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The undesirable outcome is aggravated by the fact that the present notion of ‘being offended’ is dangerously emotive. According to R Albert Mohler, ‘desperate straits are no longer required in order for an individual or group to claim the emotional status of offendedness. All that is required is often the vaguest notion of emotional distaste at what another has said, done, proposed, or presented’.37 Hence, Dr Mohler concludes: ‘Being offended does not necessarily involve any real harm but points instead to the fact that the mere presence of such an argument, image, or symbol evokes an emotional response of offendedness’.38 To make it worse, under section 18C judges are instructed to approach the conduct in question not by community standards but by the standards of the alleged victim group.39 Testing to the standard of the ‘reasonable victim’ lowers an already minimal harm threshold, adding further imprecision and uncertainty, increasing the section’s potential chilling effect on speech. Of course, this goes in line with the morally relativistic tendency to ‘minimise cultural differences’ as a way of ‘celebrating diversity’.40 In our view, however, the use of ordinary community standards is a more appropriate test to be applied in this context.
Although section 18D of the RDA provides for a range of exceptions to section 18C, with the overriding qualification that the acts in question must have been ‘said or done reasonably and in good faith’, the decision in Eatock v Bolt 41 provides a clear demonstration of the subjective nature of the existing defence. Hence, to reach the conclusion that
Mr Bolt’s conduct lacked ‘objective good faith’ Bromberg J relied upon:
A lack of care and diligence [as] demonstrated by the inclusion in the Newspaper Articles of the untruthful facts and the distortion of the truth which I have identified, together with the derisive tone, the provocative and inflammatory language and the inclusion of gratuitous asides.42 vi Dr Augusto Zimmermann is Senior Lecturer and former Associate Dean (Research) and Director of Postgraduate Studies at the School of Law at Murdoch University. Dr Zimmermann is also a Commissioner with the Law Reform Commission of Western Australia.
As can be seen, the existing qualifications of ‘reasonably and in good faith’ have become ‘ambiguous terms of art a judge could use to decide some speech on political, social, or cultural topics didn’t actually qualify for the exemption’.43 Without clear and defined legislative terms a judge may eventually exercise excessive judicial discretion. Any individual who favours the protection of freedom of speech ought to be sceptical of legislation that allows the judiciary to pass subjective judgement on the value, morality, or ethics of a particular statement.
When considering section 18D it is important to keep in mind that these are not, strictly speaking, ‘exceptions’ to acts that are otherwise unlawful. Rather, this section is itself a restriction on the right to freedom of expression. This point was made by French J in Bropho v Human Rights and Equal Opportunity Commission:44 Section 18D places certain classes of acts outside the reach of section 18C.... It is important however to avoid using a simplistic taxonomy to read down section 18D. The proscription in section 18C itself creates an exception to the general principle that people should enjoy freedom of speech and expression. That general principle is reflected in the recognition of that freedom as fundamental in a number of international instruments and in national constitutions. It has also long been recognised in the common law albeit subject to statutory and other exceptions.... Against that background section 18D may be seen as defining the limits of the proscription in section 18C and not as a free speech exception to it. It is appropriate therefore that section 18D be construed broadly rather than narrowly.
It is important also to consider that the constitutional validity of the existing sections 18C and 18D of the federal RDA have never been directly tested before the High Court.45 When the current provisions were originally introduced, the Bills Digest produced by the Parliamentary Research Library noted that the government appeared to rely on the external affairs power under section 51(xxix) to provide a constitutional source of power for the Bill.46 It expressly concluded that the provision that became section 18C was more vulnerable to constitutional challenge than other sections of the Racial Hatred Bill.47 Consequently, the reasons for amending the RDA are numerous.
Misconceptions The Prime Minister, in explaining his reasons for abandoning the amendments to the RDA, stated the changes would impact the government’s relationship with the Australian Muslim community. However, as noted above, the legislation has nothing to do with religious discrimination. Perhaps the Prime Minister is unaware that the proposed amendments could not be taken to promote any such behaviour. This is because the legislation simply does not address religious matters. The legislation exclusively concerns racial, and not religious, discrimination.
One must acknowledge the enormous harm that racial discrimination causes both to individual victims and the broader community; however, in a true democracy everyone must have the right to criticise religious ideas. The Prime Minister has mistakenly applied the same formula to religious beliefs as applied to racial issues. From a freedom of speech perspective this is problematic because religion, unlike race, is not an immutable genetic characteristic. One should expect the laws of democratic societies to be much less prepared to protect criticism of voluntary life choices, compared to unchangeable attributes of an individual’s birth.48 While people cannot choose the colour of their skin, religion – to some degree at least – is a matter of personal choice. Thus, open and free discourse about religious ideas ought to be encouraged and not discouraged.
In contrast to racial issues where one finds no ultimate questions of ‘true’ or ‘false’, religion involves ultimate claims to truth and error that are not mirrored in racial discourse.49 What is more, in a world where terrorism has become common, and where radicalised Muslims have expressed sympathy with terrorists, the ability of Western democracies to defend their own interests is weakened by hate speech laws that make citizens ill prepared to criticise or give warnings about the nature of religious beliefs, however well-based these warnings might be. This is the singular tragedy of hate speech laws that reduce free speech on some of the most fundamental issues of public morality.
