In the past week I’ve tried to get my head around the debate on Section 18C of the Racial Discrimination Act following the spectacular signing up by Cory Bernandi of the Coalition senate backbench to diluting the Act. He says it’s not about challenging Malcolm Turnbull, it’s about reconnecting the Liberals with their base. So it’s about the Liberals’ small “l” liberal values, and hence worth a close look.
Length alert: It’s about 3000 words, but I’ve gone down a lot of rabbit holes.
Liberal Senator Dean Smith said the Coalition party room view had moved on reform of the RDA. He will:
- co-sponsor a bill with his fellow Liberal Cory Bernardi and Senate crossbenchers David Leyonhjelm and Bob Day to remove the terms “insult” and “offend” from section 18C of the act.
Malcolm Turnbull recently told Alan Jones:
- “Let me just say on 18C there has been a strong argument made over a long period of time to remove the words ‘insult’ and ‘offend’ from 18C.”
Turnbull doesn’t want his ministerial team to spend time on the issue, but he’s happy to look with favour at what others come up with.
What is Section 18C?
Luke McNamara, Professor of Law at UNSW, has done an explainer What is Section 18C and why do some politicians want it changed?
The first thing to understand is that the Racial Discrimination Act was brought in by the Whitlam Government in 1975 in order to protect Aborigines and other minority ethnic groups largely from discrimination which produces material disadvantage, for example in such matters as employment, promotion and the ability to rent property. It draws its legal head of power to override state legislation, not from the constitution directly, rather through the external affairs function of the Commonwealth and our ratification in the same year of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination. This power has been upheld in the landmark High Court decision in Koowarta v. Bjelke-Petersen in 1982 and maintained in Mabo v Queensland.
In 1995 Michael Lavarch under Paul Keating’s Labor Government made amendments recognising that racism can also manifest in other ways which cause harm through what is colloquially called “racial vilification” or “hate speech”. Indeed, as we know, words can cause life-time trauma or even death, especially through suicide. Section 18C identifies acts that are prohibited, while 18D recognises circumstances where language ostensibly excluded by 18C might be allowed.
The next thing to understand is that the provisions are about preventing harm, and about preserving freedom of speech in the process.
And the focus is not on speech as such, it is on behaviour and acts which could include acts of speech. Under Section 18C:
- (1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
Please note the term “unlawful”. Such acts are unlawful, but not illegal; they do not constitute a crime. Crimes are punishable and involve the police. Under S18C persons aggrieved may seek recompense, which so far has amounted to corrective publication or other action and payment of the claimants expenses.
Colin Rubenstein at the Oz says (paywalled, Google Free speech warriors are missing the point about 18C):
- The vast majority of claims under 18C have been conciliated through the Australian Human Rights Commission, withdrawn or dismissed. Many cases end with a simple apology.
Conciliation is the aim, not recompense or punishment.
From those outcomes a few, around five per cent, have gone on to the Federal Court. There too the intent seems to be corrective action rather than penalty.
Professor Simon Rice of the ANU in commenting on George Brandis’s exposure draft in 2014 notes Australia’s continuing failure to honour its international treaty obligation, which is in fact to criminalise racial vilification.
That obligation is actually under the The International Covenant on Civil and Political Rights, of which more later.
- It is important to note that under Section 18D, conduct that prima facie breaches 18C will not be unlawful if it is done “reasonably and in good faith” for artistic, academic, scientific or other public interest purposes (or in reporting on any such conduct).
The exemptions include making or publishing:
- (i) a fair and accurate report of any event or matter of public interest; or
(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.
Clearly, free speech which is fair and reasonable is safeguarded by the Act. McNamara states:
- The wording of Section 18C, and the inclusion of exemptions in Section 18D, represent a genuine attempt to set some parameters for civil and respectful communication, and for making a declaration that, as a society, we recognise the human dignity of all, irrespective of colour, ethnicity or country of origin.
He says that the words “offend” and “insult” are subject to the ‘harm threshold’ by the courts:
To fall within 18C the speech must have:
… profound and serious effects, not to be likened to mere slights
Kirsty Magarey says that “vilify” may have been better than “insult and offend” but she feels that in 20 years of jurisprudence the same outcome has been reached. She says the four terms – offend, insult, humiliate and intimidate – are usually considered together. As Rubinstein says:
- the law does not simply ask if an individual has been offended — the courts have treated “offend, insult, humiliate or intimidate” as one test rather than four. And case law says that, in light of “the words chosen as its partners”, offend refers only to “profound and serious effects, not … mere slights”.
Context is important. In the case of Aborigines it’s two centuries of dispossession and marginalisation.
