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Since the Andrew Bolt decision, there have been calls for Section 18C of the Racial Discrimination Act 1975 (Cth) to be repealed in light of its impact on freedom of expression in Australia.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.

Secondly, complete repeal would almost certainly lead to the ALP declaring its intention to reinstate the section if it were returned to government and the Greens joining in. This would create a new and divisive issue that would run and divert the Government's attention and energy from other issues on which it would clearly prefer to concentrate.

Thirdly, a simple repeal would serve to antagonize and alienate some ethnic community groups. This would be socially divisive and electorally unwise.

Finally, the Australian community as a whole would probably want the law to outlaw some types of racially based conduct short of incitement to racial violence. Some such prohibitions that are outlawed by the present provision would be legitimated if s 18C were entirely repealed without something else being put in its place.

It therefore seems we would be well advised to look at the main defects in the present law and concentrate on replacing them with something better, rather than pursuing complete repeal. What, then, is the major flaw in Section 18C that could be remedied by amendment?

The current, subjective test is flawed

The present Section 18C makes it unlawful for a person to do an act, otherwise than in private that is reasonably likely in all the circumstances to offend, insult, humiliate or intimidate another person or a group of people, and the act is done because of their race, colour or national or ethnic origin. This test is essentially a subjective one, based on how the individual or group feel or would feel about the act as determined not by them but by a Judge.

The test is flawed because it tells us little about the community's view of the conduct in question, when the community's view should at least be a factor and it tells us little about whether the community thinks that conduct should be punished.

Rather, it imposes a test where the judge has to put him or herself in the position of the complainant and ask whether an act would have offended, insulted, humiliated or intimidated a person or group in light of their own particular sensitivities. Clearly there must be cases where the complainant may well have been offended by what was said about him, but where the community would itself not regard the conduct as justifying the feeling of outrage held by the complainant or any punishment of the respondent (the originator of the conduct) for engaging in the conduct. As the Section stands at the present the originator would be guilty in such cases, even if the community view on any fact situation were that the conduct should not be illegal.

It is true, of course, that the Judge did not use an unrestricted subjective test, as he invoked the notion of whether the "target " would be "reasonably likely in all the circumstances" to be offended, although this is still a subjective test.

In any event, there are also the twin questions of whether a judge, sitting alone, would have any idea of whether the complainant "should" have been so incensed and whether judges should be passing judgment on such questions, which are essentially questions of personal conduct and reaction.

The present subjective test also gives scope for false or even honest outrage, but outrage based on events about which a mature, responsible adult in a society that is committed to freedom of expression should not complain. In other words, the present test enables complainants to bring proceedings and to say, yes, they certainly were offended, insulted, humiliated or intimidated or perhaps all of them and for the Judge to say that they were or should have been so offended, insulted, humiliated or intimidated, whether the community as a whole believes they were not offended or should not have been offended.

There is then a clear danger under the present test that what traditionally would have been thought of as no more than a demonstration of robust freedom of expression becomes illegal, no matter what the community as a whole thinks of it.

The subjective test therefore prevents a proper role being given to the principle that we should strive to give as much rein as possible to freedom of expression as seen by the community. The subjective test of liability is a major defect in the present law and one that calls out for reform.

What the present proposal is and why it is good

For all the talk of whether "offends/insults" sets the bar too low, another question that has not been discussed in sufficient detail is whether the test should be a subjective one at all.

As Chris Merritt asked in the Australian: 'What, for example, should be done about a procedure that requires a judge to determine liability not according to community standards, but according to the feelings of those who claim they have been wronged. And is it appropriate for the law to impose duties on judges that, to many, look more like those of an editor?'

A better approach than this subjective test would be, instead, to determine liability under the Act according to community standards of propriety generally accepted by and expected of reasonable adults. This is the test that has been applied in the past where conduct that effects the community as a whole has been under consideration, in particular, censorship law.

And who better to determine whether an act offends against community standards than the community itself, by way of a jury trial? That is the best place and probably the only place to locate standards of propriety generally accepted by and expected of reasonable adults and the only place where the inner and outer limits of those standards can be accurately defined.

This would have a number of possible advantages. It would have the democratic effect of tethering case outcomes to what the community views as unacceptable, rather than the value-laden editorial decisions of a judge who must determine whether an act should have offended/insulted/humiliated/intimidated a person/group in light of their own particular sensitivities.

Australians tend to possess a fair amount of common sense and hold their right to speak freely in high regard. In practice, jury members would most likely only find a person in breach of s 18C for unambiguously egregious displays of racial vilification. They wouldn't take too kindly to plaintiffs using courts as a forum for identity politics or the silencing of opponents.

Conclusion

With proper amendments along these lines, rather than a root and branch repeal of the Section, it will be possible to say, rightly, that the amended law will prevent incitement to racial vilification and yet at the same time that it will not impose unjustified restrictions on freedom of expression that were, after all, the reason why repeal of the Section "in its current form" was advocated in the first place. A reform along the lines proposed here would remove what is a major cause for concern arising from the Bolt decision.