Freedom of Speech: How can it be balanced with racial vilification

Professor Gillian Triggs is the President of the Australian Human Rights Commission, taking up her appointment in 2012. She was Dean of the Faculty of Law and Challis Professor of International Law at the University of Sydney from 2007-12 and Director of the British Institute of International and Comparative Law from 2005-7. Gillian Triggs is a former Barrister with Seven Wentworth Chambers and a Governor of the College of Law. On Tuesday 26 November, Gillian Triggs addressed The Sydney Institute to discuss the relationship between freedom of speech and freedom from racial vilification.

FREEDOM OF SPEECH AND RACIAL VILIFICATION: ONE MAN’S FREEDOM ENDS WHERE ANOTHER’S STARTS

GILLIAN TRIGGS

I am pleased to have the opportunity to contribute to The Sydney Institute speakers program and to discuss two freedoms – freedom of speech and freedom from racial vilification. The Sydney Institute is one of those vital institutions that promotes a lively exchange of views on a wide range of community views.

May I acknowledge the traditional owners of the land on which we meet today and express my respect for their elders, past and present.

In politics, context and timing are everything. This election year has been a roller-coaster ride for human rights. It is a truism that, with bipartisan support for human rights, great advances can be achieved, notably the legislation for Constitutional recognition of Aboriginal and Torres Strait Islanders and the National Disability Insurance Scheme. Contested political views on fundamental freedoms can, by contrast, lead to egregious breaches of the human rights of asylum seekers, children, especially indigenous youths in adult prisons, even “bikie” gangs.

Over this last year, a passionate public debate has ensued as to whether our 1995 federal racial vilification laws place a fair restriction on the right to freedom of speech in a twenty-first century multicultural and democratic society.

In this highly charged political environment, the Opposition undertook that, if elected, they would either repeal or amend s.18C of the Racial Discrimination Act. Section 18C makes it a civil wrong to “offend, insult, humiliate or intimidate” a person in public on grounds of their race, color, national origin or ethnicity. The former opposition saw s.18C as an unreasonable restriction on the right to freedom of speech, arguing that robust, even hurtful, racial abuse is part of the cut and thrust of Australian life and our democracy.

What has prompted calls for reform?

This year we have seen racial abuse on public transport (filmed on Iphones and instantly sent “viral”). We have witnessed racial abuse on the football field and heard it on the radio. Australia granted a visa to Mr Gert Wilders to speak on Islam, despite the offence he causes to many, while Senator Xenaphon was ignominiously ejected from Malaysia, apparently because he supports free elections in that country. Debate about the civil prosecution of Andrew Bolt for his remarks about fair-skinned Aboriginal people two years ago was revisited in the debate about the Human Rights and Anti-Discrimination Bill – the ill-fated Consolidation Bill – introduced by the former government to extend protection, against offending and insulting behavior, to additional grounds such as religion, industrial history and pregnancy. Adding to a conflation of legal issues, following the Finkelstein report calling for tighter control of the media, the former government attempted, but failed, to create the office of Public Interest Media Advocate. More recently, legal action has been brought against a Sydney academic who has supported a boycott against Israel.

These are testing times for freedom of speech and the Attorney has categorised this year as a “multi-front war against the traditional liberal conception of freedom of speech”.

Since the election, the Attorney-General has repeated his intention to reform the racial hatred provision, and has indicated that he will consult before introducing a Bill to do so. As we await the precise language of the proposed reforms, it would be mere shadow boxing to explore the several options. Rather, I would like to discuss, in these calmer days of a new government, the history and aims of the racial hatred laws and to examine how they have worked in practice.

I particularly want to focus on the interplay between s18C and s18D of the Act. S18D provides a limitation on s18C to protect the freedom of expression and is a rare legislative protection for freedom of speech under Australian law. Indeed, it is curious that so little attention has been given to this provision in the debate about the adequacy of free speech protection.

May I suggest that, from a human rights perspective, s18C – qualified by s18D – has proved over the last 18 years to be a legitimate, fair and effective protection against racial abuse in public. As we shall see, the Federal courts and the High Court of Australia have applied the law in a balanced and reasonable way. Any reform to s18C and s18D should strive to maintain that balance by, first, identifying the “mischief to be prevented” and, second, drafting language to give effect to the aims of the Racial Discrimination Act 1975.

At the Australian Human Rights Commission, we have reason to know how important the prohibition of racial hatred is to the Australian community. We receive over 17,000 inquiries and conciliate over 2,000 complaints each year in respect of our legislative mandates on race, age, sex, children, disability and human rights. Of immediate relevance to the value of s18C is the 59 per cent increase in complaints we have received about racial abuse, many over the internet or social media. The recent anti-Semitic attack in Sydney, while rare, also demonstrates the need for laws to protect against racial hatred and violence.

