Senator George Brandis, Federal Attorney-General. Photo - www.theaustralian.com.au

Senator George Brandis, Federal Attorney-General. Photo – www.theaustralian.com.au

Our Attorney-General George Brandis (he of dancing at Michael Smith’s wedding at taxpayers’ expense fame!) has indicated that one of the first pieces of legislation that the Parliament will decide on will be the repeal of section 18C of the Racial Discrimination Act (RDA). Of course with the majority that the coalition has in Parliament the passing of legislation to repeal 18C will be a formality. So what is this all about?

Let us first examine what section 18 of the RDA actually says:

“RACIAL DISCRIMINATION ACT 1975 – SECT 18C

Offensive behaviour because of race, colour or national or ethnic origin

             (1)  It is unlawful for a person to do an act, otherwise than in private, if:

                     (a)  the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

                     (b)  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.

Note:          Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.

             (2)  For the purposes of subsection (1), an act is taken not to be done in private if it:

                     (a)  causes words, sounds, images or writing to be communicated to the public; or

                     (b)  is done in a public place; or

                     (c)  is done in the sight or hearing of people who are in a public place.

             (3)  In this section:

“public place” includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.”

So what are the key elements of this section? Clearly it applies to “offensive behaviour”. It also applies to an act “done because of the race, colour or national or ethnic origin” and is “reasonably likely to offend, insult, humiliate or intimidate another person or a group of people”. Essentially, as I read the section, it is intended to provide protection to people who have been vilified on the basis of their race, colour or ethnic origin.

So what is the problem? It is clear from various promises made before the election that Brandis’ dislike for the section lay in the case conducted against the columnist Andrew Bolt. That matter involved the columnist making certain allegations against what he termed “fair skinned Aboriginals”. As stated in the Federal Court decision the matter involved the following:

Broadly speaking, the nature of her complaint is that the articles conveyed offensive messages about fair-skinned Aboriginal people, by saying that they were not genuinely Aboriginal and were pretending to be Aboriginal so they could access benefits that are available to Aboriginal people. Ms Eatock wants the law to address this conduct. She wants declarations and injunctions and an apology from the Herald & Weekly Times. She calls in aid Part IIA of the Racial Discrimination Act 1975 (Cth) (“the Racial Discrimination Act”) which includes sections 18C and 18D. She claims that by their conduct, Mr Bolt and the Herald & Weekly Times have contravened section 18C of the Racial Discrimination Act.

Justice Bromberg then found that, inter alia:

On the basis of my findings, I am satisfied that each of Mr Bolt and the Herald & Weekly Times engaged in conduct which contravened section 18C of the Racial Discrimination Act.

Brandis has publicly stated his opposition to the Bolt decision. In September 2011 he wrote:

First, it is clear that freedom of political expression in Australia is subject to a significant new constraint, which had not existed before. It is in the nature of political argument that it is commonly offensive to those who have the opposite view.

Like most Australians, I find the flagrant dishonesty of the carbon tax offensive. I find the shameless amorality of the Malaysia Solution offensive, just as I am offended by the hypocrisy of moral posturing by a government that is prepared to trash the most elementary human rights standards.

By making the reasonable likelihood of causing offence or insult the test of unacceptable behaviour, in any political context, section 18C is a grotesque limitation on ordinary political discourse. While some have pointed out the analogy with the limitations on free speech in the defamation laws, the threshold at which speech may be unlawful because it is defamatory is much higher: the traditional formula is that it must be likely to bring the victim into “hatred, ridicule or contempt”. There is all the difference in the world between that standard and making unlawful speech merely because it causes offence.

Second, it is wrong and, indeed, dangerous to regard the question as one of balancing of interests. In a liberal society, freedom of speech and expression — and their corollary, freedom of the press — are not interests to be weighed in the scale but fundamental rights, without which individual liberty cannot exist and democratic governance cannot work. It is true to say that they are not absolutes, as defamation law, and laws criminalising sedition or incitement of violence demonstrate. But English law has always defended freedom of speech jealously and read those necessary limitations narrowly. It is for this reason, for instance, that traditionally, the courts would not issue an injunction to restrain a threatened defamation. The legal limitations on freedom of speech and of the press are necessitous exceptions to a strongly defended general rule, not a counterweight.

Third, restrictions on freedom of political discourse inevitably lead to restrictions on political opinion itself. There is very little distance between speech crime and what George Orwell called thoughtcrime. What section 18C of the Racial Discrimination Act seeks to do, by prohibiting the expression of political views that mainstream society finds unattractive and objectionable, is to penalise the holding of those views at all.

Is it really the business of government to be telling people what they may or may not think? I suppose the whole point of the political correctness movement is that the answer to that question is yes.

There is no doubt that over the next few days we will see the arguments for and against the legislation played out in Parliament.

However, one aspect of inconsistency that must be pointed out relates to the signing by the Coalition, when they were in opposition, of the London Declaration on Combating Anti-Semitism. The declaration was committed to by our Government at the time. The Tony Abbott opposition also committed to this declaration. It must be said that I unequivocally support this declaration to stamp out anti-semitism. Only recently, we saw the scourge of anti-semitism raise its ugly head. See here:

Rather than reproduce the declaration in full, let me quote parts of it. The full declaration can be accessed here:

The most relevant parts to the arguments herein are as follows:

  • Parliamentarians should speak out against antisemitism and discrimination directed against any minority, and guard against equivocation, hesitation and justification in the face of expressions of hatred;
  • Parliamentarians should legislate effective Hate Crime legislation recognising “hate aggravated crimes” and, where consistent with local legal standards, “incitement to hatred” offences and empower law enforcement agencies to convict;
  • Law enforcement authorities should use domestic “hate crime”, “incitement to hatred” and other legislation as well as other means to mitigate and, where permissible, to prosecute “Hate on the Internet” where racist and antisemitic content is hosted, published and written;

The government (then Opposition) must be congratulated for having signed the London Declaration. There is little doubt that the scourge of anti-semitism must be stamped out. To consider that this still does occur in this day and age is reprehensible at best. But it must also be said that racism and vilification of any kind is equally reprehensible.

However, one wonders as to the inconsistency of the approach being adopted herein. The repeal of the Section 18 provisions will be in direct conflict with the London convention on this matter. It will be interesting to see how Brandis justifies the inconsistency of his approach. The next few days will be an interesting time to observe Parliament debate this matter.