Within days of the July election result having finally been announced, forces within the Conservative faction of the Liberal-National party moved to re-open the debate on reform to S.18C of the Racial Discrimination Act (RDA). Section 18C makes it a civil offence to insult, offend, humiliate or intimidate a person on the grounds of their race.
The Prime Minister has made it clear that he is not interested in pursuing the matter. Sensibly, he does not want to re-open the damaging schism that occurred when hostilities on the issue broke out following the Federal Court’s 2011 judgment against the conservative columnist, Andrew Bolt.
Pursuant to S.18C, Bolt was found to have humiliated the indigenous applicants in the case by implying recklessly and incorrectly that because they had fair skin they were not really aboriginal. And that having fair skin they had chosen falsely to identify as aboriginal in order unmeritoriously to obtain financial and professional advantage.
Conservative politicians, think-tanks and media outlets disagreed vehemently with the decision. They launched a campaign in favour of the repeal of the section because, they argued, it constituted too great a limitation on freedom of speech. They were arrayed against a very broad coalition of ethnic and religious community organisations who favoured its retention as a bulwark against racial vilification. The issue was placed on backburner after Tony Abbott was deposed as Prime Minister.
So what reforms, if any, might constructively be considered? The best place to begin is with an examination of the terms of the S.18C itself. This provides that it is unlawful for a person to do an act if it is reasonably likely to ‘offend, insult, humiliate or intimidate another person and the act is done because of the person’s race.’ The provision appears in a part of the RDA headed ‘Racial Vilification’.
It can be seen immediately, however, that S.18C relates only very loosely to the idea of racial vilification. Vilification carries with it a sense of extreme abuse and even hatred of its object. Vilification can provoke hostile and even violent responses. The words of s.18C do not convey this meaning.
Unlike several States and the ACT, the Commonwealth does not have a law criminalising racial hatred or vilification. There was an attempt to introduce such a law at Commonwealth level in 1995 but the Bill was defeated by the conservative opposition in the Senate.
So, as a first step in overcoming the present disputation the Government should move to outlaw hate speech. S.18C of the RDA is inadequate because it makes no reference to hate speech. It is concerned with the effects of less injurious forms of expression. Further, as a matter of principle, it seems reasonable to impose a limit on racially hateful utterances given their propensity to provoke vengeful and violent responses.
If real protection against racial vilification is desired, then racial hatred, serious ridicule and contempt should be named and rendered unlawful.
Should this be done, the intensity of the opposition to more moderate changes to the RDA is likely to recede. This is because racial minorities will have received the strong protection against vilification that they desire. Then one could look more dispassionately at the the RDA’s limits on freedom of speech and determine whether and to what extent they might properly give way to the desirability of protecting free public and political communication.
In this respect, advocates of untrammeled free speech have sometimes gone too far. Free speech extremists such Cory Bernardi, James Allan, and Janet Albrechtsen have argued that s.18C should be eliminated altogether. But that would mean that prejudicial speech that insulted, offended, humiliated or intimidated members of a racial or ethnic group would become permissible.
To remove any sanction for speech having these effects would send a signal that racism is acceptable. We should not do that. However, the question of what might best be discarded and what should be kept remains.
S.18C limits four different kinds of speech. The first is speech that intimidates a person on racial grounds. Intimidatory behaviour is threatening behaviour. It is behaviour that is calculated to place an individual or group in fear.
However much one might value freedom of expression, to allow racially threatening behaviour to pass without civil sanction does not seem desirable. People of different racial and ethnic backgrounds should be enabled to take their place in society without others inducing in them a real fear of being injured or silenced.
Secondly, there is speech that humiliates. Speech of this kind is an attack on a person’s self esteem and belief. And it is an attack on a ground that the person cannot change. To say, for example, that a person is black and therefore something less than human is to cut a person’s sense of self to the quick. The injury here is psychological but no less severe for that. Racial humiliation also requires civil penalty.
Next there is speech that insults. Insult is aggravated by its connection to race. However undesirable such invective may be, room needs to be made in the political realm for language that is callous or impetuous. Not to provide that space would substantially constrain the manner in which people habitually speak and relate. One might not like insult but it should be tolerated in the interests of free expression.
Finally the RDA restrains speech that offends. The problem is that it is difficult to predict when offence will be taken. The definition of offence is so wide and the circumstances in which it may be inflicted are so numerous that those wishing to put their views strongly on matters that bear on race enter upon uncertain legal territory. The unpredictability can produce a silencing effect that impinges too invasively upon open communication.
An amendment to S.18C, therefore, should retain restrictions on speech that humiliates and intimidates but abandon limits on speech that insults or offends.
To create the appropriate balance, however, as a precondition the Commonwealth should follow the States and outlaw speech that is racially hateful, seriously derisory or seriously contemptuous.
Professor Spencer Zifcak is Allan Myers Professor of Law at the Australian Catholic University and Immediate Past President of Liberty Victoria.