Free speech and racism in Australia

Australia has, for several decades, had some quite wide-ranging rules regarding racially discriminatory speech, in the form of the Racial Discrimination Act 1975. Now, Australia’s federal Attorney-General, George Brandis, is championing a re-write of certain sections – a proposal that has sparked a somewhat furious debate about the limits of free speech.

The main issue seems to be with s 18C(1) of the Act, which states that:

It is unlawful for a person to do an act, otherwise than in private, if:

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

There are some exemptions, set out in s 18D:

Section 18C does not render unlawful anything said or done reasonably and in good faith:

(a) in the performance, exhibition or distribution of an artistic work; or

(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

(c) in making or publishing:

(i) a fair and accurate report of any event or matter of public interest; or

(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

However, to Attorney-General Brandis, s 18C goes too far. He proposes that the test for racial vilification should change from conduct causing offence, insult, humiliation or intimidation, to be replaced with a test of “conduct that is reasonably likely vilify or to intimidate”.

To me, that’s a change I support. The existing Australian test is simply too broad to comfortably fit within my views on the sanctity of free speech. Conduct that causes offence, insult or humiliation may not be pleasant. It may even be deeply unpleasant. But the law is not there to force people to be pleasant.

Those who oppose the proposed law changes argue that the law is there to protect against harm – the harm in these circumstances being racist speech. Nonetheless, the right not to be subject to racist speech has to be weighed against the right to freedom of speech. To my mind, the right to free speech wins out.

Racism may not be pretty, but outlawing racist speech only creates martyrs. Just look at conservative columnist Andrew Bolt, who was convicted under s 18C for attacking “fair-skinned people” of diverse ancestry who he argued chose to identify themselves as Aboriginal for financial or political gain. Sections 18B to 18E of the Act are now colloquially known as the Bolt Laws, and Mr Bolt has a widespread network of sympathisers. It is arguable that the audience for his views has only increased because of the successful prosecution against him.

Now, astute readers may have noted that I haven’t addressed whether I support removing the term “intimidation” from the definition of racial vilification. The reason is that intimidation is a step up from being offensive, insulting or humiliating. It’s not quite so clear-cut for me. Intimidation can be an offence in its own right, whether it has racial overtones or otherwise.

Regardless, in terms of balancing the rights to freedom of expression and freedom from harm, I think New Zealand has got the balance about right, and Australia should look to our example. Intimidation is a crime that exists in its own right here, as is offensive behaviour (with the Courts having read in a requirements for offensive behaviour beyond the standard dictionary definition), while our Sentencing Act makes race-based offending an aggravating feature at sentencing. Thus, racist speech can be prosecuted if it meets the criminal thresholds for intimidation or offensive behaviour, which will be seldom, whilst racist actions are subject to our laws against discrimination.

Racism should be condemned, but at the end of the day, people do have the right to be a bigot. People who say “I don’t like blacks” should be ridiculed, not criminalised.

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