Revising the Racial Discrimination Act

Revising the Racial Discrimination Act (1975) first became an ‘issue’ following Andrew Bolt’s conviction in 2011 for two articles he wrote accusing fair-skinned aborigines of claiming aboriginal identity for personal gain. After the 2013 election, the Abbott Government decided to remove Section 18c altogether, arguing it limited free speech and healthy debate. Clumsy gaffs by the erstwhile sponsor of the reform, George Brandis, intensified an already gathering storm of protest, bringing these moves to an abrupt halt. A private members bill introduced into the federal senate in 2014 was allowed to lapse before the 2016 election. After the election, however, interest in reform re-emerged. In the vanguard of this new push, is Senator David Leyonhjelm of the Liberal Democratic Party whose platform lays a heavy emphasis on free speech. To publicise the issue, Leyonhjelm even lodged a complaint with the Human Rights Commission over an article by Fairfax journalist Mark Kenny that called him an ‘angry white male’ and ‘hate-speech apologist’. For all the froth and bubble, is there actually any substance to this ‘campaign’?

To begin with, we need to be clear that criticising Section 18c of the RDA is a legitimate exercise. Many on the left have responded as if all critics are bigots with evil intent – this is not so. The Australian Law Reform Commission (ALRC) itself has explained that, because S18c ‘is broader than is required under international law to prohibit the advocacy of racial hatred’ it may exceed the federal government’s external affairs power and, thus,be ‘susceptible to constitutional challenge.’ For this and other reasons, the ALRC also advises review of S18c to improve the precision and clarity of the wording, particularly where it extends ‘to speech that is reasonably likely to ‘offend’’ because, in its view it ‘unjustifiably interferes with freedom of speech’. Former Federal Court Judge Ronald Sackville has likewise criticised S18c, wanting the words ‘offend, insult, humiliate or intimidate’ replaced by the precise and demanding ‘degrade, intimidate or incite hatred or contempt’.

Dan Meagher of Deakin University also sees the words ‘insult’ and ‘offend’ as ‘open-ended’, making it difficult to know precisely when the legal provisions of S18c apply and rendering any judgement ‘little more than an intuitive and necessarily subjective value judgement’. Likewise, the Wilberforce Foundation, described as ‘a coalition of lawyers committed to the preservation and advancement of common law values, rights and freedoms’, echoes Meagher’s criticism adding that the failure of S18d (which allows exemptions to 18c) to make truth a defence, compounds the problem. On the other hand, the Commission also notes that many community groups support S18c, some think it doesn’t go far enough and the Commission itself has found no actual problems with its operation in numerous court cases. Moreover, both major political parties have rejected changes to the RDA, at least for the time being.

But this doesn’t mean all criticism is so firmly based. There are a lot of popular misunderstandings about the nature of the RDA. For instance, incoming senator Derryn Hinch asserted, ‘It should not be a crime to offend or insult somebody’. He went on to claim ‘I am offended and insulted by a law that can put you in jail because you offended somebody.’ Other politicians have made similar claims. And yet, acting in breach of the RDA is not a criminal offense; it is merely ‘unlawful’ meaning ‘prohibited by law’. The difference is significant: ‘unlawful acts’ are pursued by a person or entity seeking a remedy like compensation or public apology; ‘criminal offenses’ are pursed by the police seeking punishment like gaol for the offender.

The criticism from Leyonhjelm and the Liberal Democratic Party (LDP) is more sophisticated. The LDP emphasises free speech as part of a broader libertarian agenda, treating both freedom of speech and of the press as essential to other freedoms because both are ‘important for constraining government’. In this sense, reform of the RDA goes hand in hand with other items like small government, low taxation and a free market. The LDP claims that free speech specifically allows competition between ideas, a sort of Darwinian struggle in which the ‘more robust’ gain acceptance while the ‘less robust’ are rejected. Ideas prove their worth by surviving the bruising encounter with other ideas. To allow this ‘survival of the robustest’, requires the removal of all restraining factors, whether the statement in question ‘is defamatory, offends, insults, humiliates or intimidates’. Moreover, the LDP will not accept even principles of morality or decency, let alone community expectations as constraints on what can people say. Rather, according to Leyonhjelm, people can choose whether or not they are offended by what others say:

Free speech is free speech. There’s no qualification to it. ... If you want to take offence, that’s your choice. You have the choice of choosing another feeling. Offence is always taken, not given. So if you don't want to be offended, you - it's up to you, don't be offended.

On this view, the speaker bears no responsibility for the effects of anything they say. Again, as Leyonhjelm asserts, ‘We're not responsible for the feelings of other people. None of us are.’

This is worse than just trivialising another person’s feelings – it implies a notion of freedom hostile to the society itself, even though it is society that makes freedom possible in the first place. As Thomas Hobbes observed over three-hundred years ago, without the social order, life descends into chaos, insecurity and the rule of the strong, ending up ‘solitary, poor, nasty, brutish and short’ (Hobbes 1991, p. 89). Likewise, a century later, Edmund Burke recognised that only through the social order, chiefly a moral order but with necessary laws, is freedom possible.

Men are qualified for civil liberty in exact proportion to their disposition to put moral chains upon their own appetites … Society cannot exist, unless a controlling power upon will and appetite be placed somewhere; and the less of it there is within, the more there must be without (Burke 1887, p. 51-52).

Leyonhjelm implies that every individual lives sealed in their own private social bubble, speaking their own private language. The absurdity of this approach is obvious to anyone with even the most cursory understanding of language and society.

Speech (and writing) conveys meaning because speaker and listener share a language. This not just shared vocabulary and grammar; it also means, as philosopher Ludwig Wittgenstein argued, sharing a ‘form of life’ – that is, the whole complex of social rules that underpin meaning, sense and intent (Wittgenstein 2003). In this sense, language is nobody’s personal property; it exists independently of us as individuals. We can use it to exchange personal meanings with others only because we all participate in the same social-symbolic world.

In learning language, we also learn the effects that speech (and writing) can have. Words can inspire us, amuse us, enchant us, repel us, hurt us, depress us and, of course, insult or offend us. These responses are not consciously ‘chosen’. Even if we choose, say, to restrain ourselves when insulted, we are still insulted, however we act outwardly. It is in the nature of an insult to insult. If a person is not insulted by an insult it’s either because they didn’t hear or didn’t understand. Having heard and understood – and, hence, grasped the intent of the message – that person is insulted, plain and simple.