Changing Vilification Laws in Australia

Free speech has nothing to do with tolerating speech you like. Its foundation, ever so often, is based on speech you just might hate. Protecting the speaker, or at the very least avoiding shackling him, is a greater reflection of that society than showing the prison door. So far, many Australians prefer punishing opinions and controlling what others think.

In a free country, people do have rights to say things that other people find insulting or offensive or bigoted. George Brandis, Australian Attorney- General, Mar 24, 2014.

AUSTRALIA is in a tiff about freedom of speech. The occasion for this are proposed revisions to the Racial Discrimination Act 1975, a Commonwealth law that tends to focus on protecting victims of speech rather than its expressers. Simple reasoning suggests that the Abbott Government has taken the side of the the comment.”

of the race, colour or national or ethnic origin of the other person or some or all of the people in the group.”

Exemptions are allowed for performances, exhibitions or distributions of artistic work, or views expressed in the context of “genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest”. The statement made must be fair and accurate on the matter of public interest, or the comment made must be “an expression of a genuine belief held by the person making

populist Herald Sun columnist Andrew Bolt, who fell afoul of the RDA provisions, notably s. 18C, when he made his now noted remarks about white skinned Aboriginals. Australia’s Attorney-General, Senator George Brandis, is now attempting to repeal the section.

The section as it stands makes it “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

The wording of s. 18C is hardly exceptional. Countries allow for the punishment of errant words which can harm the dignity and reputation of a race or ethnicity. Holocaust denial lands you a prison sentence in France and Germany. Suggesting that the Armenian genocide was, in fact, genocide will do the same if you are fronting up to Turkish authorities. As noted by the Middle East Forum’s Legal Project, the initial intention of such laws, at least in Europe, was to guard against the anti-Semitic and racial propaganda that buttressed the Holocaust.

However, hate speech laws are now being used “to criminalize speech that is merely deemed insulting to one’s race, ethnicity, religion, or nationality.” Even such important documents as the European Convention on Human Rights stipulate that, while freedom of speech is a right of all, restrictions may be necessary “for the protection of the reputation and rights of others” or in the context of protecting “a democratic society”. The International Convention on the Elimination of All Forms of Religious Discrimination insists that signatories pass laws making “all dissemination of ideas based on racial superiority or hatred” a punishable offence. The International Covenant on about the “Islamisation of Europe” and subordination of women in Islam. Discussion, not all of it of a reprehensible quality, is being stymied; the Langballes are being used as excuses.

Bad ideas make bad people who end of manning death machines. That is the recurring theme for those who would like to see such provisions as s. 18C remains. The image of the Holocaust surfaced in the views of Australian former Labor cabinet minister Graham Richardson, who had an Auschwitz survivor on his mind in rejecting the view of the Attorney- General. “This woman suffered indignities, cruelty and deprivation that have been well documented.”

Civil and Political Rights similarly demands that states outlaw “any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence” (Art. 20).

One does not have to agree with the entire scope of the Forum’s focus, which has seen an attempt to protect such individuals as Geert Wilders from legal censure, to see problems with such laws. Religious groups are taking advantage of such provisions in targeting opinions deemed insulting. Legal suits are being mounted. One prominent example was the stripping of MP Jesper Langballe’s parliamentary immunity in June 2010 by the Danish Parliament. This enabled his prosecution under Article 266B of the Danish penal code for publishing articles

Such a premise is typical: you need to punish noxious opinions, because not doing so is bound to propel people to the gas chambers. The problem with such reasoning lies in what is being punished, and by whom.

The first point is important, as it stresses what is being punished. Much targeting of hate-speech lies in nabbing people, not ideas. The problem of doing so is that the boundary between repression and protection becomes a moot point. In taking that approach, the state becomes a police officer, jamming its opinions down the throat of those it disagrees with. The line between a police state and a liberal democratic state that hates some forms of speech blurs. Both operate on the same principle of punishing those with views contrary to their policies.

Then comes the issue of how to determine whether that opinion falls foul of the Racial Discrimination Act. Judges can tip toe around the line of what is desirable or not. The racial vilification case of Bolt serves as a classic on this. In going through the lengthy judgment of Eatock v Bolt, one wonders whether Justice Mordercai Bromberg of the Federal Court was punishing bad views, or simply bad journalism. In doing so, there was almost a sense that the Justice was evoking a line from the Danish philosopher, Søren Kirkegaard: people demand free speech to compensate for the freedom of thought they rarely use.

The current Labor opposition, not exactly very good on free speech issues, is keen to keep the policing provisions in place, arguing that the exemption provisions are more than adequate. This says as much about their stance, for free speech in the Australian context is often about what is acceptable rather than intolerable. The latter deserves punishment and censure; the former is allowed to sail through the regulators.

The immaturity of the polity, officials and the legislators on the subject has proven striking. The thin-lipped conformism that Australia is famous for seems to imply that views, even reprehensible ones, can’t be allowed to take root. That way lies doom.

Brandis is not exactly the Ritz guest on human rights. He is more the slumming type, the confidence man who would like to let you know he cares when he actually is only concerned about rubbing a focus group. The Australia of Tony Abbott is secretive about its policies, a hard Australia and one concerned with revising the code of rights. If you are in the surveillance business or the line of work that detains refugees, you have struck gold. But in terms of free speech, Brandis is right about his reservations: s.18C need shoring up. For that, he has been accused of drinking “the right-wing Kool- Aid”, which is the childish nonsense one has come to expect from those policing opinion.

Free speech has nothing to do with tolerating speech you like. Its foundation, ever so often, is based on speech you just might hate. Protecting the speaker, or at the very least avoiding shackling him, is a greater reflection of that society than showing the prison door. So far, many Australians prefer punishing opinions and controlling what others think. Any victory Brandis achieves is bound to be temporary. Down under, the thought police remain strong.

Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne.