Section 18C, ABC Fact Check and the 'ill-informed' Attorney-General

On 24 March 2014, the Commonwealth Attorney-General, Senator George Brandis QC, in the course answering a question without notice about the proposed repeal of s 18C of the Commonwealth Racial Discrimination Act 1975 (RDA), told the Senate this:

. . . People do have a right to be bigots, you know. In a free country, people do have rights to say things that other people find offensive, insulting or bigoted . . . (my underlining and below).

Using a standard dictionary definition of being "bigoted" as "having or revealing an obstinate belief in the superiority of one's own opinions and a prejudiced intolerance of the opinions of others", the Attorney's statement was unambiguous.

Senator Brandis is an accomplished lawyer. As the first law officer of the Commonwealth, he could be expected to choose his words carefully. He clearly did so on 24 March 2014.

Taken either as the expression of an opinion about the state of the law in Australia, or as a statement of everydayreality, it was unexceptionable.

If the Attorney had been wrong about the law and was to be taken as urging the view that there should be a right to make bigoted statements, is that an opinion which no reasonable person in the real world could genuinely express? The response in some quarters was a resounding "How could any decent person dare suggest such a monstrous thing?"

Perhaps Senator Brandis would see some irony in the fact that the more intemperate the language used against him became, the more his critics were inadvertently buttressing his statement which, in less than a week, had become infamous.

He did not deserve the chiding solemnly administered to him by the Australian Broadcasting Corporation (ABC) Fact Check unit in the following "verdict".

Attorney-General George Brandis says people have a right to be bigots and to say things that other people find offensive. ABC Fact Check finds his claim is ill-informed.

No amount of "deconstruction" or "unpacking" or, better still, old-fashioned common sense plain reading of the online ABC report of which the "verdict" forms a part, discloses what was "ill-informed" or incorrect about the Attorney's disputed statement.

In The Australian on 7 May 2014, Russell Skelton, the highly regarded journalist who is in charge of ABC Fact Check, defended its verdict in a letter containing the following statement:

People have a right to express bigoted or offensive opinions in their own home but repeating them in publiccan be an entirely different matter.

Context - "All we want are the facts, ma'am", Sgt Joe Friday, Dragnet

First, the ABC deserves to be applauded for establishing the Fact Check unit. It is entirely in keeping with the role of the national broadcaster as set out in its statutory charter.

Secondly, the ABC Fact Check unit's role is described on the ABC web site.

Thirdly, the unit is assisted by external advisory panels. It has a very distinguished Legal Advisory Panel: two former Commonwealth Solicitors-General and a leading Professor of Public Law. Their opinions and analyses are sought prior to publication, but are not revealed. Verdicts are solely determined by ABC Fact Check and do not necessarily reflect the views of the panel.

Finally, no matter what it does or does not broadcast, the ABC will be criticised. Its numerous sworn enemies are always ready to pounce, some because the very concept of a national broadcaster is anathema, others more pragmatic than ideological, because they see the ABC simply as a potential juicy profit-centre which should, in the natural mercantile order, be transferred to the private sector, and others - as the late N K Wran QC demonstrated in his own marvellous way - because of visceral reasons that transcend partisan divides.

If the ABC Fact Check folks have been a bit hasty in reproving some suspected errant observer of public affairs, the ABC will have nobody to blame but itself and especially if one of its "verdicts" suggests even a whiff of partisanship.

"Fact-checking" and the law

In his first sentence, Senator Brandis was referring to what humans have in their hearts and minds. In a free and open society, a legal command that "No person shall entertain any offensive, insulting, prejudiced or bigoted idea or belief" could not be taken seriously.

It was the words "... and to say things …" in his second sentence that got the Attorney into boiling water.

You do not need to be a lawyer to know that, first, a statement about "rights" can be one about what the law is or is not, or ought or ought not to be. In other words, it might be (or be taken to be) a statement of fact or one of opinion or a mixed statement of fact and opinion, and, secondly, all such statements may be hotly contested.

Nevertheless, there are incontrovertible statements of what the law is. The key is precision in formulation of the statement.

Its report and "verdict" admit of no other interpretation than that the ABC Fact Check unit approached the Attorney's words by characterising them at face value as essentially factual: "Is he correct in asserting . . . ?"

The ABC Fact Check "investigation"

The flawed starting point of the investigation is this affirmative statement:

Causing offence in federal and state laws

There is a range of laws in Australia that stop people saying or communicating things that other people find offensive. Four examples follow. . .

The investigation team had regard to four statutory provisions for the suppression of "offensive" speech, and referred to interviews of two professors of law whose enthusiasm for so-called "hate speech" prohibitions (such as s 18C of the RDA) is well known.

