Section 18C: the controversy that just won’t go away.

The debate over section 18C of the Racial Discrimination Act 1975 (Cth) which began with the Bolt Case in 2011 and became a raging issue over the right to free speech when the Attorney-General, George Brandis, attempted to repeal that section, and was then revived later in the wake of the Charlie Hebro bombing in Paris, continues to rankle in academic and legal circles and remains unresolved.

In the Government’s decision to leave the matter rest, the (then) Prime Minister, Tony Abbott, suggested that the Bolt Case was an aberration not likely to occur again. But whether or not that be so (and the recent Adam Goode incident had its potential), clause 18C remains a serious anomaly of our fundamental, UN Convention-declared, right of freedom of expression.

To briefly recap: Section 18C was inserted in the Racial Discrimination Act in 1994 following a series of inquiries into multiculturalism, racial violence and Aboriginal deaths in custody. That section makes it unlawful, except in private, to “(1)(a)… offend, insult, humiliate or intimidate another person, or group [because of their race, colour or ethnic origin]” even if it is only “reasonably likely [to do so] in all the circumstances”.

None of the three words emphasised in that quote (in ital.) are to be found in the UN Convention on the elimination of all forms of racial discrimination which Australia adopted and in respect of which the Racial Discrimination Act became law; nor is there anything in that Convention to require or suggest such a provision. On the contrary, the use of those words is against the Convention’s express provision of the right of free speech in racial matters.

Contrary to the Act, the common law has always regarded conduct such as “to offend, insult, humiliate” (but not “intimidate”) to be within everyone’s right of free speech; not that free speech is a licence to verbally abuse others as one may wish, for good sense and responsible conduct dictates that free speech should be exercised within the rules of social acceptance.

No one seems to have raised any concern about section 18C until journalist and commentator, Andrew Bolt, set out to address a subject that puzzles many Australians: Why has it become fashionable for some persons who have no appearance of being part of our indigenous Aboriginal race or culture, to be openly claiming to be Aborigines?  

In other words: at what stage in the dilution of consanguinity does a person of Aboriginal descent cease to have a legitimate claim to be essentially Aboriginal; something that traditional Aborigines must surely ask as well?

It was (and still is) a sensitive but proper subject of public interest deserving of examination. Had Andrew Bolt gone about that subject in a studious and sensitive manner he would surely have produced a notable piece of journalism and evoked a worthy debate on an important public issue. Unfortunately, he allowed himself to become the issue instead.

Writing in the Herald Sun Newspaper, the approach Andrew Bolt chose was offensive, insulting and humiliating by referring to “White Aborigines”, “White fellas in the black”, “It’s so hip to be black”, etc, all directed at named persons of standing and respect within the community, published together with their photographs.

Whilst his treatment of the subject came within the (less worthy) use of free speech, Mr Bolt and his publisher (the Herald and Weekly Times) may have escaped legal redressbut for the fact that section 18C made it unlawful to treat the subject in such terms. The court found against them.

The result has not only stifled future debate on an important issue, it has left the right of free speech vulnerable to further encroachment. Ethnic and racial groups who oppose any rescission or amendment of section 18C (and who now talk of racial discrimination being a matter for the Constitution) are determined to consolidate the position.

On one side of the controversy we have the Race Discrimination Commissioner, Dr Tim Soutphommasane, holding that section 18C is justified and that freedom of opinion is maintained by the defences set out in section 18D (covering things said or done in good faith, or in genuine academic discussion, fair reporting, artistic works and so forth).

On the other, in the opinion of Human Rights Commissioner, Tim Wilson (who is also Free Speech Commissioner), 18C “sets a low bar to restrict free speech” and is bad law that “allows publications to be bullied through legal processes until their only viable option is to cower and self-censor”.

The problem is that, not only has section 18C altered the balance between two areas of human rights, it has become a precedent for other laws relating to people’s injured feelings and sensibilities. Something the common law has never been ready to condemn nor redress.

There is a number of federal, state and territory laws relating to a range of other anti-discrimination provisions in areas such as age, disability, political opinion, pregnancy, religious belief, gender identity, dress appearance, breast feeding, marital status, etc, in respect of which it may be argued that “to offend, insult or humiliate” anyone or any group with respect to those categories should also be declared unlawful.

The Andrew Bolt article was a poor piece of journalism deserving of condemnation by the Press Council, not the law.

So what now? Is there an alternative to repealing section 18C, which has proved so difficult to achieve?

We can learn from the English experience where incitement to racial hatred and vilification has been a constant problem for many years which, in particular and despite the difficulty of obtaining prosecutions, has given rise to special legislation to address hooliganism and incitement of abusive hate-related chanting particularly at football matches.

What Part III of the UK Public Order Act 1986 tells us, is that conduct involving the use of insulting words may amount to an offence when used in the context of an act of abuse, intimidation, incitement or aggravation.   

In other words, use of ordinary free speech which may offend, insult or humiliate can amount to unlawful conduct providedthose words are used in the course of abusing, intimidating, inciting, etc, someone or some group in a gratuitous act of racial hatred.

That being so, there could surely be no objection if section 18C(1) were to be amended, without changing its substantive wording, by inserting an additional new sub-clause to follow sub-clause (a) and which makes unlawful the conduct referred to in (a) when it is donein the course of a gratuitous act of abuse, intimidation, or incitement to racial hatred or vilification.

That would not only bring 18C within the concept of the UN Convention as intended but would also restore the right of free speech in racial matters which is expressly assured by that Convention.