It needs to be remembered that Section 18C is part of a Racial Discrimination Act. It is not a free-standing piece of legislation targeting speech, as many critics would have it.
Since the Bolt case, Section 18C has been denounced as if someone merely taking offense can seek relief under the Act. Of course this is not the way the provisions operate. An action must meet a number of stringent tests before it can be considered unlawful. Even then, per the exemptions of Section 18D, offensive and insulting action cannot be considered unlawful if it is done reasonably and in good faith in artistic, scientific, academic or journalistic pursuits in the public interest.
We are told consistently by defenders of free speech that freedom is the most fundamental human value that sits atop all others, and one which is routinely overlooked by public policy in Australia. As the Institute of Public Affairs explains
Quote:| Australia's well-funded human rights establishment has completely vacated the field on basic rights like freedom of speech, freedom of conscience, and freedom of association. |
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If freedom of speech means it's acceptable, however regretful, to vilify someone on the basis of their skin, then surely it's also acceptable, if regretful, to vilify them on the basis of character. So we should consider watering down defamation laws. The Trade Practices Act prohibits companies and executives talking to one another about price collusion or market manipulation. But again, this is fundamentally an impingement on their right to free speech.
Some of the loudest champions of free speech and critics of Section 18C are journalists and media organisations that themselves impose, formally or implicitly, speech codes on what their readers or viewers can say in comments on newspaper columns or TV programs. And their codes are far more restrictive than anything in the RDA. Typically they preclude incitement to violence or hatred, offensive, threatening or obscene comments, and gratuitous abuse.
Yet even if freedom is paramount there are different freedoms to be balanced as the IPA's assertion implies. The economist Amartya Sen offers an example of different kinds of justice. Three children fight over a toy flute. One has no other toys, when the others have many. One can play the flute, when the others can't. One made the flute, when the others didn't. Each has a just claim to the flute, but these are different kind of justices which must be balanced.
So how do we reconcile one persons right to free speech against another persons right to freedom from racial vilification? What the existing Racial Discrimination Act seeks to do is balance these freedoms. To protect freedom of speech, the Act specifies that, provided they are offered in good faith, artistic works, scientific debate and fair comment on a matter of public interest are exempt from the vilification laws.
Each of the freedom of speech examples above balances similar freedoms. Public order laws protect a freedom from insult or offence. Defamation laws protect a freedom from unjust reputational damage. The Trade Practices Act protects consumers' freedom from excess market power.
Democracies that emphasise free speech and the other civil liberties often enshrine them in a bill of rights. In the United States, where civil libertarianism looms largest, there is also a tradition of judicial review and jurisprudence to aggressively interpret and adjudicate these values. However the Coalition have long been opposed to a bill of rights for Australia and the kind of judicial scrutiny that it involves.