In striking contrast, we might receive a handful of complaints a year alleging a breach of the right to freedom of speech. It clear that Australians are much more concerned about their freedom from racial abuse in public places than they are about the limitations on their freedom to speak.

In short, and with respect to Voltaire, Australia should not defend to the death those who abuse their right to freedom of speech by vilifying others in public on the ground of race. The fundamental protections provided by s18 C and s18D should be retained in any reform initiative.

What is freedom of speech?

Let us begin by looking at the nature of the right to freedom of expression.

The origins of the right to free expression, as a central component of democracy in the modern era, lie in the work of the father of liberalism, John Locke.[i] Locke influenced the adoption of freedom of speech by the First Amendment to the American Constitution; the first constitutional protection of this right … a right that is commonly understood as enabling democratic governance.

Oliver Wendell Holmes (echoing John Stuart Mill) observed that “the best test of truth is the power of the thought to get itself accepted in the competition of the market”. This core element of free speech was subsequently adopted in national constitutions and legislation, and the common law and civil courts have given flesh to this freedom on a case-by-case basis.

The international community recognised the right to freedom of expression in the 1948 United Nations Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights 1966 (ICCPR). Article 19 of the ICCPR provides that:

(2) Everyone shall have the right to freedom of expression…

 …while recognising that the right is not and never has been an absolute right. The right

 (3) …may be subject to certain restrictions, but these shall be such as are provided by law and are necessary: for respect of the rights or reputations of others, for the protection of national security or of public order or of public health or morals.

Benjamin Franklin understood as early as 1722 the need to balance the right with other freedoms. He wrote:

Without freedom of speech; which is the Right of every Man, as far as by it, he does not hurt or control the Right of another.

In practice, there are many limitations on the right to free speech in most legal systems, including Australia, in respect of consumer protection laws, defamation, copyright, contempt of court and parliament, censorship, blasphemy, child pornography, incitement to genocide or to discrimination, hostility or violence.

Article 20(2) of the ICCPR also provides that:

Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

These provisions were given greater precision by the Racial Discrimination Convention of 1966 that condemns the promotion of racial hatred and requires States to make it unlawful to disseminate ideas based on racial superiority or hatred.[ii] International law gives states a wide measure of discretion in giving effect to these legal obligations in their national laws. However, the spirit of these international obligations is to prohibit:

 …racist propaganda that undermines the dignity and self worth of target groups and contributes to disharmonious relations among racial, cultural and religious groups with the result of eroding the tolerance and open-mindedness that must flourish in a multicultural society which is committed to the idea of equality (Canadian Supreme Court in CHRC v Taylor [1990] 3 SCR 892 per Dickson CJ)

How have these legal obligations been met by Australia?

Australia has, historically, been a good international citizen. Led after the Second World War by the brilliant – if testy – Doc Evatt as President of the UN General Assembly, Australia has been an active player in drafting the human rights treaties to which we almost always become a party. Australia’s support for human rights renders it all the more curious that we have been cautious and piecemeal in implementing these rights in our national laws.

Australia is virtually unique among comparable legal systems in that it has no explicit constitutional protections for most human rights (the right to religion being a notable exception). Moreover, Australia has no human rights act or Charter as such. The government and parliament, especially through the recently created Joint Parliamentary “Scrutiny” Committee on Human Rights, play the primary role in restricting or protecting our rights. We have created a regime for the protection of human rights that is essentially a parliamentary and administrative, rather than a constitutional or legislative, one.

The right to freedom of expression is, nonetheless, protected by the common law and developed by Australian courts. As the High court has stated, under the common law:

“Everybody is free to do anything, subject only to the provisions of the law”, so that one proceeds “upon the assumption of freedom of speech” and turns to the law to discover the established exceptions to it. (Lange)

 “The common law…has its own set of constitutional rights, even if these are not formally entrenched against legislative repeal”. (Para 232 Bolt Case, Per J Bromberg).

Here then is the rub. While freedom of speech is protected by the wider principle of legality, parliament can always override that freedom by clear and unambiguous words.

Another means of achieving human rights under Australian law is through the work of the AHRC that provides access to justice to thousands of Australians at no cost to either the complainant or the person complained against. It is not widely understood that the ICCPR, while a benchmark for the work of the Commission, has not been made part of Australian law by parliament. The result is that a court is not able to apply the Convention’s right to freedom of speech, or the right not to be detained arbitrarily without charge or trial, in determining cases before them. These core human freedoms cannot be used as a sword with which to protect and enforce our rights.

