Three years ago I delivered a paper at the the Australian Human Rights Commission’s Free Speech Symposium. Held in Sydney on August 7, 2014, that symposium covered a wide-range of restrictions on free speech in Australia. There I took the opportunity to discuss the unintended consequences of racial discrimination legislation in light of s18C. Since then things have only grown worse. What follows is an article which includes material published in the proceedings of that significant event.
On March 30, 2017, the Senate rejected the proposed changes to Section 18C of the Racial Discrimination Act. This failure to repeal such provision is another missed opportunity to reassert the importance of free speech in Australia. The proposed amendment was only a minor improvement. It provided an incipient reorientation towards the protection of free speech.
Although the internal processes will now be more efficient, the Australian Human Rights Commission can still take a considerable amount of time before finalising any case. In many respects, the process is the punishment particularly in a context where an allegation of racism inevitably carries with it special opprobrium in the community. Above all, a law that disallows a person from voicing comments deemed “offensive” to another person creates a chilling effect on free speech.
To better appreciate the problem some context of why the RDA necessitates reform is appropriate. One of the most effective means by which free speech can be silenced is under the cover of laws against racial discrimination. A leading example is section 18C (‘18C’) of the Federal Racial Discrimination Act 1975. Under such a provision it is unlawful for a person to do an act (other than in private) if the act ‘is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate’ a person where 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’.
This is an extremely broad prohibition. It represents an extraordinary limitation of free speech. The key words used in the existing s18C, namely ‘offend, insult, humiliate’, are imprecise and largely subjective in nature. Attempts to define these words with any degree of precision quickly ‘become[s] a circular and question-begging exercise’. For example, courts struggle to provide a sufficiently certain legal standard for identifying ‘insulting’ speech, with Lord Reid concluding in Brutus v Cozens (1972) that ‘[t]here can be no definition. But an ordinary sensible man knows an insult when he sees or hears it’.
The undesirable outcome is aggravated by the fact that the present notion of ‘being offended’ is dangerously emotive. According to R. Albert Mohler, ‘desperate straits are no longer required in order for an individual or group to claim the emotional status of offendedness. All that is required is often the vaguest notion of emotional distaste at what another has said, done, proposed, or presented’. Hence, Dr Mohler concludes: ‘Being offended does not necessarily involve any real harm but points instead to the fact that the mere presence of such an argument, image, or symbol evokes an emotional response of offendedness’.
To make it worse under 18C judges are instructed to approach the conduct in question not by community standards but by the standards of the alleged victim group. Testing to the standard of the ‘reasonable victim’ lowers an already minimal harm threshold, adding further imprecision and uncertainty, increasing the sections’ potential chilling effect on speech. Of course, this goes in line with the morally relativistic tendency to ‘minimise cultural differences’ as a way of ‘celebrating diversity’. In my view, however, the use of ordinary community standards is a more appropriate test to be applied in this context.
Although RDA Section 18D (‘18D’) provides for a range of exceptions to18C, with the overriding qualification that the acts in question must have been ‘said or done reasonably and in good faith’, the decision in Eatock v Bolt provides a clear demonstration of the subjective nature of the existing defence. Hence, to reach the conclusion that Mr Bolt’s conduct lacked ‘objective good faith’ Bromberg J relied upon a ‘lack of care and diligence [as] demonstrated by the inclusion in the Newspaper Articles of the untruthful facts and the distortion of the truth which I have identified, together with the derisive tone, the provocative and inflammatory language and the inclusion of gratuitous asides’.
As can be seen, the existing qualifications of ‘reasonably and in good faith’ have become ‘ambiguous terms of art’ a judge can use to decide some speech on political, social, or cultural topics didn’t actually qualify for the exemption. Without clear and defined legislative terms a judge may exercise excessive judicial discretion. Any individual who favours the protection of freedom of speech ought to be sceptical of legislation that allows the judiciary to pass subjective judgement on the value, morality, or ethics of a particular statement.
