Racial Discrimination Act and Free Speech– Carte Blanche or Fair and Reasonable – Where are Human Rights in all This?
Professor George Williams has noted ‘the fact that freedom of speech receives no general protection in Australian law is not of itself and argument for introducing such protection’. Unlike in the United Kingdom, Canada, the United States and New Zealand there is no such right at a national level in Australia. There is a limited right to freedom of political communication in the context of voting that is circumscribed, but acknowledged by the High Court of Australia.
Anyone listening to recent debate and statements by political leaders and right wing commentators in Australia would think that, as in the United States, there is a right to free speech engrained in Australian laws. Recent moves by the Attorney General George Brandis to amend the Racial Discrimination Act (the ‘RDA’) are because there is a claim that the current sections 18C and D of the RDA, which prohibit offensive behaviour (including speech) based on racial hatred, limit free speech. After public outcry and an overwhelming number of submissions raising concerns about the suggested changes in 2014, the proposed amendments were taken off the table. However, the recent terror attacks in Paris, have been used as a vehicle to call for its resurrection by the conservative right.
I have long been an advocate for human rights. This includes free speech but I, like Professor Williams believe all human rights need protection, not one in isolation and to the exclusion of other rights. Williams notes ‘It would be preferable to protect the right (of free speech) as part of a more comprehensive scheme of rights protection’. In Victoria and the Australian Capital Territory, both with State and Territory human rights legislation, I have seen this framework open up participatory and more democratic dialogues between decision- makers and community members like never before with a consequent balancing and consideration of people’s human rights. This has been especially the case for people with a disability or in need of critical health services that I have assisted.
It is important to understand the context behind the current moves to reduce the protections against racially motivated hate speech protected by the RDA. Firstly, it is important to note that these provisions in the RDA are a critical measure in Australia in view of the ongoing disadvantage and discrimination of Indigenous Australians. A recent report demonstrates how this part of the Australian community remains staggeringly disadvantaged in comparison to the non-indigenous population.
The Prime Minister in 2013 undertook to amend the RDA to repeal section 18C after a controversial media commentator, Andrew Bolt, lost a case in the Federal Court of Australia for a publication in which he referred to ‘fair skinned Aboriginal people’. Justice Bromberg found Bolt’s articles would have offended a reasonable member of the Aboriginal community, that he had not written them in good faith and that there were factual errors. Mr Bolt railed against the court’s finding. Attorney General Brandis, famous for his claim there is ‘a right to be a bigot’ announced proposals to amend the current section 18C which makes it an offence to ‘offend, insult, humiliate or intimidate’ a person.
Under the Brandis proposals almost any racist speech will be allowed. This is because the exposure Bill includes a wide exemption for comments ‘made in the in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter’. Professor Simon Rice highlights that ‘The proposed exception is not limited. It allows race-based conduct in public discussion (by, for example, columnists, bloggers and public officials) that is unreasonable, in bad faith, dishonest, inaccurate or irrational, even if it could intimidate or incite hatred. In public discussion, absolutely nothing is prohibited by the proposed law.’
Public outrage at proposed amendments led to a departmental inquiry which took submissions in 2014. As a result of the overwhelming submissions the amendment was take off the table. However, in reaction to the ‘Je suis Charlie campaign’ we have again seen the exponents of the amendments use the ‘right to free speech in Australia’ to clamour for the repeal of section 18C. As noted in an open letter I wrote as Co- Convener of the Human Rights Working Group to the Prime Minster and the submission to the departmental Inquiry in 2014, ‘The insensitivity to the impact of unwarranted racist attacks is troubling. People will hide away, people will cower, people will be afraid. Is this not also a threat to the free speech?’