Free speech battles: narrowing racial vilification in Australia

Free speech has a shallow grounding in Australian jurisprudence. There are no express provisions for it in the Australian Constitution. It is striking that, for a country considered liberal democratic in character, suspicion of much in the manner of speech, of those who buck the trend of the thin-lipped conformists, remains rampant.

The debate on free speech is itself so polarised, the purpose is lost. Free speech, it seems, is only as free as long as it is appropriate, tasteful and of good standing. But the strength of any free speech provision, or protection, is not that it facilitates the good, but that it facilitates virtually everything, the distasteful, the revolting, and, in many ethical contexts, what might be seemed unacceptable by the majority. The sentimental value associated with which views are appropriate, or not, tend to assume a police value before long. The mirror of the police state is everywhere – you are punished for having an opinion, which so happens to be reprehensible to some.

The emphasis, or rather non-emphasis, on free speech is striking. The Coalition have, along with some in the ALP, shown a long disregard for a Bill of Rights that would guard against majoritarian foibles. Both sides claim to be supporters of free speech; both sides come at the idea of what it is somewhat differently.

The Hungarian intellectual Arthur Koestler, in writing about the pernicious rules on hanging in Britain, considered the uncritical faith of jurists of the British common law – that which regards legislative protections as suspicious and common law as all wise and powerful. The conservative view in Australian law is that the common law should be the guide on rights. We have, for that very reason, High Court cases that mark out an implied protection of freedom of communication in the Constitution. In what can only be regarded as imaginative readings, the High Court has held in such cases as Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 that Section 7, covering senatorial representation and voting, and Section 24, dealing with electing the House of Representatives, suggest that people need to exercise a free and informed choice. None of this suggests that "hate speech" or reprehensible views would be protected.

Indeed, the Racial Discrimination Act 1975 (Cth) is a curious beast in that regard. Like many compromises, it satisfies no single ground, focusing on that somewhat bizarre notion of hurt feelings. It suggests that Australians are not mature enough to carry on considered debate without the threat of authoritarian chastisement. It provides an inadequate "free speech" defence under section 18D absolving the person who expressed views on the basis of skin colour in a very narrow sense: that of good faith. These were introduced in 1995 by the then Keating government.

Civil liberty groups such as Liberty Victoria feel that the provision is too widely drafted. Attorney General George Brandis feels that the law has gone too far. "The classic liberal democratic rights that in my view are the fundamental human rights have been almost pushed to the edge of the debate." He proposes narrowing the definition of racial vilification and introducing a "freedom commissioner" to oversee protection of rights such as freedom of religion and free speech.

Australialies somewhere between the European continental model of punishing what might be deemed reprehensible opinions, and the U.S. model which regards such punishment as unacceptable. The U.S. Bill of Rights enables such acts as Holocaust denial to take place. Grotesque as it might be, the point is not to punish or jail someone for having reprehensible views. The moment one ends up behind bars for opinions, one is singing the tune of a police state with its complement of corrective measures.

This problem was amply demonstrated in the racial vilification case of Eatock v Bolt (2011). In that case, Andrew Bolt was accused of breaching the provisions in two articles and two posts in 2009 describing the complainants as "political aborigines" of Caucasian descent riding the bandwagon of unjust enrichment. Justice Mordecai Bromberg found that Aboriginals of fair skin "were reasonably likely… to have been offended, insulted, humiliated or intimidated by the imputations conveyed by the newspaper articles." While it would have been lawful to racially vilify someone in terms of expressing an opinion, Bolt had shown bad faith. He had not checked his facts – at least in their entirety.

The decision by Brandis has been, somewhat irresponsibly, labelled as an act of grace for Bolt, who was sloppy with his account, and in some ways even sloppier with his delivery. What the decision does not do is clarify the issue as to whether Bolt was being punished for his shoddy homework, or his shoddy views. Neither is entirely satisfactory. As meticulous as Justice Bromberg was, he could not get away from the suggestion that Bolt was fundamentally wrong in his assertions.

The bad faith test is also hopeless in the discussion of rights and protections – many rights are exercised in bad faith, but that is hardly a reason not to have them. Besides, can you genuinely hold a racially obnoxious opinion in good faith? The thin skinned, it would seem, shall inherent the earth.

This is the story with Bolt. He is disliked in certain circles because it is inappropriate not to. He is, for so many in the ersatz progressive circles, an individual who needs to be punished, to be curtained, to be hidden. It would be unfashionable to do otherwise. And so, you get views such as those of shadow attorney-general Mark Dreyfus, claiming that narrowing the scope of racial vilification has nothing to do with free speech but everything to do with "freedom to engage in public hate speech."

Such views suggest that media and debate in Australia is so weak that it cannot tolerate a Bolt, or for that matter, reprehensible opinions held in bad faith. Wigged retaliation and court room correction is required to target the insensitive who tread on other people's feelings. The evils suggested by Brandis' move are exaggerated, even if they might be seen as disingenuous. Pity that they will not go further in the manner of enshrining a genuine, inviolable right to free speech.