Who can say what to whom in Australia? In this six-part series, we look at the complex idea of freedom of speech, who gets to exercise it and whether it is being curtailed in public debate.
Recent discussion about freedom of speech in Australia has focused almost exclusively on Section 18C of the Racial Discrimination Act. For some politicians and commentators, 18C is the greatest challenge to freedom of speech in Australia and the reform or repeal of this section will reinstate freedom of speech.
There are many challenges to freedom of speech in Australia beyond 18C, for example defamation law. Defamation law applies to all speech, whereas 18C applies only to speech relating to race, colour or national or ethnic origin.
The pervasive application of defamation law to all communication creates real risks of liability for publishers. Large media companies are used to managing those risks. But defamation law applies to all publishers, large and small. Now, through social media, private individuals can become publishers on a large scale.
A significant reason that defamation law poses a risk to free speech is that it is relatively easy to sue for defamation and relatively difficult to defend such a claim. All a plaintiff will need to demonstrate is that the defendant published material that identified the plaintiff, directly or indirectly, and that it was disparaging of their reputation.
In many cases, proving publication and identification is straightforward, so the only real issue is whether what has been published is disparaging of the person’s reputation. Once this has been established, the law presumes the plaintiff’s reputation has been damaged and that what has been published is false.
It is then for the publisher to establish a defence. The publisher may prove that what has been published is substantially accurate, or may claim that it is fair comment or honest opinion (but the comment or opinion must be based on accurately stated facts), or may be privileged. Truth, comment and privilege are the major defences to defamation.
One of the main criticisms of 18C is that it inhibits people from speaking freely about issues touching on race. In essence, this criticism is that 18C “chills” speech.
The ability of the law to inhibit or “chill” speech is not unique to 18C. The “chilling effect” of defamation law is well-known. Precisely because it is easier to sue, than to be sued, for defamation, the “chilling effect” of defamation law is significant.
Defamation claims based on social media publications by private individuals are increasingly being litigated in Australia. In 2013, a man was ordered to pay A$105,000 damages to a music teacher at his former school over a series of defamatory tweets and Facebook posts. In 2014, four men were ordered to pay combined damages of $340,000 to a fellow poker player, arising out of allegations of theft made in Facebook posts. In the former case, judge Elkaim emphasised that:
… when defamatory publications are made on social media it is common knowledge that they spread. They are spread easily by the simple manipulation of mobile phones and computers. Their evil lies in the grapevine effect that stems from the use of this type of communication.
More defamation cases arising out of social media can be anticipated. Indeed, the cases that make it to court represent only a fraction of the concerns about defamatory publications on social media. Many cases settle before they reach court and still more are resolved by correspondence before any claim is even commenced in court.
There are several ways in which defamation law might be reformed in Australia that could promote freedom of speech, particularly for everyday communication.
Currently, plaintiffs suing for defamation in Australia do not have to demonstrate that they suffered a minimum level of harm at the outset of their claims. Publication to one other person is sufficient for a claim in defamation, and damage to reputation is presumed. Defamation law is arguably engaged at too low a level in Australia.
English courts have developed two doctrines to deal with low-level defamation claims. It is worth considering whether these should be adopted in Australia.
The first is the principle of proportionality. This allows a defamation claim to be stayed where the cost of the matter making its way through the court would be grossly disproportionate to clearing the plaintiff’s reputation. A court would view such a claim as an abuse of process.
There has been some judicial support for this principle in Australia, most notably Justice McCallum in Bleyer v Google Inc, but there has also been judicial criticism and resistance.
The other English development is the requirement that a plaintiff prove a level of serious or substantial harm to reputation before being allowed to litigate.
Australian law does have a defence of triviality, but it is difficult to establish because of the terms of the legislation. It also only applies after the plaintiff has established the defendant’s liability. By contrast, the threshold requirement of serious or substantial harm can stop trivial defamation claims before they start.
Another way in which the balance between the protection of reputation and freedom of speech online could be effectively recalibrated is by developing alternative remedies for defamation.
Notwithstanding previous attempts at defamation law reform, it remains the case that an award of damages is still the principal remedy for defamation. Yet people who have had their reputations damaged would probably prefer a swift correction or retraction, or to have the material taken down, or have a right of reply, than commencing a claim for damages.
Currently, people can negotiate these remedies by threatening to sue, or suing, and hoping they can secure these remedies as part of a settlement. Australian law has no effective small claims dispute resolution system for defamation in the way that it does for other small claims, such as debts. More effective and more accessible remedies are another aspect of defamation law reform worth exploring.
The discussion about freedom of speech in Australia recently has been unduly narrow. Every Australian has an interest in freedom of speech, not only about issues of race. Every Australian also has an interest in the protection of their reputation.
It is time to widen the focus of the treatment of free speech under Australian law. Defamation law is an obvious area in need of reform on this front.
Dr Tim Soutphommasane, Australia's Race Discrimination Commissioner, delivered the 2014 Alice Tay Lecture on Law and Human Rights at Australian National University on Monday, 3 March 2014.
