Freedom of Speech or Enabling a Right to Insult? The Australian Debate over Section 18C of the Racial Discrimination Act 1975
With a rise in the Neo-Right worldwide, we see the fear of the foreigner and the blaming of refugees and welfare recipients for ills that often flow from structural inequality and injustice. The discourse is being reframed to that of small government, an individualistic, self-interested focus, a concentration of wealth in the world’s top 1% and claims of the ‘need’ for austerity. The focus becomes what divides us rather than on improving access to justice, providing evidence-based solutions, and the common good.
Illustrative of such a trend are attempts to erode Section 18C of the Racial Discrimination Act (Commonwealth) 1975 in Australia. The section limits offensive behaviour ‘because of race, colour or national or ethnic origin,’ with such behaviour giving rise to a possible complaint to the Australian Human Rights Commission.
In Eatock v Bolt 2011 FCA 1103 (28 September 2011), it was held that two articles written by newspaper columnist Andrew Bolt in The Herald Sun newspaper had breached the Racial Discrimination Act. Outcry from Bolt, former Prime Minister Tony Abbott and others from the right claimed that the decision and section 18C limit the right to freedom of speech, a right which George Williams points out does not exist in Australian law.
The International Covenant on Civil and Political Rights frames a right to free speech which is qualified under Article 19(3), which allows limits to be placed on speech by law, such as section 18C, for legitimate objectives and if proportionate. In March 2013, the Attorney General (famous for his ‘right to be a bigot’ quote) released draft amendments for community consultation. Under the proposed laws, almost any racist speech would be allowed. This author, then co-convener of the Human Rights Working Group made a submission to the Parliamentary Joint Committee on Human Rights (‘the Committee’) on behalf of the Working Group. The submission stated:
In our experience, many people who are the targets of racist abuse and vindictive behaviour lack the resources to defend themselves. We know this because this is what occurred before such protections as those which currently exist were put in place. The proposed reforms are unjust.
After overwhelming concern in a significant majority of consultation submissions, the planned changes were aborted, with the Prime Minster noting he did not want to put ‘national unity at risk’. The heat did not die down.
Conservative elements within the government made their discontent known and a further attempt to change the law was made in 2016. On 8 November 2016, pursuant to section 7(c) of the Human Rights (Parliamentary Scrutiny) Act 2011, the Attorney-General wrote to the Committee asking for a further Inquiry. The Human Rights Working Group submitted a further report to the Committee. The Committee stated:
The Committee has heard horrific stories of everyday racism from these groups, some of which expressed concern that even the holding of an inquiry into the Racial Discrimination Act 1975 (Cth) has increased racism within Australia.
The Committee recommended no change, only a streamlining of the Human Rights Commission’s complaints processes, in line with the latter’s own suggestions.
Despite this recommendation, the Government, on 21 March 2017, decided to put forward an amendment to include a threshold test of the ‘reasonable person’ suggesting speech will not be discriminatory under section 18C if a ‘reasonable person’ would not consider it racist. When dealing with minority groups, the reasonable person test is problematic, because most proponents of the changes to section 18C are largely white, from the right of politics, Anglo-Saxon and relatively comfortably off, and so not subjected to the impacts of colonisation or racial vilification. The Prime Minster (formerly against the changes) states, “The suggestion that those people who support a change to the wording of section 18C are somehow racist is a deeply offensive one.” This comment misses the point. The government dropped the issue as public debate re-ignited.
What concerns me is that the debate is not, as our former Prime Minister would describe it, ‘dead, buried and cremated.’ Fundamental protections like section 18C came from bitter experiences of past oppression and the historical consequences world-wide of scapegoating of minority groups. We, who value human rights, must be vigilant and fight to preserve the protections that prevent human rights abuses.