Putting balance back into the racial discrimination debate

Introduction

Since the Andrew Bolt decision, there have been calls for Section 18C of the Racial Discrimination Act 1975 (Cth) to be repealed in light of its impact on freedom of expression in Australia. Those calling for the repeal are right to argue that the provision in its present form is unsatisfactory, but they may be wrong to argue for its repeal.

A straight out repeal may cause more problems than there already are with the present law. The repeal may also not be accepted and it is more likely than not that there would be a continuing and divisive campaign to have the present law re-instated. A complete repeal would also generate at least some electoral backlash and the argument would inevitably be raised that the repeal is a blank cheque to racists intent on undermining community cohesion.

A better way forward than repeal might therefore be to recalibrate Section 18C in a way that limits it operation, gives greater scope to the views of the community and, with it, greater deference to freedom of expression; after all, the more prohibitions on speech, the less freedom of speech.

At the same time, reform rather than repeal would still allow the law to have a say in stopping the damaging effects of racial vilification. Clearly this could not be done without at least some law remaining in place to outlaw racial vilification.

Neither Mr. Abbott nor Senator Brandis have promised to repeal it

The starting point for those campaigning for repeal is that Mr. Abbott and Senator Brandis promised in opposition to repeal the Section. However, it should also be noted that neither of them proposed a literal repeal of everything in Section 18C. Or, to put it in different words, neither of them committed to the repeal of s 18C and leaving a vacuum without any law relating to racial vilification remaining, other than the general law. They have both at various times indicated that the policy of the incoming Government would be, not the entire repeal of the section, but:

(i) repeal of the section 'in its current form' or repeal of the Section 'at least in its current form';

(ii) that the Coalition parties' objection was to 'section 18C, as presently worded', and that they wanted to see the 'repeal or amendment' of the section.

The President of the Australian Human Rights Commission, Professor Triggs has also said, speaking of s 18C, that '…we would like to see reform, in due course, of that provision.'

These statements clearly envisage that there would be some other provision to take the place of the present provision rather than a complete vacuum. That more modest proposal would give some comfort to those in the community who would like to retain some form of protection against racial vilification. It also has the advantage of removing the more undesirable aspects of the present s 18C without leaving a complete absence of any legislative injunction against engaging in racial vilification.

The point for present purposes is that it may not be such a radical proposal as thought to propose amendment of the Section, rather than repeal, as Mr. Abbott and Senator Brandis have both used expressions that would include amendment and they are not bound by an obligation to engage in repeal of the Section root and branch.

The case against repeal

Beyond the fact that there has been no policy commitment to repeal s 18C completely, repeal with nothing more would in fact be undesirable for a number of reasons.

First, the Government would want to avoid the argument that repeal of s 18C would be seen by some as a symbolic green light for racists. If the section were to be repealed outright, some such people would regard the legal vacuum thus resulting as enabling them to pursue a racist agenda without fear of legal retribution.