The Attorny-General George Brandis has confirmed his intention to amend or repeal the racial vilification provisions of the Racial Discrimination Act (RDA) in the name of enhancing free speech. Brandis says he wants to "re-centre the debate so that when people talk about rights, they talk about the great liberal democratic rights of freedom of expression, freedom of association, freedom of worship and freedom of the press".

All well and good.

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.

Part 2A of the RDA addresses offensive behaviour based on racial hatred. It includes section 18C with its "offend, insult, humiliate or intimidate" provisions or so-called "Bolt laws" after the Federal Court found columnist Andrew Bolt liable for two articles he had published regarding the identity and motives of light-skinned indigenous people.

Following the 2011 Bolt decision, many have attacked these provisions as an unjustifiable assault on free speech.

Yet 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. The broad test in considering behaviour under Section 18C is "discrimination", that is, something accomplished by acts that "offend, insult, humiliate or intimidate" in a discriminatory manner on the ground of a specified characteristic.

In this it follows other anti-discrimination acts. When introducing Section 18C into the RDA in 1994, the then Attorney-General Michael Lavarch noted its symmetry with the test of sexual harassment: "The requirement that the behaviour complained about should 'offend, insult, humiliate or intimidate' is the same as that used to establish sexual harassment in the Sex Discrimination Act." Harassment also covers both word and deed.

The so called "I can say what I like" culture that made many women's working lives a daily hell before the 1992 amendment to the SDA made it clear that Australian workplaces would not tolerate:


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In public life - which includes employment - words have power. And speech has consequences. Defaming an individual can land you in court. Threatening someone is a crime. And right now, although according to the Attorney-General not for much longer, offending, insulting, humiliating or intimidating someone because of their race is against the law.

If you support the right to free speech, be prepared to be held accountable for what you say.

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.

It is a measure of Andrew Bolt's egregiousness in his two columns that he could run afoul of these expansive exemptions.

Given that tribunals and courts have interpreted the "offending and insulting" aspects of 18C as a high bar, the pertinent question is not whether these provisions should be dropped because they operate as a low threshold. If anything, the question is whether they are redundant alongside the more rigorous concepts of "humiliate" and "intimidate".

Feelings of having been offended or insulted may of course still motivate individuals or groups to bring a complaint under the RDA. But it may be sufficient for the law to concentrate on whether an act was intended to humiliate or intimidate an individual or group on the basis of race, color or national or ethnic origin. Denigrate might even be added to the provision to underline what is at stake here.

However, those who think that free speech should be protected regardless of whether it is used for denigrating or marginalising certain groups should think again. 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.

Raven has worked in places with diverse cultural backgrounds and hasn't once heard of anyone being upset because the current framework designed to ensure courtesy is stifling their capacity to exercise their right to 'free speech' at work. This is because the current system works, by and large, and has since 1992 when the above definition was inserted into the Act.

Raven wrote on Jan 30^th, 2014 at 4:36pm:


I want to be treated like an adult.  That means no "ahhh maaaa he said a naughty word"

Clearly, you don't.

No, I get it, I just think it's weak.  Dint yo mama ever tell you

"sticks and stones may break my bones but names will never hurt me"

Of course if you're not tough enough to compete on an even keel, maybe stay in the kitchen?

Bolt published malicious material against specific people which was untrue.

He got what he deserved. The prosecution charged against this mild infringement, he could easily have been taken to court on a much more serious charge.

Socceroos captain Lucas Neill recently copped some media flak when he let fly with expletives in response to choice words from spectators. As did the spectators. But it could have been worse for both. For if they had been charged and convicted of using offensive language in a public place, they may have been liable for up to 100 hours community service under NSW public order legislation.

This situation undoubtedly horrifies defenders of free speech. The speed with which new Attorney-General George Brandis has acted to repeal laws against race hate speech and install prominent free marketeer Tim Wilson as human rights commissioner suggests that Mr Brandis and his supporters will be moving with alacrity to remove all such affronts to freedom of speech.

There are so many targets for these keen-eyed defenders of freedom. Public order offences are just one of many pressing areas for action.

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 defamation laws are an obvious target. 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.

Curiously, though, we have heard little from Mr Brandis or other defenders of free speech on any of these areas. Why? 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


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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.

Freedom is the same - it comes in many guises. We value freedom from slavery and freedom from penury. We value the freedom in the "pursuit of life, liberty and happiness" and the freedom in "liberté, egalité, fraternité".

So how do we reconcile Raven's right to freedom of speech with your right to freedom from 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 insulted or offence. Defamation laws protect a freedom from unjust reputational damage. The Trade Practices Act protects consumers' freedom from excess market power.

So this balancing of freedoms is hardly unique to racial vilification laws, and since libertarians haven't attacked any of these other laws, it appears there is a more selective approach under way. For a pithy example of this selectivity, consider the recent attack of conservative commentator Janet Albrechtsen on the ABC for publishing Edward Snowden's revelations of Australia's spying on Indonesia. Surely a right-wing defender of freedom like Albrechtsen would champion a fellow publisher's right to freedom of speech. But no - the Australian's crusade against the ABC trumps any quibbles over freedom of speech.

Why the selectivity? Well, it appears the Right embrace freedom of speech opportunistically as it suits them. You might recall the Racial Vilification Act is often referred to as the Bolt law. In the wake of this case, the law became symbolic in the culture wars as an example of the creeping influence of the Left. That it was used in a civil action against Bolt, a staunch supporter of the Coalition who was invited to the recent Kirribilli House soirée for favoured conservative journalists, made the symbol all the more powerful.

The concern is that Mr Brandis is moving on the Racial Discrimination Act to redress a symbolic injury to the Right rather than carefully balancing competing freedoms as the current Act does. Australians should be deeply concerned about this move

It needs balance. If a person is racially insulted by another then they should be held accountable, regardless of the colour of their skin.