Update 1 March 2017:
The Joint Committee on Human Rights handed down its report on Freedom of Speech in Australia yesterday (Tuesday 28 February). A full copy of the report can be found here.
On the positive side, the Committee did not make formal recommendations to wind back, or even repeal, section 18C of the Racial Discrimination Act 1975, although it did include a number of options that, if implemented, would effectively undermine racial vilification protections in this country.
On the negative side, and despite accepting and publishing my submission (see below), the Committee apparently failed to consider the issue of whether anti-vilification laws should be expanded to cover other groups who are currently not protected in Commonwealth law, including lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians.
Disappointingly, Labor members did not refer to this issue in their additional comments, nor did the Australian Greens as part of their dissenting report. All of which means that the campaign to secure Commonwealth LGBTI anti-vilification laws that are equivalent to section 18C must continue.
As many of you would be aware, Commonwealth Parliament is currently conducting an inquiry into ‘freedom of speech in Australia’ – specifically whether the racial vilification protections offered by section 18C in the Racial Discrimination Act 1975 should be restricted.
The following is my submission to this inquiry, arguing that not only is there insufficient justification to amend (or even repeal) 18C, but that Parliament should instead be considering how to better protect lesbian, gay, bisexual, transgender and intersex Australians against vilification.
Full details of the Inquiry, including the 374 submissions (and counting) that have been published, can be found here.
Parliamentary Joint Committee on Human Rights
Dear Committee Members
Submission to Inquiry into Freedom of Speech in Australia
Thank you for the opportunity to provide a submission to this inquiry into what is an important issue.
In this submission I will primarily focus on terms of reference 1 (concerning sections 18C and 18D of the Racial Discrimination Act 1975) and 4 (how the Australian Human Rights Commission can better protect freedom of speech), rather than terms of reference 2 (regarding the processes that apply to complaint handling) or 3 (‘soliciting complaints’).
I am writing this submission from the perspective of an Australian with Anglo-Celtic heritage, and therefore someone who is unlikely to be subject to racial vilification in this country.
However, I also write as an out gay man, who has witnessed, and experienced, vilification on the basis of sexual orientation. Those experiences particularly inform the latter part of this submission.
Term of Reference 1: Whether the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) imposes unreasonable restrictions upon freedom of speech, and in particular whether, and if so how, ss 18C and 18D should be reformed.
No law is ever perfect. Each piece of legislation that exists today could probably be better drafted in some way (or indeed many ways).
That statement applies to the Racial Discrimination Act 1975, in the same manner as any other law, including its provisions that make racial vilification unlawful.
As the Committee would be aware, section 18C stipulates that:
“(1) It is unlawful for a person to do an act, otherwise than in private, if:
- the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
- the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.”
As I wrote in my submission to the Government’s Exposure Draft Freedom of Speech (Repeal of s.18C) Bill 2014, “I do not believe that, were provisions regarding racial vilification to be drafted today, they would include the terms ‘offend’ or ‘insult’ (or at least not without aggravating factors or considerations).”
It is at least possible to argue that the type of conduct that is, prima facie, captured by these terms – insult and offend – is too broad.
But, as I then went on to observe in that same submission, “it is one thing to suggest that the drafting of a provision is something less than ‘ideal’ – it is another to suggest that poor drafting has directly caused problems that mean it must be amended.”
And it is on that second point that I believe the case to amend or even repeal section 18C falls down. Because I am yet to be convinced that the drafting of 18C itself has caused serious problems in the operation of Australia’s racial vilification framework.[i]
There are three main arguments that support this conclusion.
First, racial vilification generally, and section 18C specifically, has been subject to considerable public debate since the election of the then-Abbott Liberal-National Government in September 2013.
Many critics have argued, at times vociferously, that the section as drafted is an unacceptable infringement upon the right to free speech. If such a claim were true, then these same critics should be able to provide examples of speech that are unlawful currently, that would be lawful if this section was reformed, and which are clearly in the public interest to be heard.
I am unaware of anyone who has, over those past three years, been able to provide a compelling example. That failure seriously undermines the case for change.
Second, I believe it is equally difficult to find an example of section 18C being applied incorrectly in case law, such that speech that should have been lawful was, ultimately, found to be unlawful by the courts.
The most famous (or infamous) case that is often cited is Eaton v Bolt  FCA 1103. However, as I observed in my submission to the Government’s Freedom of Speech (Repeal of s.18C) Bill 2014, “it is not clear that the outcome of the “Bolt case” makes any persuasive case for change.”
I went on to write:
“In the summary of that decision, Justice Mordecai Bromberg explained that “I am satisfied that fair-skinned Aboriginal people (or some of them) were reasonably likely, in all the circumstances, to have been offended, insulted, humiliated or intimidated by the imputations conveyed by the newspaper articles” of Mr Bolt (para 17).
