Free Speech 2014 Symposium Papers

1.2Tim Wilson²

Reforming free speech laws will never be easy.

A uniting, not dividing, approach is needed to reform restrictions on free speech.

On Tuesday the Prime Minister announced the government would shelve its push to reform the Racial Discrimination Act 1975 (Cth) (Racial Discrimination Act).

Section 18C of the Act makes speech unlawful if it offends, insults, humiliates or intimidates on the basis of race.

According to Tony Abbott, the debate had become a ‘complication’ in working in ‘ever closer consultation with communities including the Australian Muslim community’.

Clearly the government decided to abandon its changes based on pressure from ethnic community groups. Discussion about the need for reform did not start well. The argument that people have ‘a right to be a bigot’ was neither the justification for reforming this law, nor is it accurate.

To be clear, there is a human right to freedom of thought and expression.

We use our freedoms to exercise these human rights. Freedom of thought is an unlimited right that ranges from the most wonderful to the most disturbing thoughts.

Freedom of expression, or speech, as it is commonly referred too, has a similar range but is restricted when speech conflicts with the rights of others, or causes explicit harm.

The justification for reforming the Racial Discrimination Act is because it encroaches too heavily on free speech.

One of the great myths was that there was not broad-based support for change.

Civil liberties groups, academics, lawyers, think tanks and people within ethnic communities acknowledge that the law should be amended. However, there was a diversity of views about how it should have been changed.

The diversity of support to change the law should not surprise. The provisions in the Racial Discrimination Act were preceded by three independent inquiries looking at how to tackle racism in Australia. None recommended the current law.

The first was the Royal Commission into Aboriginal Deaths in Custody. It recommended that there should be a federal civil offence against racial vilification, defined as speech that amounted to ‘racial violence, discrimination or hostility’.

The second was the Human Rights and Equal Opportunity Commission's National Inquiry into Racist Violence. Its report recommended the creation of a federal civil offence against ‘incitement of racial hostility’, ‘an express prohibition of racial harassment’ as well as a federal criminal offence against ‘racial violence’.⁴

Third, there was the Australian Law Reform Commission's 1992 inquiry into Multiculturalism and the Law, which examined the issue of racial speech. This inquiry recommended a civil offence ‘making incitement to racist hatred and hostility unlawful’.⁵

All three of these recommendations are significantly different from the current law we have.

The Parliamentary Library's Bill digest of the amendments to the Act put it best: ‘It is often argued that these three reports are the basis for the Commonwealth's proposed legislation; however, the Racial Hatred Bill 1994 (Cth) is in some respects completely contrary to the recommendations of these reports’.⁶

The Parliamentary Library also identified that the recommendations of the three inquiries ‘involve(d) a high threshold of serious conduct’, whereas the current law ‘establishes a civil offence with the significantly lower threshold of conduct’ based on whether speech offends, insults, humiliates or intimidates.⁷

The law was sufficiently controversial at the time of its introduction that even Greens senators opposed the law.

But despite widespread support for changing the law, there has always been a diversity of views about how it should be changed.

Some argue that section 18C should be totally repealed because the sections necessary to deal with racial intimidation already exist in state laws.

Others, such as Monash University's Castan Centre for Human Rights Law, argue ‘prohibitions on speech which offends and insults, even on the basis of race, go too far’.⁸ The Centre also argued that restricting speech that humiliated was a debatable point, but deferred to keeping it.⁹

Civil rights group Liberty Victoria argued in favour of simply removing restrictions on offending and insulting speech.¹⁰

The reality is that the law was controversial when it was introduced; it has been controversial in its operation and will continue to be controversial into the future.

The moment for reform clearly has passed, but lessons from the debate should not be forgotten.

In announcing the government's back down the Prime Minister appealed to the uniting idea that we should all be part of ‘Team Australia’.

Yet the single most important reason for reforming the Racial Discrimination Act is a uniting one, not a dividing one. The single most important reason is to treat everyone equally under the law.

The problem with the Act is that it establishes legal recourse for offensive speech that does not apply to everyone. No provision exists to restrict speech that offends, insults or humiliates on the basis of gender, disability, age, sexuality or religion.

Yet, if we adopted the same standard for these groups, there would rightly be outrage. Opposition would almost certainly be mounted by many within culturally and religiously conservative communities that support the present wording of section 18C.

For example, if we made it unlawful to air offensive speech on the basis of sexuality it could restrict conservative religious preachers expressing their view that homosexuality is immoral.

Other existing anti-discrimination laws actually provide guidance to resolve this problem.

The Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act) does not have anything like section 18C.

The Sex Discrimination Act has an uncontroversial provision that restricts workplace harassment on the basis of gender.¹¹

Ironically, the Racial Discrimination Act does not have a provision dedicated to workplace harassment. Instead the Racial Discrimination Act deals with it indirectly through section 18E that stipulates a ‘vicarious liability’ on employers to provide a safe workplace.

It would appear, in haste, the federal government's exposure draft to amend section 18C removed this provision under section 18E.

Yet workplace harassment could have been the basis for reform. There is no place for harassment in the workplace, racial or otherwise. A ‘Team Australia’ principle would have been to adapt a workplace harassment provision modelled on the Sex Discrimination Act.

From that basis the government also would have a body of uncontroversial case law to help interpret the provision. It then could have included a different public harassment provision that focused on intimidation.

On that basis a ‘Team Australia’ workplace harassment and public harassment provision could have replaced section 18C and appeased the vast majority of people concerned about racism and freedom of speech.