When considering 18D it is important to keep in mind that these are not, strictly speaking, ‘exceptions’ to acts that are otherwise unlawful. Rather, this section is itself a restriction on the right to freedom of expression. This point was made by Justice French in Bropho v Human Rights and Equal Opportunity Commission (2004):
Section 18D places certain classes of acts outside the reach of s18C. … It is important however to avoid using a simplistic taxonomy to read down s18D. The proscription in s18C itself creates an exception to the general principle that people should enjoy freedom of speech and expression. That general principle is reflected in the recognition of that freedom as fundamental in a number of international instruments and in national constitutions. It has also long been recognised in the common law albeit subject to statutory and other exceptions. … Against that background s18D may be seen as defining the limits of the proscription in s18C and not as a free speech exception to it. It is appropriate therefore that s18D be construed broadly rather than narrowly.
It is important also to consider that the constitutional validity of the existing 18C and 18D have never been directly tested before the High Court. When these provisions were originally introduced, the Bills Digest produced by the Parliamentary Research Library noted that the government appeared to rely on the external affairs power under s 51(xxix) to provide a constitutional source of power for the Bill. It expressly concluded that the provision that became 18C was more vulnerable to constitutional challenge than other sections of the Act. Consequently, the reasons for amending the RDA are numerous.
CONSTITUTIONAL INVALIDITY: In our book No Offence Intended: Why 18C is Wrong (Connor Court, 2016), Lorraine Finlay, Joshua Forrester and I explain that free speech cannot be absolute and that racism must be combatted. However, we also remind that there are many reasons to recommend the repeal of 18C and a complete analysis of the constitutional invalidity of the provision is found in our book. In our view, the low threshold set by the inclusion of the words “offend, insult, humiliate” raises serious questions as to whether 18C would survive a constitutional challenge in its present form.
Section 18C cannot be supported by the external affairs power of the Australian Constitution. Under the conformity requirement, federal legislation must be reasonably capable of being considered appropriate and adapted to implementing the relevant treaty provision. And yet, we find that 18C is not reasonably capable of being considered appropriate and adapted to implementing either the International Covenant on Civil and Political Rights or the International Convention on the Elimination of All Forms of Racial Discrimination.
What is more, 18C impermissibly infringes the freedom of communication about government and political matters implied from the constitution. In finding this, our book explains that the High Court has developed a test that leads to the unavoidable conclusion that 18C is fundamentally incompatible with our system of representative government whereby Australians must be able to fully discuss controversial political and government matters, including those involving race, colour, ethnicity or nationality.
The fact that our politicians can display such disregard for constitutional matters should be a cause of great concern. Above all, it is important not to lose sight of the need to reform 18C, even despite the rejection of proposed changes by the Senate. In my view, repealing 18C is one of the best ways our federal politicians could demonstrate their respect for the democratic nature of our constitution and to more gradually restore the basic right to free speech to the citizens of Australia.
BENEFITS OF FREE SPEECH: Free speech does not disadvantage minority groups, nor does it favour those with more power. It is important to remember that every totalitarian regime restricts speech as a matter of course. By contrast, free speech is a core principle of every democratic society. Democracy implies that ideas ought to be allowed and encouraged. Thus, under this democratic principle, public debate ought to be encouraged. Free speech ensures that every person has the capacity to voice their opinion. Arguably, this is essential to the well-functioning of a truly diverse society.
In contrast, political elites might feel tempted to limit and restrict free speech and of the media, if such a restriction serves their self-serving interests. Such interests might be ‘the retention and accumulation of power and the financial advantage it brings’. Consequently, free speech ought to be viewed as a mechanism against the concentration of power. As former Australian Human Rights Commissioner Tim Wilson remarked, ‘it makes a foolish assumption that free speech favours those with power. Anyone who has studied a skerrick of history knows that protecting free speech is about giving voice to the powerless against the majority and established interests’.
Naturally, absolute free speech under all circumstances can never be a possibility. There are easily and demonstrable exceptions whereby reasonable limits to speech may provide greater service to freedom than open discourse. Within the boundaries of speech that should enjoy some protection, certain limited categories of speech have lower value, most notably sexually explicit speech that falls short of obscenity. Further, direct acts of violence and direct attacks on the physical integrity of another person should not be protected. Speech can also be controlled to some degree in time of national crisis such as in time of war.