I must begin by acknowledging and paying my respects to the memory of Professor Alice Tay. I never met Professor Tay, but she remains fondly remembered by the Australian Human Rights Commission, an institution she headed when it was still known as the Human Rights and Equal Opportunity Commission. Her legacy as a scholar and advocate continues to illuminate the practice of human rights and its relationship with the law. This is true of those matters to which Herbert and Valmae Freilich dedicated their Foundation.
In an address she gave in 1998, Professor Tay reminded us that "the very notion of cultural diversity is clearly linked to the issue of human rights, such as the right to liberty and equality." Support for diversity, she said, was based on the ideal of a pluralist society. Such an ideal encompassed not only the composition of its people, but also its values, traditions and institutions.
This abstract understanding of cultural diversity and human rights was typical of the Professor's style, one noted for its theoretical bent. In her writings, she frequently collaborated with her husband Eugene Kamenka, a political philosopher. Professor Tay believed that the truest scholarship existed on a certain plane that sat well above mere analysis. "There is a difference," she once explained, "between conceptualisation and analysis." But conceptualisation was the basis of analysis. The task of analysis - making distinctions between whether facts fit certain principles - fundamentally stands on concepts.
I would like here to accept this conceptual challenge - to outline the concepts that shape our understanding of freedom and cultural diversity. What must freedom mean in a multicultural society? What, for instance, should be the proper limits of free speech consistent with racial tolerance? And what must freedom involve if it is to be enjoyed by all the members of our society, and not just some?
These are not idle questions. As you would be aware, there has been much public debate about the Racial Discrimination Act and its provisions under Part IIA concerning racial hatred. The Federal Attorney-General has made clear his intention to make significant amendments to Section 18C of the Act. Segments of the political commentariat have suggested that at stake is the freedom of Australians to have the sort of open and robust debate that is central to a liberal democracy.
In my view, there has been too much heat and not enough light on these matters. Unfortunately, there is considerable misunderstanding of how the vilification provisions of the Racial Discrimination Act operate. And unfortunately there remains a great deal of confusion about the liberal concept of freedom - a concept that is at risk of being debased by ideological polemic and uninformed sloganeering. If analysis and debate do stand on our concepts, then perhaps we should not be surprised by these features of the current debate. Perhaps we need to do more to clarify our philosophical concepts.
The concept of freedom
The focus of this lecture is on two freedoms - freedom of expression and freedom from racial vilification. But I should like to say something first about the basic concept of freedom.
When I was a post-graduate student in political theory at the University of Oxford, the first topic which we were taught was that of liberty or freedom. This was how it was done in Oxford. The first tutorial for students of political theory - and, indeed, of philosophy, politics and economics at the undergraduate level - would inevitably be about liberty.
One can understand why that was, and is, the case. Freedom is foundational to any discussion of the good life, the good society and the role of the state. Yet there is also an epigrammatic quality to discussions about freedom that is conducive to intellectual stimulation. Every Michaelmas Term in the autumn, familiar debates would resonate around the sandstone quads of Oxford's colleges. Is the tramp free to dine at the Ritz? Are rich and poor equally free to sleep under bridges? Is one truly free if one is not also autonomous? Can one be forced to be free, if one is held back by one's own will?
Much of the conversation about freedom continues to be shaped by the work of Isaiah Berlin. In his lecture on "Two Concepts of Liberty," Berlin made his famous distinction between negative and positive freedom. Believing that the use of the words "liberty" and "freedom" had become so expansive that they were becoming meaningless, Berlin sought to limit it only to what he called its negative conception. Negative liberty meant that one enjoyed freedom when one is free from interference from others. To be free was to have an absence of constraint or coercion imposed by another human being.
If negative liberty meant "freedom from," positive liberty meant "freedom to." Freedom, according to the positive conception, was derived from an aspiration to self-mastery. It was not enough to be free from external interference; to be free in its truest sense involved something more internal to an individual. It meant living according to the purposes set by one's own conscience and reason.
Historically speaking, there was understandable appeal to Berlin's distinction. It provided some clarity to the meaning of freedom. It also possessed a powerful ideological force. Berlin's resistance to the positive conception reflected his concern that it could provide a conceptual foundation for a totalitarian form of politics (let us remember, of course, that Berlin delivered his "Two Concepts of Liberty" lecture in 1958, during the Cold War). According to Berlin, the trouble with positive liberty was that it posited a higher or ideal self as the true end of freedom. If, however, this higher self were to be conceived as something larger than the individual - as, say, a race, a Church or a State - freedom could easily become a term of oppression. It would become possible for one to be coerced by another, and for that to be justified as necessary for one to be "truly free."
Philosophical insights can, over time, lose some of their original nuance or complexity. In the case of Berlin's two conceptions of liberty, too many have cited it as a definitive exposition on the nature of freedom; as a philosophical demonstration that freedom means only freedom from interference; and as an unimpeachable judgment that any positive theory of freedom must be a morally flawed, collectivist doctrine of control. The resulting portrait of positive liberty has often turned into a caricature.
