Free speech is best medicine for the bigotry disease
Rights and Freedoms
THE proposed amendments to the Racial Discrimination Act provide the basis for correcting the legal limits of free speech, promoting pluralism, opposing reprehensible racism and highlighting the importance of responsibility.
Arguably the most important change is assessing an 18C violation based on “the standard of an ordinary reasonable member of the Australian community”. Interpretations of the current test are against the attitudes of a person in the racial or ethnic group that comments relate to.
The change may appear minor, but it resolves the issue of equality before the law, as a comment from someone inside the group can be interpreted differently to one from someone outside the group.
Similarly, as some lawyers have argued, it can result in a fait accompli because if one person is offended, or worse, then it is likely to result in a violation.
The problems of this test are compounded by the unnecessarily low bar for restricting free speech. Even most advocates for no change privately concede that removing “insult” and “offend” is justified. There are more diverse views on “humiliate”.
As one academic wrote in The Australian recently, “speech that humiliates is an attack on a person’s self-esteem and belief”.
No one should be under any doubt that self-esteem and belief are important but, like “insult” and “offend”, it is difficult for people to know what could attack such concepts, and it doesn’t mean that they should always be off-limits. Whether someone is humiliated is not straightforward. In the case of South Vietnamese refugees, being called a communist can be deeply humiliating, yet in the broader Australian community it is merely throwaway political hyperbole.
Equally, it can be humiliating for some cultures to identify that homosexuality merely exists, because it is perceived to be an abomination, despite it being a mere statement of fact in the Australian community.
The changes also recognise “racial hatred” and help meet Australia’s obligations under Article 20 of the International Covenant on Civil and Political Rights, that “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence will be prohibited by law”.
Considering the rightful sensitivity around the issue, it is important to understand what the proposed change is actually about. Free speech and acceptable conduct are incorrectly being conflated. It is not about the acceptability of racism. Amending the act is about the legal limits of free speech; racism is always unacceptable.
Free speech is not absolute, and no one is arguing it is. There is a point where it comes into conflict with other rights and should be legally curtailed.
But there is a natural tension between wanting to stamp out undesirable and harmful expressions and the need to preserve and protect free speech.
The tension between these two principles was demonstrated in Attorney-General George Brandis’s comments on Monday. He correctly identified that “people do have a right to be bigots”.
People have both a right to hold bigoted views and, to a certain extent, to express them. Even under the current version of the act, Australians can express bigoted views in private without limits.
One of the reasons we should have deference to freer speech is because bigotry comes from ignorance that does not go away if silenced, it just hides in dark corners and festers.
No law can abolish bigotry, nor is the law the solution to all of society’s ills.
But just because people have a right to be bigots, it does not mean they should be. Rights come with responsibilities, which we implicitly and explicitly exercise in myriad ways.
We have formal codes of conduct as conditions of our employment that require people to treat each other with respect.
While these codes vary, they often include ensuring that employees do not engage in offensive or harmful conduct such as making sexist, racist or homophobic comments, or do not engage in public acts that may harm the organisation’s reputation.
In the public domain, journalists have their own voluntary code of ethics through their union. This newspaper binds itself through News Corp Australia’s editorial code of conduct that requires it not to make disparaging remarks based on “race, nationality, colour, religion, marital status, sex, sexual preferences, age or physical or mental capacity”.
Codes are also common in civil society groups as a condition of membership, or in participating in sporting groups.
The Australian Football League requires that “players must refrain from making any comment that vilifies or tends to vilify persons on the basis of their race, religion, colour, sex, sexual orientation or other related characteristics”.
The AFL players’ code of conduct also includes processes for judging breaches and imposing fines and penalties.
Formal codes are not the only mechanism to regulate speech. We have social norms we conform to, including difficult language at the pub in comparison to the way we speak in front of our parents.
We enforce them by speaking up when we hear something objectionable, and choosing not to associate with those we disagree with. The marketplace also regulates speech, allowing people to boycott businesses that do the wrong thing.
Public campaigns also play an important role, such as the Australian Human Rights Commission’s “Racism. It stops with me” campaign.
Even with freer speech we all have a responsibility to ensure it is exercised properly. That includes speaking out.
Free speech is often the best medicine for the bigotry disease.
Tim Wilson is Australia’s Human Rights Commissioner. These comments are made as an individual statutory officer.