If speech promoting subversion must be punished, as the government intends under anti-terrorism legislation, then the danger has to be great enough and its occurrence proximately close. The test should require actual and present danger that explicitly urges the commission of a particular crime. Such speech should only be punished if it poses some real threat to a considerable degree and in the not so distant future.
Amongst the most controversial questions about free speech is the proper treatment of hate speech. This is indeed a core question when considering the RDA. In a democracy, citizens must have the right to choose the words that best reflect their personal feelings, and ‘strong words may better convey to listeners the intensity of feeling than more conventional language.’ Above all, a democracy requires that people must be strong enough to tolerate robust expressions of disagreement and personal opposition. Accordingly, the government may even permit a ban on some words on daytime radio, and regulate the location of the sex industry and brothels, but it should not sustain any general prohibition of all forms of speech simply because they are thought to be offensive.
Of course, there will likely always be individuals making bigoted statements amongst us. However, the question is not whether Australians have the ‘right to be racists’ but rather whether they have the right to sue each other for merely feeling ‘insulted’ or ‘offended’ and where the legal bar should be set. As was observed by Tim Wilson:
This isn’t a debate about whether racial vilification is socially acceptable or not. It’s about where the law sits. And part of the problem is that it fuses the idea of social acceptability as speech and the law, when there should always be a reasonable separation between the two.
Racism must be confronted and defeated not by taking legal action against people, but by reasoned and open debate. As was famously noted by Justice Brandeis in Whitney v California (1927), ‘the remedy to be applied is more speech, not enforced silence’. Legislated silence won’t change the hearts and minds of racist individuals. Conversation and education are far more effective tools for the establishment of a tolerant and harmonious society than trying to ban racist speech. This point was eloquently stated by Ron Merkel QC when considering the need for racial tolerance laws in Australia:
Civil libertarians in the US argue that attempting to bury racist speech underground may only make martyrs of the speakers and solidify the attitudes they express. History tells us that censorship invites – and incites – resistance. Nothing in our national experience suggests that silencing evil has ever corrected it. They add that to eradicate racism we need to listen to the words which are expressed, to delve beneath them, to find our own words of reply and explanation, before we can even begin to make the changes we seek.
In this sense, broad legal prohibitions on racially offensive speech will never alone be successful in eliminating racism from our society. They may even be counter-productive – when ideas are forcibly repressed they cease being exposed and challenged in the course of public debate. Perhaps the most compelling evidence to this point is pre-Nazi Germany. The Weimar Republic of the 1930s had several laws against “insulting religious communities” and these laws were fully applied to prosecute hundreds of Nazi agitators, including Joseph Goebbels. Far from halting National Socialist ideology, those laws helped the Nazis achieve broader public support and recognition, and ultimately assisted the dissemination of racist ideas. As Brendan O’Neill points out:
The Nazis turned their prosecutions for hate speech to their advantage, presenting themselves as political victims and whipping up public support among aggrieved sections of Germany society, their future social base. Far from halting Nazism, hate speech legislation assisted it.
Naturally, nobody denies the harm of hate speech, but speech rights are most necessary for the weak, not the powerful. Conversely, the restriction of individual viewpoints is a serious infringement of democratic values, and the gains from hate speech laws are tenuous. Any possible benefit is outweighed by the chilling effects of such laws to democracy and freedom of speech. Under democratic theory, one might say, ‘open discourse is conductive of discovering the truth than is government selection of what the public hears. Free statement of personal beliefs and feelings is an important aspect of individual autonomy’.
MISCONCEPTIONS: Remarkably when the federal government backtracked in August 2014 on its proposal to amend the Racial Discrimination Act 1975 (Cth) (‘RDA’), then-Prime Minister Tony Abbott claimed that he was abandoning those changes because it had become a “complication” in the Government’s relationship with the Australian Muslim community, adding that this would compromise the efforts to protect “national unity”. However, this legislation has nothing to do with religious discrimination. Perhaps Abbott was unaware that the amendments could not be taken to promote any such behaviour. This is because the legislation simply does not address religious matters. The legislation exclusively concerns racial, and not religious, discrimination.