“Justice Bromberg also explained that Mr Bolt’s conduct could not fit within what are, to be frank, extremely generous exemptions in section 18D, writing that “I have not been satisfied that the offensive conduct that I have found occurred, is exempted from unlawfulness by section 18D. The reasons for that conclusion have to do with the manner in which the articles were written, including that they contained errors of fact, distortions of the truth and inflammatory and provocative language” (para 23, emphasis added).
“In his summary, Justice Bromberg also articulates at least one of the reasons why laws should exist to prohibit writings such as those of Mr Bolt: “People should be free to fully identify with their race without fear of public disdain or loss of esteem for so identifying. Disparagement directed at the legitimacy of the racial identification of a group of people is likely to be destructive of racial tolerance, just as disparagement directed at the real or imagined practices or traits of those people is also destructive of racial tolerance” (para 22).
“In short, there appears to at least be an arguable case that not only was the “Bolt case” decided correctly on the existing law, but also that the current provisions are operating as intended to limit the negative effects of racial intolerance. Conversely, I believe it is difficult to argue, solely on the basis of Eatock v Bolt, that section 18C is so deficient that it should be amended, and amended as a matter of high priority.”
That remains my opinion today.
Third, it is impossible to argue for amendment to, or repeal of, section 18C in isolation, and without considering the generous exemptions provided by section 18D:
“Section 18C does not render unlawful anything said or done reasonably and in good faith:
- in the performance, exhibition or distribution of an artistic work; or
- in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
- in making or publishing:
- a fair and accurate report of any event or matter of public interest; or
- a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.”
These provisions, and especially the protections for ‘fair comment’ on a ‘matter of public interest’ if it is ‘an expression of a genuine belief’, cover an extremely wide range of potential statements where they otherwise offend, insult, humiliate or intimidate other persons or groups on the basis of their race, colour or national or ethnic origin.
Once again, it is up to advocates for change to the existing law to provide examples of speech that remains unlawful, despite section 18D, and that it is clearly in the public interest to hear. As with section 18C discussed above, I am not aware of any such example.
Recommendation 1: Sections 18C and 18D of the Racial Discrimination Act 1975 should remain as currently drafted.
In the absence of a compelling case to amend or repeal sections 18C and 18D of the Racial Discrimination Act 1975, I would like to suggest an alternative area of anti-vilification law reform for which there is, from my perspective, a clear and urgent need for reform: the introduction of vilification protections for lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians.
Despite the almost relentless criticism of racial vilification laws over the past three years, and especially in certain mainstream media publications in 2016, there has been comparative silence, or near silence, about the fact there are currently no Commonwealth protections against vilification on the basis of sexual orientation, gender identity or intersex status.
The Commonwealth is not alone in failing to offer these protections: only NSW, Queensland, Tasmania and the ACT have laws that expressly prohibit anti-LGBTI vilification[ii].
This is an issue that I have repeatedly attempted to draw attention to, via multiple policy submissions (including the already-mentioned submission on the Government’s Exposure Draft Freedom of Speech (Repeal of s.18C) Bill 2014, a submission to the Australian Law Reform Commission’s Inquiry into Traditional Rights and Freedoms, and a submission in response to their Interim Report, as well as a submission to the Australian Human Rights Commission’s consultation on Rights & Responsibilities, led by the now-Member for Goldstein, Tim Wilson).
In each process I have made the case that, if race-based vilification is considered legally unacceptable, then so too should be homophobic, biphobic, transphobic and intersexphobic vilification.
As I wrote in the Star Observer newspaper in May 2014[iii]:
“[T]here is no conceptual or philosophical reason why racial vilification should be deemed to be so serious a problem as to require a legal complaints and resolution scheme, but vilification based on homophobia, transphobia, biphobia and anti-intersex prejudice should not.
“After all, both groups – Australians of diverse racial backgrounds and LGBTI people – are regularly subject to vilification in public contexts, whether that be in political or media debates, or in harassment and abuse in public spaces.
“For LGBTI people, this includes comments made in Federal Parliament itself. Over the past  years, we have had three… senators rhetorically link marriage equality with bestiality, repeat claims that allowing two men or women to wed will create another stolen generation, and smear an openly-gay High Court Justice with allegations of paedophilia (apparently solely on the basis of the judge’s homosexuality).
“Vilification based on sexual orientation, gender identity or intersex status occurs all-too-frequently at the everyday ‘street level’, too. Anyone who is visibly identifiable as LGBTI, including non-LGBTI people who are perceived as being LGBTI by others, or indeed anyone who simply wants to engage in the tender act of holding one’s same-sex partner’s hand, knows the risks that expressing who you are in public can bring, from being yelled at from passing cars, to the very real threat of much worse.
“Such fears are grounded in hard statistics. A 2003 NSW Attorney-General’s Report found that in the previous 12 months, 56 per cent of gay men and lesbians had been subject to one of more forms of homophobic abuse, harassment or violence. And that’s before we take into account the disturbingly high number of gay and bisexual men violently murdered in Sydney during the 1980s and 1990s, but whose deaths are only now being properly investigated.
