AAP/Stefan Postles

Poor George Brandis. Our Attorney-General seems to have wedged himself on the issue of racial vilification. Soon after the election of the Abbott government, Senator Brandis defiantly declared that repeal of Section 18C of the Racial Discrimination Act would be his first task as Australia’s first law officer.

Nearly five months later, we finally have an exposure draft of new legislation to consider. Apparently, the draft is watered down from Brandis’ original proposals due to cabinet and party room displeasure.

As I have explained before and below, I have some support for a move to amend s18C. However, I must acknowledge that I am not a person who has suffered from racial abuse, so I have not experienced its torment. Further, the optics of this issue being Brandis’s first business, investing the need to repeal with such great urgency, are terrible. Are restrictions on racist speech really one of the gravest harms to freedom in this country? Please.

Section 18C has sat, quite uncontroversially, on our statute books since 1995, including the entire period of the Howard government. It came to prominence when conservative columnist Andrew Bolt was found to have breached the provision in 2011 by the publication of two columns about fair skinned Aboriginal people.

Bolt queried, in scathing and inaccurate terms, certain people’s Indigenous identity.* Since then, Bolt has thundered about his own martyrdom on the pyre of free speech in the many media platforms available to him, enthusiastically cheered by supporters such as the Institute of Public Affairs (“IPA”). Those supporters include Brandis, who has made it quite clear that the law will be crafted to ensure no repeat of the result in the Bolt case.

Brandis seems to have assumed that the repeal of s18C would be relatively uncontroversial, mistaking the hubris of Bolt and the IPA for genuine community concern. Bolt and the IPA, perhaps an easy constituency for Brandis to pander to in opposition, are a tricky constituency to satisfy in government.

The right to bigotry

On Monday, Brandis proclaimed that “people have the right to be bigots”, an embarrassing moment made worse by the fact that it was aimed at the ALP’s first Indigenous parliamentary representative, Senator Nova Peris. Though I suspect he regrets the statement, Brandis is actually correct from a human rights point of view.

And not only that, people have an absolute unqualified right to be bigots! Article 19(1) of the International Covenant on Civil and Political Rights (“ICCPR”) guarantees the right to freedom of opinion. People can hold any opinion, no matter how horrid or bigoted.

Where things get tricky is the right to act like a bigot, including rights to express bigotry. Such rights are qualified. There, one has to look at other provisions, which are qualified, namely Articles 19(2), 19(3), 20 and 26.

The exposure draft

The proposed Freedom of Speech (Repeal of s18C) Bill 2014 repeals s18C, along with s18D, which currently provides a “free speech defence” to s18C offences. Section 18E is supposed to go too, which currently provides for employer liability (vicarious liability) for breaches of s18c by employees and agents. The draft then provides for replacement provisions.

Section 18C currently renders unlawful any public act which is reasonably likely to offend, insult, humiliate or intimidate another on the basis of race (subject to exemptions in s 18D) if the act is done because of that other person’s race. The proposed amendment would remove the prohibitions on offensive, insulting or humiliating acts.

Offence and insult

I have previously explained that the prohibitions on that which offends and insults, even on the basis of race, go too far. Feelings of offence and insult are not serious enough to justify restrictions on the human right to freedom of speech: there are no countervailing human rights to freedom from offence or freedom from insult.

It is true that the terms, “offence” and “insult” have been interpreted so that they mean more than “mere” offence and insult. It is arguable that judicial interpretation has saved these provisions from actually breaching the right to free speech. However, the law should mean what it says. If “offence” and “insult” do not mean what they say, the prohibitions should go.

Humiliation

The prohibition on “humiliation” is also set to go. Humiliation is more serious than offence and insult. Humiliation on the basis of one’s race prejudices one’s right to be free from racial discrimination, a genuine human right that may permissibly override freedom of speech. Instead, the exposure draft favours freedom of speech, specifically the right to humiliate another on the basis of race.

Intimidation

Intimidation, the most serious of the current prohibitions, stays. As with humiliation, acts of racial intimidation infringe another person’s right to be free from race discrimination. Further, intimidation harms that other person’s right to security of the person under Article 9 of the ICCPR.

