Hate speech laws serve a purpose

Over the past few weeks the defenders of free speech in Australia have worked themselves up into something of a frenzy over the Andrew Bolt case. Michael Brull has written that he "will defend to the death Bolt's right to wallow in the mire." Chris Berg has described the case as a "disturbing violation of free speech." Ted Lapkin has described the case as a "real life heresy trial." Jonathon Holmes has questioned whether racially offensive speech should be unlawful at all. In a piece dealing with Bolt's racial vilification case James Allen has suggested that those offended by speech should "man up" and explain why such speech is wrong.

Some perspective is needed in this debate. We need laws on racist speech to safeguard our fundamental right to equality. In a liberal democracy people have a right to be free from racism. If you consider some of the cases that have been decided under Part IIA of the Racial Discrimination Act 1975 (Cth) it is pretty easy to see why we need hate speech laws. In Campbell v Kirstenfeldt a woman and her husband were repeatedly racially abused by their neighbor. Mervyn Kirstenfeldt called Mrs Campbell a "gin", "nigger" and a "coon" whilst insulting her on several occasions in front her husband, son, family and friends. In Jones v Scully, Mrs Olga Scully went around distributing anti-Semitic propaganda in Launceston. Her conduct included putting anti-Jewish and Holocaust denial material into the mailboxes of Jewish residents.

It is worth noting that racist speech often has a relationship with violence. Dehumanising others makes it easier to attack them. For example, in 2006 Shaun Wickenden hurled racist insults at David Chia before assaulting him. Chia suffered serious injuries and Wickenden was convicted of assault and ordered to pay $130,000 in damages. The Cronulla Riots in 2005 were preceded by a large amount of racist speech on talkback radio in the week before the riots.

But whilst we do need laws that deal with racist hate speech those laws need to be balanced against our countervailing need for a high degree of freedom of speech on matters of public importance. This balancing act can be quite tricky. Factor this in with the reality of our legal system, where, as cases arise, different judges have to apply a given set of legal rules to wildly varying fact scenarios, it is easy to see why the jurisprudence on racial vilification is a bit complicated.

The Bolt case also needs to be seen in context. Despite Brull's sentiments this is not a life or death matter nor is Bolt on trial. Saying that that Bolt is on trial, as numerous people have said on the discussion threads attaching to some recent opinion pieces, implies that he is being tried for a criminal offence. The Bolt case is a civil matter under the RDA. Further, the complainants in hate speech cases are unlikely to receive substantial damages. In the Kirstenfeldt case, which in my opinion involved some racist abuse that was far more egregious than Bolt's writings, Mrs Campbell received only $7500 in damages. In the Bolt case the applicants are not seeking damages.

Hate speech laws serve a useful purpose. They allow members of society to settle disputes over racist speech in a court of law. It is worth considering how the defenders of free speech would rather that disputes over racist speech were settled.

In a situation like the Kirstenfeldt case would Professor Allen really want to Mrs Campbell to "man up" and to explain to Mervyn Kistenfeldt that his racist insults were morally wrong? In her affidavit Mrs Campbell stated that Kirstenfeldt responded to a request made by her nephew to stop the racist abuse with a threat of violence. He gave an apology only after he was sued in the Federal Magistrates Court.

People like Mrs Campbell or the Jewish victims in Jones v Scully should not have to turn the other cheek. They have the right to go about their business without being insulted on the basis of their race. Giving them the right to sue to enforce that right is a good solution.

Some of the other alternatives to litigation are quite undesirable. What if the victims of racist abuse respond with their own racist insults or violence? There has rarely been a situation in which people have traded racist insults without violence inevitably ensuing. None of that would be desirable.

The real debate about hate speech laws should not be about whether we should have them. It should be about the extent of their application.

For all the public attention, the Bolt case will most likely sit on the borderlines of Australia's hate speech jurisprudence. It is not a clear cut case of hate speech. In his articles Bolt certainly raised a topic that is worth exploring. The idea that some people with a marginal Aboriginal identity might use their Aboriginality for personal gain is worth debating. But Bolt's writing referred directly to specific individuals and seemed to presume ill-motives on the part of some of the complainants. Whether he did so because of their race as opposed to his perception of their behaviour is less clear. The RDA requires that his actions must have been motivated by their race. The statute also requires that Bolt expresses himself reasonably and in good faith.

There is also a question of whether Bolt insulted the complainants because of their Aboriginality, their mixed racial identities or because of their Anglo-Saxon and European heritages. Bearing in mind that Bolt, as far as I am aware, is of Dutch heritage and light-skinned, it does raise the question of whether the RDA's hate speech provisions extend to insults directed at people on the basis of their colour and racial heritage where those people are quite light-skinned and where the defendant, in part, shares either that skin color or Western European heritage. In my view, the Act should cover insults directed at people who are Anglo-Saxon, Western European and/or white. But there have been unusual decisions under the RDA. For example, in McLeod v Power a racist insult against a white police officer was held by a Federal Magistrate not to be racial vilification under the Act despite the terms of the statute clearly referring to colour.

It seems trite to suggest that the RDA should apply to all people. For example, an Asian man who hurls racist insults at a white person should be liable to be sued under the RDA. What if Sheik Hilaly had prefaced his remarks about uncovered meat with the term 'white'? The RDA should not be redundant in those situations.

But whether a member of an ethnic group can actually insult another person on the basis of their shared ethnic heritage, to the extent that they share that heritage, is an open question. Though there have been some instances in professional sport, notably the recent saga involving Timana Tahu in an Aboriginal Rugby League Tournament, where there has been an allegation of a racist insult made by one member of a particular racial group against another, no such case has come before a court under the RDA.

The debate on hate speech laws should move on from whether we need them or not. These laws clearly serve a useful purpose. Those writers who have depicted the Bolt case as an assault on free speech would do well to go over the reasons why these laws exist. But the real debate on racist hate speech laws should be about what form those laws should take and how far they reach.