Rethinking the ‘Right to be a Bigot’

Unless you’ve been living under a proverbial rock, you might have heard about the hotly debated section 18C of the Racial Discrimination Act 1975 (Cth) (“the Act”). Broadly speaking, the provision makes it unlawful to do an act which is “reasonably likely” to “offend, insult, humiliate or intimidate another person or group” and “the act is done because of the race, colour or national or ethnic origin of the other person or group.” Under the provision, it is not unlawful to do this “in private.” Contraventions of section 18C do not amount to “offences” but are “unlawful acts.” In the interests of brevity and to avoid whiplash-inducing-legalese, I will be paraphrasing a bit here.

The current form of section 18C has been labelled by the Attorney-General, George Brandis QC, as being an encroachment on freedom of speech and that it is “not the role of government to tell people what opinions they are allowed to express.” Prior to the election last year, the Coalition had committed itself to, in Brandis’ words, “repeal[ing] section 18C in its current form” with sole reference to the case of Andrew Bolt who had been unjustifiably “pursued through the courts for expressing an opinion on a matter of public policy.” In that case, however, the matter of “public policy” Bolt dealt with were two articles that a Federal Court judge held to be conveying “imputations that fair-skinned people in Australia” were not “sufficiently aboriginal” and had “chosen to falsely identify as Aboriginal as they were “motivated by career opportunities.” One of those articles had the ever-so-tasteful heading “It’s so hip to be black”, another was peppered with terms like “white aborigines”, and just to round things off nicely the first lambasted a number of prominent aboriginal politicians, academics and professionals  as “the white face of a new black race.”

Inevitably, this debate has touched upon concerns about the nature of the right to freedom of political communication. For some, like Brandis and our friends on the Hill, the law should not be engaged to determine what is and isn’t offensive. When the law is engaged in this way, the argument runs, an unavoidable result is that an individual’s inalienable right to voice opinion on key matters of government policy, to criticise that policy in a meaningful way, and to protect one’s own interests is severely dampened. Clearly these are valid and important concerns that must be protected. But the key issue is that in holding that section 18C offends this undeniably important right, the advocates for its repeal are implicitly arguing that a person’s cultural identity is relevant, or even slightly significant, to matters of “public policy.”

There was a period in Australian history when ethnicity was relevant to “public policy” concerns; it helped justify institutionally racist, fundamentally discriminatory policies that tore apart families, widened inequality and deprived minorities of contributing meaningfully in economic, political and social spheres of Australian life. Section 18C plays an important role in protecting against history repeating itself. It is a provision that has to be read in the context of the statute as a whole, in attempt to truly discern its meaning. Section 26 of the Act makes it abundantly clear that unlawful acts are “not offences unless expressly so provided.”  In order to really hammer it home, section 18C(1) is accompanied by a note making it explicitly clear that contraventions of the provision constitute an unlawful act, “not necessarily a criminal offence,” and reference is given to section 46P of the Australian Human Rights Commission Act 1986 (Cth) which allows aggrieved people to make complaints to the Australian Human Rights Commission.

The distinction between an “offence” and “unlawful acts” is paramount here – offences involve the engagement of the criminal law; offenders might be sent to gaol, given a fine and might even get a criminal record out of the whole ordeal. An unlawful act is one which involves a breach of a particular statutory or common law prohibition – in this case, a prohibition on acts which are reasonably likely to offend, insult, harass or intimidate a person because of their race or ethnicity. In contrast to this, a criminal offence is one in which the complained conduct must amount to more than a civil wrong and involve some kind of a breach of the criminal law. We create these distinctions to reflect the nature and quality of the act – some are so objectionable that mandate public punishment; others violate a private right in a way that’s inappropriate to impose a comparably less-severe remedy. In Andrew Bolt’s case that remedy wasn’t to rain down the fire and brimstone of political correctness in the form of an extravagant payout – in fact the applicants didn’t even seek one; they sought and were granted declarations that Bolt’s articles contravened section 18C, an injunction preventing the publisher from republishing them and a costs order. This is why Brandis’ characterisation of section 18C as “telling people what they’re allowed to think” is fundamentally flawed; its status as an unlawful act, rather than an offence, gives complainants a mechanism of redress rather than criminalising speech on a topic. Brandis’ argument skates neatly over this distinction and ties it into his almost Orwellian characterisation of a highly effective law that has been operative for nearly twenty years in this country.

I’ll concede that one case isolated in its own facts is hardly a strong indicator of a law’s efficacy, but when the person responsible for our country’s legal system tries to make it so, that case becomes directly relevant. These are matters that Brandis has conveniently ignored and instead has framed the debate as one of a vague, inviolable principle – “our freedom and democracy fundamentally depend upon the right to free speech.” Given our Attorney-General’s apparent inability to directly engage with the case that supposedly proves a gaping need for reform or to actually demonstrate why ethnicity is relevant to “public policy,” I’ll discuss whether section 18C actually imposes on the right in the way he claims.

Section 18C of the Act does not impose upon this right. There are defences in the Act that protect against things said or done “reasonably” and in “good faith” in relation to (a)  artistic work, (b) in the course of furthering academic, artistic, scientific purposes or any other “genuine purpose in the public interest,” or (c) in making or publishing a “fair and accurate report” that is in the public interest or “fair comment” on any event or matter of public interest if the comment is an expression of genuine belief  held by the person. This can be found in section 18D. Crucially, the case law on section 18D is peppered with authority that the defence is available where the publication has a legitimate purpose in the communication of a point of view and is not simply directed towards disparaging others. This “legitimate purpose” requires good faith and more than subjective honest intentions – whether it is done this way depends on an objective test of “reasonableness.” These objective tests are abstract intellectual endeavours to frame a particular person’s conduct against broader, community standards – things we accept as a body politic and things we don’t. It follows from all this is that a person cannot be found to have fallen afoul of section 18C where their conduct or words are in the public interest, have artistic merit, are truthful, or a “fair comment” of public interest that a person genuinely believes. Their conduct and words must be framed against what we, as a community, accept. These circumstances clearly reflect the central concern of Brandis’ agenda for reform – to prevent an overreaching judiciary from punishing those in circumstances where comment on race or ethnicity may have a valid purpose. Sections 18C and 18D, then, when read together, crystallise the fact that the Australian public has moved beyond aspects of our morally questionable past and now deem conduct which offends, insults, harasses, or intimidates a person in a public forum due to their race or ethnicity to be wrongful. These are provisions that recognise that freedom of speech is not absolute and, given our past, there is a need to secure an irreducible level of dignity and respect for minorities. The Act, as it stands, albeit through verbose legal reasoning, actually protects against the kind of concerns our Attorney General cites as evidence for the need to repeal it.  Moreover, Brandis’ own logic and reasoning can be applied to advocate against his reform; section 18C arguably secures for minorities a level of participation in public discourse by preventing ideological bigots from silencing their opinions due to their race or ethnicity.

These concerns are worrying. On the one hand, we have an Attorney General who justifies reform on the basis of a single case and reference to abstract principles that contradict, rather than support, his argument. On the other hand, its 2014 and we’re still having this conversation.