Canadian philosopher Charles Taylor - a successor to Berlin's Oxford chair in social and political theory - has explained the deficiency of the Berlinian view. The problem is that it rules out of court much of the modern understanding of freedom, which regards freedom as fundamentally concerned with individual autonomy and self-realisation. This goes against how many of us understand the concept of freedom as involving an "exercise-concept." Freedom is something that we exercise so as to determine the direction of our lives. By implication, this is a view that leaves room for the possibility that one can experience inner constraints on freedom, as well as coercion from others.
This is, however, something that a negative conception of freedom cannot contemplate. As Berlin saw it, freedom is properly understood as an "opportunity-concept." All that matters, on the negative view, is that one can do something in the absence of an obstacle imposed by someone else. Is the tramp free to dine the Ritz? The negative view would say that, yes, he is - even if it is of no value to him; even if it is a freedom that he will be unable to exercise.
The trouble is this. The Berlinian interpretation can mean that freedom is divorced from human desires, motives or purposes. Freedom is defined simply as an absence of external obstacles. Yet this allows little room for making qualitative judgments about obstacles. We may, for example, say that the insistence of the state that we must wear seatbelts in cars involves a diminution of our freedom. But in that case, the infringement is trivial: it does not deprive us of our freedom of movement; the only real price is that it may impose some aesthetic nuisance or trifling discomfort. Contrast this with, say, a law that restricts people from joining certain associations. In that case, surely, we could all agree that there is a more significant infringement of freedom, one which may affect people's ability to realise some of their important purposes.
In any discussion of freedom, there will always be some "background conception" of significance. We make unavoidable, discriminating judgments about the extent to which something is a significant restriction on one's freedom. This is only natural. Freedom does not exist in a moral vacuum. Its exercise is bound up in our understanding of dignity, individuality and happiness. This is not to say that it is identical with these concepts. Rather, as Taylor writes, it is only to affirm that "freedom is important to us because we are purposive beings." But as such, we will value different kinds of freedom based on the significance of the purposes to which they are attached.
Of freedom, we can say this. It is difficult, if not foolish, to reduce a discussion of it to any simple formula. It is not a one-dimensional concept. And yet, the cult of Sir Isaiah can often lead people to believe that freedom can be defined exhaustively through a negative conception. Surely it is possible for us to speak about freedom to as well as freedom from; to speak of freedom as something people exercise and not merely as an opportunity; to speak of people being held back from being fully free by inner as well as outer obstacles. Surely, it is possible for us to do all this without lapsing into the monstrous totalitarianism against which Berlin rightly cautioned.
Freedom of expression
That we need to draw upon both negative and positive conceptions of freedom becomes clear when we examine the liberal justifications behind freedom of expression.
The typical defence of free speech follows a predictable line. More frequently than not, it begins with a rehearsal of Voltaire: "I may disagree with what you say, but I will defend to the death your right to say it." Never mind that the great philosophe never uttered these words. Rather, they came from a 1906 book written by E. Beatrice Hall about Voltaire and his friends, and her fictionalized account of how Voltaire responded to the burning of a friend's book. Perhaps if the spirit of Voltaire could speak, he would say, "I may disagree with what you quote me as saying, but I will defend even in death your right to misquote me."
In substance, the case for free speech appears in the first instance to rest on a certain negative conception of freedom. Consider the arguments in the United States about a constitutional guarantee of free speech. I refer to the American experience, since the legal and political culture that has developed around the First Amendment provides the paradigmatic model for an absolutist defence of free speech.
The words of the First Amendment state that "Congress shall make no law ... abridging the freedom of speech, or the freedom of the press." But it was not until the twentieth century that it would be interpreted as offering a strong guarantee of free speech. In the earliest days of the American Republic, for example, Congress had passed a Sedition Act making it an offence to bring the president or Congress into disrepute or "to excite against them ... the hatred of the good people of the United States." Even as late as 1952, the Supreme Court declined to overturn a fine imposed on the president of the White Circle League of America concerning racist leaflets he had been distributing on Chicago streets urging people to "protect the white race from being mongrelised" by the negro.
The reinterpretation of the First Amendment would only come in the years following the First World War, with the various judgments of Oliver Wendell Holmes, Jr. and Louis Brandeis. According to Holmes's dictum, the key principle of the Constitution is "not free thought for those who agree with us but freedom for the thought of those we hate." The best test of ideas lies in "the competition of the market," where their truth can be scrutinized and ultimately judged. The only restriction that a state is justified in imposing upon speech is when it can create "a clear and present danger." Such sentiments would find an additional authority in Louis Brandeis, for whom, "Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." Where there is speech that rehearses noxious doctrine, Brandeis believed that society should avert the evil by exposing falsehoods and fallacies through discussion. Bad speech, as it were, can be remedied by more speech - that is to say, by good speech.
With its lineage in the liberalism of Holmes and Brandeis, the First Amendment-inspired defence of free speech involves three animating thoughts:
- that we must tolerate the expression of all nasty ideas, though not necessarily all dangerous actions;
- that there is some sphere within which individuals must be free to pursue their thoughts, without interference from government regulation; and
- that the best weapon for combating bad ideas is the persuasive power of good ideas.
