Federal attorney-general George Brandis is serious when he says that under his watch, “people do have a right to be bigots”. As drafted (and it is very poorly drafted), his proposed changes to sections 18B, C, D and E of the Racial Discrimination Act give uniquely wide licence to free expression on matters of race.

A new test for racial vilification

There are three essential parts to the proposed changes. First, they drop the current test for racial vilification – “conduct causing offence, insult, humiliation or intimidation” – and replace it with a test of “conduct that is reasonably likely to vilify [which means incite hatred] or to intimidate”.

Focus switches from the harm that is caused by race-based speech to the conduct that intimidates or incites hatred. Instead of being concerned to prevent harm, the concern is to maintain public order.

It is not new to define racial vilification to mean incitement to hatred: this is what state and territory laws do. What is new is to define racial vilification to mean only incitement to hatred. In state and territory laws, vilification is defined as incitement to hatred, and to other conduct such as serious contempt, severe ridicule and revulsion.

Brandis is, by the way, relying on a spurious distinction when he claims that:

Section 18C, in its current form, does not prohibit racial vilification.

Brandis chooses to define racial vilification only as “incitement to racial hatred”, so he is able to say that the current definition is not in fact “vilification”. This trivialises the protection that the current racial vilification provisions have offered for almost 20 years, and supports his misleading claim that:

There is no law of the Commonwealth of Australia that prohibits racial vilification.

By addressing only incitement to racial hatred, Brandis is winding back the vilification prohibition to cover a single – and increasingly rare – type of behaviour: the crude, public rantings of a racist. He fails to recognise, or maybe even comprehend, the pervasive, casual racism in Australian society that Race Discrimination Commissioner Tim Soutphommasane has identified.

If prohibiting incitement to racial hatred is the achievement that Brandis considers, then he could do well to look at the serious attention given to criminal provisions elsewhere in Australia, and Australia’s continuing failure to honour its international treaty obligation to criminalise racial vilification.

The view of an ‘ordinary Australian’

The second part to the proposed changes is that they switch the perspective for assessing racial vilification from the feelings of a reasonable person to whom conduct is directed, to the view of an “ordinary reasonable member of the Australian community” as to whether conduct is likely to intimidate or incite hatred.

This is novel. The usual approach to “incitement to hatred” laws in the states and territories is that the likelihood of incitement is decided by reference to the intended audience of the comments (in Andrew Bolt’s case, for example, Herald Sun readers).

Driving a truck through it

The third part and perhaps most important of the proposed changes is the conduct that is explicitly permitted. Vilifying or intimidating public conduct that is done because of a person’s race is prohibited, but it is allowed when it is done in the course of public discussion.

There is no qualification to this exception. Every other vilification law in Australia limits exceptions to conduct that is done reasonably and in good faith.

This throws out the baby, the bathwater and the bath. The exception is so wide to a prohibition that is so narrow that 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.

Majority rules

The most troubling aspect about the proposed changes – along with knowing that Australia’s chief law officer is a champion of the right to bigotry – is the blithe assertion of a dominant cultural perspective.

When deciding the likeliness of incitement, who will not claim for themselves the title an “ordinary reasonable member of the Australian community”? The role will be taken by a judge, who will decide the likelihood of incitement from their perspective, and not as it might be for the actual audience of the comment.

This “objective test” is a double whammy to a victim of vilifying conduct. Not only do the proposed changes tell them that their real and reasonable sense of offence is irrelevant, the changes say it is irrelevant to know how the intended audience of vilifying conduct might actually react.

Those who enjoy freedom of expression must assess the limits on that freedom by an awareness of the harm that can be caused by it. This is philosopher John Stuart Mill’s classical liberal “harm principle”. Free speech regulators must be aware that members of a racial minority can live all day, every day, conscious of their different culture and heritage, their different skin colour, their accent, their different practices, customs and preferences.

No member of the Australian racial majority – politicians, policymakers, opinion writers – can understand what it is to have one’s life defined by one’s difference. When “free speech” characterises that difference as a deficiency – a sign of inferiority – offence is a real sense that is qualitatively different from any idea of offence that we in the majority can have.

It is not for us to say that someone who actually – and, in their circumstances, reasonably – feels offence that they should not, or that it is to be borne with resignation. For almost 20 years, federal racial vilification law has been admirably respectful of the lived reality of racial difference.

Human Rights Commissioner and noted “classical liberal” Tim Wilson distanced himself from Brandis’s underlying rationale for the proposed changes: that people have a right to be bigots. He must now be similarly wary of Brandis’ simplistic protection of bigotry in the name of free expression.