Attorney-General George Brandis ill-informed on people's 'right to be bigots'

Updated

Proposed changes to water down the Racial Discrimination Act captured the attention of the nation in 2014 when federal Attorney-General George Brandis announced plans to repeal section 18C of the Act which makes it unlawful to "offend, insult or humiliate" another person because of their "race, colour or national or ethnic origin".

In a heated exchange in parliament, Senator Nova Peris - the first Indigenous female senator - asked Senator Brandis: "Won't removing 18C facilitate vilification by bigots?"

He responded: "People do have a right to be bigots, you know. In a free country, people do have rights to say things that other people find offensive or insulting or bigoted."

The claim: Attorney-General George Brandis says people have a right to be bigots and to say things that other people find offensive.

Attorney-General George Brandis says people have a right to be bigots and to say things that other people find offensive. The verdict: Senator Brandis's view is ill-informed. There are many laws in Australia which stop people saying things that other people find offensive, insulting or bigoted.

Oxford Dictionaries defines being bigoted as "having or revealing an obstinate belief in the superiority of one's own opinions and a prejudiced intolerance of the opinions of others".

Labor Senator Penny Wong interjected.

Senator Brandis said: "Well, do you know, Senator Wong, I think a lot of the things I have heard you say in this chamber over the years are, to my way of thinking, extraordinarily bigoted and extraordinarily ignorant. But I would defend your right to say things that I consider to be bigoted and ignorant. That is what freedom of speech means."

In an interview on radio station 2GB the following day, Senator Brandis was asked why it was important to repeal section 18C. He replied: "In Parliament we offend each other all day. In the media, and on talkback radio, your listeners always talk about being offended by what someone says. We don't ban free discussion because somebody might be offended by it so it was important to do that to reaffirm the centrality of freedom of speech and freedom of expression in Australian democracy."

ABC Fact Check investigates whether Senator Brandis is correct in asserting that people do have the right to say things that other people find "offensive".

Causing offence in federal and state laws

There is a range of laws in Australia that stop people saying or communicating things that other people find offensive. Four examples follow:

The Sex Discrimination Act

The Sex Discrimination Act defines sexual harassment as unwelcome sexual behaviour which makes a person feel offended, humiliated or intimidated.

Section 28A, which defines the meaning of sexual harassment, says a person sexually harasses another person if:

"(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or (b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed; in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated."

Katherine Gelber, an Associate Professor in public policy from the University of Queensland, tells Fact Check the Racial Hatred Act - which includes section 18C and was incorporated into the original Racial Discrimination Act - was based on sexual harassment law.

Offensive language in public

In the NSW Summary Offences Act section 4A says "a person must not use offensive language in or near, or within hearing from, a public place or a school". The same Act includes a criminal provision for offensive conduct. Comparable laws are on the books in every Australian state and territory.

The offensive language charge was enforced 5,000 times last year in NSW, according to a recently published article co-authored by Professor Luke McNamara and Dr Julia Quilter from the University of Wollongong's school of law.

The paper says: "In a typical year, NSW police lay more than 5,000 charges for offensive language, and, in addition, issue a similar or larger number of 'on the spot' fines for these crimes."

The law does not define what constitutes "offensive language", and the test is "that of a reasonable man".

Postal service law

The Criminal Code Act prohibits using a postal or similar service in a way that is menacing, harassing or offensive.

It was used in 2011 to convict Man Haron Monis, the man who carried out a deadly siege at the Lindt Cafe in Martin Place, Sydney, in December 2014, after he sent letters to parents and relatives of soldiers killed on active service in Afghanistan. The letters called one soldier a murderer of civilians, and compared him to a pig and dirty animal.

Section 471.12 of the Act states a person is guilty of an offence if:

"(a) the person uses a postal or similar service; and

(b) the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive."



The case went to the High Court, where Monis's barrister argued the Constitution has an implied freedom of communication on government and political matters, and therefore federal parliament had exceeded its power when it passed this section of the criminal code.