In more philosophical terms, much of this has its roots in the arguments of John Stuart Mill. As Mill stated in his famous essay On Liberty, there ought to be the fullest liberty in discussing any doctrine, however immoral it may be: "If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind." For Mill, we should not suppress an opinion because we may be mistaken about the truth. We can have no assurance that we were right about our opinions unless we have the liberty to discuss it: any opinion arrived at through other means will be held as a "dead dogma," not as "a living truth."
As I have said, at first glance, this appears to rehearse something approximating a negative conception of freedom. It seems to emphasise the importance of leaving individuals free from interference from state regulation of thought and speech. Certainly, those who identify as "classical liberals" would regard Berlin, Mill, Holmes and Brandeis as kindred spirits on the matter of free speech. Yet it is worth delving deeper into the philosophical basis of their arguments.
It is interesting that Holmes, for example, was one who appeared to find a certain glory in the idea of contest and battle. The competition of the marketplace may be harsh, but Holmes appeared to believe in the strenuous life. According to John Peters, "As a Malthusian, decorated veteran, scientific naturalist, closet eugenicist, friend of laissez-faire economics, and consummate professional, Holmes is a prime candidate for the prize of brutal necessitarian."
Brandeis, meanwhile, had the perspective of a Romantic liberal progressive. In his interpretation of the First Amendment and the philosophy he believed it embodied, Brandeis argued that the American Founding Fathers "believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary." In line with the progressive thought of the time, Brandeis saw the role of the state as being to empower individuals in their mission of self-realisation though the democratic process.
There was much in Holmes and Brandeis that was also shared by Mill. Like Holmes, Mill valued rigorous contest and rancorous controversy. But he did so because he believed conflict serves as "an aid to the intelligent and living apprehension of a truth." In this respect, Mill was more alike to Brandeis than to Holmes - he was a Romantic liberal, rather than a "brutal necessitarian." For him, freedom of expression mattered not just because it enabled the discovery of truth. It ultimately mattered because it was necessary for people to develop their individuality.
The classic defence of free speech is not, then, a simple argument about negative freedom. With its resort to notions of individuality and self-realisation, what we see is clearly an argument that draws upon a positive conception of freedom. Moreover, ideas about the free exchange of ideas as constitutive of a democratic polity point to certain assumptions about the value of collective self-determination - assumptions that have more in sympathy with a positive conception of freedom than they do with a negative one.
Freedom from racial vilification
Let me turn now to that second freedom - a freedom from racial vilification. Some may quibble that it does not make perfect sense to speak in such terms. When one thinks of freedom, one may typically have in mind things such as freedom of conscience, freedom of expression, freedom of assembly, freedom of association. Some may say that one may refer to a right to be protected from racial discrimination and harassment, but that this strictly does not mean a freedom from racial vilification.
I do not intend here to offer a comprehensive discussion of the relationship between rights and freedoms. By speaking in terms of a freedom from racial vilification, I simply wish to highlight one thing: any right to protection from such behaviour has at its heart a concern with the fundamental interest of freedom. When racial vilification occurs, those who are subject to the abuse and harassment can have a diminished enjoyment of their individual freedom.
Admittedly, it is more common to refer to the harms of racial abuse. There is now a considerable volume of research that highlights the serious health effects racism can have on individuals. The stress of racial abuse can trigger physiological symptoms such as fear in the gut, rapid pulse rate, difficulty in breathing. Repeated exposure to it can undoubtedly contribute to conditions such as hypertension, nightmares, post-traumatic stress disorder, even psychosis and suicide.
Racist speech can also cause more insidious harm. In a modern society, our identity - our sense not only of who we are, but also of our worth and dignity - is something that is shaped by its recognition by those around us. Where society mirrors back to someone a demeaning or contemptible picture of themselves, this can inflict profound harm. Again, the psychological harms caused by racial insults are well-documented. As described by one study of race during the 1940s, a rebuff due to one's colour puts the victim "in very much the situation of the very ugly person or one suffering from a loathsome disease." Those on the receiving end of abuse can feel more than just anger or indignation; there is also the humiliation, self-reproach and even self-loathing. Victims of racial abuse, no matter how much they resist it, can themselves begin to absorb the messages of hate and inferiority. And when the messages are pervasive, even those well-meaning members of society who are not the targets can begin to entertain the idea that "those people" - whomever they may be - are not worthy of our trust and respect.
Those who are unfamiliar with the wounding power of racism may dismiss this as superficial complaints about words. There remains what I call the "thick-skin brigade" - those who would declare, "Sticks and bones may break my bones, but words can never hurt me." This is the brigade that believes the only racism that warrants our public attention is the kind that involves physical violence; that believes racial vilification is at best an ersatz racism that troubles only effeminate citizens concerned with inconsequential feelings. Members of the "thick-skin brigade" belong to the Middle Ages, to a time when the law was indeed confined to offering remedies only for physical interference with life and property; when the law only recognized that liberty only meant a protection from battery, when property would still be referred to as land and chattels.
