Striking the right balance on free speech

A former Human Rights Commissioner, Sev Ozdowski, has asked whether the Racial Discrimination Act impinges on freedom of expression under international law.

It’s an interesting question with a clear answer. International law offers a sensible pathway to resolving the current debate about section 18C of the Racial Discrimination Act.

Freedom of expression is enshrined in article 19 of the International Covenant on Civil and Political Rights. But article 19 isn’t absolute. It can be restricted, for example, to protect the “rights and reputations of others”. Article 19 also has to be read alongside article 20, which prohibits “advocacy of national, racial or religious hatred”.

In other words, Australia’s racial vilification law (section 18C) sits at the intersection of competing human rights.

Human rights frequently come into conflict in international law. Lawyers typically adopt a common-sense approach in resolving such conflict: they search for a middle ground that protects individual dignity while impinging no more than absolutely necessary on any individual right.

That principle – known as ‘proportionality’ – applies in almost every Westminster-inspired liberal democracy. It’s a time-tested bulwark against extremism.

So, how does that principle apply here?

A law prohibiting racial vilification unquestionably impinges on free speech. Its rationale is that the harm of the worst of this speech is greater than its value.

The leading Australian case on section 18C helps to show why. It concerned a persistent attempt to deny the core facts of the Holocaust, and allegations of some kind of Jewish conspiracy to exaggerate the number of Jews killed and the circumstances in which they were killed.

Anti-Semitism can feed off this sort of untruth. For example, many will remember two years ago that a group of Jewish primary school children in Sydney were subjected to anti-Semitic abuse, including “all Jews must die”, “Heil Hitler” and “we’re going to slit your throats”.

Some members of the community believe the law is operating well. Others have expressed concern that the law restricts robust discussion on questions of race.

The Human Rights Commission is always open to measures that would improve human rights law. In the first instance, the Commission could exercise a power to issue guidance, explaining the delicate balance the Australian courts have struck in interpreting the legal meaning of section 18C. Looking at section 18C in its broader context, the courts have said that the law only prohibits acts that cause ‘profound and serious effects, not to be likened to mere slights’.

When a person believes that section 18C has been violated, they can ask the Human Rights Commission to help conciliate that complaint. The Commission doesn’t sit in judgment; it simply tries to help everyone involved to come to a satisfactory outcome.

The Commission takes this role seriously and has a very high satisfaction rate – from complainants and respondents. But the Commission has long advocated changes to the Australian Human Rights Commission Act to facilitate the Commission dealing more quickly and fairly with clearly unmeritorious complaints.

Clarifying the operation of section 18C and the exemptions in section 18D, as well as improving the process for dealing with unmeritorious complaints, would improve the protection of free speech without condoning racial vilification.

While the parliamentary inquiry’s main focus is on the Racial Discrimination Act, Attorney-General George Brandis also asked the committee to consider free speech more broadly – especially in light of the Australian Law Reform Commission’s recent report on traditional rights and freedoms.

Our law restricts speech in areas as diverse as defamation, copyright, patents, privacy, incitement to violence, sedition and treason. In 2014, my predecessor, Tim Wilson, identified a number of community concerns about free speech. In particular, he referred to anti-protest laws and restrictions on media freedom.

These laws need the same level of robust scrutiny, on free speech grounds, that the parliamentary committee will give to section 18C of the Racial Discrimination Act.

While the current debate is fierce, I’m pleased we’re having it in Australia where there’s a deep, abiding political and community consensus that we should respect people’s basic rights.

When Australians disagree on human rights issues, it’s almost never a winner-takes-all contest where protecting the rights of one group involves trampling the rights of another. Instead, the focus tends to be about striking the right balance.

If we want, we can choose to embrace free speech or reject racial vilification. But those aren’t the only choices.

A middle path that gives voice to each of these human rights is available. And we should take it.

Photo: Flickr