Tuesday, 25 March 2014 00:22
- Michael Danby
- An abridged version of this article was published in The Guardian, 25 March 2014
- A tailored version of this article was written and published in The Australian Jewish News
"Total liberty for wolves is death to the lambs" - Isaiah Berlin (20th Century Philosopher)
In 1995, during Paul Keating’s prime ministership, section 18C was introduced into the Racial Discrimination Act. For 11 years under John Howard, this effective protection against hate speech remained untouched. Now, however, Attorney-General George Brandis has proposed major changes. The reason for the current government’s change of heart appears to be almost solely as a result of the successful case brought against the government’s most valiant tribune, Mr Andrew Bolt.
The Age cartoonist Andrew Dyson's take on the IPA and Abbott's plans to repeal 18C
In a 2011 case, Federal Court Justice Bromberg found that “fair-skinned Aboriginal people” were reasonably likely, in all the circumstances, to have been offended, insulted, humiliated or intimidated by the imputations conveyed” in several articles by Bolt published in the Herald Sun.
I am not the biggest fan of a lot of Bolt’s current opinions. But although I am no lawyer, and notwithstanding that there were genuine errors of fact in Bolt’s articles, like other observers I thought Justice Bromberg’s interpretation of 18C seemed harsh. It is surprising then that Bolt and the Herald Sun decided against appealing Justice Bromberg’s decision, particularly as, in his own words Bolt found the case to be a "misery" and “a calamity”.
The decision not to appeal did however mean that the libertarian ideologues who appear to have seized control of the venerable Institute of Public Affairs have a rallying cry. Their missionwhich, in the words of a Mission Impossible brief, they have “chosen to accept”, is to liberate the nation from the anti-free speech "Bolt Laws".
Justice Bromberg and Andrew Bolt
Although Justice Bromberg’s decision seems severe, it was but one instance. A wise government should think very carefully about sweeping away 18C because of one controversial (and unappealed) decision. There is a general misunderstanding about how 18C and other provisions of the Racial Discrimination Act work. The vast majority of complaints under 18C do not go to court. The whole purpose of section 18C is to promote tolerance by bringing parties together to discuss the subject of their complaint and arrive at a conciliated and agreed outcome.
Between 13 October 1995 and June 2010 the Australian Human Rights Commission received 1266 complaints under the RDA. Only approximately 20 matters were decided in the courts. Fifty-three per cent of racial vilification complaints in 2012-13 were resolved at conciliation. Less than 3% of racial hatred complaints actually went to court. Common ways of resolving a dispute through conciliation are via an apology, or via an agreement to remove offensive material, or sometimes via the implementation of training.
As Joe Caputo, Chairman of the Federation of Ethnic Communities Council said; with 18C "(t)here's not a carte blanche to vilify people because they have different coloured skin and are of different backgrounds … But there is enough room for speech and genuine debate to take place when it is done in a respectful manner." The leaders of Australia’s Chinese, Greek, Muslim, Jewish, Armenian, Lebanese, Vietnamese and Indigenous community groups are united in their calls to retain 18C.
Prime Minister's Chief of Staff, Peta Credlin, explaining to the acting Prime Minister Warren Truss what Attorney-General Brandis meant when he said “everyone has a right to be a bigot”
However it is becoming clear that there is no such unity in the coalition ranks. While Senator Brandis has loudly proclaimed Australians’ "right to be bigots", Liberal MPs David Coleman, Craig Laundy and Ewen Jones are thought to have expressed concern. Indigenous Liberal MP Ken Wyatt has reportedly said of Senator Brandis’s proposed changes to 18C "It doesn't pass all hurdles".
Bolt’s local paper, the Melbourne Herald Sun, editorialised that “the underlying problem with the ill-considered effects of Section 18C is that if someone says they have been offended or humiliated, who is to challenge them?” This widespread misunderstanding, spread by the Boltists, suggests that if someone subjectively feels offended or humiliated, then this is enough to breach 18C. Of course, it is not. As Justice Drummond has noted “whether an act contravenes (18C) is not governed by the impact the act is subjectively perceived to have by a complainant''. Instead, as the Attorney-General said when tabling the Racial Hatred Act back in 1994; 18C “requires an objective test to be applied so that community standards of behaviour rather than the subjective views of the complainant are taken into account.”
So the answer to Bolt’s home paper, the Herald Sun’s editorial question is; it is the person accused of causing offence or humiliation who can challenge the alleged victim. The accused person’s actions are judged according to basic community standards. If according to basic community standards, the alleged "victim" should not have been offended or humiliated, then 18C has not been breached.
Now that the government has released the draft copy of its so-called Freedom of Speech Bill, we can fully appreciate the magnitude of the Attorney-General’s plans. Not only does the amendment drastically reduce the scope of 18C, it restricts the revised 18C to the words “vilifies” or “intimidate” only. Both these new restrictive words are now narrowly defined. Even more worrying though is the new bill’s exceptions clause, which no longer contains any requirement for reasonableness or even accuracy. Instead, any comment made under the guise of any kind of public discussion of any political, social, cultural, religious, artistic, academic or scientific matter – a broad exemption clause if ever there was one. Indeed, it’s hard to imagine under Brandis and Abbott’s version of racial discrimination laws that any kind of comment, no matter how racist or bigoted, would fail to be exempted by this clause. It seems the IPA freedom fighters have gotten their wish – 18C looks to be effectively finished after 19 years protecting and conciliating vulnerable members of our pluralist society. It was good enough for John Howard but it seems that the Bolt example has shattered political goodwill in Canberra.
- Race Discrimination Commissioner, Tim Soutphommasane asks the important question: "Are we to favour bigotry over the right to live unaffected by it?"
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