Here, it is interesting to note the writings of the younger Louis Brandeis, to whom I referred earlier. Long before he became a Justice of the United States Supreme Court, he co-wrote a celebrated article with Samuel Warren, entitled "The Right to Privacy." Writing on that topic, Warren and Brandeis provide a revealing statement about the law's development in recognizing our spiritual nature:
"This development of the law was inevitable. The intense intellectual and emotional life, and the heightening of sensations which came with the advance of civilization, made it clear to men that only a part of the pain, pleasure, and profit of life lay in physical things."
So much for sticks and stones. And this was in the 1890s.
Returning to the psychological harm of racist abuse, there is a heavy price to freedom that is imposed on victims. Let us attempt to put something of a human face on what racial vilification can feel like.
A few years ago, in developing the National Anti-Racism Strategy, the Australian Human Rights Commission conducted a consultation involving a survey of Australians' perceptions and experiences of racism. It was commonplace for many respondents to reflect on how sad and angry the experience of racism made them feel, and how racism diminished their sense of worth. One respondent said, "[i]t makes me feel like I am a lesser human being." Another mentioned its impact on emotions and health: "I feel so much revulsion that I sometimes feel physically ill. It is a major contributor to the anxiety I experience in everyday life." Some were more explicit about the injury that racism inflicted on their freedom. One respondent, a male from China in his late thirties, said, "I came to Australia for freedom. However, racism makes me feel my liberty is incomplete."
Other respondents highlighted how racism had the effect of intimidating or inhibiting them. As described by one person, "I feel like I am being treated as a second class citizen. I cannot speak up against any unfair treatment in the workplace." "Racism," said one man of African-American background, "makes me feel like I have to always be cognizant of what I say," in case he were to encounter bigotry. Many others also described how racism made them feel unsafe, especially at night or in public places.
Such testimony demonstrates the impact that racism has on freedom - on how Australians enjoy their freedom to live their lives on a daily basis. There is the impact that racism can have on someone's self-perception. Where people begin to accept a picture of their own inferiority, this can get in the way of them exercising their freedom, in the positive sense. It is difficult to see how can someone reach their potential, or be truly self-determining individuals, if they constantly second-guess themselves or if they feel constantly without power or hope. And insofar as those who dispense with racist abuse can intimidate others, it is open to consider them as interfering with others' freedom, in the negative sense. If those on the receiving end are no longer moving in certain circles because of fear, it must surely follow that their realm of non-interference has been violated.
If we do not always make the connection between racism and its curtailment of freedom, it is because we are more likely to regard the harm as one involving dignity. Racism reduces the standing of another to that of a second-class citizen. But dignity is also connected to freedom; freedom, after all, is never something that we enjoy in a vacuum. Where there is an injury to dignity, there is an impact as well on the capacity to exercise freedom. In the case of racism, the experience undermines the assurance of security to which every member of a good society is entitled - the sense of confidence that everyone will be treated fairly and justly, and that everyone can walk down the street and conduct their business, without fear of abuse or assault.
The Racial Discrimination Act
Let us turn to the interaction between freedom of expression and freedom from racial vilification. From the perspective of international human rights law, Article 19 of the International Covenant on Civil and Political Rights (ICCPR) states, "[e]veryone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds." Article 19 also recognizes that freedom of expression is not absolute: it "carries with it special duties and responsibilities," and "may therefore be subject to certain restrictions." It is well-established in human rights law that there is a right to be protected from racial vilification. Some of those who enthusiastically cite Article 19 blithely ignore Article 20, which states that, "[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law."
Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) also requires State Parties to criminalize all dissemination of ideas based on racial superiority or hatred and incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any racial or ethnic groups.
Australia has ratified both treaties. Through Part IIA of the Racial Discrimination Act, introduced in 1995 as a civil prohibition of racial vilification, Commonwealth law has sought to give effect to CERD (although it should be noted that Australia continues to have in place a reservation in place concerning the criminalization of racial hatred and incitement). It has been found that Part IIA involves a permissible limitation in light of an implied constitutional right of freedom of political communication; that the enactment is a reasonable, necessary and proportionate means for pursuing the interest of racial tolerance and social cohesion in a multicultural society.
The history behind Australia's racial vilification laws is not well-known. It was sustained concern about racist violence that preceded the introduction of racial vilification provisions. In response to a series of violent attacks against migrant communities during the late 1980s, the then Race Discrimination Commissioner Irene Moss conducted the National Inquiry into Racist Violence. The final report in 1991 found that, "Physical violence is not the only, or even in some cases the most important, form of racist violence. The physical effects of violence often cause less damage to the individual victim than the psychological effects." The Inquiry recommended that the Racial Discrimination Act be amended to include civil remedies for racist harassment and incitement to racial hostility.