“The consequences of anti-LGBTI vilification are also reflected in figures that show that LGBTI Australians continue to experience disproportionately high rates of mental health issues, including depression, self-harm and, most tragically, suicide. It is not hard to draw a link between public denigration and contempt for a person’s identity or status, and poorer personal mental health.
“So, if Australians of diverse racial backgrounds and LGBTI people are both subject to vilification, and both experience negative outcomes as a result, why shouldn’t both vulnerable groups have the same level of legal protection?”
That question remains relevant to this Committee today, and especially to this particular Inquiry.
I would argue that, given the harms of homophobic, biphobic, transphobic and intersexphobic vilification outlined above, rather than recommending amendment to or repeal of sections 18C and 18D of the Racial Vilification Act 1975, the Committee should instead support the introduction of equivalent provisions in the Sex Discrimination Act 1984 to prohibit vilification against LGBTI Australians.
Recommendation 2: The Sex Discrimination Act 1984 should be amended to make vilification on the basis of sexual orientation, gender identity or intersex status unlawful. These provisions should be drafted on the same basis as existing prohibitions against racial vilification in the Racial Discrimination Act 1975.
Term of Reference 4: Whether the operation of the [Australian Human Rights] Commission should be otherwise reformed in order better to protect freedom of speech and, if so, what those reforms should be.
I would like to make one final point, related to the previous discussion, about the terms of reference to this inquiry, and the overall direction of anti-vilification reform in Australia.
Namely, there continues to be disproportionate focus on freedom of speech, with little attention paid to the potential harmful outcomes from unfettered or completely unregulated speech.
This ideological bent is already apparent in the term of reference highlighted above (focused on free speech and not its effects), but is revealed even more clearly by examining the paragraph in the Terms of Reference that follows:
“The Committee is asked, in particular, to consider the recommendations of the Australian Law Reform Commission in its Final Report on Traditional Rights and Freedoms – Encroachments by Commonwealth Laws [ALRC Report 129 – December 2015], in particular Chapter 4 – “Freedom of Speech”.
Turning to that Report, the relevant recommendation is found at 4.251 on page 126:
“The ALRC concludes that the following Commonwealth laws should be further reviewed to determine whether they unjustifiably limit freedom of speech:
- Pt IIA of the RDA, in conjunction with consideration of anti-vilification laws more generally.”
That last phrase – “in conjunction with consideration of anti-vilification laws more generally” – only fully makes sense when considered in the context of the preceding discussion in paragraphs 4.207 to 4.209 on page 119 of the Report:
“The ALRC has not established whether s 18C of the RDA has, in practice, caused unjustifiable interferences with freedom of speech. However, it appears that pt IIA of the RDA, of which s 18C forms a part, would benefit from more thorough review in relation to freedom of speech.
“In particular, there are arguments that s 18C lacks sufficient precision and clarity, and unjustifiably interferes with freedom of speech by extending to speech that is reasonably likely to ‘offend’. The provision appears broader than is required under international law to prohibit the advocacy of racial hatred and broader than similar laws in other jurisdictions, and may be susceptible to constitutional challenge.
“However, any such review should not take place in isolation. Stakeholders put forward arguments that people should also be protected from vilification on other grounds, including sex, sexual orientation and gender identity” (emphasis added).
In short, the Government asked the Australian Law Reform Commission to examine traditional rights and freedoms, including freedom of speech. The ALRC then considered sections 18C and 18D in detail, but was not in a position to determine whether or not these sections unjustifiably interfered with freedom of speech.
Instead, the ALRC recommended that this part of the Racial Discrimination Act 1975 be reviewed further – as part of a broader review of anti-vilification laws, including whether these protections should be extended to others grounds, such as sexual orientation and gender identity.
However, in establishing this Inquiry, the Government appears to have done the exact opposite: it has focused solely on the protection of freedom of speech, and not at all on the consequences of unfettered free speech, ignoring any possible need to introduce additional protected attributes in Commonwealth anti-vilification law.
Once again, I would urge the Committee – and through you, the Parliament – to consider the issue of whether LGBTI anti-vilification protections should be established in Commonwealth legislation, and in this way to give full effect to the recommendation of the ALRC.
Thank you again for the opportunity to provide this submission, and for taking it into account as part of the Committee’s deliberations.
Should you have any questions, or to request additional information, please do not hesitate to contact me at the contact details provided with this submission.
Friday 9 December 2016
[i] Please note here that, as stated in the introduction, I am not commenting on the processes that apply to complaint handling, which includes complaints with little or no substance, as well as the timelines involved in resolving complaints. Other individuals and/or organisations are better placed to make recommendations on those particular matters (although I suspect it may involve a combination of procedural changes, and increased funding for the Commission and Courts to enable the existing caseload to be dealt with in a more timely manner).
[ii] Victoria, Western Australia and South Australia have racial vilification laws but no LGBTI equivalent, while the Northern Territory has neither.
[iii] Star Observer, “Where’s the LGBTI Equivalent of Section 18C?” 19 May 2014.