- Race-based insults get special treatment by the law because such insults conjure up the history of racism that’s too poisonous and damaging to go unchallenged. I’m sorry to state the obvious but, just in case we’re forgetting, the history of racism brought us slavery, the Ku Klux Klan and the holocaust. Closer to home, it brought us massacres during “settlement” (it wasn’t terra nullius), the stolen generations and ongoing injustices resulting from our failure to acknowledge or deal with this history. It’s now bringing us continuing failures to close the gap, leaving us with racially skewed incarceration rates, deaths in custody and a life-expectancy gap that should identify us as a third-world country. And that’s just the immediately recognisable tip of the iceberg, without even touching on other forms of racism, including our historical and current immigration practices.
Against this historical backdrop, when someone insults and offends using race they’re not just pressing on a sore point, they’re digging into an unhealed, suppurating wound. Don’t suggest to the victim of a racially based insult that it’s all just part of the fun.
Rice points out that ‘reasonableness’ is currently assessed according to “the feelings of a reasonable person to whom conduct is directed”. The Brandis proposals wanted to shift this to what was considered reasonable by an “ordinary Australian”, in other words, the dominant group.
In sociological terms that constitutes a shift in power of significance.
Rubenstein says laws similar to 18C exist in the overwhelming majority of Western democracies.
What changes are now suggested?
Two years a go when George Brandis introduced to parliament an exposure draft of changes to 18C he proposed dropping ‘offend, insult and humiliate’, and inserting ‘vilify’ to go with ‘intimidate’.
In summary, vilification (expressing or causing hatred) and intimidation (causing fear of physical harm) would be unlawful, but it would be perfectly OK to offend, insult and humiliate. In fact, as Rice says, if enacted:
- people will be able to offend, insult, humiliate and incite serious contempt or severe ridicule on the basis of race. They will be able to do so unreasonably and dishonestly, with impunity.
That seemed to be what the free speech warriors wanted. Rubenstein points out:
- the words “offend, insult, humiliate or intimidate” are lifted directly from section 28A of the Federal Sex Discrimination Act — yet no one has argued that this provision must also be repealed to protect free speech.
In the press now the main focus seems to be on simply eliminating ‘offend and insult’. It seems that the conservative Right want the right to offend and insult people and/or groups on account of their race, colour or national or ethnic origin in a way that is unreasonable.
Former Federal Court judge Ronald Sackville has suggested replacing ‘offend, insult, humiliate or intimidate’ with ‘degrade, intimidate or incite hatred or contempt’.
Lorraine Finlay, Augusto Zimmermann and Joshua Forrester of Murdoch University have made a case that Section 18C is too broad.
Their argument is that the foreign affairs warrant for the Act only extends to hatred, not to language that may offend, insult or even humiliate. 18C, they say, targets language and emotions far beyond what the 1965 international racial discrimination convention allows.
- The assertion that some offensive or insulting expression leads to hate overlooks the many instances where such expression doesn’t lead to hatred.
However, eliminating offensive and insulting behavior would then allow cases which do lead to hate, and more particularly to harm.
- “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”
In 1789 in France the Declaration of the Rights of Man and of the Citizen had said:
- “Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law.”
John Howard today talking with Paul Kelly says he didn’t think about 18C at all while in government. For him it was completely under the radar until the Andrew Bolt case. Chris Merritt at the Oz (paywalled, Google Law of unintended consequences) says the judgement lit a fire that might burn the house down. Highlighting the law with such a high profile case may cause parliament to change it.
Andrew Bolt and his ilk privilege freedom of expression as “the most important human right of all” suggesting that Gillian Triggs be replaced by Janet Albrechtson, or that the Australian Human Rights Commission be de-funded. Does freedom of expression trump the right to safety, shelter and sustenance? Surely not.
Bernadi and his mates are certainly offended by the fact that Bolt was found to have acted unlawfully in the case Eatock v Bolt. Ben Eltham has the story. In short, Bolt was found to have racially vilified 18 prominent Australians because of inaccuracy and lack of good faith “for the most cynical of motives: political point-scoring, and personal notoriety.”
Bolt had written a column in 2009 contending that a number of named successful artists, writers, academics and public officials enjoyed success by faking their Aboriginality.
Justice Mordecai “Mordy” Bromberg of the Federal Court found that Bolt had gotten his facts wrong – Eltham says “a farrago of half-truths, misrepresentations and outright falsehoods”. Bromberg was scathing about Bolt’s “derisive tone”, his “provocative and inflammatory language” and his “inclusion of gratuitous asides”, both in the column and the witness box.