One must acknowledge the enormous harm that racial discrimination causes both to individual victims and the broader community, however in a true democracy everyone must have the right to criticise religious ideas. The former Prime Minister mistakenly applied the same formula to religious beliefs as applied to racial issues. From a free speech perspective this is problematic because religion, unlike race, is not an immutable genetic characteristic. One should expect the laws of democratic societies to be much less prepared to protect criticism of voluntary life choices, compared to unchangeable attributes of an individual’s birth. While people cannot choose the colour of their skin, religion, to some degree at least, is a matter of personal choice. Thus, open and free discourse about religious ideas ought to be encouraged and not discouraged.
In contrast to racial issues, where one finds no ultimate questions of ‘true’ or ‘false’, religion involves ultimate claims to truth and error that are not mirrored in racial discourse. What is more, in a world where terrorism has become common, and where radicalised Muslims have expressed sympathy with terrorists, the ability of Western democracies to defend their own interests is weakened by hate speech laws that make citizens ill prepared to criticise or give warnings about the nature of religious beliefs, however well-based these warnings might be. This is the singular tragedy of hate speech laws that reduce free speech on some of the most fundamental issues of public morality.
Yet, because of religious vilification laws such as the Victorian Race and Religious Tolerance Act (2001) even the slightest criticism of Islam may incur in a person being dragged into court and charged with ‘religious hatred’. It is for this very reason that the RDA ought to be given more clarity from the federal government. The distinction between racial vilification, being the object of the RDA, and religious vilification needs to be clearly defined. To this end, Abbott’s statements when he was Prime Minister only evidenced the misconceptions surrounding the present legislation. Fortunately, in his recent What Went Wrong article in Quadrant, the former Prime Minister at least nominates his failure to amend s 18C of the RDA as one of a series of mistakes that he made while in office. It is, he says, ‘clearly a bad law’.
It is good to hear that Abbott now recognises that he committed a mistake when failing to repeal this ‘bad law’. In fact, as above mentioned, the problem goes much further than s18C being ‘clearly a bad law’. In our book No Offence Intended: Why 18C is Wrong, we argue that 18C is not only a bad law, but an unconstitutional one. The dubious constitutional basis of 18C was actually flagged by the Parliamentary Research Service over twenty years ago. Since then, while 18C itself has been the subject of much debate; the constitutional question has been largely ignored.
UNINTENDED CONSEQUENCES: Although we should not allow our rights and freedoms to be undermined by the inflated sensitivities of any religious group, hate speech laws may actually serve the undesirable purpose of creating a new and more disguised form of blasphemy law, which allows religionists to make others keener to accept a vast range of religious restrictions to their freedoms in return for “being left alone.” This is particularly evident when one takes into account that the amendment to the RTA was abandoned following pressure from the Australian Muslim community.
Throughout the Muslim world, ‘accusations of blasphemy or insulting Islam are used systematically in much of that world to send individuals to jail or to bring about intimidation through threats, beatings and killings’. It is applied against Muslims who are judged to be apostates and against non-Muslims when they are considered to have lost the “protection” afforded to them under the dhimma pact, or covenant protection. Under Islamic jurisprudence, any such transgressions, if performed by Muslims, are regarded as evidence of apostasy, a capital offense.
Conversely, if the transgression is attributed to a non-Muslim living under Islamic rule, this is interpreted as annulling their dhimmi condition, for which the death penalty is also applied. The offending dhimmi must be treated as “an object of war,” which according to Sharia law means ‘confiscation of property, enslavement (of wife and children), and death’. As Dr Nazir-Ali points out, ‘there is unanimity among the lawyers that anyone who blasphemes against Muhammad is to be put to death, although how the execution is to be carried out varies from one person to another’.
The Labor Party apparently seeks to extend the reach of 18C to cover religion. Labor’s federal Attorney General Mark Dreyfus has confirmed that Labor would support such changes to 18C. Because Labor’s Opposition Leader Bill Shorten rejected the government’s proposed changes to 18C, there appears to be a plan not only to consolidate all federal anti-discrimination laws, but to extend the controversial section to religious grounds, among other things. In other words, this party wishes to establish ‘Sharia law by stealth’ in order to prevent people ‘offending’ Islam. James Spigelman QC has previously stated that this sort of proposal would have the practical effect of reintroducing the crime of blasphemy into Australia’s law.
