The federal government’s proposed changes to the Racial Discrimination Act have fostered an animated and polarising debate. The importance of this discussion should not be understated. It is a question of freedom of speech. This fundamental principle is one of the key differentiating factors of any healthy democracy. So it is critical we do not take it for granted.
Section 18C of the Racial Discrimination Act makes it unlawful to publicly cause offence, insult, humiliate or intimidate another person or group of people on the basis of race. This is the legislation Andrew Bolt was found to have breached by the Federal Court in 2011, in relation to his comments on fair-skinned Indigenous people.
It is necessary to make two important points about why I believe the current legislation goes too far. Firstly, the provisions are heavily subjective. In summarising his judgment against Bolt, Justice Mordy Bromberg noted that for a successful claim under s18C, it was required that Bolt’s conduct be “reasonably likely” to cause offence, insult, humiliation or intimidation. However, reasonableness as a metric is far from an objective standard, free from individual idiosyncrasies.
The degree of conduct that will “cause offence” will vary markedly between individuals. So it is incorrect to propound the present provision as an entirely unbiased criterion for determining racial discrimination. Yet, in a recent opinion piece (16/3), Sydney Morning Herald political correspondent Bianca Hall satirically suggested that if the government gets its way in repealing s18C, the definition of what is racist will be left at the behest of politicians like Attorney-General Brandis or SA Senator Cory Bernardi.
No. That goes to the heart of exactly what the repeal of Section 18C strives to prevent. Unlike Hall, the government doesn’t accept the idea that we need a law to tell us what is racist.
This brings me to the second point, which is that by prescribing in law the limitations on discourse about race, we are extinguishing the space in which public debate ought to be occurring. Janet Albrechtsen, writing in The Australian (19/3), highlights this exact concept. As Human Rights Commissioner Tim Wilson expounds, a healthy democracy cannot function where law and social norms are fused. For Albrechtsen, without a gap between these two concepts, the status quo becomes unchallengeable; there can be no constructive debate about where society collectively believes the line falls on acceptable conduct.
If Andrew Bolt’s remarks on fair-skinned Indigenous people indeed abrogate social norms on racial commentary, he should be proven wrong by robust debate. We might find racist views repelling, but by gagging them, we only serve to spare them from the sobering judgment of public opinion. And for those who take offence, there is surely a cathartic comfort in the profound agent of public morality condemning racist sentiments. For mine, this is perhaps an even greater countervail than mere legal reprimand, as it possesses a social character whose significance the legal system often lacks.
However, for those who assert that an unfettered right of free speech is too extreme, the lawyer who represented Bolt in his case, Justin Quill, proposes an intelligent middle-ground solution (Herald Sun, 10/3). He suggests that a more appropriate benchmark might be the provisions presently operating in Victoria. The Victorian Racial and Religious Tolerance Act sets the bar at comments that cause “hatred, serious contempt, revulsion or severe ridicule” based on someone’s race. In this sense, there is legal protection for most extreme cases, while also upholding that most critical space in which debate must occur for the sake of a healthy democracy.