Australians know they have a right to freedom of speech – a right that is undeniably an entrenched part of our culture. However, Australians are unlikely to know that we have few explicit protections for this freedom. The Constitution does not mention it and there are very few laws that do so. Rather, in the tradition of the common law, the High Court has implied a right to freedom of political communication as a necessary means of participation in a parliamentary system of representative and responsible government. (Lange v ABC 1997).[iii]

Apart from this implied right to political communication – not a full freedom of speech – few legislative protections exist. It is ironic, in the context of the debate about reform of section s8C, that s18D provides one of the few explicit protections of the right to freedom of speech in Australian law. Section s18D provides exemptions for words or behavior that are unlawful racial abuse if what was said or done was reasonable and in good faith in respect of:

• an artistic work,
• a genuine purpose in the public interest or
• publication of a fair and accurate report of public interest.

History of section 18C

Sections 18C and 18D of the Racial Hatred Bill 1995 were introduced at the request of the Australian Institute of Jewish affairs, and leaders of the Italian, Greek, Vietnamese and Chinese communities, following a National inquiry into Racist Violence conducted by HREOC, now the AHRC, the Royal Commission into Aboriginal Deaths in Custody Report in 1991 and the Report of the Law Reform Commission on Multiculturalism and the Law, the following year. The words “offend, insult, humiliate or intimidate’ were drawn from the much earlier Sex Discrimination Act of 1984.

In the second reading speech for the Bill the Attorney-General, Michael Lavarch, stated that:

It needs to be recognized that racial hatred does not exist in a vacuum … it provides a climate in which people of a particular race or ethnic origin live in fear and in which discrimination can thrive. It provides the climate in which violence may take place. It is itself a threat to the well-being of the whole community as well as to the individual or groups in the community … the bill strikes a balance between the right of free speech and other rights … of Australians … it provides a safety net for racial harmony in Australia… sends a clear warming to those who might attack the principle of tolerance.. and provides Australians who are the victims of racial hatred or violence with protection.

How has the law actually worked in practice?

The Courts have applied sections 18 C and 18D in relatively few cases.

First, the courts have held that the section is constitutionally valid and does not impose a burden on the right to freedom of political communication because it is “reasonably appropriate and adapted to serve a legitimate end …compatible with the maintenance of government under the constitution”.

Second, the courts have found that the words must be of a serious nature. Justice Kiefel said the section applied only to “profound and serious effects not to be likened to mere slights”.

Third, the test is objective based on the reasonable victim test assessed by reference to community standards and the context is taken into account.

Fourth, the words “offend, insult, intimidate and humiliate” are taken collectively and not individually.

Fifth, civil actions have been successful only in the most egregious or extreme cases, at the high end of the spectrum.  For example:

•  In Walsh v Hanson, a book by Pauline Hanson and David Etteridge suggesting the Aboriginal community was being favored by government, was determined by the court to have been published reasonably and in good faith for a genuine purpose in the public interest, namely political debate about the fairness of the distribution of social welfare benefits in the Community.

• In Kelly-Country, a standup comedian played an Aboriginal character called King Billy Cokebottle as a grotesque caricature. The Court found that, in the context of a comedy performance where the aim is to give offence or make jokes at the expense of someone in the community, the offence was, in the context, not out of proportion and was reasonable.

• Similarly in Hagen v Toowoomba Sports Ground Trust the Court found the naming of the “ES Nigger Brown” stand was not an offensive racist act within the meaning of s 18C because the context was one in which the word was a fond nickname and the aim was to honor not vilify.

• By contrast, in Campbell and Kirstenfeldt, a white woman was found to breach S18C for calling her neighbor racist names and telling her to go “back to the scrub where you belong”.

• In the Jones v Tobin litigation, Dr Tobin was held to be in breach of s18C for publishing anti-Semitic material on the world-wide web denying the holocaust. This was the first time that s18C had been applied to the internet and is likely to be repeated in the future, as many of the race abuse complaints we receive are via social media and the internet.

• In Coleman v Power (2004), the High Court found that allegations by a law and politics student the Queensland police are “corrupt” are protected by the implied constitutional freedom of political communication. Quashing his conviction for using “insulting words”, CJ Gleeson observed that “one person’s freedom ends where another person’s right begins” [at 32]. He gave the example of a mother who takes her children to the park and supposes that they are exposed to threats, abuse and insults on the ground that they are immigrants to Australia. He asks:

“Why should the family’s right to the quiet enjoyment of a public space necessarily be regarded as subordinate to the abuser’s right to free expression of what might be generously described as political opinion? The answer necessarily involves striking a balance between competing interests.”

•  In Bropho’s case (2004) the Federal Court considered a cartoon entitled “Alas poor Yagan” published by West Australian Newspapers Ltd depicting the head of an Aboriginal leader that had been returned to Australia from a graveyard in Liverpool. The head – in a thought bubble – expressed the desire to be returned to England to avoid acrimony within the Aboriginal community. The Court upheld the views of the AHRC that the cartoon violated s18C, but was exonerated on the ground that it was published in good faith as an artistic work or for a genuine purpose in the public interest. The court upheld the right to freedom of expression, despite evidence that the cartoon offended the Indigenous community.