Two other major reports in the late 1980s and early 1990s made similar recommendations. The Royal Commission into Aboriginal Deaths in Custody recommended the introduction of legislation to "proscribe racial vilification and to provide a conciliation mechanism for dealing with complaints of racial vilification." The Royal Commission stressed that such legislation would recognise "the important fact that language itself can be a form of violence." Similarly, the Australian Law Reform Commission's Multiculturalism and the Law report, tabled in 1992, supported making incitement to racist hatred unlawful, though it stopped short of recommending that it should be made a criminal offence. The Australian Law Reform Commission recommended that the law be amended to include a conciliation process for complaints about racial hatred, backed up by civil remedies when conciliation fails.
The current federal racial vilification provisions were introduced to Parliament through the Racial Hatred Bill 1994 (Cth). In his second reading speech, the then Attorney General highlighted the causal nexus between racial vilification and racist violence: racist violence begins with threats of violence and a milieu of hatred and intolerance. It was in the public interest to counter this, while also being attentive to the matter of free speech.
Part IIA of the Racial Discrimination Act - the final result of the Racial Hatred Bill - includes sections 18C and 18D. Section 18C states that it is unlawful to commit a public act that is reasonably likely to "offend, insult, humiliate or intimidate" someone on the grounds of race (language drawn from the sexual harassment provisions of the Sex Discrimination Act). Section 18C is accompanied by Section 18D, which ensures that artistic works, scientific debate and fair comment on and fair reporting of a matter of public interest are exempt from being in breach of Section 18C - provided that something has been done reasonably and in good faith. As it stands, Part IIA provides only a civil prohibition of racial vilification; it gives force to no criminal sanction against racial hatred and incitement.
Central to the current racial vilification provisions, then, is the conciliation process that exists for complaints made about racial discrimination. The emphasis of the legislative provision against racial vilification is to bring parties to a complaint together to discuss the matter and arrive at an agreed resolution of the complaint. This educative and civil quality of Part IIA is frequently overlooked.
For example, it is commonly assumed that breaching Section 18C results in a prosecution or criminal penalty. No one, of course, can be prosecuted for a crime under the Racial Discrimination Act, or convicted for racial vilification under Commonwealth law. In most cases, litigation does not even occur: last financial year, of the 192 complaints concerning racial hatred, only five (or 3%) ended up in court. This is because any complaint involving racial vilification must be made to the Commission in the first instance, where the Commission will attempt to resolve the matter between the parties (which we do at no cost, and do successfully in the majority of cases). Only if the complaint is not resolved through conciliation, may the complainant can apply for the allegations to be heard and determined by the Federal Court of Australia or Federal Circuit Court of Australia.
As to the jurisprudence around Part IIA, for almost twenty years Section 18C has been interpreted by the courts in a consistent manner. Contrary to what many of its critics say, the section does not make it unlawful merely to offend or insult someone. Much of the misunderstanding stems from the debate concerning the Human Rights and Anti-Discrimination Bill, which sought to consolidate existing anti-discrimination legislation. Section 19(2) of that proposed legislation made it unlawful to offend and insult another person based on one of 18 protected attributes.
Returning to the consolidation bill debate is deeply unhelpful in the current context involving Section 18C. First, the section does not concern itself with speech that might offend or insult anyone - it must offend, insult, humiliate or intimidate someone on the basis of race. Second, the section does not involve a subjective test of hurt feelings or injured sensibilities. The courts have emphasized that the legislation states that an act is only unlawful if it is proven reasonably likely, in all the circumstances, to cause harm involving "profound and series effects" - "mere slights" are not enough to be a breach of the law. This is given further weight by the fact that the courts have regarded the words "offend, insult, humiliate or intimidate" as a collective.
The courts have also made clear that Section 18C must be read alongside Section 18D. The interpretation of the exemptions afforded by the latter has been very broad. Section 18D has in effect trumped Section 18C on numerous occasions. The courts have held it to exempt a comedic performance of someone pretending to be an Aboriginal person who swears and drinks as an "artistic work." The contents of a book that was critical of the supposedly favourable treatment of the Aboriginal community by governments and courts were also regarded as "done reasonably and in good faith for a genuine purpose in the public interest." In such cases, it wasn't enough for a complainant to say they were offended and insulted, even on the basis of race.
There is an obvious importance to remembering the history behind Part IIA of the Racial Discrimination Act, and the manner in which the law actually operates, in light of current calls for the repeal or substantial amendment of Section 18C. The impression one gets from much of the public commentary is that the law is too invasive of free speech, that it serves to protect hurt feelings, that there is no genuine public interest that justifies its existence. While a society must always be free to revisit debates, it should not do so with an incorrect understanding of the issues; protagonists should not distort the law to suit their purposes. Nor should a society be so hubristic as to believe that the social ills of old have been cured. The virus of racism has been aggravated by developments such as the internet. For all the progress that has been made in changing cultural attitudes and social behaviour, we should still inoculate ourselves against bigotry and discrimination.
Let me be clear about where I stand about the current state of the law. My position is that the Racial Discrimination Act has worked as it was intended to work. It provides a civil and educative remedy for racial discrimination. It protects Australians from the pernicious harms of racial abuse and harassment. It is only right that a liberal democratic society has in place strong and effective legislative protections against racial vilification.