The proposal comes from Dr Anne Aly, a Muslim Labor MP from Western Australia. It apparently seeks to expand the scope of anti-discrimination laws to religion, while simultaneously imposing significant restrictions on freedom of speech and freedom of religion. The prospect of an Islamic blasphemy law emerged when Dr Aly told there was ‘scope to reassess’ extending section 18C, saying the racism debate now ‘extends to religion’. She said there was scope to extend 18C to cover religion because, so she says, ‘we have definitely seen an increase in anti-Islamic rhetoric’.
Dr Aly’s proposal has been denounced by former Human Rights commissioner Tim Wilson, who said it is part of a ‘mad, ideological drive of the modern Labor Party to use laws to shut people up’. It would ‘turn Australia into Saudi Arabia, where people can be hauled before courts for criticising religion’, Wilson says. Such a proposal comes at a time when Muslim extremism is drawing steadily nearer our shores, and when a court in Muslim-majority Indonesia has sentenced the Christian Governor of Jarkarta to two years prison for alleged blasphemy, and in Pakistan a Christian woman awaits execution for drinking from a Muslim cup.
Dr Aly’s proposal aims at applying to religion the same formulations which are applied to race. But if people cannot choose the color of their skin, religion is, to some degree at least, a matter of choice and not an immutable genetic characteristic. In contrast to racial issues, where one finds no matters of ‘true’ or ‘false’, religious beliefs involve ultimate claims to truth and error. As noted by Ivan Hare QC, ‘religions inevitably make competing and often incompatible claims about the nature of the true god, the origins of the universe, the path to enlightenment and how to live a good life and so on. These sorts of claims are not mirrored in racial discourse.’
Not surprisingly, Dr Aly’s idea has strong support from Federation of Islamic Councils’ president Keysar Trad. ‘Of course we need religious protection. Section 18C should be strengthened and broadened … so that Australians can go about their legitimate daily business … free from persecution on the basis of their religious affiliation,’ Mr Trad said. Of course, radical Muslims living in western democracies have to find different ways to use our legal system to punish those who ‘offend’ their intolerant beliefs. They find in religious anti-discrimination laws a suitable mechanism to strike fear in the hearts of the ‘enemies of the faith’.
One of the alleged objectives of ‘religious tolerance’ laws is to promote a more “harmonious” and “tolerant” society. Arguably, however, one of the greatest ironies of such laws is embodied in the fact that their chief beneficiaries end up being a small but vocal group of religious extremists. Naturally, radical Islamists living in Australia may wish to discover different mechanisms to prevent people from ‘offending’ their radical beliefs. They will find in hate speech laws a suitable mechanism to strike fear and intimidation on the ‘enemies’ of their religion. Surely some of their extreme ideas are quite repulsive and deserving of being criticised. And yet to express any indignation may incur in the risk of being dragged into a court and accused of ‘Islamophobia’. French philosopher Pascal Bruckner writes in The Tyranny of Guilt (2012) on the need to criticise Islam:
The process of questioning remains to be carried out by Islam, which is convinced that it is the last revealed religion and hence the only authentic one, with its book directly dictated by God to his Prophet. It considers itself not the heir of earlier faiths but rather a successor that invalidates them forever. The day when its highest authorities recognize the conquering, aggressive nature of their faith, when they ask to be pardoned for the holy wars waged in the name of the Qu’ran and for infamies committed against infidels, apostates, unbelievers, and women, when they apologise for the terrorist attacks that profane the name of God – that will be a day of progress and will help dissipate the suspicion that many people legitimately harbour regarding this sacrificial monotheism.
Criticising Islam, far from being reactionary, constitutes on the contrary the only progressive attitude at a time when millions of Muslims, reformers or liberals, aspire to practice their religion in peace without being subjected to the dictates of bearded doctrinaires. Banning barbarous customs such as lapidation, repudiation, polygamy, and clitoridectomy, subjecting the Qu’ran to hermeneutic reason, doing away with objectionable versions about Jews, Christians, and gains and appeals for the murder of apostates and infidels, daring to resume the Enlightenment movement that arose among Muslim elites at the end of the nineteenth century in the Middle East – that is the immense political, philosophical, and theological construction project that is opening up … But with a suicidal blindness, our continent [ie Europe] kneels down before Allah’s madmen and gags and ignores the free-thinkers.
