Over the past month there has been some fiery political rhetoric on “free speech” and the proposed amendments to the Racial Discrimination Act 1975 ‘the Act’).
The concern by the legislature to balance the prevention of racial vilification and the need to not unduly restrict freedom of speech is not novel. While Australia does not have legislation to protect the personal right to free speech (per se), it is considered a universal human right inalienable to all people. That said the right to free speech is not absolute. It must be balanced against other relevant values and interests such as dignity and equality.
Some restrictions to the right to free speech are reasonably necessary to allow every person in Australia to live peacefully and with dignity. The harms caused by racist words and conduct have been well documented. The purpose of the Act is to ensure that no person in Australia need live in fear because
of his or her race or ethnicity. The issue at hand is whether the restrictions on free speech in the Act are proportionate to serve the Act’s purpose.
The Act in its current form prohibits public acts which are reasonably likely to “offend, insult, humiliate or intimidate” other people and which are done because of their race, colour or national or ethnic origin.
To mitigate the scope of the prohibition there is a very wide exception for acts done reasonably and in good faith for purposes including fair comment on matters of public interest. This means that it is illegal to offend another person on the grounds of race unless the offence was by way of a genuine and reasonable comment on a matter of relevance to the general populace. The Abbot government is now suggesting that the bar is set too low. In Senator Brandis’ own words “people do have a right to be bigots.”
The Government wants to limit the scope of the offence to acts that are reasonably likely to “vilify” or “intimidate” on similar grounds, with vilify meaning “inciting hatred” and “intimidate” meaning “causing fear of physical harm”. Both words have been narrowly defined in the draft bill. The Human Rights Commission points out that the proposed definition of vilification “excludes conduct that is degrading”, adding that the definition of intimidation excludes “conduct causing emotional or psychological harm”.
Another proposal put forward by the Government is the introduction of an exemption for anything “spoken, broadcast, published or communicated in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter”. The proposed exemption is not qualified by reasonableness or good faith. The Human Rights Commission notes that it allows for “racist abuse [to be] offered up in the course of public discussion”.
Under the proposed exemption, holocaust denial would be legal, as would a statement that some races are genetically superior to others. How far should freedom of speech protect offensive or hurtful language? The Government is faced with the complex task of balancing the right to free speech with other freedoms. A balance needs to be found between the right to say whatever you please, and the right not to be vilified in a public place on the grounds of your skin color.
