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.

We thus learn that using words imposes upon us a moral obligation. Being rule governed, the effects of language can be known with reasonable certainty. Admittedly there are times when we fail to say what we intend but, again, that’s because language is not our personal property coterminous with our private thoughts. We know the basic principle: words have effects and we are answerable for what we (intend to) say. These are our thoughts and loosing them upon the world is a moral, not just a linguistic act. Offense (and inspiration, amusement, provocation and so on) is not just ‘taken’ – it’s also ‘given’: that is, exchanged.

Ironically, Leyonhjelm’s approach would also render democracy unworkable. Democracy requires a public sphere in which people can participate and speak without fear of humiliation, intimidation and offense. This also means taking responsibility for how others might respond to what we say. Freedom of speech as conceived by the LDP, is the opposite of this, unwittingly sanctioning the use of language to bully, embarrass and browbeat others into silence. In this sense, it is also the very opposite of what the LDP itself actually wants – effective democracy. Instead, unchecked freedom of speech ends up destroying freedom itself.

The problem with Leyonhjelm’s critique of the RDA arises from the abstract nature of his principle of free speech. ‘Abstract’ here means ‘removed from practice’ – that is, his principle seems unconnected to practical legal reality. As the ALRC itself recognises, most critics of the RDA interpret Section 18c in isolation from the way it is employed in court. This is important because it is in court that the dead letter of the law comes alive. Court judgements look at the complexities of specific cases and establish precedents that then become part of the law itself, shaping how that law applies in practice. A close examination of the case against Andrew Bolt, the very event that prompted the recent campaign against Section 18c, reveals that, rather than responding to an actual problem in the operation of the law, critics are, for the most part, just pushing a preconceived agenda.

To begin with, we need to ask why Bolt was found guilty. None of the RBA’s critics has seemingly taken time to examine this fundamental question. Firstly, while Pat Eatock brought the action against Bolt, the point in issue was not whether she personally was offended, insulted, humiliated or intimidated by what he wrote. Rather, the judge, Mordecai Bromberg, ruled on how a ‘reasonable person’ was likely to react. Though open to criticism, this is standard legal procedure for gaining ‘objectivity’. Individuals may have all sorts of reasons – political, personal, psychological etc – for taking offense, and the RDA is not at the service of any idiosyncratic sensitivity, genuine or otherwise. Bromberg did narrow the focus somewhat, concentrating on the likely reaction of a ‘reasonable fair-skinned aboriginal person’ rather than simply a ‘reasonable person’ generally. This was to counter the possibility that community standards did not include knowledge of and sensitivity to the identity of persons from the group in question. After all, standards that accepted Bolt’s views as justified, would have prejudiced the case against the plaintiff.

Thus the verdict was a ruling under the terms of the Act – it was not a finding on the nature of racial identity nor on who is entitled to call themselves aboriginal. And here is the nub of the case: Bromberg did not find Bolt guilty simply because his articles dealt with ‘racial identification including challenging the genuineness of the identification of a group of people’. On the contrary, Bromberg found him guilty ‘because of the manner in which that subject matter was dealt with.’ That is, Bromberg found that Bolt had deliberately sought to ‘offend, insult, humiliate and intimidate’. This judgement of Bolt’s ‘intentions’ meant his articles were not protected under Section 18d which lists exemptions to S18c. Bromberg found the articles were neither ‘fair comment’ nor part of a ‘statement, publication or discussion, made or held for a genuine purpose in the public interest’, ‘done reasonably and in good faith’. Instead, he judged that the articles were ‘plainly calculated to convey a message about’ the racial group.

Bromberg based these conclusion on the three things: factual errors, misrepresentation of facts and the tone. Bolt’s factual errors were not just inaccuracies: they were indicative of his bias, errors that made his own argument look stronger than it was. Added to this were misrepresentation of facts where he cast accurate information in a bad light. This was achieved, at least in part, by the tone he adopted: ‘a liberal use of sarcasm and mockery’. As Bromberg explained,

Language of that kind has a heightened capacity to convey implications beyond the literal meaning of the words utilised. It is language which invites the reader to not only read the lines, but to also read between the lines.

Bolt’s reaction revealed that he had learnt nothing. After the verdict, he declared on his blog that ‘the Federal Court has ruled that my views on this issue … are against the “values” of the Racial Discrimination Act’. And yet, in the same post he quoted prominent aboriginal leader and activist Noel Pearson at length expressing similar views on racial identity. Moreover, Bolt suggests that the

One thing that I think saves Pearson is that he gives no actual examples of people who obviously had choices to make. The discussion is largely in the abstract, shorn of some examples so preposterous that the issue becomes lightning clear.

Exactly: Bolt has unwittingly solved his own dilemma. When stripped of the ‘sarcasm and mockery’, the nod nod, wink wink, between the lines, ‘the preposterous’ examples, the ideas and arguments in his two articles are perfectly open to discussion and analysis.

What we should conclude from this is that Bolt took a serious issue – racial identity – and played with it in an amateurish and superficial manner. He claims that he was making some serious points. Re-reading those articles reveals that he did raise some serious issues: the prevalence of ethnic (and other) identity politics; the possibility such modern tribalism is dividing rather than uniting Australians; a perceived shift from a merit-based system focused on individual achievement to a group loyalty-based system focused on political affiliation; and even questions about who really benefits from affirmative action policies designed to help the underprivileged. These are certainly serious issues and I think I understand why Bolt is angry about such trends in Australian society. More to the point, there are myriad other Australians who read his column and blog, and watch the Bolt Report, who agree or at least sympathise generally with his underlying arguments.

But preaching to the converted is no achievement. He muddied the waters with sensationalism and sarcasm, undermining the very points he was trying to make. This is not an issue of free speech. The RDA is not the problem. The central points of his articles could have been made – more effectively and accurately – without arousing offense or hurt, without provoking legal action. Leave the RDA out of the picture and simply concentrate on treating serious issues seriously.