Rather than promoting real tolerance among the different religious groups, religious vilification laws emphasize separateness and promote victimhood among these groups. These laws incite inter-religious strife and community tension by criminalizing truth-telling and restricting free speech, which is a cardinal precept of every open and democratic society. Ultimately, such laws make the government and its secular courts ‘complicit in a process of legal silencing undertaken by rival minority groups, engaging with them in debates of truth and falsehood, good and evil. The court decides essentially theological questions in the process of finding incitement to hatred against persons’.
In Islamic Council of Victoria v Catch the Fire Ministries (2006), for instance, two Assembly of God Christian pastors were found guilty of vilification under the State Racial and Religious Tolerance Act 2001 (Victoria) for merely comparing the Bible with the Koran, for quoting from the Koran, and for expressing concerns in regards to the Islamization of Australia’s society, as well as the danger of Islamist ideology “infiltrating” the Parliament and other institutions of power.
There is no apparent reason as to why speech about religious matters should not simultaneously be characterized as political communication for the purposes of the right to freedom of political communication implied in the Australian Constitution. Accordingly, religious vilification laws such as the Victorian Racial and Religious Tolerance Act unreasonably compromise tour freedom of political communication as derived from our system of government and implied in the Australian Constitution.
Above all, Australians must be fully entitled to openly manifest their opinion as to why they might regard any aspect of any particular religious belief as ultimately mendacious, retrograde and mindless. There is no apparent reason as to why speech about religious matters should not simultaneously be characterized as political communication for the purposes of the freedom of political communication implied in the Australian Constitution. Religion is rarely a private matter alone and the nature of religious speech is often intertwined with ‘political opinions, perspectives, philosophies and practices’. As law professor Nicholas Aroney points out, ‘law which prohibits religious vilification will infringe the implied right to freedom of political communication’.
NOTORIOUS CASES: In September, 2011, columnist Andrew Bolt lost an action brought in the Federal Court in which he was accused of contravening 18C of the RDA. Nine applicants brought a class-action against Bolt and the Herald and Weekly Times claiming he wrote they sought professional advantage from the colour of their skin. The decision provided strong evidence of the attack against free speech in Australia. It is alarming that an individual was taken to court simply for expressing an opinion regarding the desirability of conferring public funds to people who are not so disadvantaged in their own community. This is scarcely likely to promote tolerance.
Recently 18C has been used as a weapon to silence cartoonists for exposing incontestably dysfunctional communities and to shakedown university students for innocuous online comments.
In the Bill Leak case, Race Discrimination Commissioner Tim Soutphommasane urged people to file complaints against The Australian’s cartoonist Bill Leak for breaching 18C. He was forced to explain his work to a State sanctioned body for the crime of highlighting the plight of children in dysfunctional remote communities. For that he was terribly vilified by those using 18C as a powerful weapon to shut down reasonable debate on a matter of unquestionable public relevance.
In the case of the UQT students, after considerable financial and personal cost and reputational damage, a judge finally confirmed the students had caused no intended offence. But 18C had already caused unnecessary harm on the innocent. This case provides another compelling example of the undesirable impact of 18C on freedom of speech in this country.
THE RECENT Refusal of the Senate to amend s18C of the RDA reveals that many of our federal politicians ignore that at the foundation of our liberal democracy is a constitutional right of every Australian citizen to speak freely on matters of public relevance. Notwithstanding the patently unconstitutional idea that 18C should be extended to grounds of religious vilification, at its core the current provision is a highly problematically worded provision from a constitutional law perspective. Therefore, the recent decision to keep 18C unchanged signals a disturbing lack of understanding by our political class that any such provision constitutes an undue restriction of free speech, which is an essential characteristic of our democratic system of government.
Augusto Zimmermann LLB, LLM, PhD (Mon.), Law Reform Commissioner, Law Reform Commission of Western Australia; Director of Post Graduate Research and former Associate Dean for Research, Murdoch University School of Law; Professor of Law (adjunct), The University of Notre Dame Australia – Sydney campus; Recipient of the Vice Chancellor’s Award for Excellence in Research (2012).