There is nothing in the ABC report (which includes a summary video presentation) which suggests that the investigation team obtained or sought to obtain or considered obtaining an assessment from a member of the academic legal community or the legal profession who might have proffered a different view about the "correctness" of the impugned statement.

It seems that the Attorney was not asked for his response to the question being investigated.

Ironical missteps

The unambiguous use of the words "stop" and "find" indicated that the investigation set out to contradict the Attorney. The result was that, taking both the Attorney's impugned remarks and the ABC report at face value, the report managed both to prove the truth of what the Attorney had stated was the law and, necessarily - if "ill-informed" is given its ordinary meaning – to demonstrate that, instead, it was the "verdict" which was "ill-informed".

For devotees of postmodernism, this is high-level irony.

First, there is nothing to suggest that the investigators alluded to the need for precision. The Attorney used the word "rights" – plural. This alone should have alerted the investigators.

The question "Do Australians have the right to free speech?" was raised in the report, but it was the wrong question because it was so open-ended. It could only be answered along the following lines, "Yes, to an extent" or "To an extent, No".

Secondly, the investigation could only be satisfactorily undertaken by posing a precise question along the following lines, "Does the law in Australia concerning "offensive" and "insulting" speech confer or permit a right (a) to be a bigot; (b) to say bigoted things, (c) to say things that people find offensive?"

Thirdly, there ought to have been but there was no mention of the dictionary meanings of the words "offensive" or "insulting". It was noted, however, that "The law does not define what constitutes "offensive language".

Here again, there is confusion of concepts in large part because the report is ahistorical. The lack of definition of what constitutes"offensive language" may be true of the four statutes, but if the ABC team had checked the long history of judicial interpretation of precursor legislation, it would have become apparent that there is a right to be a bigot because there is a right to offend.

The world is full of thin-skinned folks who find offence, insult and bigotry for no better reason than that other people have the temerity to disagree with them.

In developing the jurisprudence over more than a century, the courts considered that the proposition that an individual could be subjected to legal liability for doing no more than that some other person was or might be thin-skinned enough to "find" speech-related conduct "offensive" - could not have been the legislative intent because it would be productive of absurdity and oppression especially for non-violent highly offensive and insulting dissenters.

The investigators only had to go back to the Vietnam War (Ball v McIntyre (1966) 9 FLR 237) or Korean War (Worcester v Smith [1951] VLR 43) for pointers to the many restrictions which had been judicially implied.

Here there is more high-level irony. The ABC report's four statutory examples all explicitly require proof of an objective test of reasonableness because the imposition of any legal liability for the subjective taking of offence is manifestly inconsistent with individual liberty.

If that was not enough to vindicate Senator Brandis, the posing of the question Do Australians have the right to free speech? had some unintended utility. It adventitiously managed to establish that what the Attorney said was unimpeachable for an entirely separate reason. The report had taken no account of the law of defamation even though the High Court of Australia cases concerning the implied constitutional freedom of communication in matters of government and politics mentioned in passing in the report include one notable defamation case.

Many an unsuccessful plaintiff in a defamation case will find the defensible defamatory statement – by definition, one having the tendency to excite hatred, ridicule and contempt – "offensive, insulting or bigoted".

Australian bigotry: a "reality check"

The Aesopian language of the ABC "verdict" and its supplementary defence about what may and may not be said in public mount a powerful case for having the ABC tweak the Fact Check unit's riding instructions so that it applies a measure of "reality" checking to disputed statements about the law.

The everyday reality is that s 18C of the RDA does not and cannot, for example, deter some Australians from expressing fanatical religious bigotry by way of rowdy public exhortations that other Australians be put to death for religious reasons.

However, absent a clear and imminent danger to public safety, the application of the general criminal law to such incitements to violence would be an over-reaction serving no useful purpose. The disseminators of such florid bigotry condemn themselves. The claim that a content/viewpoint specific civil censorship provision like s 18C is necessary or desirable to minimise public expressions of bigotry is no more than wishful thinking.

The reality is that Australia has survived such provocative displays of "hate speech" which should tell us something about the nation's innate tendency to practise tolerance and to reject violence as an acceptable political tool. And it signals the need not to be swayed by the hyperbole, patronising, stereotyping and fear-mongering which has been at the forefront of opposition to the repeal of s 18C.

ABC Fact Check's feather-duster swipe at Senator Brandis is, putting it as inoffensively as I can, a bit rich.

The national broadcaster should promptly own up to the blue it has made and reverse its "verdict".