathetic statement that is based on the assumption of inferiority”.

    I’m happy with the racial discrimination law as it stands.

    Legal opinion seems to think that the successful litigants against Andrew Bolt could have won damages under defamation law. They specifically wanted to make the point about racial discrimination, which could then form an example. Brandis’s unhappiness with their success is said to have motivated his proposed changes.

  3. Brian: I think our defamation laws need dramatic watering down. As they stand they help people who should be scrutinized avoid scrutiny. They can also be a cover for bribery and corruption in the form of out of court settlements.
    What exactly was defamatory about the Bolt case?
    I do think however, that Brandis was sending a very unfortunate message when he talked about the “right to be a bigot.” I also think that it is sending the wrong message when the changes to the law are seen to be driven by a case involving someone as publicly obnoxious as Bolt.

  4. John, The Bolt case was some time ago and I didn’t have the scope to go into it in the context of this post. Also I would have had to do more research. But the link to Ben Eltham’s article gives some idea:

    Bolt’s article, in and of itself, was a typical example of his shock-jock fare. A farrago of half-truths, misrepresentations and outright falsehoods, its logic played to thoroughly discredited ideas of racialism, social Darwinism and eugenics, with a characteristic reference to Enlightenment ideals in a half-hearted attempt to cover up a set of personal smears.

    The idea at the heart of his piece — that you have to have black skin to consider yourself Indigenous, and that if you have light skin, you must be using your Aboriginality for self-interested reasons – is not greatly different to the sort of half-baked racialism that used to pervade Australian life.

    I know there are arguments in favour of weakening our defamation laws. Perhaps all the more reason to have racial discrimination laws that send a clear signal as to what is unacceptable.

  5. From New Matilda:

    Politics is littered with irony, but blocking the publication of arguments about free speech is about as ironic as it gets, writes Chris Graham and Max Chalmers.

    The Abbott Government has refused to make public any of the 5,000-plus submissions it has received which argue for or against controversial proposed changes to free speech laws.

    The government is even refusing to reveal what percentage of submissions opposed a watering down of racial discrimination protections, and what percentage supported them.

    What a joke!

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