However, the exposure draft defines intimidation very narrowly. Intimidation will mean the causing of “fear of physical harm” to one’s person, one’s property, or to members of a group. “Psychological harm” is excluded. Yet fear of psychological harm to one’s person seems more intimidating than fear of physical harm to one’s property.

Bolt’s articles were found to be likely to intimidate less experienced lighter skinned Aboriginal people from self-identifying as Indigenous. The narrower definition of “intimidation” excludes Bolt’s articles from its remit.

Vilification

A new prohibition is added in the exposure draft, a ban on racial vilification, that is an act which incites hatred again a person or a group of persons. This is a true hate speech provision. Hate speech traditionally concerns the “incitement” of third parties by racist speech, rather than the effect of such speech on the targeted people themselves. Indeed, Bromberg J in Bolt’s case distinguished s18C from the concept of “race hate”.

Vilification is already effectively banned under the current provisions. Speech which vilifies must surely simultaneously offend, insult, humiliate or intimidate. Nevertheless, the new proposed additional prohibition is welcome. It encapsulates even worse behaviour than that which intimidates.

Clause 3

By whose standards is it to be decided that an act intimidates or vilifies? In the Bolt case, Bromberg J decided that the relevant standards were those of the target group, in that case fair skinned Aboriginal people, rather than those of the general community. Clause 3 reverses that decision: the standards are proposed to be those of the “reasonable member of the Australian community, not … the standards of any particular group within the Australian community”.

Clause 3 may be justifiable with regard to vilification, which concerns the reactions of third parties rather than members of the targeted group. Nevertheless, incitement of hostilities could arise between groups in circumstances where the general community is unaware of the nuances behind such hostilities.

Clause 3 is inappropriate with regard to intimidation. The general community may well be unaware of the intimidatory power of certain words or acts. For example, the word “cockroach” has genocidal connotations amongst the people of Rwanda and Burundi: would that connotation be understood by Australia’s general community?

Waleed Aly has eloquently aimed fire at clause 3. He persuasively argues that Clause 3 ensures that the standards of white people will essentially decide whether racial minorities should properly feel intimidated on a racial basis. The hypothetical reasonable person within the group that experiences the least racial intimidation and vilification will set this standard on behalf of those who are far more likely to have such experiences. In Aly’s words, “protection from racism becomes a gift from the majority”.

Clause 4

Clause 4 is the sting in the tail. Clause 4 provides a defence to any allegation of vilification or intimidation. It is worth reciting in full.

This section does not apply to 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.

Clause 4 replaces s. 18D. Section 18D currently provides an exemption for similar acts, but only when done “reasonably and in good faith”. Bolt failed to benefit from s18D as the judge found his columns were neither reasonable nor written in good faith. The judge was influenced by the scathing manner of the columns and, in particular, their multiple inaccuracies.

Indeed, it is fair to speculate that Bolt’s columns breached the law of defamation as well as s 18C.

Bolt would be safe under Clause 4. Clause 4 contains no requirements of reasonableness or good faith. Therefore, it seems to provide a defence for anything written or broadcast in the mainstream media, and probably any blog. Numerous tweets may be fine too. Preachers would be able to pronounce intimidation and hate from the pulpit, as could academics and teachers in the classroom. Artists could provoke intimidation and hate in public performances and displays.

Indeed, racist personal disputes that erupt beyond the private domain, or random extreme verbal attacks, may remain all that is caught within the racial vilification net. Yet one can hardly doubt the potential power and harm of intimidation and hate which might pour forth in the many public spheres protected under clause 4.

Waleed Aly argues that the defence may go even further. He states:

Precisely how it is possible to racially vilify someone without discussing a “social” matter is beyond me.

Prediction: a backdown

I do not believe that this exposure draft will survive, especially the extraordinarily broad exemption in clause 4. Government MPs seem eager to point out that the exposure draft has been released for extensive public consultation before being finalised, signalling the likelihood of change.

It may not in fact be politically possible to enact or even introduce a law that ensures no repeat of the Bolt case, given the extensive findings against the columnist in that case. Senator George Brandis may find that he cannot satisfy those unruly constituents, Bolt and the IPA, with his first order of business.

** this sentence was altered on 5/4/14 after online discussion with Luke Pearson.