Naturally, radical Islamists living in a Western democracy will discover different mechanisms to prevent people from ‘offending’ their radical beliefs. They will find in hate speech laws a suitable mechanism to strike fear and intimidation on the ‘enemies’ of their religion. Indeed, one of the greatest ironies of such laws is that their chief beneficiaries are a small but vocal group of religious fanatics, although it is not clear why such people should deserve statutory protection from ‘hate speech’.50 Surely some of their bigotry is rather repulsive and deserves our criticism.51 Yet, because of laws of this nature even the slightest criticism may result in a person being dragged into court and charged with ‘religious hatred’.
It is for this very reason that the RDA ought to be given more clarity from the federal government. The distinction between racial vilification, being the object of the RDA, and religious vilification needs to be clearly defined. To this end, the Prime Minister’s statements only evidence the misconceptions surrounding the legislation.
Benefits of free speech Free speech does not disadvantage minority groups, nor does it favour those with more power. On the contrary, freedom of speech is a core principle of every democratic society. It is important to remember that all totalitarian governments restrict speech as a matter of course.52 Democracy naturally implies that both good and bad ideas ought to be allowed and encouraged in the marketplace of ideas.53 Thus, under this democratic principle, religious debate ought to be encouraged. Free speech ensures that every individual within society has the capacity to voice their opinion. Arguably, this principle is essential to the functioning of a diverse society.
In contrast, political elites might feel tempted to limit and restrict free speech of the media, if such a restriction serves their narrow or self-serving interests. Those self-serving interests might well be ‘the retention and accumulation of power and the financial advantage it brings’.54 As Australian Human Rights Commissioner Tim Wilson remarked, ‘it makes a foolish assumption that free speech favours those with power. Anyone who has studied a skerrick of history knows that protecting free speech is about giving voice to the powerless against the majority and established interests’.55 Consequently, freedom of speech ought to be viewed as a mechanism against the concentration of power.
Naturally, absolute free speech under all circumstances can never be a possibility. There are easily demonstrable exceptions whereby reasonable limits to speech may provide greater service to freedom than open discourse.
Within the boundaries of speech that should enjoy some protection, certain limited categories of speech have lower value, most notably sexually explicit speech that falls short of obscenity.56 Further, direct acts of violence and direct attacks on the physical integrity of another person should not be protected. Speech can also be controlled to some degree in times of national crisis, such as in times of war.
If speech promoting subversion must be punished, as the current government intends under the new anti-terrorism legislation, then the danger has to be great enough and its occurrence proximately close. The test should require actual present danger that explicitly urges the commission of a particular crime. Such speech should only be punished if it poses some real threat to a considerable degree and in the not so distant future.57 Amongst the most controversial questions about free speech is the proper treatment of hate speech. This is indeed a core question when considering the RDA. Many insults use coarse language in a highly derogatory way. Such insults contain language that can be deeply offensive and so have a negative effect on public communication by endangering the civility of discourse. However, the civility of discourse does not constitute a sufficient basis for general restrictions on the matter through which the free exchange of ideas is expressed. A democratic government, as law professor Kent Greenawalt puts it, ‘may forbid uncivil remarks in formal settings like the courtroom, but expression in open public settings may not be curtailed on that basis’.58 It would be undemocratic, therefore, to argue that mere verbal insults should be punished as much as actual urgings of illegal violent action. In a democracy, citizens must have the right to choose the words that best reflect their personal feelings, and ‘strong words may better convey to listeners the intensity of feeling than more conventional language’.59 Above all, a democracy requires that people must be strong enough to tolerate robust expressions of disagreement and personal opposition. Accordingly, the government may even permit such things as a ban on some words on daytime radio, and regulate the location of the sex industry and brothels, but it should not sustain any general prohibition of all forms of speech simply because they are thought to be offensive.
Of course, there will likely always be individuals making bigoted statements amongst us. To this end, one must consider that this is the basic cost of living in a free society.60 However, the proposed amendments abandoned by the government on grounds of protecting national ‘unity’ (whilst moving to toughen the nation’s security laws to combat home-grown terrorism) cannot be taken to promote such behaviour, nor do they condone racism. The question, instead, is not whether Australians have the ‘right to be racists’ but rather whether they have the right to
sue each other for racism, and where the legal bar should be set – as was observed by Tim Wilson:
This isn’t a debate about whether racial vilification is socially acceptable or not. It’s about where the law sits.
And part of the problem is that it fuses the idea of social acceptability as speech and the law, when there should always be a reasonable separation between the two.61
Free Speech 2014 • Symposium papers • 19 2 Accommodating Rights (Session 1)
Racism must be confronted and defeated not by taking legal action against people, but by reasoned and open debate. As was famously noted by Brandeis J, ‘the remedy to be applied is more speech, not enforced silence’.62 Legislated silence won’t change the hearts and minds of racist individuals. Conversation and education are far more effective tools for the establishment of a tolerant and harmonious society than trying to ban racist speech.
This point was eloquently stated by Ron Merkel QC when considering the need for racial tolerance laws in