If there is to be a change to the existing law, there should be a compelling case for change. The danger of removing legislation that has been in place for almost two decades, of dismantling an important part of the Racial Discrimination Act that has largely enjoyed community support, is that it can licence racial hatred. It may encourage people to think there is no harm in dealing out racial vilification. It may condone hate speech that diminishes the freedom of others. It may unleash a darker, even violent, side of our humanity, which revels in the humiliation of the vulnerable. It may, in short, encourage freedom without responsibility.
This is by no means speculative. Over the years, a significant body of psychological research has developed, which indicates that those who engage in public acts of racist abuse and harassment do so believing that the majority of those around them share their views. This is one reason, for example, why initiatives such as the Racism. It Stops with Me campaign have sought to encourage people to speak out against racism when they see it occurring. We now know that where people remain silent, this can have the undesirable effect of emboldening those who gain a sense of power from abusing and harassing others. Given such knowledge, we should contemplate very seriously what the effects may be if our federal laws were to remain silent about racial vilification. Any legislative change can potentially change the tone of society.
There are, of course, some who argue that, however abhorrent racial vilification may be, it would be better to leave things to the marketplace of ideas. Let good speech override bad speech - let there be an open contest and put our faith in the goodness of our fellow citizens. If one is to be subjected to hate speech, one should be free to exercise one's own speech to counter it. As Richard King has put it in his recent book On Offence, a state that seeks to protect its citizens against hate speech runs the risk of "infantilising those citizens [and] undermining their dignity, by assuming that they can't stick up for themselves."
There is in such arguments a certain naive optimism. One is reminded of Dr Pangloss in Candide, for whom all evil and misfortune have a purpose and necessity, even if we may be unable to discern them. As Pangloss put it to young Candide, "all this is for the best ... it is impossible that things should not be as they are, for all is well." For our latter-day Panglossian free speech absolutists, it seems enough to say to those on the receiving end of racial abuse that this is how it will always be, and that there may be a virtue in copping abuse, even if you don't know why. Indeed, as one perceptive scholar has observed, there is frequently an element of homeopathic machismo in some liberal defences of absolutist free speech. Let us imbibe the poison of racial hatred in small doses so that large draughts will not hurt; let us see racism first hand so that can lift us to heights of tolerance and enlightenment.
Any debate on this matter should never be divorced from reality. It is one thing to celebrate the ugly contest of speech as a speculative matter. Those who laud the ethos of homeopathic machismo may well have a point if the only relevant perspective is that of the impartial spectator. For the stranger who is fortunate enough to remain insulated from racial vilification and to live in a social world free of violence - let us call him Barry - there may well be a benefit in coming across an ugly incident of racism. Barry may be shocked by what he saw. He may, for the first time, realise the confronting nature of racism. He may leave with a new appreciation of the harms that it causes. Who knows - maybe Barry may leave with a newfound sense of indignation about racism and become an advocate for racial tolerance. Yet from the perspective of someone who is the target of racial abuse, there is little that is edifying about the experience. It is not clear to me, at least, how someone who has been called a "coon" or "boong" or "gook" or "chink" or "curry muncher" or "sandnigger" should be grateful to a bigot for giving them the opportunity to improve their soul. It seems perverse to say that we must all tolerate hate, when not everyone has to bear the burden of tolerance in the same way.
As for fighting bad speech with good speech, that can be an easy thing to prescribe if one were an articulate and well-educated professional or someone accustomed to enjoying the privilege of social power. But the marketplace of ideas can be distorted; it is not an arena of perfect competition, as economists might put it. We cannot realistically expect that the speech of the strong can be countered by the speech of the weak. It is interesting that in the Australian Human Rights Commissions' consultations, which I mentioned earlier, respondents indicated that one impact of racism was precisely that it made them feel less free to speak. As one respondent said, "[r]acism makes me feel intimidated [and] curtails my freedom." Another said, "I cannot exercise my basic human rights in freedom of speech, opinions and expressions." If such testimony is any indication, racism can have a profound effect in silencing its targets, and in debilitating their ability to enjoy freedom of expression.
Finally, the idea that any restriction of speech is demeaning, even to those it aims to protect, does not stand up to scrutiny. In the current debate about the Racial Discrimination Act, numerous communities have spoken out against any change to existing legislation. Organisations such as the National Congress of Australia's First Peoples, the Executive Council of Australian Jewry, the Chinese Australian Forum, the Australian Hellenic Council, the Arab Australia Council, the Armenian National Committee of Australia have all made clear their view that, "[t]he Racial Discrimination Act is one of Australia's most iconic pieces of legislation," and that "[v]ilifying entire groups of people because of their race has nothing to do with free speech."
To the views put forward by those who believe any restrictions on speech can demean and offend the dignity of those whom we desire to protect from harm, we may question what is more likely to amount to infantilizing our fellow citizens. Is it to have protections against hate speech? Or is it to tell some communities that, in spite of what they say, that we may know better what is in their interests? There is, in my view, something deeply patronising in telling some communities they do not know it is their interests to be subject to abuse and to enjoy lesser protections under the law.