Bromberg explains in the judgement that real harm was at issue. From Para 22 of the Summary:
- I have observed that in seeking to promote tolerance and protect against intolerance in a multicultural society, the Racial Discrimination Act must be taken to include in its objectives tolerance for and acceptance of racial and ethnic diversity. At the core of multiculturalism is the idea that people may identify with and express their racial or ethnic heritage free from pressure not to do so. People should be free to fully identify with their race without fear of public disdain or loss of esteem for so identifying. Disparagement directed at the legitimacy of the racial identification of a group of people is likely to be destructive of racial tolerance, just as disparagement directed at the real or imagined practices or traits of those people is also destructive of racial tolerance.
- 24. In coming to that view, I have taken into account the possible degree of harm that I regard the conduct involved may have caused. Beyond the hurt and insult involved, I have also found that the conduct was reasonably likely to have an intimidatory effect on some fair-skinned Aboriginal people and in particular young Aboriginal persons or others with vulnerability in relation to their identity.
25. I have taken into account that the articles may have been read by some people susceptible to racial stereotyping and the formation of racially prejudicial views and that, as a result, racially prejudiced views have been reinforced, encouraged or emboldened. In the balancing process, I have also taken into account the silencing consequences upon freedom of expression involved in the Court making a finding of contravention.
Right wing folks were furious. To them free speech, even if wrong and nasty, was more important than any offence given. George Brandis encapsulated the feeling in saying everyone has the right to be a bigot.
I’m not sure whether they thought harm did not matter, most likely there was a denial of the possibility of harm.
Yet Bromberg makes clear that the subject matter was not off-limits. Bolt could have written his articles if he had done so with accuracy and in a reasonable tone.
Mordy Bromberg had ealier run unsuccessfully to be an ALP candidate, and was appointed judge by Labor in 2009. Being a ‘Labor lawyer’ no doubt added to the outrage.
David Leyonhjelm has now come up with the interesting notion that “offence is always taken, not given” and “if you want to take offence, that’s your choice”.
It’s a denial of the lived reality of racial discrimination, and the possibility that it may cause harm. Or another way of blaming the victim.
Sarah Gill is onto something, I think, in It’s all about rights – theirs, not yours. Her language is a bit more complex, but she’s saying that the lunar right find it impossible to recognise entrenched disadvantage and systemic discrimination. Rights are not equally distributed, no matter how much we’d like to pretend they are, she says, and equality, therefore, won’t be achieved by treating everyone exactly the same. She says unless we all started out in the same place, which we didn’t, “some sort of rebalancing, some redress, is usually required.” Those at the apex of the social hierarchy will tend to resist any such redistribution.
What we have is not liberalism, but a conservative fundamentalism that resists any rebalancing or redress, preserving privilege.
The problem with the ridiculously stupid white man, David Leyonhjelm, is that he can’t see that he belongs to a privileged group that is immune from systemic discrimination.
Gill, I think, is in the right ballpark. She worries that the Liberal moderates may be drawn into the frenzy and what this might mean for a “fair go” for all in our egalitarian multicultural nation.
Free speech in Australia
One of our problems as a nation is that the Constitution focussed on the political means of stitching together six colonies into a federation. There was no vision of what rights we might hold in common as Australians. From Dr Google:
The Australian Constitution does not explicitly protect freedom of expression. However, the High Court has held that an implied freedom of political communication exists as an indispensable part of the system of representative and responsible government created by the Constitution.
Australia has no constitutional human rights and any notion of doing anything along those lines has been seen as a lefty plot against our freedoms. Australia has not ratified The Universal Declaration of Human Rights, but has signed the The International Covenant on Civil and Political Rights (ICCPR), which includes freedom of speech (again Whitlam, in 1972).
The Covenant is not directly enforceable unless incorporated in our law, as some elements have been. We have, however, set up the The Australian Human Rights Commission (Labor in 1986), a statutory body independent of government, which seems to draw its legal head of power from Commonwealth anti-discrimination legislation.
If you go to their site the Commission has done some work in the free speech area, drawing initially from the ICCPR. There you’ll find freedoms balanced with responsibilities, as one would expect.
It seems our free speech warriors want the freedoms without the responsibilities. Far from being motivated by the values of liberalism, the free speech warriors represent a reactionary yearning for a homogenous society. Anyone who is perceived to be a bit different can be abused for being who they are. Thereby the rights of others is constrained and fore-shortened, the opposite of what JS Mill enunciated. And at variance with the classic liberal value of tolerance.
Perhaps they have not heard of the economic benefits of cultural diversity, although cultural diversity should be valued and embraced for what it is.
If we want to preserve freedom of speech for the nation, the ICCPR provides the opportunity to legislate for it directly, as many countries do.
After all that, the Xenophon Team has announced that every single one of them sees no need to change 18C, either on its own merits or in horse-trading. Xenophon points out that the Arab and Jewish communities are on a unity ticket on this one. I understand the X Team intend to send Bernadi’s stuff off to a Senate committee. Perhaps that will be an opportunity for moderate Liberals to reflect on what their values truly are.