• The cause celebre stimulating calls for reform is the much discussed and misunderstood decision in Eatock v Bolt in 2011. The Federal Court found that Andrew Bolt had breached s18C in reporting that prominent fair-skinned Aboriginals of mixed heritage had falsely identified as Aboriginal to claim various benefits available only to Aboriginal people. The Court reached two vital conclusions. First, Mr Bolt had written a report that was reasonably likely to “offend, insult, humiliate or intimidate” a person in public “on the basis of his race, color or national or ethnic origin”, contrary to section 18C. Secondly, the Court applied section 18D that ensures artistic works, scientific debate and fair comment are exempt from prosecution. He could not claim the benefit of free speech because he had not acted reasonably or in good faith and because his report was neither fair nor accurate. In short, Mr Bolt’s right to freedom of speech was restricted because his journalism was an abuse of that right.

• The Federal Court judge in the Bolt case was careful to make clear that his findings were not that it is unlawful to challenge the sincerity of Aboriginal self-identification to be eligible for welfare benefits. Rather, he found a contravention of s18C had occurred because of the manner in which the subject matter had been dealt with.

• In a case earlier this year, Monis v The Queen (2013), the courts considered similar legislation to s18C that prohibits the use of the Commonwealth postal services in a way that a reasonable person would regard as “menacing, harassing or offensive”. The two accused had sent letters to the families of Australian soldiers killed in Afghanistan that were found to be “denigrating and derogatory”. The Court of Criminal Appeal convicted the accused, the Chief Justice stressing that the word “offensive” requires a strong reaction, anger, rage, distrust or hatred.  On appeal to the High Court, counsel argued that the letters merely expressed political opposition to the war in Afghanistan and should be protected by freedom of speech. If it can happen it will. The High Court was split on the question whether the law placed an unreasonable burden on the right to political communication and the lower court conviction was confirmed.

What do these cases tell us about how s18C and similar laws are applied?

The Australian courts have endorsed the importance of freedom of speech as a vital right in our multicultural society. This freedom has been qualified in very narrow circumstances, by requiring its reasonable exercise. Actions under s18C have succeeded only where the offending words are deeply offensive on an objective test of the reasonable person in all the circumstances. In doing so, the courts have readily understood that freedom of expression can work:

… to undermine our commitment to democracy where employed to propagate ideas anethemic to democratic values. Hate propaganda works in just such a way; arguing as it does for a society on which the democratic process is subverted and individuals are denied respect and dignity simply because of [racial or] religious characteristics. (Canadian SC, Keegstra, Bolt para 239)

Where a court has found the words or acts to be unlawful, a strong message, both real and symbolic, has been made that racial vilification will not be tolerated and that the undoubted right to speak freely may not be abused. The freedoms of countless racial and ethnic communities in Australia to enjoy public spaces in peace have been protected at the cost of restricting the right to speak of a few.

A recent statement by leaders from the Indigenous, Jewish, Arab speaking, Chinese, Vietnamese, Lebanese and Armenian communities stated that “racism is not free speech”. They noted that “paradoxically for free speech advocates, racial vilification can have a silencing effect on those who are vilified”.

To test whether we have the balance right we might look at the society we would have were we to reverse the court findings. If there were no s18C, Bolt would have been able to make, with impunity, what the Court found to be inaccurate statements in bad faith, regardless of their effect on Aboriginal people; the holocaust could be denied regularly and abusive letters to the families of our war dead could be freely posted. I suggest that this is not a vision of Australia we want to promote and is one that would be positively harmful to our successful multicultural society.

Of course it is legitimate for a newly elected government to consider whether the correct balance has been achieved between different human rights. But it remains vital that the right of all Australians to be free from racial violence and abuse in the public arena is maintained while limiting in the narrowest way possible their right to freedom of expression.

In the absence of reform proposals, it is premature to discuss the many drafting options for reform that have been suggested.[iv] The Australian Human Rights Commission welcomes the public debate and encourages the Attorney General in his consultations with those most vulnerable to racial abuse in our community – Aboriginal and Torres Strait Islanders, and ethnic groups including the Chinese, Indians, Lebanese and North Africans, Jews and Muslims.

The right to freedom of speech is a fragile flower, protected by our courts. The Commission has long argued for Commonwealth legislation to protect our fundamental freedoms, including the right to free speech.

A balance can be achieved between the common law right to freedom of expression and the right to enjoy public spaces free of racial abuse. Most Australians understand the need for a balance of freedoms and accept that this a balance may need to be recalibrated over time to reflect community concerns.

Race hatred laws have been one of the vital foundations for our enviable multicultural society.  If we decide to reform sections 18 C and 18 D, we should do so with care and on the basis of objective evidence, mindful of their symbolic value that underpins our vibrant and free democracy.