The appeal failed. The six High Court judges unanimously agreed the section restricts political communication, but the bench was split on whether it was therefore in conflict with the Constitution.

The chief justice, Robert French, summed up the central question this way: "No Australian parliament can validly enact a law which effectively burdens freedom of communication about [government and political] matters unless the law is reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of government in Australia."

Only three of the six high court judges found section 471.12 was invalid and in the absence of a majority finding, the appeal was dismissed.

The judgment reflects that there was debate during the case about how intense the reaction must be to pass the threshold of being "offensive". Justice French said section 471.12 "does not import a requirement that any person was actually offended" because the section is "framed objectively by reference to how 'reasonable persons' would regard the conduct".

The three judges who found the section valid said in a joint judgment that section 471.12 "relates to a degree of offensiveness at the higher end of the spectrum, although not necessarily the most extreme" and involved communication "likely to cause a significant emotional reaction or psychological response". "The former may range from shock through to anger, hate, disgust, resentment or outrage, and the latter may include provocation, anxiety, fearfulness and insecurity," they said.

Telecommunications law

There is a similar prohibition on using telecommunications services in an offensive manner.

Section 474.17(1) of the Criminal Code Act says a person is guilty of an offence if:

"(a) the person uses a carriage service; and (b) the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive."

The explanatory memorandum to the bill introducing section 474.17 defined using a carriage service as "making a telephone call, sending a message by facsimile, sending an SMS message, or sending a message by email or some other means using the internet".

The bill "removes the requirement that the recipient be in fact menaced or harassed and replaces it with an objective standard," the memorandum said. "The proposed offence provides that reasonable persons must regard the use of the carriage service, given all the circumstances, as menacing, harassing or offensive. This allows community standards and common sense to be imported into a decision on whether the conduct is in fact menacing, harassing or offensive."

Do Australians have the right to free speech?

Laws that ban offensive speech often raise an apparent inconsistency with the principles of free speech.

Professor McNamara says Australia has very few explicitly enumerated legal rights compared to countries that have a bill of rights or equivalent.

"Therefore, it is frequently a moot point as to whether there is a 'right' to X or Y," he said. "Often a person is advancing an opinion or normative claim when they say that something is or isn't a right."

While Australia does not have a bill of rights, there is an implied guarantee of freedom of political discourse under the Constitution. This has been recognised since September 1992, when the High Court heard a series of cases commonly known as the free speech cases.

Causing offence under the Racial Discrimination Act

Associate Professor Gelber says the controversy around repealing section 18C of the Racial Discrimination Act is not the first time the federal parliament has disagreed on racial vilification, or hate speech.

In 1975 when the Racial Discrimination Act was brought into law, parliament was unable to agree on racial hatred provisions.

In took another 20 years before the Racial Hatred Act 1995, which included section 18C, was incorporated into the original Racial Discrimination Act and there was also debate then.

The digest for the bill prepared by the Parliamentary Library said the Human Rights and Equal Opportunity Commission stressed the threshold for racial vilification must be higher than "expression of mere ill will".

The attorney-general of the day, Michael Lavarch, said: "The bill places no new limits on genuine public debate. Australians must be free to speak their minds, to criticise actions and policies of others and to share a joke. The bill does not prohibit people from expressing ideas or having beliefs, no matter how unpopular the views may be to many other people. The law has no application to private conversations."

Professor McNamara tells Fact Check offensiveness is a key standard in relation to a range of existing Australian laws. "Offensiveness is used in legal definitions precisely because it is vague and can be applied with a degree of discretion," he said.

"This can be hugely problematic, especially in a criminal law context. But handled sensitively, in a civil law/human rights context it can be be a useful reference point for starting an evaluation of the acceptability of someone's conduct."

The verdict

There are many laws in Australia which stop people saying things that other people find offensive, insulting or bigoted.

Senator Brandis's view is ill-informed.

Sources

Topics: rights, discrimination, federal-government, liberals, australia

First posted