In the last days of the election campaign, Tony Abbott said a Coalition government would look at changing the Racial Discrimination Act. 
By
Ron Sutton

27 Sep 2013 - 12:30 PM  UPDATED 27 Sep 2013 - 7:31 PM

The focus in the Abbott Government's early days is on other matters, but in the last days of the election campaign, talk of changing the Racial Discrimination Act came back into play.

Day after day during the election campaign that made him Prime Minister, Tony Abbott kept it simple: Stop the boats, repeal the carbon tax, balance the budget.

Those would be his government's priorities if elected, he told voters.

But after an interview just days before the election, The Australian newspaper, at least, briefly highlighted a different promise.

"The Opposition Leader said that, if elected, he would work with his Attorney-General, George Brandis, to require the (Australian Human Rights) Commission to champion, instead of restrict, the right of free speech in Australia. This would involve amending the Racial Discrimination Act ... "

It was a stand Mr Abbott had raised a year earlier in a talk before Melbourne's Institute for Public Affairs, a research centre focused on free-market and libertarian ideals.

It arises particularly out of the 2011 prosecution of Andrew Bolt, a columnist for News Limited, publisher of The Australian, for violating the so-called hate-speech laws.

A Federal Court judge found he had breached the Racial Discrimination Act because a pair of articles he wrote were not written in good faith and contained factual errors.

And, the judge said, the articles would have offended a reasonable member of the Aboriginal community.

Right after the verdict, Tony Abbott warned against, as he put it, restricting free speech.

"We should never do anything in this country which restricts the sacred principle of free speech. And free speech means the right of people to say what you don't like, not just the right of people to say what you do like."

What does it all mean now?

A researcher with the Institute for Public Affairs, Chris Berg, points to Section 18C of the Racial Discrimination Act, which makes insulting a person a possible criminal offence.

Mr Berg suggests that is the likely Abbott government target, and says he approves of amending the Act - or even removing the Section altogether.

"18C of the Racial Discrimination Act makes it illegal to offend, insult, humiliate or intimidate. As far as we can tell, what the Coalition is talking about is getting rid of the words 'offend' and 'insult' from the Act but leaving the words 'humiliate' and 'intimidate.' Now I think it's good that we would get rid of the words 'offend' and 'insult,' but humiliation and, particularly, intimidation is already covered by a huge array of state and federal laws. Intimidation is already illegal in Australia, and the idea that we would double it up and give it an explicitly racial component in the Racial Discrimination Act I don't think is necessary or efficient, and I think it can have some counterproductive consequences."

But in Canberra, Afghan-born lawyer and community-rights advocate Mariam Veiszadeh disagrees.

A refugee who fled Afghanistan as a child with her parents in the 1980s, she says the18C of the Act needs to stay -- as it is.

"There are already some very clear exceptions put out in the section that immediately follows Section 18C, which is 18D, which talks about which situations are exempt. So, if that conduct is done reasonably and in good faith for a particular specified purpose -- and this extends to making comments in a newspaper article or publication and that kind of thing -- then those situations are actually exempt. So the intention of that section is to balance the previous section."

In the Andrew Bolt case, the columnist had suggested light-skinned people who identified themselves as Aboriginal were doing it for personal gain.

The articles were headlined "It's so hip to be black" and "White fellas in the black."

There were nine plaintiffs in the case, all Aboriginal, but those contacted by SBS Radio have either declined comment on the Abbott government's plans or not responded to messages.

The director of the Centre for Comparative Constitutional Studies at the University of Melbourne, Adrienne Stone, says the issue goes far beyond Andrew Bolt's case anyway.

"I think it is very unfortunate that the Andrew Bolt case has provided the impetus for this discussion, for this reason: the articles at issue in the Andrew Bolt case clearly fell well below any possible standard of permissible speech. Indeed, if the same findings of fact had been made against Mr Bolt in different proceedings, he would have been found liable in an action for defamation, which would have brought a much more considerable penalty. The problem with Mr Bolt's (article) was not that it was offensive, but just that it was highly inaccurate. He made allegations that were central to his case against the plaintiff in that case that he didn't even seek to advance when it came to trial."

Adrienne Stone says she sees clear room for changing the Racial Discrimination Act.

She says the threshold for breaching the law is not as low as Section 18C might suggest, again because the balances that follow are what she calls very, very broad.

But Professor Stone suggests raising the threshold does have merit.

"I think it would be preferable to have a federal provision that had a higher threshold -- that is, that only applied to speech that was seriously insulting, humiliating or intimidating, or speech that incited hatred."

Professor Stone suggests changing Sections 18C and D to language closer to the provisions in state laws, such as, "It is an offence to incite hatred on the grounds of race."

And she voices some concern about what she considers one weakness in Australia's protection of freedom of expression.

She says, while most other democracies around the world guarantee freedom of expression, Australia guarantees, more narrowly, freedom of political communication.

Still, Professor Stone says the country's actual protection of freedom of expression is comparable with that of other countries.

But the Institute of Public Affairs' Chris Berg points to Canada's recent amendment of its Human Rights Act, governing hate messages sent via phone or Internet.

Despite appeals from human-rights and diverse religious groups, Canada's parliament voted to drop the right to take such issues to the country's Human Rights Commission.

Mr Berg suggests that provides a model for the Abbott government to move against Section 18C, but Adrienne Stone says there are important differences.

"That section's not really the equivalent of Section 18C of the Racial Discrimination Act. It looks like 18C on its face, but 18C has a very extensive set of exemptions. For example, it doesn't render unlawful anything that's done reasonably in good faith in artistic works, in discussion for genuine academic purposes, or in making a fair and accurate report of a matter or engaging in fair comment. So, Section 18C, once you take the exemptions into account, is actually quite a lot more limited than that Canadian law."

In Canada, proponents of amending the Human Rights Act hailed it as a victory for free speech.

Chris Berg argues at least amending Section 18C of Australia's Racial Discrimination Act is, likewise, all about protecting free speech.

"Freedom of speech is our most fundamental liberty. It is the foundation of our democratic system. It's the foundation of our individual moral autonomy as well. And any law that chips away, undermines or eliminates, in this case, that right is a bad law. It should not be illegal to be offensive. Obviously, nobody likes offensive speech, but, otherwise, if you're not protecting free speech, you don't really have free speech. Free speech is not just there for nice, gentle, pleasant and friendly speech. It is explicitly there for controversial, sometimes offensive speech as well. And I don't think undermining that absolutely fundamental right is healthy for any liberal-democratic society."

Even if the Abbott government does look to amend the Act, the Labor opposition and the Greens would be expected to make it difficult in the parliament as it now stands.

It is too early to predict how the newly-elected Senators would view it when they take their seats next July.

But the lawyer and community-rights activist, Mariam Veiszadeh, argues that right to freedom of speech has to have its limits to protect other rights.

"It's kind of a double-edged sword. Yes, there's freedom of speech, and I believe in freedom of speech, and we should do everything we can to make sure that that right is protected. But it is a balancing act, and it doesn't give anybody an open invitation to spew hateful vitriol against other minority groups, or other marginalised groups, and then use (it as) a shield, suggesting that, 'Well, it's freedom of speech, so, therefore, I can say and do and act as I please.'"