A proportionate debate
No freedom can be absolute. Nor can there be a hierarchy of freedoms. Freedom of expression, fundamental though it is to a liberal democracy, is not absolute. And a right to free speech does not always trump other competing rights. This is the messy, practical business of human rights: often there will need to be a balancing act between rights and interests.
On the matter of free speech, however, it is said that any such freedom would be worthless if it did not include the freedom to offend and insult. There is no right against being offended or insulted. This point I do not dispute. As should be clear from my remarks, where freedom of speech may impinge upon freedom from racial vilification, the concern is not about sensibilities - it is about protecting the dignity of others, and ensuring that the exercise of one person's speech does not unreasonably come at the cost of another person's freedom.
More generally, any debate about freedom of expression needs to be conducted with a level of proportion. I have found it strange that so much passionate attention is being paid to a law that offers modest, but nonetheless important, protection for people against racial vilification. After all, we have many laws and other instruments that restrict the use of offensive language - in all sorts of social and political settings.
Let us start with our parliaments. The House of Representatives' Standing Order 89 prohibits a member from using offensive words against another member or a member of the judiciary. The Senate's Standing Order 193 states that a senator shall not use offensive words against other parliamentarians and members of the judiciary. The parliaments of NSW, Victoria, Queensland, South Australia, Western Australia, Tasmania - not to mention the assemblies of the ACT and the Northern Territory - each have standing orders addressed to the use of offensive words or language. Where, one might ask, is the public clamour calling for the repeal of these standing orders that protect politicians and judges from mere offensive language? Why is it acceptable for parliamentarians to object to merely offensive language, but not for others to object to speech that offends, insults, humiliates or intimidates because of their race?
And where is the public outrage about all the offensive language provisions that exist in the criminal summary offences legislation that exist in NSW, Queensland, Victoria, South Australia, Tasmania and the Northern Territory? If there is to be such zealous interest in freedom of expression in Australia, surely attention would be properly devoted to summary offence laws that impose fines and possible sentences of community work or imprisonment on the use of merely offensive language. In one NSW case, a man pleaded guilty to an offence under the Summary Offences Act 1988, for yelling, "Annissa Widders I love you. Annissa Widdes I f***in' love you." One man in Queensland was convicted under the public nuisance offence provision of the then Vagrants, Gaming and Other Offences Act 1931 for calling a police officer, "You f***ing c**t." In one South Australian case, a man was convicted under the Summary Offences Act 1953 (SA) for saying to a police officer, "F***ing leave him alone" and "F***ing crap."
And, if as a society, we were to identify areas of the law that may seriously impinge on our freedom of speech, why do the champions of absolutist free speech appear not to be troubled by the impact of the law of defamation? One recent defamation case resulted in $280 000 damages to a woman who was described as a "grub" and "you silly silly woman" on the 2GB radio station. Another recent case involved $160 000 damages for each of the three plaintiffs - a total of $480 000 - in relation to a restaurant review in a newspaper, where the reviewer described a number of dishes as "simply unpalatable" and restaurant as "a bleak spot on the culinary landscape."
It could just be me, but if, as a society, we accept that our parliaments should refrain from offensive language, that our laws that can result in six figure damages and criminal sanctions for even trivially offensive language, that there can be six figure damages for calling someone "silly" or for saying that a restaurant was not especially good, why should we also not hold people accountable for racial vilification that causes profound harm to individuals and families? I think we are entitled to ask why it is, exactly, that laws concerning racial vilification have been singled out for such disproportionate attention?
Let me conclude by returning to Sir Isaiah Berlin. In the spirit of proportion, I should like to make clear that I do not wish to present an unduly critical appraisal of his work, which I much admire. It is only that his acolytes do not pay attention to the nuances of his scholarship. Berlin was, ultimately, an advocate of pluralism. He believed that a monistic approach, one that privileged one value or goal over all others, was a dangerous thing. In his lecture "The Pursuit of the Ideal," Berlin made clear the inevitability of clashes between values - and also issued a warning about privileging liberty above all other values in a dogmatic manner:
"Both liberty and equality are among the primary goals pursued by human beings through many centuries; but total liberty for wolves is death to the lambs, total liberty of the powerful, the gifted, is not compatible with the rights to a decent existence of the weak and the less gifted ... Equality may demand the restraint of the liberty of those wish to dominate; liberty - without some modicum of which there is no choice and therefore no possibility of remaining human as we understand the word - may have to be curtailed in order to make room for social welfare, to feed the hungry, to clothe the naked, to shelter the homeless, to leave room for the liberty of others, to allow justice or fairness to be exercised."
I can only hope those devoted followers of Berlin have read him as closely as they would like to boast. The next time they invoke the wisdom of Sir Isaiah, let them heed his warning about the wolves devouring the lambs.
Tim Soutphommasane is Australia's Race Discrimination Commissioner and the author of, most recently, The Virtuous Citizen: Patriotism in a Multicultural Society and Don't go back to where you came from.